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Schreiber v. Obenland

United States District Court, W.D. Washington, Tacoma

October 31, 2017

ROBIN TAYLOR SCHREIBER, Petitioner,
v.
MIKE OBENLAND, Respondent.

          ORDER ON REPORT AND RECOMMENDATION

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE

         THIS 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.

         The 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.

         The below analysis addresses (1) Objections raised by Petitioner and (2) issuance of the certificate of appealability.

         1. Objections raised by Petitioner.

         a. Background.

         The 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 Cir. 2007).

         In 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.

         b. Discussion.

         Petitioner 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, ...


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