Lambright v. Ryan

1

Joe Leonard Lambright, Lambright, v. Charles L Ryan, et al., Respondents.

No. CV-19-00425-TUC-CKJ

United States District Court, D. Arizona

August 11, 2022

ORDER

Honorable Cindy K. Jorgenson United States District Judge

This matter was referred to Magistrate Judge Maria S. Aguilera pursuant to Rules of Practice for the United States District Court, District of Arizona (Local Rules), Rule (Civil) 72.1(a). On February 9, 2022, Magistrate Judge Aguilera issued a Report and Recommendation (R&R). She recommends Lambright be denied habeas relief. For the following reasons the Court adopts the recommendation and denies the Amended Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Amend. Petition (Doc. 16) filed by Petitioner (Lambright).

STANDARD OF REVIEW

The duties of the district court in connection with a R&R by a Magistrate Judge are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1). Where the parties object to a R&R “‘[a] judge of the [district] court shall make a de novo determination of those portions of the [R&R] to which objection is made.'” Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)).

This Court's ruling is a de novo determination as to those portions of the R&R to which there are objections. 28 U.S.C. § 636(b)(1)(C); Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc). To the extent that no objection has been made, arguments to the contrary have been waived. Fed.R.Civ.P. 72; see 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within fourteen days of service of the R&R), see also McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to magistrate's report waives right to do so on appeal); Advisory Committee Notes to Fed.R.Civ.P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation)).

The parties were sent copies of the R&R and instructed that, pursuant to 28 U.S.C. § 636(b)(1), they had 14 days to file written objections. See also, Fed.R.Civ.P. 72 (party objecting to the recommended disposition has fourteen (14) days to file specific, written objections). The Court has considered the Objection filed by Lambright, the Respondent's Reply, and the original briefs and exhibits considered by the Magistrate Judge relevant to Lambright's objections.

REPORT AND RECOMMENDATION: OBJECTIONS

As explained in the R&R, Lambright prevailed in undoing a death sentence he received in 1982 after being found guilty by a jury of first-degree murder, kidnapping, and sexual assault. State v. Lambright (Lambright I), 673 P.2d 1, 3 (Ariz. 1983). The trial court sentenced him to death for the murder and to 21 years in prison for kidnaping and 21 years for sexual assault. “The trial court specified that the two prison terms were to run consecutively but did not state whether the death penalty was concurrent or consecutive.

In 2007, the United States Court of Appeals for the Ninth Circuit found Lambright had ineffective assistance of counsel during the penalty phase of his trial, vacated the death sentence, and remanded for issuance of a writ of habeas corpus and a new sentencing proceeding. Lambright v. Schriro (LambrightII), 490 F.3d 1103, 1106 (9th Cir. 2007) (per curiam).

In 2015, Lambright was resentenced for the capital murder conviction to life in prison, with the possibility of parole after serving 25 years. This Petition alleges constitutional violations related to the resentencing as follows: 1) violation of Arizona statutes, due process and double jeopardy for failing to run the life sentence concurrent with his other sentences, which were completed in 2012; 2) the resentencing was based on unreliable information in violation of due process; 3) the sentencing court erred in admitting testimony from the prior proceeding in violation of the Confrontation Clause to the Sixth Amendment, and 4) the delay in the resentencing violated due process and his right to a fair trial.

The Magistrate Judge rejected these arguments. She recommends that this Court defer to the Arizona Court of Appeals' decision in State v. Lambright (LambrightIII), 404 P.3d 646, 649 (Ariz. App. 2017) that these claims lack constitutional merit. Also, she recommends that the Court find the claims challenging the state's sentencing strategy for concurrent and consecutive sentencing are not cognizable under habeas.

Lambright objects to the Magistrate Judge's findings of fact and conclusions of law, and her recommendation to deny the Petition.

1. Imposition of consecutive sentence on Count 1 for capital murder violated Arizona statutes, due process and double jeopardy.^[1]

At resentencing, the state no longer pursued the death penalty as a punishment, and the trial court was required to sentence Lambright to life with the possibility of parole after 25 years. Pursuant to A.R.S. § 13-708, Lambright objected to the trial court running the life term consecutive to the other sentences he had completed in 2012. At the time, Arizona law provided: “[i]f multiple sentences of imprisonment are imposed on a person at the same time, . . . the sentence or sentences imposed by the court shall run concurrently unless the court expressly directs otherwise, in which case the court shall set forth on the record the reason for its sentence.” Ariz. Rev. Stat. § 13-708 (1978). “If a sentence of imprisonment is vacated and a new sentence is imposed on the defendant for the same offense, the new sentence is calculated as if it had commenced at the time the vacated sentence was imposed, and all time served under the vacated sentence shall be credited against the new sentence.” Ariz. Rev. Stat. § 13-712(C) (1978).

“Lambright argued that, under Ariz. Rev. Stat. § 13-708, he could not, as a matter of law, be resentenced to a consecutive term because the original death penalty sentence was silent and, therefore, concurrent.” (R&R (Doc. 32) at 2 (citing Lambright III, 404 P.3d at 650)). Therefore, the resentencing had to be for a concurrent life sentence. He calculated that he began serving time on his death sentence upon his arrest and should have received credit for that time when the sentence was converted to life in prison. He expected immediate parole eligibility. Instead, the sentencing-court imposed a consecutive life sentence. Lambright will not become eligible for parole until 2037. Id. at 3.

The Magistrate Judge found this argument foreclosed by Lambright III, 404 P.3d at 649.^[2] On direct appeal of the resentencing, the state court considered this argument and found that a death penalty sentence is not a sentence for a term of imprisonment and not subject to § 13-708. A failure to designate whether a death penalty is concurrent or consecutive is not governed by the concurrent default provision in A.R.S. § 13-708. There is no need to make the designation unless and until a death sentence is changed to a life sentence in prison, with parole eligibility after twenty-five years. The designation of whether a life sentence runs concurrent or consecutive to any other prison sentences is made by the court at resentencing. Id.

Lambright's due process argument follows from the above argument of error. He asserts that until the appellate decision in his case, the law in Arizona, expressed by the Arizona Supreme Court, treated death penalty sentences as terms of imprisonment. Lambright argues that “the [Arizona] Court of Appeals adopted an interpretation of a sentencing statute which was unexpected and indefensible in reference to prior law, in violation of due process.” (Objection (Doc. 37) at 2.) In other words, “[t]his retroactive increase in his punishment violated due process.” Id. at 3 (relying on Bouie v. City of Columbia, 378 U.S. 347 (1964). (Objection (Doc. 37) at 2-5.) He argues that this Court must follow the sentencing law as set out by the Arizona Supreme Court. He relies on State v. Gulbrandson, 906 P.2d 579 (Ariz. 1995)). Id. at 3.

Also, flowing from his assertion that the state court wrongly applied A.R.S. § 13708, Lambright argues that imposing a consecutive term at resentencing deprived him of sentencing credits in violation of the Double Jeopardy Clause in the Fifth Amendment to the Constitution. (R&R (Doc. 32) at 3.) Lambright argues he should have received credit for the time spent in prison from his arrest to the resentencing because the death sentence was running concurrent with the consecutive 21-year prison sentences. In other words, the consecutive sentence imposed at resentencing placed him in jeopardy again for the murder conviction. This argument necessarily turns on the success of the argument that under § 13-708 the death sentence ran concurrent with the consecutive sentences imposed for the kidnapping and sexual assault offenses.

The Magistrate Judge correctly set out the law for habeas review, as follows:

This habeas action was filed after April 24, 1996, and is therefore, governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Ochoa v. Davis, 16 F.4th 1314, 1325 (9th Cir. 2021). Under AEDPA, federal habeas courts have limited authority to grant relief on claims that were “adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d). A federal court must defer to the state court s decision on such a claim unless the decision

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