Valencia 124129 v. Shinn

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Gregory Nidez Valencia, Jr., No. CV-21-00335-TUC-RCC 10 Petitioner, ORDER v. David Shinn, et al., 13 Respondents.

15 On March 30, 2022, Magistrate Judge Leslie A. Bowman issued a Report and Recommendation (“R&R”) in which she recommended the Court dismiss Petitioner Gregory Valencia, Jr.’s Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 4) and deny Respondents' Motion to Strike the Addendum (Doc. 20). (Doc. 24.) Petitioner filed an objection to the R&R (Doc. 24), and Respondents a response (Doc. 28). Petitioner then filed a motion to reply to the response. (Doc. 29.) Upon review, the Court will grant the motion to reply, adopt the R&R, deny the Motion to Strike, and dismiss Petitioner's § 2254 Habeas Petition.

23 I. STANDARD OF REVIEW 24 The standard the district court uses when reviewing a magistrate judge’s R&R is dependent upon whether a party objects: where there is no objection to a magistrate’s factual or legal determinations, the district court need not review the decision "under a de novo or any other standard." Thomas v. Arn, 474 U.S. 140, 150 (1985). However, when a party objects, the district court must “determine de novo any part of the magistrate judge’s disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); see also 28 4 U.S.C. § 636(b)(1). Moreover, “while the statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard.”

7 Thomas, 474 U.S. at 154.

8 II. MAGISTRATE JUDGE'S R&R 9 Petitioner asserts two grounds for relief: (1) that the Arizona statute regarding parole eligibility for juvenile offenders sentenced to life imprisonment is an unconstitutional ex post facto law, and (2) that his sentence is unlawful because parole eligibility for juveniles should consider whether a juvenile's offense was a result of "transient immaturity." (Doc. 4 at 6, 9.)

14 The Magistrate Judge first concluded that the statute applicable to Petitioner's re- sentencing—A.R.S. § 13-716—was not an ex post facto law because it did not inflict a sentence greater than what could have been provided at the time of Petitioner's original sentencing. (Doc. 24 at 4–5 (quoting Gilman v. Brown, 814 F.3d 1007, 1014 (9th Cir. 2016) (“A change in law violates the Ex Post Facto Clause of the Federal Constitution when it inflicts a greater punishment than the law annexed to the crime, when committed.”).) The statute provides that a juvenile given a life sentence with the possibility of release after a minimum number of years is eligible for parole after that minimum sentence is served. A.R.S. § 13-716. However, the Magistrate reasoned that because parole had been eliminated before Petitioner's original sentencing, he was faced with a possible death or natural life sentence, not parole. (Id. at 5.) Petitioner was sentenced to natural life. (Id.) Then, when the Supreme Court determined that natural life for juvenile offenders may be unconstitutional in certain circumstances, Petitioner was re- sentenced pursuant to A.R.S. § 13-716 with the possibility of parole. (Id. at 2.) And so, at resentencing, Petitioner faced less time than that imposed at his original sentencing. (Id.) This was true regardless of whether Petitioner's original sentence was later found to be unconstitutional, the Magistrate Judge stated. (Id. at 6 (citing Dobbert v. Florida, 432 3 U.S. 282, 297 (1977).) The Magistrate determined that habeas relief was inappropriate because Petitioner had not demonstrated that the state court's decision was "contrary to or an unreasonable application of Supreme Court precedent." (Id. (quoting 28 U.S.C. § 6 2254(d).)

7 Next, the Magistrate Judge noted Petitioner believed his sentence should be vacated because the parole statute provided no guidance about how to determine parole eligibility for juveniles. (Id. at 6.) The Magistrate indicated Petitioner believed two Supreme Court cases, Miller v. Alabama, 567 U.S. 460, 469 (2012) and Montgomery v. Louisiana, 577 U.S. 190, 208, as revised (Jan. 27, 2016), show that an evaluation of a juvenile offender's eligibility for parole must hinge on whether the juvenile's crime was the result of "transient immaturity." (Id. at 6–7.)

14 The Magistrate Judge indicated that the transient immaturity analysis applied to a juvenile offender's sentence, not his or her parole eligibility. (Id. at 7.) The Magistrate stated that "[o]nce the sentence of life with the possibility of parole is imposed, the requirements of Miller and Montgomery are satisfied." (Id. at 7.) Here, Petitioner received an evidentiary hearing, demonstrated that his crime was a result of transient immaturity, and was re-sentenced to life with the possibility of parole after twenty-five years. (Id.) Thus, the Magistrate Judge determined that Miller and Montgomery were satisfied, and the state court's decision was not unreasonable. (Id. at 7–8.)

22 Finally, the Magistrate Judge dismissed Petitioner's claim that he had no meaningful opportunity for parole, stating that this claim was not presented to the Arizona Court of Appeals and was therefore either not part of his claim for relief, or not exhausted. (Id. at 8.)

26 The Court agrees with the Magistrate Judge's analysis, and finds the R&R well- reasoned. Regardless, Petitioner has not objected to these conclusions in the R&R and therefore the Court need not review "under a de novo or any other standard." Thomas v. Arn, 474 U.S. 140, 150 (1985).

2 III. PETITIONER'S OBJECTIONS 3 Petitioner makes three objections to the Magistrate Judge's R&R. First, he disagrees with the Magistrate's statement of facts. (Doc. 27 at 1–2.) Under 28 U.S.C. § 5 2241(e)(1), factual determinations are "presumed to be correct" unless there is clear and convincing evidence to the contrary. See Sumner v. Mata, 449 U.S. 539, 547 (1981).

7 Petitioner has not met this burden. Furthermore, the claims in the instant § 2254 habeas petition do not relate to the facts in the underlying conviction, but to his new sentence, and any challenges regarding the underlying factual allegations leading to his conviction would need to be raised in a successive § 2254 petition.

11 Second, Petitioner argues his sentence is unconstitutional because he received a longer sentence than his co-defendant. (Doc. 27 at 4.) There is no right to the same sentence as a co-defendant, as sentences rely upon various factors present with each case and each defendant. See United States v. Reverol-Rivera, 778 F.3d 363, 366 (1st Cir. 2015) (“[D]ifferences in culpability can justify disparate sentences among co- defendants.”). Petitioner was not similarly situated to his co-defendant and cannot show that the length of his sentence was an ex post facto law simply because he incurred a longer sentence.

19 Third, Petitioner claims he is likely to serve a natural life sentence, despite being eligible for parole, because "there is no guarantee of release, especially now that the parole board is illegally made up." (Id. at 4.) A petitioner’s objections to an R&R must specifically indicate the findings and recommendations for which he disagrees. Fed. R. Civ. P. 72(b). Petitioner's allegation provides no explanation how this statement undermines the Magistrate Judge's factual and legal conclusions. Moreover, these arguments were not before the state courts and are not exhausted.

26 IV. MOTION TO STRIKE 27 Finally, the Court has considered Respondents' Motion to Strike (Doc. 20), asking the Court to strike Petitioner's addendum because he did not seek the Court's leave under || Federal Rules of Civil Procedure 15. The Court, in its discretion, will deny the motion.

2 V. MOTION TO REPLY 3 Petitioner has requested permission to file a reply. (Doc. 29.) The Court will allow 4|| the reply, however, because the arguments parallel those in his § 2254 habeas and || objections, the reply does not change the Court's analysis.

6 VI. CONCLUSION 7 The Court finds Petitioner's arguments are unfounded, the state appellate court's || conclusions were not contrary to federal law, and Petitioner is not entitled to relief. For the reasons stated above, IT IS ORDERED: 10 1) GRANTING Petitioner's Motion to Reply to Respondents’ Response to the 11 Petitioner's Objections to the Magistrate's Report and Recommendation.

12 (Doc. 29.)

13 2) ADOPTING Magistrate Judge Leslie A. Bowman's Report and 14 Recommendation. (Doc. 24.)

15 3) DENYING Respondents’ Motion to Strike "Petitioner's Addendum to his 16 Petition for Writ of Habeas Corpus. (Doc. 20.)

17 4) Petitioner Gregory Nidez Valencia, Jr.'s Petition Under 28 U.S.C. § 2254 18 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death 19 Penalty) is DISMISSED WITH PREJUDICE. (Doc. 4.)

20 5) The Clerk of Court shall docket accordingly and close the case file in this 21 matter.

22 Dated this 14th day of June, 2022.

24 , 4] 25 fy pL N- 26 Honorable Raner ©. Collins senior United States District Judge _5-