United States District Court, D. Arizona
A. Teilborg Senior United States District Judge
before the Court is the Report and Recommendation
("R&R") of the Magistrate Judge recommending
that the Petition for Writ of Habeas Corpus in this case be
denied. (Doc. 32). Petitioner, through counsel, has filed
objections. (Doc. 33).
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) (emphasis in original); Schmidt v. Johnstone,
263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) ("Following
Reyna-Tapia, this Court concludes that de novo
review of factual and legal issues is required if objections
are made, 'but not otherwise.'"); Klamath
Siskiyou Wildlands Ctr. v. U.S. Bureau of LandMgmt., 589
F.3d 1027, 1032 (9th Cir. 2009) (the district court
"must review de novo the portions of the [Magistrate
Judge's] recommendations to which the parties
object."). 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); see also 28 U.S.C. §
636(b)(1) ("the court shall make a de novo determination
of those portions of the [report and recommendation] to which
objection is made."). Accordingly, the Court will review
the portions of the R&R to which Petitioner objected de
Petition in this case was filed under 28 U.S.C. § 2254
because Petitioner is incarcerated based on a state
conviction. With respect to any claims that Petitioner
exhausted before the state courts, under 28 U.S.C.
§§ 2254(d)(1) and (2) this Court must deny the
Petition on those claims unless "a state court decision
is contrary to, or involved an unreasonable application of,
clearly established Federal law" or was based on an
unreasonable determination of the facts. See Lockyer v.
Andrade, 538 U.S. 63, 71 (2003). In applying
"Federal law" the state courts only need to act in
accordance with Supreme Court case law. See Carey v.
Musladin, 549 U.S. 70, 74 (2006). This Court must
presume the correctness of the state court's factual
findings regarding a petitioner's claims. 28 U.S.C.
§ 2254(e)(1); Ortiz v. Stewart, 149 F.3d 923,
936 (9th Cir. 1998).
Factual and Procedural Background
R&R recounts the factual and procedural background of
this case. (Doc. 33 at 1-3). Neither party has objected to
this summary; the Court hereby accepts it.
discussed in the R&R, Petitioner is serving a 129 year
aggregate sentence for various crimes, and a consecutive life
sentence with the possibility of release after 25 years for a
first degree murder conviction. (Doc. 32 at 2). Petitioner
argues that his 154 years to life aggregate sentence is the
functional equivalent of a life without parole sentence.
(Doc. 33 at 3). Petitioner argues that such a sentence
violates Graham v. Florida, 560 U.S. 48 (2010) and
Miller v. Alabama, 567 U.S. 460 (2012). (Doc. 32 at
presented this claim to the Arizona Courts and the Arizona
Courts denied relief. (Id. at 3). Thus, as discussed
above, this Court can only grant relief if the Arizona
Court's decision was contrary to or an unreasonable
application of Federal law (as determined by the Supreme
R&R recounts, there are splits among the circuits as to
whether a "functional equivalent" sentence
qualifies for relief under Miller (Doc. 32 at 10)
and open questions as to whether Graham has any
applicability to homicide cases (Doc. 32 at 7-8). Given that
there is no directly applicable Supreme Court case law, and
splits among the lower courts, the R&R concludes:
Because there is no clearly established Supreme Court
precedent holding that an aggregate sentence that is
functionally equivalent to life imprisonment without the
possibility of parole violates the Eighth Amendment, the
Arizona Court of Appeals' decision is not contrary to or
based on unreasonable application of clearly established
Supreme Court precedent. See Harrington v Richter,
562 U.S. 86, 101 (2011) (stating that '[i]t is not an
unreasonable application of clearly established Federal law
for a state court to decline to apply a specific legal rule
that has not been squarely established by [the Supreme
(Doc. 32 at 10) (additional citations omitted).
objects to this conclusion. First he argues that the 129 year
portion of his sentence (the non-homicide) portion, violates
Graham, and that the Ninth Circuit Court of Appeals
decision in Moore v. Biter,725 F.3d 1184 (9th Cir.
2013) compels this Court to conclude that Petitioner's
sentence violate Graham. Both Moore and
Graham involved non-homicide crimes. However, here,
Petitioner's total sentence includes a homicide ...