Perez-Sanchez v. McWilliams et al

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATION - granting 14 Petitioner's Motion for Extension of Time to Object to the extent that the Objections received on 3/20/09 are deemed timely and Denying 16 Petitioner's Motion to Appoint Counsel and Petitioner's Motion to Declare AEDPA Unconstitutional. IT IS FURTHER ORDERED overruling 10 Respondent's Objections to the Report and Recommendation and 15 Petitioner's Objections to the Report and Recommendation. IT IS FURTHER ORD ERED accepting in its entriety 9 Report and Recommendation. The Writ of Habeas Corpus is GRANTED as to Petitioner's sentence only, unless the State initiates a re-sentencing proceeding within 120 days of the entry of judgment. The Writ is DENIED on all other grounds argued in the Petition. Signed by Judge James A Teilborg on 5/11/09. (LSP)

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WO

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Jose Angel Perez Sanchez, Petitioner, vs. Dora B. Schriro, et al., Respondents.

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No. CV 07-1990-PHX-JAT (BPV) ORDER

Petitioner pro se, Jose Angel Perez Sanchez, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on October 15, 2007. (Dkt #1.) Petitioner seeks relief on four grounds: (1) ineffective assistance of counsel; (2) the sentencing procedure used violated his 6th Amendment right to have a jury determine the existence of aggravating factors; (3) his attorney's failure to forward sentencing letters to the trial judge constitutes a violation of his 5th Amendment right to due process; and (4) an 8th Amendment violation caused by excessive punishment disproportionate to the crime. (Id.) The matter was assigned to Magistrate Judge Bernardo P. Velasco, who issued a Report and Recommendation on January 12, 2009 (Dkt. #9), recommending that the Court grant relief as to Ground Two, and dismiss Grounds One, Three and Four. Respondents filed a written objection to the Report and Recommendation on January 20, 2009 (Dkt. #10), and Petitioner filed a Reply to Respondents' objection on February 23, 2009. (Dkt. #13.)

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Petitioner filed a Motion to Extend Time to Object (Dkt. #14) on March 16, 2009. Respondents have not objected to Petitioner's Motion to Extend. Considering Petitioner's pro se status and the fact that Respondents have not objected, the Court will grant Petitioner's Motion to Extend. (Dkt. #14.) On March 20, 2009, Petitioner filed a written objection to the Report and Recommendation. (Dkt. #15.) Respondents did not file a Response. Petitioner also filed a Motion to Appoint Counsel and a Motion to Declare the AEDPA Unconstitutional. (Dkt. #16.) Respondents did not file a Response to either motion. I. Motion to Appoint Counsel Indigent state prisoners applying for habeas relief are not entitled to appointed counsel unless the circumstances indicate that appointed counsel is necessary to prevent due process violations. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987). The Court has discretion to appoint counsel when a judge "determines that the interests of justice so require." Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990), cert. denied, 499 U.S. 979 (1991) (quoting 18 U.S.C. § 3006A(a)(2)(B)). "In deciding whether to appoint counsel in a habeas proceeding, the district court must evaluate the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Here, the Magistrate is recommending granting relief on Petitioner's Ground Two claim. The Court finds that any additional relief is unlikely, given the procedural defaults, as noted by the Magistrate Judge and discussed below. Additionally, Petitioner has demonstrated an ability to research the law and write appropriate and comprehensible motions for a court to review. In fact, Petitioner has already articulated the essential substance of his objections to the Report and Recommendation, alleging that his lack of access to legal materials should preclude application of the doctrine of procedural default. As such, the Court will deny Petitioner's Motion to Appoint Counsel. (Dkt. #16.)

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II.

Motion to Declare AEDPA Unconstitutional Petitioner has filed a motion to declare the AEDPA unconstitutional. Specifically,

Petitioner argues that 28 U.S.C. § 2254(b)(1) violates the First and Fourteenth Amendments, and therefore should be declared unconstitutional. Although the United States Supreme Court has not squarely addressed 28 U.S.C. § 2254(b)(1)'s constitutional validity, for the past thirteen years the Supreme Court has consistently applied AEDPA to appellate habeas petitions. See Abdul-Kabir v. Quarterman, 550 U.S. 233, 246 (2007) (granting habeas relief because "the provisions of [AEDPA] govern the scope of our review"); Tyler v. Cain, 533 U.S. 656, 659 (2001) (applying AEDPA's rule against successive petitions to deny federal habeas relief); Lindh v. Murphy, 521 U.S. 320, 336 (1997) (holding that AEDPA applies to federal habeas petitions filed after April 24, 1996). As such, the Court considers the Supreme Court's longstanding application of the rules set forth in AEDPA to be strong evidence of AEDPA's constitutionality. Accordingly, the Court will deny Petitioner's motion to declare the AEDPA unconstitutional. III. Standard of Review This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). It is "clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D.Ariz. 2003) ("Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, `but not otherwise.'"). District courts are not required to conduct "any review at all . . . of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. § 636(b)(1) ("the court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made."). As stated above, Petitioner seeks relief from his state court conviction based on 28

28 U.S.C. § 2254. With respect to any claims that Petitioner exhausted before the state courts, -3-

1 under 28 U.S.C. §§ 2254(d)(1) and (2), this Court must deny the Petition on those claims 2 unless "a state court decision is contrary to, or involved an unreasonable application of, 3 clearly established Federal law"1 or was based on an unreasonable determination of the facts. 4 See Lockyer v. Andrade, 538 U.S. 63, 71 (2003). 5 Further, this Court must presume the correctness of the state court's factual findings

6 regarding a petitioner's claims. 28 U.S.C. § 2254(e)(1); Ortiz v. Stewart, 149 F.3d 923, 936 7 (9th Cir. 1998). Additionally, "[a]n application for a writ of habeas corpus may be denied on 8 the merits, notwithstanding the failure of the applicant to exhaust the remedies available in 9 the courts of the State." 28 U.S.C. § 2254(b)(2). 10 IV. 11 12 Discussion A. Grounds One, Three and Four

Petitioner objects to the Report and Recommendation on the ground that he has been

13 denied access to legal resources, which Petitioner claims establishes cause for his procedural 14 defaults. Because an objection was filed, this Court will review the Magistrate Judge's 15 finding that Petitioner procedurally defaulted Grounds One, Three and Four de novo. 16 17 1. Procedural Default

Before this Court may consider the merits of an application for habeas relief, a state

18 prisoner must "exhaust" in state court the claims raised in the petition. See Coleman v. 19 Thompson, 501 U.S. 722, 729-30; 735 n.1 (1991); Castille v. Peoples, 489 U.S. 346, 349-50 20 21 22 23 24 25 26 27 28 Further, in applying "Federal law" the state courts only need to act in accordance with Supreme Court case law. See Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003)("In attempting to answer [whether the state court applied Federal law in an objectively reasonable manner], the only definitive source of clearly established federal law under AEDPA is the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Williams [v. Taylor], 529 U.S. [362], 412 [(2000)]. While circuit law may be `persuasive authority' for purposes of determining whether a state court decision is an unreasonable application of Supreme Court law, Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir.1999), only the Supreme Court's holdings are binding on the state courts and only those holdings need be reasonably applied. See Williams, 529 U.S. at 412 (`The ... statutory language makes clear . . . that § 2254(d)(1) restricts the source of clearly established law to this Court's jurisprudence.')"). -41

1 (1989). To properly exhaust his claims in the state courts, the petitioner must afford the state 2 the opportunity to rule upon the merits of each federal constitutional claim by "fairly 3 presenting" the claim to the state's highest court in a procedurally correct manner. Castille, 4 489 U.S. at 351. 5 Because the exhaustion requirement refers only to remedies still available to the

6 petitioner at the time he files an action for federal habeas relief, it is also satisfied if the habeas 7 petitioner is procedurally barred from pursuing his claim in the state courts. 28 U.S.C. § 8 2254(c); Castille, 489 U.S. at 351; Gray v. Netherland, 518 U.S. 152, 161-62 (1996). Thus, 9 if the habeas petitioner's claims are now procedurally barred under state law, the claim is 10 exhausted by virtue of the petitioner's procedural default of the claim. In other words, 11 procedural default occurs when a petitioner has never presented a claim in state court and is 12 now barred from doing so by state court procedural rules. Castille, 489 U.S. at 351-52. 13 As long as the state's procedural bar provides an independent and adequate state-law

14 basis for upholding the petitioner's conviction and sentence, the federal courts may not, 15 generally, review a procedurally defaulted claim in a petition for federal habeas relief unless 16 the petitioner can demonstrate cause for his failure to follow reasonable state procedures and 17 prejudice arising from his procedural default of the claim. Gray v. Netherland, 518 U.S. 152, 18 161-62 (1996) (emphasis added).2 19 Here, a review of the record shows that Petitioner never raised Grounds One, Three or

20 Four in a procedurally correct manner. Petitioner's first petition for post-conviction relief was 21 denied by the trial court on June 8, 2008 based on Petitioner's failure to comply with Rule 22 32.5 of the Arizona Rules of Criminal Procedure. (Dkt. #6, Ex. K.) Petitioner subsequently 23 filed a successive petition for post-conviction relief, and the trial court granted review solely 24 25 26 27 28 Review is also appropriate if the petitioner demonstrates that habeas review is necessary to prevent a fundamental miscarriage of justice. Murray v. Carrier, 477 U.S. 478, 495-96 (1986). A fundamental miscarriage of justice occurs only when a Constitutional violation has probably resulted in the conviction of one who is actually innocent. Id. -52

1 on the Blakely issue raised by Petitioner. (Dkt. #6, Ex. L.) Accordingly, the Court finds that 2 Petitioner failed to exhaust Grounds One, Three and Four in state court. 3 Rule 32.4 of the Arizona Rules of Criminal Procedure requires that a petition for post-

4 conviction relief must be filed within 90 days of the entry of judgment and sentence or 30 5 days after the issuance of the order and mandate in the direct appeal, whichever is the later. 6 See Ariz.R.Crim.P. 32.4(a). The time for Petitioner to file a petition for post-conviction relief 7 has long passed. Thus, if Petitioner were to attempt to revive Grounds One, Three and Four 8 in state court, there is an adequate and independent state ground barring Petitioner from 9 raising these claims in state court. See Stewart v. Smith, 536 U.S. 856, 861 (2002) (holding 10 that Rule 32.2(a) of the Arizona Rules of Criminal Procedure is an adequate and independent 11 procedural bar). The Court therefore finds that Petitioner's Grounds One, Three and Four are 12 procedurally defaulted. As such, this Court may not review Grounds One, Three or Four 13 unless Petitioner can establish cause for the failure to follow state procedural rules and 14 prejudice arising from his procedural default of the claim. 15 16 2. Cause and Prejudice

Ordinarily "cause" to excuse a default exists if a petitioner can demonstrate that "some

17 objective factor external to the defense impeded counsel's efforts to comply with the State's 18 procedural rule." Coleman v. Thompson, 501 U.S. 722, 753 (1991). Objective factors which 19 constitute cause include interference by officials which makes compliance with the state's 20 procedural rule impracticable, a showing that the factual or legal basis for a claim was not 21 reasonably available to counsel, and constitutionally ineffective assistance of counsel. 22 Murray v. Carrier, 477 U.S. 478, 488 (1986). 23 "Prejudice" is actual harm resulting from the alleged constitutional error or violation.

24 Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984). To establish prejudice resulting 25 from a procedural default, a habeas petitioner bears the burden of showing not merely that the 26 errors at his trial constituted a possibility of prejudice, but that they worked to his actual and 27 substantial disadvantage, infecting his entire trial with errors of constitutional dimension. 28 United States v. Frady, 456 U.S. 152, 170 (1982). However, prejudice need not be addressed -6-

1 if a petitioner fails to show cause. See Thomas v. Lewis, 945 F.2d 1119, 1123 n.10 (9th Cir. 2 1991). 3 Petitioner argues that he has been denied access to legal materials and such lack of

4 access resulted in his procedural default of Grounds One, Three and Four. The Court notes 5 that, as a general matter, Petitioner's pro se status and ignorance of the law do not satisfy the 6 cause standard. See Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 908 (9th Cir. 7 1986). However, a pro se petitioner may be able to establish cause if he can establish a lack 8 of access to the law, as opposed to a lack of knowledge of the law. See Dulin v. Cook, 957 9 F.2d 758 (10th Cir. 1992). But, Petitioner must establish that the lack of access resulted in 10 an inability to assert his claims. See Lewis, 945 F.2d at 1123 (finding no cause where despite 11 lack of resources generally, pro se prisoner had shown no personal deprivation, and had 12 managed to file other adequate petitions). 13 In reviewing the record, the Court finds that Petitioner fails to establish that any alleged

14 lack of access to legal materials resulted in an inability to assert his claims. Indeed, the record 15 shows that Petitioner has consistently been able to cite to legal sources and file other adequate 16 petitions, including the instant petition. Moreover, Petitioner procedurally defaulted on 17 Grounds One, Three and Four because he failed to follow the trial court's explicit instructions 18 after it dismissed his first petition for post-conviction relief (Dkt. #6, Exs. J, K), rather than 19 due to Petitioner's ignorance of the law. Accordingly, the Court finds that Petitioner fails to 20 establish cause for his failure to follow state procedural rules. Because Petitioner has failed 21 to establish cause, the Court need not consider prejudice. See Lewis, 945 F.2d at 1123 n.10. 22 23 3. Fundamental Miscarriage of Justice

If a petitioner cannot meet the cause and prejudice standard, the Court still may hear

24 the merits of procedurally defaulted claims if the failure to hear the claims would constitute 25 a "fundamental miscarriage of justice." Sawyer v. Whitley, 505 U.S. 333 (1992). The 26 "fundamental miscarriage of justice" exception is also known as the actual or procedural 27 innocence exception. To bring himself within the narrow class of cases that implicate a 28 fundamental miscarriage of justice, a petitioner "must come forward with sufficient proof of -7-

1 his actual innocence." Sistrunk v. Armenakis, 292 F.3d 669, 672-73 (9th Cir. 2002). A 2 petitioner must present "evidence of innocence so strong that a court cannot have confidence 3 in the outcome of the trial unless the court is also satisfied that the trial was free of 4 nonharmless constitutional error." Id. at 673 (internal quotation marks and citations omitted). 5 Petitioner fails to present any evidence to support an assertion of actual innocence.

6 Petitioner merely asserts that his lack of legal knowledge led to his procedural default. 7 Because Petitioner fails to present any evidence that he is innocent, the Court finds that 8 Petitioner fails to establish that a fundamental miscarriage of justice would occur if the Court 9 declines to review the procedurally defaulted claims. The Court therefore finds that 10 Petitioner's Ground One, Three and Four claims are procedurally defaulted and are not subject 11 to federal habeas review. See Gray, 518 U.S. at 161-62; Murray, 477 U.S. at 495-96. 12 13 B. Ground Two

Respondents filed an objection to the Report and Recommendation with regard to

14 Ground Two. As stated above, in Ground Two Petitioner argued that the sentencing 15 procedure used by the trial court violated the 6th Amendment as interpreted in Blakely v. 16 Washington, 542 U.S. 296 (2004). Respondents argue that Petitioner's sentence did not 17 violate Blakely because the trial court did not impose an aggravated sentence, rather it 18 imposed a sentence within the range to which Petitioner voluntarily agreed. Because an 19 objection was filed, this Court will also review Ground Two de novo. 20 21 1. Applicability of Blakely

Decisions applying new constitutional rules do not generally apply retroactively to

22 cases on collateral review. See Teague v. Lane, 489 U.S. 288, 305 (1989). Moreover, under 23 Ninth Circuit precedent, Blakely does not apply retroactively to cases that were already final 24 for direct review purposes at the time it was decided. See Schardt v. Payne, 414 F.3d 1025, 25 1036 (9th Cir. 2005). However, it is clearly established that a "failure to apply a newly 26 declared constitutional rule to criminal cases pending on direct review violates basic norms 27 of constitutional adjudication." Griffith v. Kentucky, 479 U.S. 314, 322 (1987). 28 -8-

1

In Arizona, a defendant who pleads guilty waives the right to direct appeal. See

2 Ariz.R.Crim.P. 17.1(e). Thus, a pleading defendant can seek review of his conviction only 3 by petition pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. See id. This is 4 known as a "Rule 32 of-right proceeding." Ariz.R.Crim.P. 32.1. The Rule 32 of-right 5 proceeding is the "functional equivalent" of a direct appeal. See State v. Ward, 211 Ariz. 158, 6 162, ¶ 9 (App. 2005). 7 Petitioner in this case filed a Rule 32 of-right petition for post-conviction relief which

8 the state court denied on June 8, 2004. But, a pleading defendant's conviction is not "final" 9 for direct review purposes while his timely-filed Rule 32 of-right proceedings, including 10 review, are pending. See Ward, 211 Ariz. at 163 (emphasis added). Rule 32 of the Arizona 11 Rules of Criminal Procedure states that a defendant has 30 days after the filing of a decision 12 to file a petition for review with the Arizona Court of Appeals. See Ariz.R.Crim.P. 32.9(c). 13 Thus, Petitioner's Rule 32 of-right proceeding, and therefore his conviction, was not final 14 until July 8, 2004. See Beard v. Banks, 542 U.S. 406, 411 (2004) (finding that "State 15 convictions are final `for purposes of retroactivity analysis when the availability of direct 16 appeal to the state court has been exhausted and the time for filing a petition for a writ of 17 certiorari has lapsed or a timely filed petition has been finally denied.'"). 18 Blakely was decided on June 24, 2004, 14 days before Petitioner's conviction and

19 sentence became final. Accordingly, the Court finds that Petitioner's case was pending on 20 direct review at the time Blakely was decided, and Blakely applies to this case. 21 22 2. Imposition of an Aggravated Sentence

In Blakely, the Supreme Court held that any fact (besides the finding of a prior

23 conviction) that increases the range of punishment beyond the statutory maximum that would 24 be authorized by the jury's verdict alone must be submitted to a jury and proved beyond a 25 reasonable doubt. See Blakely, 542 U.S. at 301 (applying "the rule we expressed in Apprendi 26 v. New Jersey, 530 U.S. 466, 490 (2000): `Other than the fact of a prior conviction, any fact 27 that increases the penalty for a crime beyond the presumptive statutory maximum must be 28 submitted to a jury and proved beyond a reasonable doubt.'"). -9-

1

In Arizona, the presumptive sentence is generally considered the statutory maximum.

2 See State v. Price, 217 Ariz. 182, ¶ 8 (2007) ("[t]he statutory maximum for Apprendi purposes 3 . . . is the presumptive sentence established" by statute). However, 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 If there is one Apprendi-compliant aggravating factor, `a defendant is exposed to a sentencing range that extends to the maximum punishment available under section 13-702.' Once such a factor is properly found-by the jury, based on a defendant's admission, or, for a prior conviction, by the court or jury-`the Sixth Amendment permits the sentencing judge to find and consider additional factors relevant to the imposition of a sentence up to the maximum prescribed in that statute.' Id. at 185, ¶ 15 (citations omitted). On April 1, 2003, Petitioner entered into a plea agreement to plead guilty to Count 1, burglary in the first degree, a class 2 dangerous felony; Count 7, armed robbery, a class 2 dangerous felony; and Count 10, kidnapping, a class 2 felony. The plea agreement also provided that Petitioner's sentences in Counts 1 and 7 would run concurrently with each other, and that Petitioner would serve no more than 15 years. The plea agreement further provided that the State would dismiss the remaining charges. On June 13, 2003, Petitioner was sentenced to an aggravated term of 14 years on Count 1;3 an aggravated term of 14 years on Count 7, to run concurrent with Count 1;4 and with regard to Count 10, the trial court ordered that Petitioner be placed on supervised probation for 5 years from the date of his physical release from the Arizona Department of Corrections.5 Petitioner does not have any prior convictions that would permit the trial court to impose an aggravated sentence; therefore, under Blakely any factors used to impose an

Count 1 carries a presumptive sentence of 10.5 years, a minimum sentence of 7 years and a maximum sentence of 21 years. See A.R.S. § 13-704(A). Count 7 carries a presumptive sentence of 10.5 years, a minimum sentence of 7 years and a maximum sentence of 21 years. See A.R.S. § 13-704(A). Count 10 carries a presumptive sentence of 5 years, a minimum sentence of 4 years and a maximum sentence of 10 years. The trial court is permitted to reduce the minimum sentence to as low as 3 years or increase the maximum sentence to as high as 12.5 years if it finds exceptional circumstances. See A.R.S. § 13-704(D). - 10 5 4

3

1 aggravated sentence were required to be submitted to a jury and proved beyond a reasonable 2 doubt. Here, a judge, not a jury, found facts that made Petitioner eligible for an aggravated 3 sentence. As such, the Court finds that the sentence imposed by the trial court violated 4 Blakely. And because Petitioner's case was pending on direct review at the time Blakely was 5 decided, the Court finds that the state court's denial of Petitioner's petition for post-conviction 6 relief based on a Blakely violation was contrary to clearly established federal law. 7 8 3. Fundamental Error

Here, Petitioner did not object to the failure to have a jury determine aggravating

9 factors at the time of sentencing. This Court therefore reviews any Blakely violation for 10 fundamental error, rather than trial error.6 See State v. Henderson, 210 Ariz. 561, 567, ¶ 19 11 (2005) (fundamental error is "error going to the foundation of the case, error that takes from 12 the defendant a right essential to his defense, and error of such magnitude that the defendant 13 could not have possibly received a fair trial."). To prevail under this standard, Petitioner must 14 establish that fundamental error exists and that the error in his case caused him prejudice.7 15 See State v. Gendron, 168 Ariz. 153, 155 (1991). 16 In this case, the aggravating factors used to determine Petitioner's sentence were found

17 by a judge instead of a jury, violating Petitioner's 6th Amendment right to have such factors 18 proved to a jury beyond a reasonable doubt. Because the sentencing procedure used denied 19 Petitioner the right to have a jury determine aggravating factors, the Court finds that the 20 procedure utilized goes to the foundation of Petitioner's case, and the Court therefore holds 21 22 23 24 25 26 27 28 Trial error is reviewable in Arizona state court under the harmless error standard. State v. Henderson, 210 Ariz. 561, 567 (2005). Harmless error review places the burden on the state to prove beyond a reasonable doubt that the error did not contribute to or affect the verdict or sentence. Id. Under the analogous federal standard, an appellate court cannot reverse a 6th Amendment violation, such as a Blakely violation, based on an objection not timely raised at sentencing unless: (1) there was error; (2) the error was "plain"; (3) the error "affects substantial rights"; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Cotton, 535 U.S. 625, 632 (2002). - 11 7 6

1 that fundamental error occurred. See Henderson, 210 Ariz. at 568 ("Indeed, it is difficult to 2 conceive that use of a procedure that denied rights guaranteed . . . by the Sixth Amendment 3 to the United States Constitution could be other than fundamental error."). 4 Having shown that fundamental error occurred, Petitioner must now establish that the

5 error caused him prejudice. See Gendron, 168 Ariz. at 155. Respondents argue that Petitioner 6 was not prejudiced by the imposition of an aggravated sentence because Petitioner "got what 7 he bargained for" and that "the trial court made no findings, let alone factual findings, 8 concerning any aggravating factor; it simply sentenced [Petitioner] to a sentence within the 9 range to which [Petitioner] voluntarily agreed." 10 Recommendation, p. 3.) The Court disagrees. 11 "[A] plea bargain is contractual in nature and is subject to contract-law standards." (Dkt. #10, Objection to Report and

12 United States v. Partida-Parra, 859 F.2d 629, 633 (9th Cir. 1988) (internal quotations and 13 citations omitted). Further, "[a]ny disputes over the terms of the agreement must be resolved 14 by determining, under an objective standard, `what the parties to the plea bargain reasonably 15 understood to be the terms of the agreement.'" Id. (quoting United States v. Read, 778 F.2d 16 1437, 1441 (9th Cir. 1985). In reviewing the plea agreement, the Court cannot find, nor do 17 Respondents point to any evidence indicating that it was the intention of the parties to expose 18 Petitioner to an aggravated sentence without a finding of aggravating factors. In fact, during 19 the change of plea hearing, the trial court expressly explained the sentencing range, including 20 the presumptive and maximum sentence possible, to which Petitioner would be exposed if the 21 trial court accepted the plea agreement. (Dkt. #6, Response to Petition for Habeas Corpus, 22 Ex. A, Transcript of Change of Plea Hearing, p. 6.) The mere fact that the parties agreed to 23 reduce the maximum possible sentence from 21 years to 15 years does not establish that the 24 parties intended to expose Petitioner to an aggravated sentence without a finding of 25 aggravating factors. 26 Here, Petitioner was deprived of the opportunity to require that a jury find facts

27 sufficient to expose him to an aggravated sentence. Petitioner therefore must show that "a 28 reasonable jury, applying the appropriate standard of proof, could have reached a different - 12 -

1 result than did the trial judge." Henderson, 211 Ariz. at 569, ¶ 27. If this Court finds that a 2 reasonable jury could have failed to find the existence of all the aggravating factors, then the 3 defendant has made an adequate showing of prejudice. Id. at 569, ¶ 28. The trial court made 4 no specific findings regarding the aggravating factors used to impose an aggravated sentence; 5 it merely sentenced Petitioner to an "aggravated" sentence. (Dkt. #6, Ex. D, Transcript of 6 Sentencing Hearing, p. 30.) ("Having considered all of the factors, I am going to sentence you 7 . . . to an aggravated term of 14 years . . . .") Based on this record, this Court cannot conclude 8 that a reasonable jury could not have reached a different result than the trial judge. As such, 9 the Court finds that Petitioner has made an adequate showing of prejudice. 10 V. 11 CONCLUSION The Court finds that Petitioner's Grounds One, Three, and Four are procedurally

12 defaulted. However, the Court finds that Petitioner has established that the state court's denial 13 of his Blakely claim was contrary to clearly established federal law. Further, the Court finds 14 that the denial of Petitioner's claim constitutes fundamental error, by which Petitioner was 15 prejudiced. 16 IT IS THEREFORE ORDERED that Petitioner's Motion to Extend Time to Object

17 is GRANTED to the extent that the objections received on March 20, 2009 are deemed 18 timely. (Dkt. #14.) 19 IT IS FURTHER ORDERED that Petitioner's Motion to Appoint Counsel is

20 DENIED. (Dkt. #16.) 21 IT IS FURTHER ORDERED that Petitioner's Motion to Declare AEDPA

22 Unconstitutional is DENIED. (Dkt. #16.) 23 IT IS FURTHER ORDERED that Respondent's objections to the Report and

24 Recommendation are OVERRULED. (Dkt. #10.) 25 IT IS FURTHER ORDERED that Petitioner's objections to the Report and

26 Recommendation are OVERRULED. (Dkt. #15.) 27 IT IS FURTHER ORDERED that the Report and Recommendation is ACCEPTED

28 in its entirety as discussed in this Order. (Dkt. #9.) - 13 -

1

IT IS FURTHER ORDERED that the Writ of Habeas Corpus is GRANTED as to

2 Petitioner's sentence only, unless the State initiates a re-sentencing proceeding within 120 3 days of the entry of judgment. The Writ is DENIED on all other grounds argued in the 4 Petition. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 14 DATED this 11th day of May, 2009.