Augustiniak 196277 v. Shinn

• Court: District Court, D. Arizona
• Decided: April 7, 2020
• Docket: 2:18-cv-03977
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Kevin Jason Augustiniak, No. CV-18-03977-PHX-DWL

10 Petitioner, ORDER

11 v.

12 Charles L Ryan, et al.,

13 Respondents. 14 15 On November 8, 2018, Petitioner filed a petition for writ of habeas corpus under 28 16 U.S.C. § 2254 (“the Petition”). (Doc. 1.) On January 24, 2020, Magistrate Judge Boyle 17 issued a Report and Recommendation (“R&R”) concluding the Petition should be denied 18 and dismissed with prejudice. (Doc. 14.) Afterward, Petitioner filed objections to the R&R 19 (Doc. 15) and Respondents filed a response (Doc. 16). For the following reasons, the Court 20 will overrule Petitioner’s objections, adopt the R&R, and terminate this action. 21 I. Background 22 Petitioner was indicted on federal racketeering changes in 2003 but those charges 23 were dismissed in 2006. (Doc. 14 at 2.) At the time of the dismissal, Petitioner had spent 24 841 days in federal custody. (Id.) 25 In 2007, Petitioner was indicted on an array of state charges, including murder, 26 kidnapping, and assisting a criminal street gang. (Id.) In 2011, Petitioner pleaded guilty, 27 pursuant to a plea agreement, to one count of second-degree murder. (Id.) The plea 28 agreement stipulated to a “flat time” sentence of between 22 and 25 years in prison. (Id.) 1 Petitioner later tried to withdraw his plea, based on claims of involuntariness and 2 ineffective assistance, but the motion was denied. (Id. at 3.) In 2012, Petitioner was 3 sentenced to 23.5 years in state prison. (Id.) 4 Petitioner then sought post-conviction relief (“PCR”). (Id.) In February 2015, “the 5 parties stipulated that Petitioner would re-enter a guilty plea to Second Degree Murder with 6 a stipulation to a new sentence of 20.5 years (flat time) and community supervision upon 7 his release. The court vacated the prior plea and sentence, accepted Petitioner’s new plea, 8 and sentenced him as stipulated. The court found Petitioner was entitled to 841 days of 9 presentence incarceration credit for the time he spent in federal custody.” (Id., citations 10 omitted). 11 In April 2015, Respondents filed a petition for review with the Arizona Court of 12 Appeals. (Id. at 4.) In July 2017, that court concluded Petitioner was not entitled to 13 presentence incarceration credit for the time spent in federal custody. (Id.) The Arizona 14 Supreme Court subsequently denied Petitioner’s petition for review. (Id.) 15 In November 2018, Petitioner filed the Petition. (Id.) Although Petitioner initially 16 raised three claims, he later moved to dismiss two of them. (Id. at 4-5.) His sole remaining 17 claim is that the Arizona Court of Appeals violated his federal due process rights, the 18 Double Jeopardy Clause of the Constitution, and federal sentencing laws by refusing to 19 give him presentence incarceration credit for the 841 days he spent in federal custody. (Id.) 20 The R&R concludes this claim must be denied because “[t]he decision to deny 21 [Petitioner] presentence incarceration credit was decided under Arizona law” and a 22 “challenge to [a] state court’s application of presentence-credit law is not cognizable on 23 federal habeas review.” (Id. at 5-6.) In support of this conclusion, the R&R cites an array 24 of decisions by other judges in this district rejecting § 2254 claims premised on challenges 25 to the calculation of presentence incarceration credit. (Id.)1 The R&R acknowledges the

26 1 The cited decisions are Morgan v. Ryan, 2017 WL 131570, *1 (D. Ariz. 2017) (“[T]he issue of presentence incarceration credit is a state-law matter and any alleged error 27 in the interpretation or application of state law cannot serve as a basis for habeas relief.”), Robinson v. Arizona, 2015 WL 4480856, *3-4 (D. Ariz. 2015) (habeas petitioner’s claim 28 that “he is ‘in custody in violation of the Constitution or laws or treaties of the United States’ because the trial court did not give him credit for time served on supervised 1 existence of one 14-year-old unpublished district court order that suggested a state prisoner 2 could raise a federal due process-based challenge to the denial of presentence incarceration 3 credit,2 but it concludes that Petitioner cannot prevail on such a theory because (1) a habeas 4 petitioner cannot transform a state-law issue into a federal issue by relabeling it a due 5 process violation and (2) the challenged ruling here wasn’t sufficiently egregious to shock 6 the conscience or otherwise amount to a due process violation because the charge that 7 resulted in the time spent in federal custody (racketeering) has different elements than the 8 state-law crime to which Petitioner pleaded guilty (murder). (Id. at 6-7.) 9 II. Legal Standard 10 A party may file written objections to an R&R within fourteen days of being served 11 with a copy of it. Rules Governing Section 2254 Cases 8(b) (“Section 2254 Rules”). Those 12 objections must be “specific.” See Fed. R. Civ. P. 72(b)(2) (“Within 14 days after being 13 served with a copy of the recommended disposition, a party may serve and file specific 14 written objections to the proposed findings and recommendations.”) (emphasis added). 15 District courts are not required to review any portion of an R&R to which no specific 16 objection has been made. See, e.g., Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (“It does 17 not appear that Congress intended to require district court review of a magistrate’s factual 18 or legal conclusions, under a de novo or any other standard, when neither party objects to 19 those findings.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) 20 (“[T]he district judge must review the magistrate judge’s findings and recommendations 21 de novo if objection is made, but not otherwise.”). Thus, district judges need not review 22 an objection to an R&R that is general and non-specific. See, e.g., Warling v. Ryan, 2013 23 WL 5276367, *2 (D. Ariz. 2013) (“Because de novo review of an entire R & R would 24 defeat the efficiencies intended by Congress, a general objection ‘has the same effect as

25 probation or in county jail when it sentenced him to prison . . . does not sufficiently allege a federal claim and, therefore, is not cognizable on federal habeas corpus review”), and 26 Elliot v. Ryan, 2011 WL 4829407, *1 (D. Ariz. 2011) (adopting recommendation to deny habeas petition “claiming Petitioner’s Fifth and Fourteenth Amendment rights were 27 violated by the denial of presentence incarceration credit against his Arizona sentences for the 14 months he spent in federal prison in Florida”). 28 2 Conway v. Schriro, 2006 WL 3063643, *8 (D. Ariz. 2006). 1 would a failure to object.’”) (citations omitted); Haley v. Stewart, 2006 WL 1980649, *2 2 (D. Ariz. 2006) (“[G]eneral objections to an R & R are tantamount to no objection at all.”).3 3 III. The Objections 4 In his written objections, Petitioner begins by generically “object[ing] to all adverse 5 rulings in the . . . R&R” and attempting to incorporate by reference various arguments he 6 made in earlier case filings. (Doc. 15 at 1-2.) This approach is improper—as noted, a 7 district court need only review specific objections to the R&R. 8 Next, Petitioner challenges the R&R’s conclusion that a miscalculation of 9 presentence incarceration credit is a state-law issue that is not cognizable in a habeas 10 proceeding. (Doc. 15 at 3.) Citing Christian v. Rhode, 41 F.3d 461 (9th Cir. 1994), he 11 contends that “misapplication of a state’s sentencing laws could justify federal habeas 12 relief.” (Id., emphasis in original.) 13 Last, Petitioner challenges the R&R’s conclusion that the Arizona Court of Appeals’ 14 decision wasn’t so obviously wrong as to shock the conscience or result in fundamental 15 unfairness. (Id. at 4-5.) He contends that because his federal racketeering charge “was not 16 based on drug dealing or gun running” and was instead “based on ARS 13-1104,” which 17 is the same crime to which he pleaded guilty, it follows that “‘but for’ the state murder 18 offense, the Petitioner would not have been in federal custody for 841 days.” (Id.) 19 Respondents do not address, with any specificity, Petitioner’s first argument 20 concerning Christian. Instead, they repeat the citations contained in the R&R concerning 21 the non-cognizable nature of habeas claims pertaining to presentence incarceration credit. 22 (Doc. 16 at 1-2.) As for Petitioner’s second argument, Respondents argue that Petitioner 23 “conflates the factual basis for his charges with the distinct elements of each offense. 24 Without the racketeering aspect of his charge, he would not have been subject to federal 25 custody. A ‘mere’ murder is precisely the type of crime that involves a state’s general 26 3 See generally S. Gensler, 2 Federal Rules of Civil Procedure, Rules and 27 Commentary, Rule 72, at 422 (2018) (“A party who wishes to object to a magistrate judge’s ruling must make specific and direct objections. General objections that do not direct the 28 district court to the issues in controversy are not sufficient. . . . [T]he objecting party must specifically identify each issue for which he seeks district court review . . . .”). 1 police powers, which generally does not subject a defendant to federal custody unless there 2 is some kind of federal ‘hook.’ In this case, the federal ‘hook’ was the racketeering aspect 3 of the murder, meaning the fact that it was done to further a criminal enterprise (the Hells 4 Angels Motorcycle Club of Arizona). This element (racketeering) is entirely missing from 5 Arizona’s murder statute, which means that they are two distinct crimes (as the Magistrate 6 and the state courts pointed out), which means that he is not entitled to presentence 7 incarceration credit for time spent in federal custody.”). (Id. at 2-3.) 8 Petitioner did not file a reply. 9 IV. Analysis 10 Petitioner’s objections to the R&R will be overruled. First, the Court agrees with 11 the R&R’s conclusion that Petitioner’s challenge to the denial of presentence incarceration 12 credit is a state-law claim not cognizable on habeas review. Petitioner cannot evade this 13 conclusion by repackaging his challenge as a due process claim. Langford v. Day, 110 14 F.3d 1380, 1389 (9th Cir. 1996) (“[A petitioner] may not, however, transform a state-law 15 issue into a federal one merely by asserting a violation of due process. We accept a state 16 court's interpretation of state law, and alleged errors in the application of state law are not 17 cognizable in federal habeas corpus.”). Rhode does not compel a different conclusion. It 18 is a pre-AEDPA decision that didn’t involve presentence incarceration credit. As the R&R 19 notes, “[n]either party has directed this Court to clearly established federal law holding that 20 incorrect state-law decisions regarding presentence credit can amount to a due process 21 violation. Instead, several courts have determined there is no constitutional right to 22 presentence credit.” (Doc. 14 at 6 n.2) 23 Second, even if Petitioner’s claim were theoretically cognizable, he is not entitled 24 to relief on the merits. The rule in Arizona is that presentence credit should be afforded 25 for “‘[a]ll time’ spent in custody pursuant to an Arizona offense . . . [but] is unavailable for 26 time served based on a charge other than that for which the defendant is being sentenced, 27 because such incarceration is not ‘pursuant to’ the relevant offense.” State v. Cecena, 334 28 P.3d 1282, 1284 (Ariz. Ct. App. 2014) (citations omitted). “As long as the foreign 1 incarceration is pursuant to the Arizona charge for which he or she is being sentenced, a 2 defendant should be entitled to credit for presentence incarceration.” Id. 3 In Cecena, the defendant fled to Mexico after being charged in state court with 4 sexual abuse of a child. Id. at 1283. He was convicted in absentia in September 2010, 5 arrested in Mexico in July 2012, and then extradited to Arizona in May 2013 for sentencing. 6 Id. at 1283. The issue on appeal was whether the defendant should receive presentence 7 incarceration credit for the time he spent in Mexican jail. Id. at 1283-84. The Cecena court 8 concluded the record was insufficiently developed to resolve this issue because neither 9 party had introduced evidence showing why Mexican authorities had arrested the defendant 10 in July 2012—although the trial court had issued a bench warrant for the defendant’s arrest 11 following the September 2010 trial, “Cecena never actually asserted before the trial judge 12 that his detention in Mexico was pursuant to the September 2010 arrest warrant.” Id. at 13 1285. Thus, the appellate court “remand[ed] this case for further findings on . . . whether 14 [Cecena’s incarceration in Mexico] was pursuant to the Arizona charge of continuous 15 sexual abuse of a minor.” Id. at 1285-86. The court also suggested, in a parenthetical, that 16 the defendant would not be entitled to credit unless his “foreign incarceration was solely 17 on account of in-state charge.” Id. at 1286 (citation omitted). 18 Here, unlike in Cecena, there is no possibility that Petitioner was arrested by federal 19 authorities “pursuant to” the Arizona charge to which Petitioner ultimately pleaded guilty. 20 The federal arrest occurred in 2003, yet the state charges weren’t even initiated until 2007. 21 Although it’s true that the federal racketeering statute incorporates some state laws by 22 reference, Cecena suggests that presentence credit is available only when out-of- 23 jurisdiction incarceration occurs at the behest of Arizona authorities due to a pending state- 24 law charge. Id. at 1285 (suggesting that credit could also apply if foreign arrest was the 25 “result of a formal hold or detainer” or pursuant to a provisional arrest warrant). Under 26 that logic, there is no reason to provide presentence incarceration credit based on time spent 27 in custody on a federal racketeering charge—such a charge may be pursued by federal 28 authorities without the assent or request of the state whose criminal laws are incorporated by reference.* 2 Finally, and in any event, Petitioner has not identified any cases from Arizona (or || any other jurisdiction) holding or even suggesting that presentence incarceration credit is 4|| required under these somewhat unusual circumstances. Thus, Petitioner cannot establish (as he concedes he must) that the alleged error was so palpably and obviously wrong as to || violate notions of fundamental fairness and warrant habeas relief. (Doc. 15 at 3 [“All 7\| parties agree that the Arizona Court of Appeals[’] ruling must ‘shock the conscience’ and 8 || be so ‘arbitrary and fundamentally unfair’ that it violated federal due process.”’].). 9 Accordingly, IT IS ORDERED that: 10 (1) The R&R’s recommended disposition (Doc. 14) is accepted. 11 (2) The Petition (Doc. 1) is denied and dismissed with prejudice. 12 (3) A Certificate of Appealability and leave to proceed in forma pauperis on appeal are 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 16 (4) The Clerk shall enter judgment accordingly and terminate this action. 17 Dated this 7th day of April, 2020. 18 19 fa 7 20 ~ "Dominic W. Lanza United States District Judge 22 23 24 25 — 4 See generally State v. Augustiniak, 2017 WL 2871588, *3 (Ariz. Ct. App. 2017) 26 Cf There is no evidence the State asked federal authorities to initiate, maintain, or otherwise prolong Augustiniak’s federal custody as a result of any Arizona offense for which Augustiniak was convicted. Therefore, Augustiniak did not spend any time in federal custody ‘pursuant to’ an Arizona offense that resulted in the underlying conviction || and sentence. ‘That some of the federal racketeering charges were based, in part, upon the same murder for which Augustiniak later pleaded guilty is of no consequence.”’). -7-