Altamirano v. Schriro et al, No. 4:2008cv00137 - Document 14 (D. Ariz. 2008)
Court Description: ORDERED that the Court ADOPTS the 10 Report and Recommendation in it s entirety. The Objections raised by the Petitioner are OVERRULED. ORDERED that the Petition for Writ of Habeas Corpus is DENIED and this action is DISMISSED with prejudice. Final Judgment to enter separately.. Signed by Judge David C Bury on 10/24/08.(SGG, )
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Altamirano v. Schriro et al Doc. 14 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF ARIZONA 6 7 Santiago Alberto Altamirano, 8 9 10 11 12 ) ) Petitioner, ) v. ) ) ) Dora B. Schriro, et al., ) ) Respondents. ) ______________________________________ ) CV-08-137-TUC-DCB ORDER 13 This matter was referred to the United States Magistrate Judge 14 pursuant to 28 U.S.C. §636(b) and the local rules of practice of this 15 Court for a Report and Recommendation (R&R) on the Petition for Writ of 16 Habeas Corpus pursuant to 28 U.S.C. §2254. Before the Court is the 17 Magistrate Judge’s Report and Recommendation, which recommends that the 18 Petition be denied and dismissed. The Petitioner filed Substantive 19 Objections to the Report and Recommendation on October 14, 2008. 20 PETITIONER’S OBJECTIONS 21 Petitioner’s sole objection is that neither the Answer nor the 22 Recommendation addresses Petitioner’s amended Ground IV on the merits: 23 “the sentencing court abused its discretion by sentencing the Petitioner 24 outside constitutional limits creating an illegal sentencing which 25 constituted fundamental error, to violate Petitioner’s 5th, 6th, and 14th 26 Amendment’s rights to Due Process under the United States Constitution.” 27 (Objections at 3.) The thrust of Petitioner’s sentencing problem is that 28 Dockets.Justia.com 1 he believes that two historical prior convictions were improperly used 2 to enhance his state sentence. (Objections at 4.) “Because the trial 3 court accepted defendant’s guilty pleas in all three cases at the same 4 time, none of the resulting convictions proceeded any others . . . ” and 5 hence could not be treated as historical priors. 6 (Objections at 6.) STANDARD OF REVIEW 7 When objection is made to the findings and recommendation of a 8 magistrate judge, the district court must conduct a de novo review. 9 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 10 DISCUSSION 11 Petitioner was convicted in Pima County Superior Court, case #CR- 12 20040875, CR-20042130, and CR-20044278, of Aggravated Driving Under the 13 Influence. He was sentenced to a 2.5-year prison term in CR-20040875 and 14 10-year prison terms in CR-20042130 and CR-20044278; the terms in CR- 15 20044278 and CR-20042130 were to be served consecutively. As part of the 16 plea agreement, Petitioner admitted to two prior felony DUI convictions, 17 CR-20040875 and CR-20040835. 18 found in aggravation that Petitioner had four prior felony convictions, 19 seven misdemeanor convictions, a pattern of alcohol abuse coupled with 20 driving which posed a risk to the community and four DUI arrests within 21 a ten-month time period. 22 Petitioner had mental health problems, was a veteran, had physical health 23 problems, had made rehabilitation efforts, had family support, that the 24 offense was nonviolent, and that the Petitioner was remorseful. 25 balancing aggravating and mitigating circumstances, the Superior Court 26 determined that the presumptive terms for sentencing were appropriate. During the sentencing, the Superior Court The Superior Court found in mitigation that 27 28 2 After 1 During post-conviction proceedings, Petitioner’s sentence was repeatedly 2 reviewed and upheld. 3 After a thorough analysis, the Report and Recommendation found 4 that, “In sum, Petitioner has failed to show either that the state courts 5 misapplied federal law or that the state courts’ ruling was unreasonable 6 based on the evidence presented. 28 U.S.C. § 2254(d).” 7 Contrary to Petitioner’s assertions in his Objections, the Report and 8 Recommendation specifically addresses his concerns about the sentence 9 imposed. 10 (R&R at 11.) “[A] federal court may not issue a habeas petition ‘with respect 11 to 12 proceedings' unless the state court decision: 1) ‘was contrary to, or 13 involved an unreasonable application of, clearly established Federal law, 14 as determined by the Supreme Court of the United States' or 2) ‘was based 15 on an unreasonable determination of the facts in light of the evidence 16 presented in the State court proceeding.’” McCambridge v. Hall, 303 F.3d 17 24, 34 (1st Cir. 2002) (quoting 28 U.S.C. § 18 “contrary to” clearly established federal law “if the state court arrives 19 at a conclusion opposite to that reached by [the Supreme Court] on a 20 question of law or if the state court decides a case differently than 21 [the Supreme Court] has on a set of materially indistinguishable facts.” 22 Williams v. Taylor, 529 U.S. 362, 412-413 (2000). A decision represents 23 an “unreasonable application” of clearly established federal law “if the 24 state court identifies the correct governing principle from [the Supreme 25 Court's] decisions but unreasonably applies that principle to the facts 26 of the prisoner's case.” 27 requires “some increment of incorrectness beyond error . . . 28 any claim that was adjudicated on the merits in State court 2254(d)). A decision is Id. at 413. An “unreasonable application” 3 The 1 increment need not necessarily be great, but it must be great enough to 2 make the decision unreasonable in the independent and objective judgment 3 of the federal court.” McCambridge, 303 F.3d at 36. 4 Petitioner asserts that the sentence imposed by the state court 5 violated his Due Process rights and was greater than necessary, which 6 deprived 7 Basically, Petitioner 8 to the offenses committed. The Eighth Amendment “forbids only extreme 9 sentences that are ‘grossly disproportionate’ to the crime.” Petitioner of fundamental fairness. (Objections at 6.) urges that his sentence is excessive in relation Solem v. 10 Helm, 463 U.S. 277, 288 (1983). Petitioner’s sentence is neither extreme 11 nor grossly disproportionate and does not violate the U.S. Constitution. 12 Habeas review of state court sentencing determinations is only 13 available when a Petitioner asserts that he was sentenced in violation 14 of the Constitution and, “[n]o federal constitutional issue is presented 15 where, as here, the sentence is within the range prescribed by state 16 law.” 17 decisions are not cognizable on habeas corpus review unless the sentence 18 imposed falls outside the range prescribed by state law.”). Petitioner's 19 sentence was within the range prescribed by Arizona law, hence there is 20 no basis for additional federal habeas review. White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992)(“Sentencing 21 CONCLUSION 22 Accordingly, after conducting a de novo review of the record, 23 IT IS ORDERED that the Court ADOPTS the Report and Recommendation 24 (Doc. No. 10) in its entirety. 25 are OVERRULED. The Objections raised by the Petitioner 26 27 28 4 1 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus 2 is DENIED and this action is DISMISSED with prejudice. 3 to enter separately. 4 DATED this 24th day of October, 2008. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Final Judgment
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