Clark v. Ryan

          REPORT AND RECOMMENDATION

          Leslie A. Bowman, United States Magistrate Judge

         Pending before the court is a petition for writ of habeas corpus filed on September 11, 2018, by Leland Harris Clark, an inmate currently held in the Arizona State Prison Complex in Florence, Arizona. (Doc. 1)

         Pursuant to the Rules of Practice of this court, the matter was referred to Magistrate Judge Bowman for report and recommendation. LRCiv 72.2(a)(2).

         The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order denying the petition. Clark's two claims are procedurally defaulted.

         Summary of the Case

         Clark was convicted after pleas of guilty in Pinal County Superior Court to drug possession in CR2015-03807, credit card theft in CR2016-00086, and burglary in CR2014-02645. (Doc. 16, p. 1) On July 19, 2016, Clark was sentenced to 4.5 years' incarceration in the drug possession case and 1.5 years in the credit card theft case, sentences to run concurrently to each other and concurrently with a sentence imposed in a separate Maricopa County case, failure to register as a sex offender. (Doc. 16, p. 8); (Doc. 16-1, pp. 120-121, 148-149) Clark received no presentence incarceration credit for either case. Id. At the same time, Clark was sentenced to a 5-year period of supervised probation in the burglary case. (Doc. 16, p. 8) (Doc. 16-1, pp. 96-98) The sentence was run consecutively to the sentences for drug possession, credit card theft, and the Maricopa County case. Id. It appears that Clark received 117 days of presentence incarceration credit in the burglary case. Id.; (Doc. 16-1, pp. 84-85)

         On August 9, 2016, Clark filed notice of post-conviction relief (PCR) in the drug possession case and the credit card theft case^[1]. (Doc. 16-1, pp. 169-171) That same day, he filed a PCR petition in which he argued he was entitled to 117 days of presentence incarceration credit for the drug possession case because he was given 117 days of credit for the burglary case. (Doc. 16-1, pp. 173-176) On December 15, 2016, appointed PCR counsel advised the court that she could find no meritorious issues to raise. (Doc. 16-1, p. 182)

         Clark filed a pro se PCR petition on January 9, 2017. (Doc. 16-1, p. 185) He argued that the 117 days of presentence credit should have been applied to his drug possession and credit card theft sentences. (Doc. 16-1, p. 185) The trial court denied the PCR petition on April 7, 2017, finding “no error in the time credit calculation.” (Doc. 16-1, p. 202) Clark did not seek review from the Arizona Court of Appeals. (Doc. 16, p. 10); (Doc. 16-2, p. 104)

         On November 8, 2017, Clark filed a second notice of PCR in the drug possession and credit card theft cases. (Doc. 16-2, p. 28) He filed a PCR petition on the same day in which he argued 105 days of sentencing credit should have been applied to his drug possession/credit card theft cases and not his burglary case. (Doc. 16-2, pp. 32-38); (Doc. 16-2, p. 104) On November 20, 2017, the trial court denied the petition. (Doc. 16-2, p. 40)

         Clark filed a petition for review on December 12, 2017. (Doc. 16-2, pp. 59-62) On May 25, 2018, the Arizona Court of Appeals granted review but denied relief because the petition was untimely and successive. (Doc. 16-2, pp. 103-105) Clark filed a petition for review with the Arizona Supreme Court on June 27, 2018. (Doc. 16-2, pp. 111-122) That court denied the petition without comment on August 24, 2018. (Doc. 16-2, p. 130)

         Clark filed a third PCR notice on December 13, 2018. (Doc. 16-2, pp. 132-134) He filed a petition the same day arguing he was entitled to 257 days of jail credit when the Maricopa Case was dismissed so that credit should be applied to the drug possession and credit card theft cases. (Doc. 16-2, pp. 136); (Doc. 16-2, p. 141) (“On March 30, 2018, 766 days after sentencing the State moved to dismiss” the Maricopa County case.) On January 9, 2019, the trial court denied the petition because presentence incarceration credit can only be applied once where consecutive sentences are imposed. (Doc. 16-2, pp. 141-142) Clark filed a petition for review on January 22, 2019. (Doc. 16-2, p. 168) Neither party has informed the court whether a ruling has been issued.

         Previously, on September 11, 2018, Clark filed the pending petition for writ of habeas corpus in this court. (Doc. 1) He claims (1) trial counsel was ineffective for failing to investigate and present evidence that he was entitled to 105 days of presentence credit and (2) the trial court failed to hold an evidentiary hearing to determine if he was due 105 days of presentence credit. Id. Clark asserts that his claims were presented to the Arizona Court of Appeals in his second PCR petition. (Doc. 1, pp. 6, 7) The court assumes without deciding that both claims are cognizable in a habeas corpus proceeding.

         The respondents filed an answer on March 7, 2019, arguing, among other things, that Clark's two claims are procedurally defaulted. (Doc. 16) Clark filed a reply on March 18, 2019 in which he argues he is entitled to 105 days of presentence credit because that time was never credited to any of ...