United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable D. Thomas Ferraro United States Magistrate Judge.
Alexander E. Smith (Smith or Petitioner), presently confined
in the Arizona State Prison Complex, Huachuca Unit in
Kingman, Arizona filed a pro se Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 (Petition).
(Doc. 1.) This matter was referred to Magistrate Judge
Ferraro for Report and Recommendation. (Doc. 5.)
the Court are the Petition and Respondent's Answer to
Petition for Writ of Habeas Corpus (Answer). (Docs. 1, 16.)
The Court granted Petitioner's request to have until
November 13, 2019 to file a reply. (Docs. 21, 22.) As of the
date of this Report and Recommendation, no reply has been
filed. See Dkt. As more fully set forth below, the
Magistrate Judge recommends that the
district court, after its independent review,
dismiss the Petition.
August 4, 2016, Petitioner was indicted by a Cochise County
grand jury on six counts of sexual conduct with a minor, two
counts of molestation of a child and one count of luring a
minor for sexual exploitation. (Doc. 17 at 3-6.) On November
16, 2016, Petitioner pleaded guilty in the Arizona Superior
Court, Cochise County to two counts of attempted sexual
conduct with a minor. Id. at 8-45. On January 18,
2017, the trial court sentenced Petitioner to the minimum
term of five (5) years' imprisonment in the Arizona
Department of Corrections on the first count of attempted
sexual conduct with a minor followed by lifetime probation on
the second count of attempted sexual conduct with a minor.
(Doc. 17 at 47-99.)
April 10, 2017, Petitioner filed a notice of post-conviction
relief (PCR). Id. at 102-04. On January 10, 2018,
Petitioner's PCR counsel filed a notice of finding no
colorable claim for PCR relief and a motion to withdraw as
counsel, stating that counsel “has completed his
reviews of the file, investigation, and research as required,
and has found no colorable claims for post-conviction relief
which can be raised on [Petitioner's] behalf.”
Id. at 106-07.
April 2, 2018, Petitioner filed a pro se petition
for PCR relief claiming (1) that the trial court breached the
plea agreement and violated his due process rights by
imposing a flat term of incarceration; (2) that Arizona's
lifetime probation statute was unconstitutionally vague in
violation of the due process clause of the United States
Constitution; and (3) that counsel was “ineffective for
failing to detect that the enhanced sentence violated the
Eighth Amendment.” Id. at 109-10.
April 5, 2018, the trial court dismissed Petitioner's PCR
petition concluding “there are no colorable issues for
relief raised.” Id. at 123.
15, 2018, the state filed a response to Petitioner's PCR
petition advising that Petitioner was “in fact
receiving earned release credits and that he is eligible for
release on November 19, 2020, after serving 85.7% of his
time.” The state also indicated that it would not
object “to the Court amending the minute entry or
resentencing [Petitioner] to reflect that [Petitioner] is not
serving a day for day or ‘flat time'
sentence.” (Doc. 18 at 3.)
29, 2018, the trial court issued an order granting
Petitioner's PCR petition to reflect the state's
concession to 85.7% time. Id. at 9.
18, 2018, Petitioner filed a petition for review with the
Arizona Court of Appeals, arguing that (1) the state court
abused its discretion by summarily dismissing his PCR
petition; (2) Arizona's lifetime probation provision is
unconstitutionally vague in violation of the adequate notice
and due process clause of the United States Constitution; and
(3) his counsel was ineffective “for failing to detect
that the enhanced sentence contained within the plea violated
[his] Eighth Amendment rights.” Id. at 11-12.
September 14, 2018, the Arizona Court of Appeals granted
review but denied relief holding:
Under § 13-902(E), after a conviction on enumerated
offences, and when probation is available, ‘probation
may continue for a term of no less than the term that is
specified in subsection A … up to and including life
and that the court believes is appropriate for the ends of
justice.' In [State v.] Schmidt [220
Ariz. 563 (2009)], our supreme court determined that
‘[u]se of the catch-all [aggravating circumstance] as
the sole factor to increase a defendant's statutory
maximum sentence violates due process because it gives the
sentencing court virtually unlimited post hoc discretion'
in characterizing a defendant's past conduct as the
‘equivalent of an element of the aggravated
offense.' 220 Ariz. 563, ¶ 10. Schmidt then
distinguished however, ‘between a trial court's
using a catch-all aggravator to increase a defendant's
maximum potential sentence versus the court's considering
factors embraced by a catch-all in imposing a sentence within
a properly determined maximum range.' Id. ¶
11. […] Thus, the application of § 13-902(E) is
equivalent to a court's considering catch-all factors to
determine a sentence within the maximum range - the situation
we distinguished in Schmidt. 220 531, ¶ 10. We
therefore find no error in the court's order of lifetime
Smith also argues he received ineffective assistance in that
trial counsel failed ‘to detect the enhanced sentence
violated the Eighth Amendment.' […] He has
provided no evidence and cited no authority to support his
argument that counsel's failure to assert a claim of
cruel and unusual punishment as to such a sentence fell below
prevailing professional norms.
(Doc. 18 at 29-30.) Petitioner did not seek review in the
Arizona Supreme Court. On March 14, 2019, the Arizona Court
of Appeals issued its mandate. Id. at 32.
November 13, 2018, Petitioner filed his Petition alleging two
grounds for relief. (Doc. 1.) In Ground One, Petitioner seeks
relief on the grounds that the trial court's imposition
of a lifetime probation violates his rights under the due
process clause of the Fourteenth Amendment because the
statute is unconstitutionally vague. Id. at 6. In
Ground Two, Petitioner seeks relief claiming that he was
denied the right to effective assistance of counsel in
violation of his Sixth Amendment rights. Id. at 7.
filed an Answer arguing that the claim alleged in Ground One
is non-cognizable on habeas review and that the claim alleged
in Ground Two was waived by Petitioner when he entered the
plea agreement. (Doc. 16.) Respondents also argue that both
grounds for relief are without merit. Id.
discussed below, this Court agrees with Respondents.