Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Meinhardt v. Escapule

United States District Court, D. Arizona

September 27, 2016

Kenneth D. Meinhardt, Petitioner,
v.
Laura Escapule, et al., Respondents.

          ORDER

          Hon. G. Murray Snow, United States District Judge.

         Pending before the Court are Petitioner Kenneth D. Meinhardt's (“Petitioner”) First Amended Petition for Writ of Habeas Corpus (“Petition”), (Doc. 8), and United States Magistrate Judge Eileen S. Willett's Report and Recommendation (“R & R”), (Doc. 20.) The R & R recommends that the Court dismiss the Petition without prejudice. (Doc. 8 at 9.) Petitioner filed a timely objection to the R & R. (Doc. 18.) Thus, the Court will make a de novo determination of those portions of the R & R to which an objection is made. 28 U.S.C. § 636(b)(1); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). For the following reasons, the Court accepts the R & R and dismisses the Petition without prejudice.

         BACKGROUND

         The R & R sets forth a detailed factual and procedural background of this case, to which neither party objected. The Court therefore adopts this background as an accurate recital, but will provide a brief summary here.

         Petitioner was convicted of three counts of armed robbery, and pled guilty to a fourth count on the same charge, in Maricopa County Superior Court in 2001. (Doc. 18-1 at 79-80.) From the beginning, there appears to have been some confusion about the exact relationship of Petitioner's sentences on each count. In July 2002, the Arizona Court of Appeals summarized the trial court's sentence as “a presumptive 15.75-year term on Count 2 consecutive to the sentences on Counts 3 and 5 and a concurrent, aggravated 16-year term on Count 1.” (Id.) In a subsequent proceeding in August 2003, the Court of Appeals clarified that the sentences on Counts 1, 2, and 3 were concurrent, with the sentence on Count 5 to be served consecutively to the sentence on Count 3. (Id. at 130-37.)

         Petitioner in 2011 filed a “Writ of Habeas Corpus for Collateral Relief and Motion to Issue Corrected Sentencing Order to the Arizona Department of Corrections” in Maricopa County Superior Court. (Id. at 151-55.) Petitioner asserted that his inmate records incorrectly indicated that his sentences were all to be served consecutively, when in reality only one sentence should be consecutive to the three concurrent sentences. (Id. at 153.) In the resulting proceeding, the State asserted, apparently erroneously, that Petitioner's sentences were all to be served concurrently, thus giving Petitioner a release date of September 13, 2014. (Id. at 161.) The court accepted the State's assessment and ruled accordingly. (Id. at 164.) But at some point (alleged by Petitioner to be September 5, 2014, (Doc. 8 at 15)), the State recalculated Petitioner's sentence. In a “Notice of Sentence Recalculation” filed on November 5, 2014, the State informed the court that it had caught its prior error and that Petitioner's release date should be April 26, 2027. (Doc. 18-1 at 167-68.) The court adopted the new sentencing structure. (Id. at 170.)

         Petitioner challenged the sentence adjustment in the trial court on December 11, 2014. (Id. at 172-93.) The following day, December 12, 2014, Petitioner filed his initial habeas petition in this Court. (Doc. 1.) As amended, the Petition asserts that Petitioner is entitled to relief based on res judicata, Fifth Amendment due process, double jeopardy, lack of jurisdiction, and the Eighth Amendment. (Doc. 8 at 6-9.)

         DISCUSSION

         I. Legal Standard

         This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). District courts are not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985).

         II. Analysis

         Petitioner does not specifically object to much of the R & R. He does not dispute what the magistrate judge found dispositive: that Petitioner has not exhausted his state court remedies. Petitioner does, however, specifically object to four particular points, about which the Court will therefore undertake a de novo review.

         First, Petitioner argues that the magistrate judge erred in finding that the Petition was brought under 28 U.S.C. § 2254, rather than 28 U.S.C. § 2241. Petitioner contends that because his sentence has (or should have) ended, he is no longer “a person in custody pursuant to the judgment of a State court” under § 2254. Instead, he argues, he is merely “in custody in violation of the Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2241. In support of this, Petitioner cites Stow v. Murashige, 389 F.3d 880 (9th Cir. 2004). In Stow, the Ninth Circuit held that a prisoner in custody pending retrial after a vacated conviction was not “in custody pursuant to the judgment of a State court” under § 2254. 389 F.3d at 886-88. The Ninth Circuit explained that after Stow's conviction was vacated, Stow “had yet to be lawfully convicted of any . . . charged offense, ” meaning there was no judgment to base his custody on. Id. at 888. Petitioner contends that he, likewise, is in custody in the “absence of [a] state court judgment” because of the “expiration” of his sentence. But Ninth Circuit precedent does not support equating the two. See White v. Lambert, 370 F.3d 1002, 1005-06 (9th Cir. 2004) (noting that § 2254 applies so long as “‘the person is in custody pursuant to the judgment of a state court, and not in state custody for some other reason, such as pre-conviction custody, custody awaiting extradition, or other forms of custody that are possible without a conviction'” (quoting Walker v. O'Brien, 216 F.3d 626, 633 (7th Cir. 2000))), overruled on other grounds by Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010). Petitioner is in custody as a result of a conviction, and the magistrate judge was correct in concluding that Petitioner's petition is properly brought under § 2254.

         Second, Petitioner argues that “[e]ven if, in some hallucinogenic logic § 2254 were to be applied, exhaustion and procedural bar would be found to be waivable as non-jurisdictional.” (Doc. 21 at 5.) Petitioner is correct in noting that exhaustion and procedural bar are not jurisdictional. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). In some circumstances, as demonstrated by the cases Petitioner cites, courts will find that a prisoner has exhausted his state remedies when he has not explicitly re-pled his claims at every level of review, or that a prisoner is not procedurally barred thanks to action by the State. See Sandgathe v. Maass, 314 F.3d 371, 376-78 (9th Cir. 2002) (finding petitioner exhausted state remedies even without explicitly asserting federal claims in appellate proceedings); Robinson v. Ignacio, 360 F.3d 1044, 1053-54 (9th Cir. 2004) (finding no procedural bar when petitioner reasonably relied on government's pleadings in choosing not to raise certain issues). But these cases do not apply to Petitioner's situation. The issue is not whether he preserved his federal claims throughout the state post-conviction ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.