United States District Court, W.D. Washington, Tacoma
ORDER ON REPORT AND RECOMMENDATION
J. BRYAN UNITED STATES DISTRICT JUDGE
ORDER comes before the Court on the Report and Recommendation
of Magistrate Judge J. Richard Creatura. Dkt. 8. The Court
has considered the R&R, Petitioner's Objections (Dkt.
9), Respondent's Response (Dkt. 10), the underlying
Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C.
§2254 (Dkt. 1) and related briefing, and the remainder
of the file herein.
R&R recommends that the Court dismiss the Petition and
deny the request for the certificate of appealability. Dkt. 8
at 11. The R&R should be adopted in its entirety, except
for the recommendation to deny the certificate of
appealability, which should be issued.
below analysis addresses (1) Objections raised by Petitioner
and (2) issuance of the certificate of appealability.
Objections raised by Petitioner.
Objections state, in summary:
[Petitioner] received an increased sentence because of an
"aggravating factor" that was not legislatively
authorized at the time of his crime. The [R&R] concludes
that [Petitioner's] sentence does not violate ex post
facto separation of powers/notice protections because
the aggravating element was judicially recognized and both
the United States Supreme Court and the Ninth Circuit Court
of Appeals have recognized the existence and legitimacy of
non-statutory aggravating factors.
Dkt. 9 at 1 (internal citations and quotations omitted).
Petitioner then attempts to distinguish the three cases
relied upon by the R&R for this conclusion, Loving v.
United States, 517 U.S. 748, 768 (1996), Barclay v.
Florida, 463 U.S. 939, 966-67 (1983), and United
States v. Mitchell, 502F.3d 931, 973 (9th
context, the R&R stated:
An aggravating factor that increases the sentence of a crime
becomes an "element" of the crime that must be
found by the jury rather than merely a "sentencing
factor" to be considered by ajudge. See Alleyne v.
United States, 133 S.Ct. 2151, 2155 (2013). Though
Congress and state legislatures are endowed with the power to
legislate aggravating factors, both the United States Supreme
Court and the Ninth Circuit Court of Appeals have recognized
the existence and legitimacy of non-statutory aggravating
factors. Barclay v. Florida, 462 U.S. 939, 966-67
(1983) (holding that non-statutory aggravating factors were
appropriate in death penalty cases so long as the death
penalty was not imposed based solely on these factors);
United States v. Mitchell, 502 F.3d 931, 973
(2007)(holding the same). Further, the Supreme Court has also
explicitly recognized that other entities other than
legislatures have the power to define aggravating factors.
See Loving v. United States, 517 U.S. 748, 768
(1996) (recognizing the President's power to establish
aggravating factors for military crimes).
Dkt. 8 at 10.
faults the R&R for relying on Loving for the
proposition that an exceptional sentence may be based on
non-statutory aggravating factors. Loving held that
the President's power to define aggravating factors for
military crimes, a power delegated by Congress, does not
violate the Eighth Amendment and separation-of-powers
doctrine. Loving, 517 U.S. at 768 ("In the
circumstances presented here, so too may Congress delegate
authority to the President to define the aggravating factors
that permit imposition of a statutory penalty").
Petitioner argues that Loving is premised on a rule
derived from Walton v. Arizona,497 U.S. 639, ...