Opinion
No. CV 06-0018-PHX-DGC (JRI).
January 31, 2006
ORDER
Petitioner, who is confined in the Bachman Unit of the Arizona State Prison Complex in Buckeye, Arizona, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The $5.00 filling fee has been paid. The Court will order Petitioner to show cause in thirty days why his action should not be dismissed pursuant to Rule 4 of the Rules Governing § 2254 Cases.
A. Procedural Background.
In the Maricopa County Superior Court, Matter No. CR2000-009169, Petitioner pled guilty to aggravated assault. He was sentenced to a term of nine years. The sentence of imprisonment included a finding that Petitioner had one prior felony conviction. Petitioner did not appeal his sentence. He requested post-conviction relief. By order filed August 30, 2004, the Maricopa County Superior Court denied his request. Petitioner's appeal therefrom was later denied by the Arizona Court of Appeals. He did not seek review in the Arizona Supreme Court.
In his habeas petition, Petitioner raises three grounds for relief. First, he contends that his Sixth Amendment rights were violated because he was sentenced to an aggravated term without a jury finding or a waiver of his claim underApprendi/Blakely. Petitioner further alleges that his sentence had not become final because he filed his one and only Rule 32 Petition after the Blakely decision, thus, the state court unlawfully denied his Petition. Second, Petitioner claims that the fundamental error as set forth in the previous ground entitled him to automatic direct review by the Arizona Court of Appeals, but review was denied in violation of his due process rights. Third, Petitioner re-asserts that his Sixth Amendment and due process rights were violated when the state court refused to review his Rule 32 petition.
Apprendi v. New Jersey, 530 U.S. 466, 488-90 (2000) andBlakely v. Washington, 542 U.S. 296 (2004).
B. Summary Dismissal Standard.
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Rules Governing § 2254 Cases, Rule 4; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Id.; see also Obremski v. Maass, 915 F.2d 418 (9th Cir. 1990) (affirming district court's summary dismissal as a matter of law, but relying upon Rule 4 instead of Rule 12(b)(6)).
Rule 4 shows that "Congress envisioned district courts taking an active role in summarily disposing of facially defective habeas petitions." Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). Under Rule 4, courts may sua sponte raise issues that are identifiable from the face of the petition, including issues such as procedural default, Boyd, 147 F.3d at 1127-28, and the one-year limitation period of 28 U.S.C. § 2244(d), Herbst v. Cook, 260 F.3d 1039, 1041 (9th Cir. 2001). "It would waste scarce judicial resources for the district court to cause the facially defective petition to be served on the State and to entertain the State's ensuing motion to dismiss." Boyd, 147 F.3d at 1128.
This summary dismissal power is not without limits. Boyd, 147 F.3d at 1128. A court must give a petitioner notice and an opportunity to respond to the argument for dismissal. Id.; accord Herbst, 260 F.3d at 1043. When the petitioner is pro se, the court must make clear the issue and the consequences for failing to respond. Boyd, 147 F.3d at 1128. An order to show cause and an opportunity to respond is one permissible method. Id. Because Petitioner's application is facially defective, the Court will require Petitioner to show cause why his action should not be dismissed.
C. Analysis.
Petitioner contends that his aggravated sentence violatedApprendi/Blakely. In Apprendi, the Supreme Court held that a jury finding beyond a reasonable doubt is required for any "fact" that increases the penalty other than the fact of a prior conviction. Apprendi, 530 U.S. at 488-90. In Blakely v. Washington, 542 U.S. 296 (2004), the Supreme Court appliedApprendi and held that the State of Washington's sentencing guidelines impermissibly allowed enhancement of a defendant's sentence based on a judicial finding of deliberate cruelty.
Recently, in Schardt v. Payne, 414 F.3d 1025 (9th Cir. 2005), the Ninth Circuit Court of Appeals held that because the petitioner's direct appeal was not pending at the time thatBlakely had been decided, the holding in Blakely could not be applied retroactively. Thus, the court of appeals rejected the petitioner's claim that his sentence violated the Sixth Amendment as construed under Apprendi.
The Blakely decision issued on June 24, 2004. At that time, Petitioner had no direct appeal pending. More than likely, he had waived it as part of his guilty plea. For guilty pleas, Arizona provides an "of-right" avenue of review in a post-conviction proceeding under Rule 32.1 of the Arizona Rules of Criminal Procedure that is considered to be the equivalent of a direct appeal. See State v. Smith, 910 P.2d 1, 3 (Ariz. 1996); Rule 32.4(a), Ariz. R. Crim. P. Assuming that the of-right Rule 32 proceeding is considered to be the equivalent of a direct appeal such t hat Blakely might be applicable, Petitioner failed to file a timely notice of his of-right proceeding. He was convicted on October 2, 2000, and he was required to file within ninety days. See Rule 32.4(a), Ariz. R. Crim. P. His notice was filed on August 19, 2004, and denied as untimely on August 30, 2004. See State v. Tarvin, Matter No. CR2000-009169 (Maricopa Cty Sup. Ct.) (Sept. 1, 2004 Minute Entry). The Maricopa County Superior Court expressly found that Petitioner's conviction became final when the time for filing his of-right proceeding had elapsed. Id. Because Petitioner's conviction was final prior to the issuance of Blakely on June 24, 2004, that decision cannot be applied retroactively. Further, Arizona law only mandates an automatic direct review of capital cases in the state supreme court, therefore, there is no support for Petitioner's claim that an alleged error in sentencing is automatically subject to a direct review by the courts.
Even assuming that retroactivity did not preclude consideration of Petitioner's claim, aggravation of his sentence based upon a prior conviction is constitutionally permissible. In Apprendi, the Supreme Court held that a jury finding beyond a reasonable doubt is required for any "fact" that increases the penalty other than the fact of a prior conviction. Apprendi, 530 U.S. at 488-90 (emphasis added). See also Almendarez-Torres v. United States, 523 U.S. 224, 239-47 (1998) (no due process violation in treating recidivism as a sentencing factor instead of an element of a crime for purposes of enhancing a sentence under 8 U.S.C. § 1326(b)). Petitioner does not describe exactly how his sentence was aggravated, but it appears that the only basis used by the sentencing court was his prior felony conviction. Consequently, under Apprendi and its progeny, Petitioner's Sixth Amendment and due process rights were not violated.
C. Show Cause.
In light of the foregoing, none of Petitioner's grounds for relief are sufficient to warrant an answer from Respondents. Petitioner is hereby ordered to show cause why his action should not be summarily dismissed pursuant to Rule 4 of the Rules Governing § 2254 Cases as plainly without merit . He will be permitted thirty days in which to respond.
D. Address Changes.
In the notice of assignment issued in this action (Doc. #2), Petitioner was advised he must file a notice of change of address if his address changes. Petitioner is again reminded that at all times during the pendency of this action, Petitioner shall immediately advise the Court of any change of address and its effective date. Such notice shall be captioned "NOTICE OF CHANGE OF ADDRESS." Petitioner shall serve a copy of the Notice of Change of Address on all opposing parties. The notice shall contain only information pertaining to the change of address and its effective date, and shall not include a motion for other relief. Failure to timely file a notice of change of address may result in the dismissal of the action for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
E. Warning of Possible Dismissal Pursuant to Rule 41.
Petitioner should take note that if he fails to timely comply with every provision of this Order, this action will be dismissed without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (district court may dismiss action for failure to comply with any order of the Court).
IT IS THEREFORE ORDERED:
(1) That Petitioner shall have 30 days from the date this Order is filed to show cause why his action should not be dismissed pursuant to Rule 4 of the Rules Governing § 2254 Actions; and
(2) That if Petitioner fails to file a Response within 30 days of the date this Order is filed, the Petition shall be summarily dismissed pursuant to Rule 4 of the Rules Governing § 2254 Actions and the Clerk of Court shall enter a judgment of dismissal accordingly, without further notice to Petitioner.