Opinion
CV-21-08279-PCT-SPL (JZB)
12-14-2022
John Clinton Savage, Petitioner, v. David Shinn, et al., Respondents.
REPORT & RECOMMENDATION
Honorable John Z. Boyle, United States Magistrate Judge
TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE:
Petitioner John Clinton Savage has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)
I. Summary of Conclusion.
In 1993, Petitioner pleaded guilty to three counts of attempted child molestation. Petitioner was sentenced to consecutive 15-year prison terms, followed by lifetime probation. In 2018, while serving his probation term, Petitioner admitted to violating the sex offender specific terms of his probation. Petitioner's probation was revoked, and he was sentenced to a 12-year prison term. In the instant habeas petition, Petitioner asserts he is entitled to credit for time served in prison and that he was improperly ordered to comply with sex-offender conditions as a modified term of probation. Petitioner's claim in Ground One is not cognizable on habeas review, and his claim in Ground Two is procedurally defaulted and fails on the merits. Therefore, the Court will recommend the Petition be denied and dismissed with prejudice.
II. Background.
A. Facts.
The Arizona Court of Appeals summarized the facts and procedural history as follows:
The Arizona Court of Appeals' recitation of the facts is presumed correct. See 28 U.S.C. § 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012)
In 1993, [Petitioner] pled guilty to three counts of attempted child molestation. The trial court imposed consecutive, fifteen-year prison terms for two of those convictions and, for the third, suspended the imposition of sentence and placed [Petitioner] on lifetime probation. Before this proceeding, [Petitioner] has sought and been denied post-conviction relief at least three times, the last time in 2009.
[Petitioner] was released from prison to probation in September 2017. In May 2018, [Petitioner] admitted violating the terms of his probation. The trial court revoked probation and sentenced Savage to a twelve-year prison term.(Doc. 11-1, Ex. QQ, at 323.)
B. First Post-Conviction Relief Proceedings.
On September 10, 1999, Petitioner filed a notice of post-conviction relief (“PCR”). (Doc. 11-1, Ex. H, at 77-78.) On March 6, 2000, Petitioner filed a PCR petition. (Doc 111, Ex. I, at 85.) The Superior Court found Petitioner was not entitled to relief and dismissed the petition. (Doc. 11-1, Ex. L, at 105.) Petitioner filed a petition for review in the Arizona Court of Appeals. (Doc. 11-1, Ex. M, at 108.) On January 10, 2001, the Arizona Court of Appeals denied review. (Doc. 11-1, Ex. N, at 117.)
C. Second Post-Conviction Relief Proceedings.
On July 17, 2003, Petitioner filed a second PCR petition. (Doc. 11-1, Ex. O, at 120.) On July 21, 2003, the superior court dismissed Petitioner's second PCR petition as untimely. (Doc. 11-1, Ex. P, at 148.) On August 11, 2003, Petitioner filed a motion for rehearing. (Doc. 11-1, Ex. Q, at 150.) The superior court denied the motion. (Doc. 11-1, Ex. R, at 156.)
D. Third Post-Conviction Proceedings.
On January 12, 2008, Petitioner filed a third PCR notice. (Doc. 11-1, Ex. S, at 158.) On February 12, 2009, Petitioner's counsel informed the court counsel was unable to find a claim for relief to raise in a PCR petition. (Doc. 11-1, Ex. T, at 181.) On February 13, 2009, Petitioner filed a pro per PCR petition. (Doc. 11-1, Ex. U, at 184-97.) On May 4, 2009, the court denied his third PCR petition because the Petitioner was precluded from raising claims that could have been raised in his previous petitions. (Doc. 11-1, Ex. X, at 216.)
E. Probation Modification and Revocation.
On December 29, 2016, Petitioner filed a petition to modify the terms of his probation. (Doc. 11-1, Ex. Y, at 218.) The superior court denied the petition. (Doc 11-1, Ex. AA, at 225.) On September 22, 2017, the Adult Probation Department (“APD”) filed a petition to modify the conditions of probation to add sex offender specific conditions. (Doc. 11-1, Ex. BB, at 227.) The superior court granted APD's petition to modify, ordering the defendant to abide by the conditions set forth by APD. (Doc. 11-1, Ex. CC, at 229.) Petitioner signed an acknowledgment of the sex offender specific probation conditions, and the acknowledgment was filed on September 22, 2017. (Doc. 11-1, Ex. DD, at 231.)
On April 3, 2018, APD filed a petition to revoke Petitioner's probation for failure to abide by the conditions of probation including (1) to fully participate in counseling as directed by APD, (2) to not possess sexually oriented media, and (3) to not use computer equipment or access the internet without prior written approval of APD. (Doc. 11-1, Ex. EE, at 233.) At the arraignment and the subsequent disposition and sentencing hearing, Petitioner admitted to the alleged violations of the sex offender specific conditions of his probation. (Doc. 11-1, Ex. FF, at 237-46; Ex. HH, at 250-58.) On May 30, 2018, the court revoked Petitioner's probation and sentenced him to a 12-year prison term with 424 days of incarceration credit. (Doc. 11-1, Ex. II, at 261-62.)
F. Fourth Post-Conviction Proceedings.
On August 27, 2018, Petitioner filed a PCR notice. (Doc. 11-1, Ex. JJ, at 266.) On January 14, 2019, Petitioner's counsel filed a notice of completion stating no colorable claim was found and requesting an extension for Petitioner to file a pro per PCR petition. (Doc. 11-1, Ex. KK, at 270-73.) On July 31, 2019, Petitioner filed a pro per PCR petition, alleging (1) he should receive incarceration credit for his 25-year prison term, and (2) he received ineffective assistance of counsel because his attorney at the revocation hearing did not challenge the superior court's original sentencing order or the modification of the terms of his probation adding sex offender specific conditions without oral pronouncement of those terms, and did not correct errors in the pre-dispositional report. (Doc. 11-1, Ex. LL, at 276-79.)
On October 21, 2019, the superior court denied the PCR petition. (Doc. 11-1, Ex. OO, at 303-04.) The court concluded because Petitioner's probation violation occurred after his release from prison, the trial court was not required to provide Petitioner with credit from his prior prison term. Id. The court also found that Petitioner did not present a colorable claim for ineffective assistance because he failed to show he was prejudiced by his counsel's decision not to challenge the sentencing order or the pre-dispositional report. Id.
On December 17, 2019, Petitioner filed a petition for review alleging the superior court erred in (1) finding that his counsel was effective, (2) declining to provide credit for the time he spent in prison, and (3) declining to review the 1993 sentencing order and find that Petitioner was never ordered to register as a sex offender. (Doc. 11-1, Ex. PP, at 306-316.) On December 10, 2020, the Arizona Court of Appeals found that Petitioner is not entitled to credit for time served on his prison term, that Petitioner did not show he was prejudiced by his counsel's decision not to challenge the pre-dispositional report, and that the order to register as a sex offender was not necessary because he is required to register under A.R.S. § 13-3821(A). (Doc. 11-1, Ex. QQ, at 322-25.) On June 16, 2021, the Arizona Supreme Court denied Petitioner's petition for review. (Doc. 11, Ex. RR, at 327.)
III. Analysis.
On December 28, 2021, Petitioner filed the instant Petition. (Doc. 1.) As stated in this Court's order, Petitioner raises the following grounds for relief:
The Court concludes the petition is timely. Because Petitioner is challenging the imprisonment that was imposed as a result of his probation revocation, the Petition was filed within one year of June 16, 2021 (the date the Arizona Supreme Court denied Petitioner's petition for review). (Doc. 11, Ex. RR, at 327.)
In Ground One, he alleges he was denied pretrial credit in violation of his Fourteenth Amendment rights for the time he already served in prison against his current sentence. In Ground Two, Plaintiff alleges that he has been forced to register as a sex offender even though no court ever ordered him to do so, in violation of his due process and equal protection rights.(Doc. 5 at 2.) On May 6, 2022, Respondents filed an answer. (Doc. 11.) On June 20, 2022, Petitioner filed a reply. (Doc. 14.)
A. Ground One is not cognizable.
In Ground One, Petitioner argues that he is entitled to credit for time served “towards his sentence of lifetime probation.” (Doc. 1 at .) Petitioner was sentenced to two consecutive terms of imprisonment (Counts 2 and 3) with a term of lifetime probation (Count 1). (Doc. 11, Ex. E, at 66.) The court's minute entry commenced his probation on the date of his sentencing. (Id.) He contends that he was therefore in custody on his probation term since the date of his sentencing and is entitled to credit for time served. The Arizona Court of Appeals ruled that Petitioner was not “in custody” for his term of probation and therefore did not accrue credit for time served on this count. (See Doc. 11-1, Ex. QQ, at 324 (“Savage was not in custody ‘pursuant to' the count for which he was placed on lifetime probation while serving the prison terms imposed for his other counts; thus, he is not entitled to credit against his current prison term.”).)
Petitioner was sentenced in 1993 and released from imprisonment in September 2017. (See Doc. 11-1, Ex. EE, at 233.) In the Arizona courts, Petitioner asserted he was entitled to credit for time served for the period from 1993 to September 2017. Although Petitioner does not specify the period of credit he seeks, this is the period of time that was raised by his argument and reviewed by the Arizona courts. (See Doc. 11-1, Ex. QQ, at 324.)
This Court may review petitions for a writ of habeas corpus from individuals held in custody under a state-court judgment on the ground the person is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). “In conducting habeas review, a federal court is limited to deciding whether a conviction violated [federal law.]” Estelle v. McGuire, 502 U.S. 62, 68 (1991). Alleged errors in the state courts' interpretation or application of state law are not cognizable on habeas review. Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (“[F]ederal habeas corpus relief does not lie for errors of state law.”); see also Nunes v. Ramirez-Palmer, 485 F.3d 432, 443 (9th Cir. 2007). A petitioner cannot “transform a state-law issue into a federal one merely by asserting a violation of due process.” Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996).
Whether Petitioner was entitled to presentence incarceration credit is purely an issue of state law, which is non-cognizable on habeas review. See Swarthout, 562 U.S. at 219; Nunes, 485 F.3d at 443; Augustiniak v. Ryan, No. CV-18-03977-PHX-DWL, 2020 WL 1685556, at *3 (D. Ariz. Apr. 7, 2020) (“Petitioner's challenge to the denial of presentence incarceration credit is a state-law claim not cognizable on habeas review.”); Morgan v. Ryan, No. CV-15-01142-PHX-ROS, 2017 WL 131570, at *1 (D. Ariz. Jan. 13, 2017) (“[T]he issue of presentence incarceration credit is a state-law matter and any alleged error in the interpretation or application of state law cannot serve as a basis for habeas relief.”). Petitioner's assertion of a Fourteenth Amendment violation does not make this claim cognizable. See Langford, 110 F.3d at 1389.
Also, Petitioner was not in custody for Count One after his sentencing in 1993. Petitioner was in custody - and serving consecutive terms of imprisonment - for Counts 2 and 3. In his Reply, Petitioner writes that “Count One as the State points out is an error of state law and it's also a violation of federal sentencing guidelines.” (Doc. 14 at 2.) Petitioner cites to United States v. Anderson, 787 F.Supp. 537, 539 (D. Md. 1992) (noting that “as revised by the Sentencing Reform Act of 1984, a period of ‘straight' imprisonment cannot be imposed at the same time as a sentence of probation, 18 U.S.C. § 3561(a)(3)”). As a matter of federal law, Petitioner could not have been in custody while on probation and while he was serving a term of imprisonment for a different conviction. Ground One of Petitioner's claim is not cognizable and thus not reviewable by this Court.
B. Ground Two.
In Ground Two, Petitioner argues that he was never issued a lawful order by the trial judge to register as a sex offender in violation of the Fourteenth Amendment. (Doc. 1 at 14-15.) Petitioner asserts that the “legislature” requires “such orders to be made at the time of sentencing.” (Id.) Petitioner contends he “was never legally ordered to register as a sex offender on March 15, 1993, therefore, he is not required to do so.” (Id.)
On September 12, 2017, Petitioner was released from custody. (See Doc. 11-1, Ex. BB, at 277 (Petition to Modify Conditions of Probation stating Petitioner's probation start date was “09/12/2017”).) On September 22, 2017, the Senior Adult Probation Officer filed a Petition to Modify Petitioner's conditions of probation. (Id.) On September 27, 2017, the court granted the motion, and Petitioner's probation was modified and the term at issue was added. (See Doc. 11-1, Ex. CC, at 229; Doc. 11-1, Ex. DD, at 231.) Thus, the question before the Court is whether Petitioner's probation could be modified to add this term when it was not pronounced at sentencing.
Federal law “unambiguously provides that a federal court may issue a writ of habeas corpus to a state prisoner ‘ only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.'” Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (quoting 28 U.S.C. § 2254(a) (emphasis added). Petitioner is in custody for violating a term of his probation. Construing the Petition liberally, Petitioner in Ground Two therefore challenges the probation revocation and the corresponding prison term. See Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006) (“we must ‘construe pro se habeas filings liberally'” (quoting Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005)).
1. Procedural Default.
Petitioner did not raise this claim in his petition for post-review, so Petitioner's claim is unexhausted and procedurally defaulted. Ordinarily, a federal court may not grant a petition for writ of habeas corpus unless a petitioner has exhausted available state remedies. 28 U.S.C. § 2254(b). To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by “fairly presenting” them to the state's “highest” court in a procedurally appropriate manner. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (“[t]o provide the State with the necessary ‘opportunity,' the prisoner must ‘fairly present' his claim in each appropriate state court . . . thereby alerting that court to the federal nature of the claim”).
A claim has been fairly presented if the petitioner has described both the operative facts and the federal legal theory on which his claim is based. See id. at 33. A “state prisoner does not ‘fairly present' a claim to a state court if that court must read beyond a petition or brief . . . that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so.” Id. at 31-32. Thus, “a petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum . . . (2) through the proper vehicle, . . . and (3) by providing the proper factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (internal citations omitted).
A claim may be procedurally defaulted and barred from federal habeas corpus review when a petitioner failed to present his federal claims to the state court, but returning to state court would be “futile” because the state court's procedural rules, such as waiver or preclusion, would bar consideration of the previously unraised claims. See Teague v. Lane, 489 U.S. 288, 297-99 (1989); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002). If no state remedies are currently available, a claim is technically exhausted, but procedurally defaulted. Coleman, 501 U.S. at 735 n.1.
A procedurally defaulted claim may not be barred from federal review, however, “if the petitioner can demonstrate either (1) ‘cause for the default and actual prejudice as a result of the alleged violation of federal law,' or (2) ‘that failure to consider the claims will result in a fundamental miscarriage of justice.'” Jones v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012) (quoting Coleman, 501 U.S. at 732). See also Boyd v. Thompson, 147 F.3d 1124, 1126-27 (9th Cir. 1998) (the cause and prejudice standard applies to pro se petitioners and to those represented by counsel). To establish “cause,” a petitioner must establish that some objective factor external to the defense impeded his efforts to comply with the state's procedural rules. Cook v. Schriro, 538 F.3d 1000, 1027 (9th Cir. 2008) (quoting Murray v. Carrier, 477 U.S. 478, 488-89 (1986)). ‘“[Prejudice' is actual harm resulting from the constitutional violation or error.” Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984). To establish prejudice, a petitioner must show that the alleged error “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982); Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1996). Where a petitioner fails to establish either cause or prejudice, the court need not reach the other requirement. See Hiivala v. Wood, 195 F.3d 1098, 1105 n.6 (9th Cir. 1999); Cook, 538 F.3d at 1028 n.13.
Here, Petitioner alleged “Defendant's counsel was ineffective by allowing the Petition of Revocation to proceed because the violations the Probation Department alleged or found guilty of were not stipulated to by the sentencing court.” (Doc. 11-1, Ex. LL, at 278.) Petitioner raised this claim under the heading “ineffective assistance of counsel.” (Id. at 277.) While this may seem a fine distinction, Petitioner was required to allege the same claim in the Arizona courts that he raises here. Petitioner's PCR claim of ineffective assistance of counsel is not the claim he raises here. In Casey v. Moore, 386 F.3d 896 (9th Cir. 2004), the court reiterated that to properly exhaust a claim, “a petitioner must properly raise it on every level of direct review.” Petitioner fails to establish cause and prejudice to excuse the procedural default of this claim.
2. Merits.
The Due Process Clause of the Fifth Amendment provides that no person may be deprived of liberty or property without due process of law. Mathews v. Eldridge, 424 U.S. 319 (1976). “The requirements of procedural due process apply only to the deprivations of interests encompassed by the Fourteenth Amendment's protection of liberty and property.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569-70 (1972).
Arizona Rule of Criminal Procedure 27.3(b) expressly permits the modification of probation conditions. Petitioner does not identify any defect in the modification proceedings that could give rise to a federal constitutional violation. Nor is there any authority reflecting that it is a constitutional violation to modify a term of probation after sentencing. Thomas v. Gonzales, 19CV1632-H (BLM), 2020 WL 1624406, at *10 (S.D. Cal. Apr. 2, 2020) (denying habeas corpus relief because no due process violation was identified in imposing probation conditions). See also 18 U.S.C. § 3563(c) (“The court may modify, reduce, or enlarge the conditions of a sentence of probation at any time prior to the expiration or termination of the term of probation, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation and the provisions applicable to the initial setting of the conditions of probation.”).
Moreover, the probation modification was reasonable and narrowly drawn. See United States v. Terrigno, 838 F.2d 371, 374 (holding that when fundamental rights are affected, “[t]he test for validity of probation conditions is whether the conditions are primarily designed to meet the ends of rehabilitation and protection of the public,” and that probation conditions are narrowly drawn when they “protect the public from a situation that might lead to a repetition of the same crime.”).
IV. Conclusion.
The Court finds that Grounds One and Two of the Petition are either not cognizable, procedurally defaulted without excuse, or fail on the merits. The Court will therefore recommend that the Petition be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (doc. 1) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72.