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Laird v. Ryan

United States District Court, D. Arizona

August 29, 2018

Kenneth Jeremy Laird, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          James A. Teilborg Senior United States District Judge

         Pending 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).

         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) (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 novo.

         The 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).

         II. Factual and Procedural Background

         The 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.

         III. Discussion

         As 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 1).

         Petitioner 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 Court).

         As the 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 Court].")

(Doc. 32 at 10) (additional citations omitted).

         Petitioner 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 ...


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