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Smith v. Shinn

United States District Court, D. Arizona

November 25, 2019

Alexander E Smith, Petitioner,
v.
David Shinn, et al., Respondents.

          REPORT AND RECOMMENDATION

          Honorable D. Thomas Ferraro United States Magistrate Judge.

         Petitioner 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.)

         Before 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.

         BACKGROUND

         On 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.)

         On 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.

         On 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.

         On April 5, 2018, the trial court dismissed Petitioner's PCR petition concluding “there are no colorable issues for relief raised.” Id. at 123.

         On May 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.)

         On May 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.

         On June 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.

         On 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 probation. […]
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.

         On 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.

         Respondents 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.

         As discussed below, this Court agrees with Respondents.

         ANALYSIS

         The ...


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