United States District Court, D. Arizona
PAUL G. ROSENBLATT, District Judge.
Hiland is an Arizona state prisoner who was convicted pursuant to a guilty plea of theft, in violation of A.R.S. § 13-1802, and fraud schemes, in violation of A.R.S. § 13-2310. The state trial court imposed a sentence of nine years of imprisonment for the theft conviction, and a consecutive sentence of seven years of probation for the fraud schemes conviction. Hiland filed a Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody in which he challenges his conviction and sentence. The Magistrate Judge issued a Report and Recommendation ("R&R") (Doc. 29) recommending that the Petition be denied. Hiland has filed objections to the R&R (Doc. 32). For the reasons set forth below, the Court will over rule Hiland's objections, will adopt in part the R&R, and will deny the Petition.
A. Ground Two
In Ground Two of his Petition, Hiland argues that "he was convicted on the basis of a guilty plea that was the product of ineffective assistance of counsel." (Doc. 1 at 7, 15-16.) Hiland does not deny that he has procedurally defaulted Ground Two because he failed to raise it in his PCR proceeding, but objects to the R&R's conclusions that he has failed to show cause and prejudice to overcome his procedural default. (Doc. 32 at 2-6.)
Under Martinez v. Ryan, 132 S.Ct. 1309 (2012), "a procedural default by state PCR counsel in failing to raise trial-counsel IAC is excused if there is cause' for the default." Dietrich v. Ryan, 740 F.3d 1237, 1244 (9th Cir. 2013). To demonstrate such "cause, " a petitioner must show, among other things, that the trial counsel IAC claim is a "substantial" claim. Martinez, 132 S.Ct. at 1318-19. Hiland contends that he met this requirement. He contends that his trial counsel IAC claim is "substantial" because his trial counsel advised him to enter a guilty plea to both theft and fraud schemes even though a conviction and sentence on both of these offenses violates the Double Jeopardy Clause. (Doc. 32 at 3.)
The Double Jeopardy Clause protects "an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense." Missouri v. Hunter, 459 U.S. 359, 365 (1983) (quotation marks and citations omitted). Because Hiland was convicted of both of the offenses in a single proceeding, his "right to be free from multiple trials for the same offense" is not implicated. Id. Rather, at issue is the imposition of cumulative sentences in a single proceeding.
"With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Id. at 366. Thus, "where the offenses are the same... cumulative sentences are not permitted unless elsewhere specially authorized by" the legislature. Whalen v. United States, 445 U.S. 684, 693 (1980). Where the legislature intended "to impose multiple punishments, imposition of such sentences does not violate the Constitution." Albernaz v. United States, 450 U.S. 333, 344 (1981).
The Arizona legislature has provided notice of its intent to allow multiple punishments for the same act. See A.R.S. § 13-116 ("An act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent.") Assuming that theft and fraud schemes are the "same" for double jeopardy purposes,  imposition of cumulative sentences in the same trial is authorized by the legislature and does not, therefore, violate the Double Jeopardy Clause. Accordingly, Hiland's claim - that his trial counsel was ineffective because he advised Hiland to enter guilty pleas that violated Hiland's rights under the Double Jeopardy Clause - is not a "substantial" claim, and Hiland has failed to meet his burden of demonstrating cause for his procedural default of Ground Two. Ground Two is therefore dismissed.
B. Ground Five
In Ground Five of his Petition, Hiland contends that the trial court's imposition of consecutive sentences for his convictions for theft and fraud schemes violates the Double Jeopardy Clause. (Doc. 1 at 19-20.) He objects to the R&R's recommendation to dismiss Ground Five as unreviewable in habeas. He contends that Ground Five is reviewable in habeas because the state court's decision to impose consecutive sentences involves "an unreasonable determination of the facts and an unreasonable application of clearly established federal law." (Doc. 32 at 13.)
In determining that the sentences for theft and fraud schemes could be run consecutively rather than concurrently under state law, the sentencing judge determined:
The misrepresentations of the information [for the fraud] is different than the theft of the items that are taken, ... the crux of a fraud case is the misrepresentation. The crux of the theft case is actually the taking....
.... I looked at the State versus Gordon analysis... [and an unpublished case from toward the end of 2008].... [T]he theory of it is equally applicable here as it was in that particular case, distinguishing between the offense of fraudulent schemes and artifices and a theft count. And it is true that the shared characteristic of that is victims of the theft count may also be victims of the fraud count. But that case law supports consecutive sentencing.
(Doc. 16-5 at 140-141.) Thus, the sentencing judge determined that "these are not the same elements and that consecutive sentencing is ...