Meyer 300362 v. Shinn ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 William Michael Meyer, No. CV-19-08112-PCT-JAT 10 Petitioner, ORDER 11 v. 12 Attorney General of the State of Arizona, et al., 13 Respondents. 14 15 Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus 16 (“Petition”). The Magistrate Judge to whom this case was assigned has issued a Report 17 and Recommendation (“R&R”) recommending that the Petition be denied. (Doc. 19). 18 Petitioner has filed objections to the R&R (“objections”). (Doc. 20). Respondents have 19 replied to the objections. (Doc. 22). Thereafter, Petitioner filed a further reply which is 20 not authorized by the rules. (Doc. 23). 21 I. Legal Standard 22 This Court “may accept, reject, or modify, in whole or in part, the findings or 23 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 24 the district judge must review the magistrate judge’s findings and recommendations de 25 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 26 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 27 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that 28 de novo review of factual and legal issues is required if objections are made, ‘but not 1 otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 2 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the 3 [Magistrate Judge’s] recommendations to which the parties object.”). District courts are 4 not required to conduct “any review at all . . . of any issue that is not the subject of an 5 objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. 6 § 636(b)(1) (“the court shall make a de novo determination of those portions of the [report 7 and recommendation] to which objection is made.”). 8 The Petition in this case was filed under 28 U.S.C. § 2254 because Petitioner is 9 incarcerated based on a state conviction. With respect to any claims that Petitioner 10 exhausted before the state courts, under 28 U.S.C. §§ 2254(d)(1) and (2) this Court must 11 deny the Petition on those claims unless “a state court decision is contrary to, or involved 12 an unreasonable application of, clearly established Federal law” or was based on an 13 unreasonable determination of the facts. See Lockyer v. Andrade, 538 U.S. 63, 71 (2003). 14 Further, this Court must presume the correctness of the state court’s factual findings 15 regarding a petitioner’s claims. 28 U.S.C. § 2254(e)(1). Additionally, “[a]n application for 16 a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the 17 applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 18 2254(b)(2). 19 Petitioner’s objections largely just repeat his original claim from the Petition 20 (without a specific objection to the facts, law or conclusions of the R&R). Thus, the Court 21 will review the claims themselves or the objections de novo as appropriate. 22 II. Factual Background 23 The R&R recounted the factual and procedural background of this case. (Doc. 19 24 at 1-4). Neither party objected to this summary and the Court hereby accepts and adopts 25 it. In very short summary, Petitioner was convicted by a jury of 23 counts of sexual 26 exploitation of a minor and was sentenced to a 230-year term of imprisonment. (Id.). 27 III. Claims in the Petition 28 Petitioner raises eight claims for relief before this Court. The R&R correctly 1 summarized the claims as follows, 2 In Ground One, Petitioner alleges that his due process and equal protection rights were violated when the State was allowed to present expert 3 testimony by a witness who was not trained to opine on the subject matter for which he presented. Petitioner argues that the State did not present an 4 expert “specifically trained in identifying or evaluating whether or not images found on a computer would or would not be depictions of underage 5 children.” In Ground Two, Petitioner alleges that his due process and equal protection rights were violated when the jury was not instructed that it had to 6 determine that the victims were, in fact, actual children as opposed to computer generated images. In Ground Three, Petitioner alleges that his due 7 process and equal protection rights were violated when he was charged, convicted, and sentenced for 23 different counts when they should have been 8 treated as a single offense. In Ground Four, Petitioner alleges that his Eighth and Fourteenth Amendment rights were violated when his sentences were 9 run consecutive to each other. In Ground Five, Petitioner alleges ineffective assistance of counsel because counsel was suffering from cancer and 10 undergoing chemotherapy treatment before and during Petitioner’s trial. Petitioner states that counsel’s medical condition caused his failure to 11 “interview witnesses who had access to the computers in question” and “would have aided Petitioner to refute the allegations in their entirety.” 12 Petitioner also states that counsel failed to challenge the voluntariness of his interview statements based upon his mental condition. In Ground Six, 13 Petitioner alleges that counsel was ineffective for failing to inform him of the risks of not accepting the plea agreement. In Ground Seven, Petitioner alleges 14 ineffective assistance of counsel for not adequately investigating the terms of Petitioner’s plea agreement in his previous Child Abuse case that allegedly 15 precluded the State from prosecuting him for the child pornography offense. Petitioner also states that the trial court’s refusal to remove counsel, based 16 upon an alleged conflict of interest, subjected Petitioner to ineffective assistance. In Ground Eight, Petitioner alleges that his Rule 32 counsel was 17 ineffective in his first PCR proceeding for failing to find any meritorious claims to allege. (Docs. 7, 1.) 18 In their Answer, Respondents argue that Grounds One through Eight fail on the merits, and a subpart of Ground Seven is procedurally defaulted 19 without an excuse for the default. 20 (Doc. 19 at 4-5) (emphasis added). 21 A. Ground One 22 As indicated above, Petitioner’s Ground One turns on his argument that the State’s 23 expert was not qualified to give an opinion on whether the images found on Petitioner’s 24 computer were underage children. Petitioner presented this claim to the state appellate 25 court, and the R&R quotes the opinion of the appellate court on this issue. (Doc. 19 at 12- 26 18). The R&R concluded that the state court’s decision was not contrary to or an 27 unreasonable application of clearly established federal law. (Doc. 19 at 18). 28 In his objections, Petition reargues his theory that the expert was not qualified, but 1 fails to address the state court’s decision, or explain how it was contrary to or an 2 unreasonable application of clearly established federal law. (Doc. 20 at 4-6). Nor did 3 Petitioner address the fact that the jurors saw the images and could determine for 4 themselves the ages of the children (specifically, the children were so young determining 5 they were minors would be within a juror’s ordinary understanding). (Doc. 20 at 17; Doc. 6 22 at 2); (Doc. 19 at 17-18 (collecting cases that hold no expert testimony is required when 7 the children are sufficiently young)). 8 The Court agrees with the R&R that the state court’s decision was not contrary to 9 or an unreasonable application of clearly established federal law nor an unreasonable 10 determination of the facts. Petitioner’s objections do not impact this conclusion and are 11 overruled. 12 B. Ground Two 13 As stated above, Petitioner’s second claim turns on his argument the jury 14 instructions did not require the State to prove that the images were of actual children. 15 Petitioner presented this claim to the state court of appeals and the R&R quotes the relevant 16 portion of the court’s decision. (Doc. 19 at 18-21). The R&R concludes that the state 17 court’s decision was not contrary to or an unreasonable application of clearly established 18 federal law, nor an unreasonable determination of the facts. (Doc. 19 at 21). Specifically, 19 both the state court of appeals and the R&R concluded that the jury instruction given in 20 Petitioner’s case adequately required the jury to find that the images were of actual 21 children. (Doc. 19 at 18-21). 22 In his objections, Petitioner reargues that the law requires the images to be of actual 23 children. (Doc. 20 at 6-8). However, Petitioner makes no argument why the particular 24 jury instructions in his case were inadequate. (Id.). 25 The Court agrees with the R&R that the state court’s decision was not contrary to 26 or an unreasonable application of clearly established federal law nor an unreasonable 27 determination of the facts. Petitioner’s objections do not impact this conclusion and are 28 overruled. 1 C. Ground Three 2 As indicated above, ground three is based on Petitioner’s argument that he could 3 not be charged with 23 separate counts of child pornography because he believes that since 4 he did a single download, it should be a single crime. (Doc. 20 at 8-9). In his Petition, 5 Petitioner stated this violated his due process and equal protection rights and the double 6 jeopardy clause. (Doc. 1 at 8). Although Petitioner mentions three constitutional 7 provisions, his only argument is under the double jeopardy clause. (Id.). 8 Petitioner presented this claim to the state court. (Doc. 19 at 22). This Court agrees 9 with the R&R that the state court’s decision was not contrary to or an unreasonable 10 application of clearly established federal law nor an unreasonable determination of the 11 facts. (Id. at 22-24). Petitioner’s objections reiterating his mistaken belief that a single 12 download of images is a single crime regardless of how many images are in the download, 13 does not change this Court’s conclusion regarding the state court’s decision which rejected 14 this claim. Thus, the objections are overruled. 15 D. Ground Four 16 In ground four Petitioner argues that his 230-year sentence (10 years for each of his 17 23 counts, running consecutively) violates the Eighth Amendment’s protection against 18 cruel and unusual punishment; specifically, he claims that his sentence is not proportional 19 to his crimes. (Doc. 20 at 9). Petitioner presented this argument to the state court, and the 20 state court rejected it. (Doc. 19 at 24). The R&R concluded that the state court’s decision 21 was not contrary to nor an unreasonable application of clearly established federal law nor 22 an unreasonable determination of the facts. (Doc. 19 at 24-26). 23 In his objections, Petitioner reiterates his conclusion that the sentence is 24 disproportional to his crimes. (Doc. 20 at 9). The Court agrees with the R&R that the state 25 court’s decision (applying Berger) was not contrary to nor an unreasonable application of 26 clearly established federal law nor an unreasonable determination of the facts. (Doc. 19 at 27 24-26). The objection is overruled. 28 1 E. Ground Five 2 Preliminarily, the Court notes that grounds five through eight allege various theories 3 of ineffective assistance of counsel. The R&R recounts the law governing ineffective 4 assistance of counsel claims; and neither party has objected to this summary of the 5 governing law. (Doc. 19 at 26-27). Accordingly, the Court hereby accepts this portion of 6 the R&R. 7 In ground five, Petitioner alleges three factual predicates underlying his ineffective 8 assistance of counsel claim at it relates to his counsel’s alleged cancer treatments. (Doc. 9 19 at 30). First, Petitioner argues generally that counsel’s alleged cancer and cancer 10 treatments caused him to be ineffective; in other words, being treated for cancer would 11 make any counsel ineffective by the nature of the treatment. (Id.). Second, Petitioner 12 argues that due to counsel’s on-going treatments, counsel failed to challenge the 13 admissibility of Petitioner’s confession. (Id.). Third, Petitioner argues that counsel’s 14 cancer treatments caused counsel to not interview certain witnesses. (Id.). 15 First, as to Petitioner’s general argument that having cancer and cancer treatments 16 per se made counsel ineffective, the Court agrees with the R&R that this argument does 17 not show ineffective assistance of counsel. (Doc. 19 at 30 “Petitioner’s mere 18 generalizations, without more, are clearly insufficient.”). In his objections, Petitioner 19 asserts, “Chemotherapy by its very nature changes the biology of a person, specifically, 20 brain chemistry [] counsel did not render effective assistance….” (Doc. 20 at 11). There 21 is no evidence in this record for this assertion. Moreover, in his objections, Petitioner has 22 in no way shown counsel was ineffective under Strickland v. Washington, 466 U.S. 668, 23 687-88 (1984). 24 Second, as the R&R recounts, Petitioner argues: “counsel was ineffective for failing 25 to file a motion to suppress his confession due to Petitioner’s mental condition – Ménière’s 26 disease.” (Doc. 19 at 32). The R&R concludes that counsel was not ineffective because 27 this argument would have been futile, and counsel is not ineffective for failing to advance 28 futile arguments. (Id). Petitioner objects and argues that the trial court, which viewed his 1 videotape confession and found Petitioner to be lucid, “pre-supposes the Court had the 2 Petitioner evaluated be mental health professionals.” (Doc. 20 at 12). Nothing in the record 3 or the case law supports Petitioner’s objection in this regard. 4 Petitioner also objects that the trial court, rather than the jury, determined his 5 confession was voluntary. (Id. at 13). However, while the trial court makes a preliminary 6 determination of the voluntariness of a confession in Arizona, once the confession is 7 admitted, the jury is instructed that they must disregard an involuntary confession. Ariz. 8 Rev. Stat. § 13-3988. In Petitioner’s trial, the jury was instructed, “You must not consider 9 any statements made by the defendant to a law enforcement officer unless you determine 10 beyond a reasonable doubt that the defendant made the statements voluntarily. A 11 defendant’s statement was not voluntary if it resulted from the defendant’s will being 12 overcome by a law enforcement officer’s use of any sort of violence or coercion, or threats 13 or by any direct or implied promise, however slight.” (Doc. 14-1 at 63). Accordingly, the 14 jury did in fact find Petitioner’s confession to be voluntary and this objection is overruled. 15 Third, Petitioner argues his counsel was ineffective for not interviewing witnesses 16 who Petitioner claims had access to his computer. Petitioner exhausted this claim in the 17 state court in his post-conviction relief Petition. The state court post-conviction relief 18 judge, who was also the trial judge, found, in additional to the other overwhelming 19 evidence of Petitioner’s guilt, “[i]f the defendant presented additional witnesses to confirm 20 other people had access to his computer, the Court would find that such additional 21 witnesses would not have overcome the strength of the defendant’s videotaped confession, 22 confessing he downloaded child pornography.” (Doc. 19 at 32). In his objections, 23 Petitioner alleges that 8 witnesses could have been interviewed, and Petitioner claims that 24 such witnesses would have stated that they had access to his computer. (Doc. 20 at 12). 25 This Court agrees with the R&R that any such testimony is speculative. (Doc. 19 at 31). 26 Further, the Court finds that t 27 he state court’s decision was not contrary to nor an unreasonable application of clearly 28 established federal law. In other words, counsel was not ineffective because even if such 1 evidence exists, counsel’s failure to offer it did not prejudice Petitioner. 2 F. Ground Six 3 In ground six Petitioner argues his counsel was ineffective for not explaining to 4 Petitioner the risks of not taking the offered plea agreement. Petitioner exhausted this claim 5 in state court in his post-conviction relief petition. (Doc. 19 at 33). The R&R recounts 6 extensively all the locations in the state court record where Petitioner was advised of the 7 offered plea agreement, and the sentence he was facing after trial. (Doc. 19 at 33-37). 8 In his objections, Petitioner does not argue that any of this recounting of the law or 9 the facts in the R&R is incorrect. Instead, Petitioner argues that he believed that his plea 10 agreement in a prior case barred prosecution of Petitioner in any future cases and that 11 counsel should have made this legal argument. (Doc. 20 at 15) (Petitioner appears to be 12 conflating his ground six and ground seven into a single objection). 13 With respect to ground six, this Court agrees with the R&R that the state court’s 14 decision that Petitioner’s counsel adequately advised him of the plea agreement, was not 15 contrary to nor an unreasonable application of federal law, nor was it based on an 16 unreasonable determination of the facts. Accordingly, relief on this claim is denied. 17 G. Ground Seven 18 Ground seven has both an exhausted and unexhausted claim. Petitioner’s claim that 19 his counsel failed to investigate whether his prior plea agreement barred future prosecution 20 is exhausted. (Doc. 19 at 37-39). Petitioner’s claim that his trial counsel had a conflict of 21 interest is unexhausted. (Doc. 19 at 10-12). 22 1. Prior Plea Agreement 23 Petitioner claims his prior plea agreement precluded prosecution for the images that 24 underlie the conviction in this case. The prior plea actually says the opposite: 25 The following charges will be dismissed, or if not filed, will not be brought against the defendant: COUNTS 2-3: CHILD ABUSE BY 26 DOMESTIC VIOLENCE, CLASS 4 FELONIES; COUNT 1: CHILD ABUSE BY DOMESTIC VIOLENCE, CLASS 4 FELONY, REDUCED AS 27 ABOVE; THIS PLEA AGREEMENT DOES NOT RESOLVE ALL POSSIBLE CHARGES STEMMING FROM KINGMAN POLICE 28 DEPARTMENT DR NO. 2010-010894. HOWEVER, IF THE STATE FILES FURTHER CHARGES, THE STATE WILL NOT USE THIS CASE 1 AS A PRIOR CONVICTION. 2 (Doc. 19 at 38) (emphasis omitted). 3 In his objections, Petitioner appears to be arguing he would not have taken the plea 4 agreement in the prior prosecution had he understood he could still be prosecuted for this 5 case. (Doc. 20 at 15). The conviction in the prior case is governed by a plea agreement 6 that is not before this Court in this case; additionally, that plea did not impact the sentence 7 in this case. Because this objection has no bearing on this case, it is overruled. Thus, the 8 Court agrees with the R&R that the state court’s decision that the prior plea agreement did 9 not preclude prosecution in this case, and thus counsel was not ineffective for not making 10 this argument, was not contrary to nor an unreasonable application of federal law, nor was 11 it based on an unreasonable determination of the facts. (See Doc. 19 at 39). Accordingly, 12 relief on this claim is denied. 13 2. Conflict of Interest 14 In his post-conviction relief petition in state court, Petitioner argued that his counsel 15 had a conflict of interest. (Doc. 19 at 10). The post-conviction relief court found that this 16 claim was not properly presented on post-conviction relief because Petitioner could have 17 raised the claim on direct appeal, but did not, therefore it was precluded. (Id.) The R&R 18 determined that Arizona Rule of Criminal Procedure 32.2(a) constitutes an adequate and 19 independent state ground for denying relief. (Id. at 10-11). The R&R further concluded 20 that Petitioner has not shown cause and prejudice or a fundamental miscarriage of justice 21 to overcome this procedural default. (Id. at 11-12). Additionally, the R&R concludes that 22 the Martinez exception to exhaustion does not apply in this case. (Id. at 11). 23 In his objections, Petitioner repeatedly makes a conclusory assertion that he 24 exhausted and presented and pursued all his claims. (Doc. 20 at 2-4). However, Petitioner 25 makes no particular argument as to how the R&R’s analysis, concluding that this sub-part 26 of ground seven was neither exhausted nor excused from exhaustion, is incorrect. The 27 Court overrules this generalized objection. The Court finds the conflict of interest sub-part 28 of ground seven is unexhausted without excuse and, accordingly, denies relief on this 1 claim. 2 H. Ground Eight 3 In ground eight, Petitioner alleges that his first post-conviction relief counsel was 4 ineffective for not raising meritorious claims. (Doc. 19 at 39). Petitioner exhausted this 5 claim in his second post-conviction relief petition. (Id.). The second post-conviction relief 6 judge found first post-conviction relief counsel was not ineffective. (Id.). 7 The R&R recounts that legally, there is no right to post-conviction relief counsel; 8 thus, whether such counsel was ineffective does not state a claim that is cognizable on 9 habeas. (Id. at 39-40). In his objections, Petitioner states the following conclusion: “Where 10 the legislature creates a rule or law that provides for counsel in post-conviction relief is 11 [sic] governed, the 6th amendment attached.” (Doc. 20 at 15). Petitioner cites nothing for 12 this conclusion, and the Court finds the law in the R&R is correct. Accordingly, this 13 objection is overruled and relief on this claim is denied. Moreover, even if the law were 14 otherwise, this Court finds that the state court’s decision (that first post-conviction relief 15 counsel was not ineffective) was not contrary to nor an unreasonable application of clearly 16 established federal law, nor was it an unreasonable determination of the facts. Thus, relief 17 is denied for this alternative reason. 18 IV. Certificate of Appealability 19 The R&R recommend that this Court deny a Certificate of Appealability on all 20 grounds except ground four. Petitioner does not object to this recommendation. (Doc. 20). 21 The state also did not object to this recommendation. (Doc. 22). The Court, having 22 reviewed these claims de novo, accepts the recommendation that a certificate of 23 appealability be denied on grounds 1-3 and 5-8. 24 A. Petitioner’s Argument 25 As indicated above, the R&R recommends that this Court grant a certificate of 26 appealability as to ground four. This Court has reviewed ground four de novo due to 27 Petitioner’s objection to the R&R. Accordingly, the Court will make an independent 28 determination of whether a certificate of appealability is warranted in this case. The R&R 1 does not state why it recommends a certificate of appealability be granted on ground four. 2 (Doc. 19 at 26 n.6). 3 The totality of Petitioner’s ground four as stated in his Petition is as follows: 4 GROUND FOUR: Violation of the U.S. Constitutional Amendments 8 cruel and unusual punishment and the 14th as to equal protection and due 5 process and protection of the law made applicable to the state by the Arizona Constitution. 6 Supporting FACTS…: Petitioner after his conviction was scheduled by the trial court for sentencing proceedings. At the sentencing proceeding, 7 the court imposed a term of 10 years for each of the 23 counts of dangerous crimes against children (DCAC). In the process of pronouncing each term, 8 the Court did in addition state that each term would be consecutive to one another resulting in a cumulative prison sentence of 230 years. This term of 9 incarceration was the result of Petitioner’s possession of a group of digital images that has been downloaded and possessed, or created at the same time. 10 (Doc. 1 at 9). 11 This recounting of Petitioner’s claim makes it difficult to determine the exact factual 12 predicate of Petitioner’s cruel and unusual punishment claim. It is possible to interpret the 13 claim as arguing that a 10-year sentence for a single image is the claimed Eighth 14 Amendment violation. It is possible to interpret the claim as arguing consecutive sentences 15 that, when aggregated, result in a 230-year sentence is the claimed Eighth Amendment 16 violation. Finally, it is possible to interpret the claim as arguing that consecutive sentences 17 for what Petitioner interprets as a single act (namely a single download of multiple images) 18 is the claimed Eighth Amendment violation. 19 The R&R concludes that a ten-year sentence for each count of possession of child 20 pornography is not grossly disproportionate. (Doc. 19 at 26). Thus, the R&R appears to 21 have addressed both ten-year sentence for any one count, and the 230-year cumulative 22 sentence for all 23 counts, and found both to be have “no inference of gross 23 disproportionality.” (Doc. 19 at 26). The R&R then concluded that based on these 24 findings, the state court’s decision on proportionality was not contrary to or an 25 unreasonable application of clearly established federal law nor an unreasonable 26 determination of the facts. (Id.). 27 In his objections, the totality of Petitioner’s argument is: 28 The Court has not fully grasped the full extent of the 8th and 14th 1 Amendment violations which Petitioner was actively, prejudicially, and erroneously subjected to. 23 Counts run consecutively against this Petitioner 2 is disproportionate on its face and substance. 230 years is a grossly disproportionate term to the crimes charged. [citations omitted]. A.R.S. §§ 3 13-3553 and 13-205 have subjected Petitioner to both 8th and 14th Amendment violations pursuant to the U.S. Constitution. There is contrary 4 to the inference of gross disproportionality which would and does require inter-jurisdictional analysis and is based on clear [remainder of 5 sentence/paragraph omitted from filing sent to the Court]. 6 (Doc. 20 at 9). 7 B. Law on Proportionality 8 “The Eighth Amendment generally requires a punishment to be proportionate to the 9 crime.” Reece v. Williams, No. 220CV00960JADVCF, 2020 WL 3172994, at *3 (D. Nev. 10 June 15, 2020) (citing Solem v. Helm, 463 U.S. 277, 285-86 (1983)). The Ninth Circuit 11 Court of Appeals summarized the showing required for such a claim as follows: 12 Supreme Court precedent has established “gross disproportionality” as the controlling principle in assessing a petitioner’s Eighth Amendment 13 claims. Lockyer v. Andrade, 538 U.S. 63, 73 (2003). In non-capital cases, the court must first compare the gravity of the offense with the severity of the 14 sentence to determine whether it is one of the “rare” cases which leads to an inference of gross disproportionality. See Graham v. Florida, 560 U.S. 48, 15 59-60 (2010). If the sentence gives rise to such an inference, the court next compares the defendant’s sentence with the sentences received by other 16 offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. Id. at 60. Therefore, in order for 17 [Petitioner] to be entitled to relief, he must demonstrate that it was objectively unreasonable for the Court of Appeal to determine that this is not 18 one of the rare cases which leads to an inference of gross disproportionality. See id. 19 Mezzles v. Katavich, 731 F. App’x 639, 642-43 (9th Cir.), cert. denied, 139 S. Ct. 325 20 (2018). 21 In the context of an individual sentence, the R&R recounted the law as follows: 22 “In assessing the compliance of a non-capital sentence with the 23 proportionality principle, [the Court] consider[s] ‘objective factors’” such as “the severity of the penalty imposed and the gravity of the offense.” Taylor 24 v. Lewis, 460 F.3d 1093, 1098 (9th Cir. 2006). If the state has a “reasonable basis” for believing that the law “advance[s] the goals of [its] criminal justice 25 system in any substantial way[,]” the court shall not “sit as a ‘superlegislature’ [and] second-guess [those] policy choices.” Ewing v. 26 California, 538 U.S. 10, 28 (2003). 27 (Doc. 19 at 24). 28 In the context of consecutive sentences, the court in Reece stated: 1 The Supreme Court has held, however, that, “[o]utside the context of capital punishment, successful challenges to the proportionality of particular 2 sentences [will be] exceedingly rare.” [citing Solem v. Helm, 463 U.S. 277, 289-90 (1983) (quoting Rummel v. Estelle, 445 U.S. 263, 272 (1980))]. 3 “Reviewing courts . . . should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and 4 limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals.” [citing Solem, 463 U.S. at 289- 5 90]. 6 [A] consecutive ten-years-to-life sentence imposed as a deadly weapon enhancement falls short of implicating Eighth Amendment concerns. 7 [citing United States v. Parker, 241 F.3d 1114, 1117 (9th Cir. 2001) (holding that mandatory consecutive sentences imposed by statute do not violate the 8 Eighth Amendment and that, “as long as the sentence imposed on a defendant does not exceed statutory limits, this court will not overturn it on Eighth 9 Amendment grounds”); Harmelin v. Michigan, 501 U.S. 957, 994 (1991) (“Severe, mandatory penalties may be cruel, but they are not unusual in the 10 constitutional sense. . . .”)]. 11 Reece, 2020 WL 3172994, at *3 & nn. 24-26. 12 As an example, the Supreme Court has held that a 25-year-to-life sentence for grand 13 theft is not cruel and unusual punishment: 14 Ewing has been convicted of numerous misdemeanor and felony offenses, served nine separate terms of incarceration, and committed most of his 15 crimes while on probation or parole. His prior “strikes” were serious felonies including robbery and three residential burglaries. To be sure, Ewing’s 16 sentence is a long one. But it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies 17 and who continue to commit felonies must be incapacitated. The State of California “was entitled to place upon [Ewing] the onus of one who is simply 18 unable to bring his conduct within the social norms prescribed by the criminal law of the State.” Rummel, supra, at 284. Ewing’s is not “the rare 19 case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” 20 Harmelin, 501 U.S., at 1005 (KENNEDY, J., concurring in part and concurring in judgment). 21 We hold that Ewing’s sentence of 25 years to life in prison, imposed 22 for the offense of felony grand theft under the three strikes law, is not grossly disproportionate and therefore does not violate the Eighth Amendment’s 23 prohibition on cruel and unusual punishments. 24 Ewing v. California, 538 U.S. 11, 30-31 (2003) (alteration in original). 25 This Court has previously discussed at length whether a proportionality analysis is 26 applicable to consecutive sentences as an “aggregated” sentence. See Patsalis v. Shinn, 27 CV 18-8101-PCT-JAT, at 19-24 (D. Ariz. Aug. 19, 2020). This Court concluded that a 28 proportionality analysis applies only to each individual sentence and not the aggregate 1 sentence as a whole. Id. at 24. 2 As discussed above and to reiterate, 3 A challenge to the proportionality of a sentence is analyzed using objective criteria, including: (1) the gravity of the offense and harshness of 4 the penalty; (2) a comparison of sentences imposed on other criminals in the same jurisdiction; and (3) a comparison of sentences imposed for the same 5 crime in other jurisdictions. Solem [v. Helm], 463 U.S. [277] at 290-92 [(1983)]. Where, however, it cannot be said as a threshold matter that the 6 crime committed and the sentence imposed are grossly disproportionate, it is not appropriate for the court to engage in a comparative analysis of the 7 sentence received by the defendant and the sentences received by other defendants in other cases. See United States v. Harris, 154 F.3d 1082, 1084 8 (9th Cir. 1998). 9 Vines v. Kane, No. C 05-5316JSW(PR), 2009 WL 331435, at *9 (N.D. Cal. Feb. 11, 2009). 10 C. Certificate of Appealability Standard 11 A judge may issue a COA “only if the applicant has made a substantial showing of 12 the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The standards for granting a 13 COA are the same for petitions under § 2254 and § 2255. See United States v. Martin, 226 14 F.3d 1042, 1046 n.4 (9th Cir. 2000). “Where a district court has rejected the constitutional 15 claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The 16 petitioner must demonstrate that reasonable jurists would find the district court’s 17 assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 18 473, 483-84 (2000); see also id. (describing the COA determination as deciding whether 19 the issues presented are “adequate to deserve encouragement to proceed further” [quoting 20 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)]). “When the district court denies a habeas 21 petition on procedural grounds without reaching the prisoner’s underlying constitutional 22 claim, a COA should issue when the prisoner shows, at least, that jurists of reason would 23 find it debatable whether the petition states a valid claim of the denial of a constitutional 24 right and that jurists of reason would find it debatable whether the district court was correct 25 in its procedural ruling.” Slack, 529 U.S. at 484. 26 The Court may address either element of the two-pronged COA test to determine 27 the appealability of a district court’s procedural ruling in any order if disposing one element 28 resolves the issue. See id. at 485 (“[e]ach component of the § 2253(c) showing is part of a 1 threshold inquiry, and a court may find that it can dispose of the application in a fair and 2 prompt manner if it proceeds first to resolve the issue whose answer is more apparent from 3 the record and arguments”). “A prisoner seeking a COA must prove something more than 4 the absence of frivolity or the existence of mere good faith on his or her part.” Miller-El 5 v. Cockrell, 537 U.S. 322, 338 (2003) (internal quotations omitted). 6 D. Analysis 7 With respect to ground four, this Court concludes that jurists of reason would not 8 find it debatable whether the state court’s decision was contrary or wrong. See Miller-El 9 v. Cockrell, 537 U.S. 322, 350 (2003) (Scalia concurring) (“In applying the Court’s COA 10 standard to petitioner’s case, we must ask whether petitioner has made a substantial 11 showing of a Batson violation and also whether reasonable jurists could debate petitioner's 12 ability to obtain habeas relief in light of AEDPA.”). 13 First, Petitioner has offered no law suggesting that an individual 10-year sentence 14 for possession of an image of child pornography is disproportional under Rummel v. 15 Estelle, 445 U.S. 263, 274 (1980) and Ewing v. California, 538 U.S. 10, 28 (2003). See 16 (Doc. 19 at 24-25). Thus, jurists of reason would not find it debatable that Petitioner’s 10- 17 year sentence per count was proportional and constitutional. 18 Second, there is no clearly established federal law regarding whether mandatory 19 consecutive sentences should be viewed in the aggregate for purposes of a proportionality 20 analysis. See Patsalis v. Shinn, CV 18-8101-PCT-JAT, at 19-24 (D. Ariz. Aug. 19, 2020).1 21 Therefore, the state court’s rejection of Petitioner’s argument that his 230-year consecutive 22 sentence was not proportional could not be contrary to clearly established federal law. 23 Additionally, unlike petitioner Patsalis, Petitioner here does not argue that the state court 24 declined to consider his proportionality analysis such that he should be entitled to de novo 25 review in federal court. Finally, even if this Court were to consider this claim de novo, 26 1 In Patsalis, notwithstanding this Court’s conclusions regarding proportionality and 27 AEDPA deference, this Court granted a certificate of appealability because reasonable jurists could disagree about the impact of the Arizona court’s failure to apply the Davis 28 exception to the Burger rule on proportionality under state law. Patsalis, CV 18-8101- PCT-JAT, at 34 (D. Ariz. Aug. 19, 2020). No similar argument was preserved in this case. 1 || Petitioner has not attempted to meet the factors of Solem such that he could show that his || sentence was not proportional. 3 Third, Petitioner’s argument that he should not be sentenced separately for each 4|| image he possessed was raised as a double jeopardy argument and therefore will not be 5 || considered for a certificate of appealability as a proportionality argument. A certificate of 6|| appealability is denied for the reasons stated above as to Petitioner’s double jeopardy claim. 7 Thus, regardless of Petitioner’s factual predicate of his proportionality argument, 8 || jurists of reason would not find it debatable whether the state court’s decision was contrary 9|| to clearly established federal law. Alternatively, even under a de novo review Petitioner’s aggregate sentence claim, jurists of reason would not debate that Petitioner has failed to 11 |} develop the record or show any entitlement to relief under Solem. 12 For these reasons, upon de novo review of the record regarding the entirety of 13 || Petitioner’s proportionality claim, the Court will deny a certificate of appealability. 14 V. Conclusion 15 Based on the foregoing, 16 IT IS ORDERED that the R&R (Doc. 19) is accepted and adopted except as to the certificate of appealability on the proportionality claim; the objections (Doc. 20) are 18 || overruled; the Petition is denied and dismissed with prejudice; a certificate of appealability || is denied, and the Clerk of the Court shall enter judgment accordingly. 20 Dated this 10th day of February, 2021. 21 22 i C 23 James A. Teilborg 24 Senior United States District Judge 25 26 27 28 -16-