A favorable decision in the Spencer case could not undo or affect the
parole violation term already served, see Spencer, 523 U.S. at 8, 118
S.Ct. 978, whereas a favorable decision in Hodges' case could advance the
end date of the parole term currently being served. Because the petition
has not been rendered moot by Hodges' release from prison, the court
turns to a consideration of the claim in the petition.
B. The Legal Claim
Hodges contends he was denied his Fourteenth Amendment rights to due
process and equal protection because the trial court improperly used his
juvenile conviction for residential burglary to enhance his sentence
under California Penal Code § 667(e)(1) (requiring the doubling of
the determinate sentence for a felon who has one prior felony). He states
that he suffered an adjudication in juvenile court in 1986 while he was a
minor for which he was declared a ward of the state under California
Welfare and Institutions Code §§ 707(d)(1) and 602, and was committed
to the California Youth Authority to serve a term of incarceration.
Hodges did not appeal his conviction, but did file unsuccessful state
petitions for writ of habeas corpus. The Santa Clara County Superior Court
rejected Hodges' argument that the juvenile adjudication was not a
"strike" that could be used for sentence enhancements under California
law, citing People v. Davis, 15 Cal.4th 1096, 64 Cal.Rptr.2d 879,
938 P.2d 938 (Cal. 1997) and People v. Gentry, 62 Cal.App.4th 643,
72 Cal.Rptr.2d 797 (Cal.App. 1998). The court also stated that even if
there was an error in using the prior conviction, the plea bargain
precluded consideration of such an argument. See Oct. 16, 1998 Order from
Santa Clara County Superior Court in In Re Eric Cedric Hodges, No. 203839
(attachment to Exhibit 3 to Respondent's Motion To Dismiss).
Several months after Hodges' conviction had become final by the passing
of the time for any direct appeal and several months after the Superior
Court and the California Court of Appeal denied his petitions for writ of
habeas corpus, the California Supreme Court decided in an unrelated case
that juvenile convictions could be used for sentence enhancement purposes
only in limited circumstances. In People v. Garcia, 21 Cal.4th 1,
87 Cal.Rptr.2d 114, 980 P.2d 829 (1999), the court held that a juvenile
conviction for residential burglary may be used as a strike only if the
juvenile also was adjudged a ward of the court based on another offense
specifically listed in California Welfare and Institutions Code §
After the Garcia decision was issued, Hodges filed a petition for writ
of habeas corpus in the California Supreme Court, again arguing that the
juvenile prior conviction could not be used for sentence enhancement
purposes — now buttressing his argument with a citation to Garcia.
His petition was denied. Hodges then filed this action.
The parties' briefs appear to assume that if Hodges' case was in state
trial court today, his prior juvenile conviction could not be counted as
a strike under Garcia. This court will assume without deciding that
Hodges' juvenile conviction could not be. used as a strike for sentence
enhancement purposes today. But that does not advance the analysis of
Hodges' habeas petition very far, because the concern of this habeas
court is whether Hodges' constitutional rights were violated by the use
of the juvenile conviction in Hodges' 1998 criminal case.
Generally, a federal habeas court may not review a state sentence that
within state statutory limits. See Walker v. Endell, 850 F.2d 470, 476
(9th Cir. 1987). There is an exception under the Due Process Clause in
that a federal court may vacate a state sentence imposed in violation of
due process if, for example, a state trial judge imposed a sentence in
excess of state law. See Marzano v. Kincheloe, 915 F.2d 549, 552 (9th
Cir. 1990) (plea of guilty does not permit state to impose sentence in
excess of state law despite agreement of defendant to sentence).
However, federal courts must defer to the state courts' interpretation of
state sentencing laws. See Bueno v. Hallahan, 988 F.2d 86, 88 (9th Cir.
1993). "Absent a showing of fundamental unfairness, a state court's
misapplication of its own sentencing laws does not justify federal habeas
relief." Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994); see,
e.g., Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989) (whether
assault with deadly weapon qualifies as "serious felony" under
California's sentence enhancement provisions, Cal.Penal Code §§
667(a) and 1192.7(c)(23), is question of state sentencing law and does not
raise constitutional claim).
The starting point in the analysis is to determine whether the Garcia
case applies in Hodges' case. This court concludes that it does not.
Garcia represents a step in the evolution of California's law on the use
of prior convictions for sentence enhancement purposes. Because that
evolutionary step took place after Hodges' conviction became final, it
does not aid him in this habeas action. Habeas petitioners are not
automatically entitled to the benefit of changes in state law that occur
after their convictions have become final. See Kleve v. Hill,
243 F.3d 1149, 1151 (9th Cir. 2001) (California Supreme Court's decision
in another case finding that there was no crime of conspiracy to commit
second degree murder under California law did not invalidate petitioner's
earlier conviction of conspiracy to commit second degree murder). The
Kleve court explained that, assuming arguendo that the law had changed by
virtue of state court decisions, it didn't help the petitioner: "A change
of law does not invalidate a conviction obtained under an earlier law." A
federal habeas petitioner has no constitutional right to have the state
courts apply a rule of state law retroactively to his case. See
Wainwright v. Stone, 414 U.S. 21, 23-24, 94 S.Ct. 190, 38 L.Ed.2d 179
(1973); La Rue v. McCarthy, 833 F.2d 140, 142 (9th Cir. 1987). "The
retroactivity of a state change of law is a state question and `the
federal Constitution has no voice upon the subject.'" Id. (quoting
Northrop v. Alexander, 642 F. Supp. 324 (N.D.Cal. 1986) and Great
Northern Railway Co., v. Sunburst Oil & Refining Co., 287 U.S. 358, 364,
53 S.Ct. 145, 77 L.Ed. 360 (1932)). Hodges had no right under the U.S.
Constitution to compel the application of the Garcia case retroactively
to his conviction which was already final.
That leaves the question of whether there was a constitutional error in
the sentence imposed as the law of California stood at the time of
Hodges' sentencing. Whether the juvenile conviction could be used as a
strike is a matter of state law, and the Superior Court held that the
juvenile conviction could be so used. See Oct. 16, 1998 Order from Santa
Clara County Superior Court in In Re Eric Cedric Hodges, No. 203839
(attachment to Exhibit 3 to Respondent's Motion To Dismiss). This court
is not free to review the state court's determination of state law. See
Hicks v. Feiock, 485 U.S. 624, 629, 108 S.Ct. 1423, 99 L.Ed.2d 721
(1988); cf. id. at 630 n. 3, 108 S.Ct. 1423 (quoting West v. American
Telephone & Telegraph. Co., 311 U.S. 223, 237-38, 61 S.Ct. 179, 85 L.Ed.
139 (1940)) (determination of state law made by an intermediate appellate
court must be followed and may not be "`disregarded
by a federal court unless it is convinced by other persuasive data that
the highest court of the state would decide otherwise'"). Rather than
deciding whether Hodges' juvenile conviction could be used under
California's sentence — enhancement statute, this court starts its
analysis by accepting that it could be so used because that is what the
state habeas court already decided as a matter of state law. In light of
the fact that the juvenile conviction could be used for
sentence-enhancement purposes, Hodges' sentencing claim cannot support
federal habeas relief.
3. The Plea Bargain Was Voluntarily And Knowingly Entered
A second and independent reason exists to deny the petition: the guilty
plea was made voluntarily and knowingly on the advice of counsel. A
defendant who pleads guilty upon the advice of counsel may only attack
the voluntary and intelligent character of the guilty plea by showing
that the advice he received from counsel was not within the range of
competence demanded of attorneys in criminal cases. Hill v. Lockhart,
474 U.S. 52, 56-57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Tollett v.
Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).
Hodges has not shown that he received ineffective assistance of counsel
during the plea bargaining process. As a result, he cannot now challenge
the guilty plea.
Moreover, it appears that Hodges received considerable benefits as a
result of entering the plea that permitted the use of a prior conviction
that, under the then-existing law, was a conviction that arguably could
be used for sentence enhancement purposes.*fn1 Hodges admits that he
received benefits in the plea bargain he entered: the court struck the
language of "with a deadly weapon" from the charge of assault, the court
dismissed the count that charged Hodges with violating California Penal
Code § 273.5(A) (willful infliction of corporal injury on a spouse
or cohabitant), and the court dismissed another count that charged Hodges
with a violation of California Penal Code §§ 240 and 241(B)
(assault). See Petition, attachment, p. 1. Hodges was represented by
counsel when he entered the plea. See Petition, p. 7.
Hodges' sentence of four years was not in excess of that allowed by
state law. His due process and equal protection rights were not violated
when he was sentenced to four years in prison, even if that sentence was
imposed under the belief that the juvenile prior conviction required a
doubling of the sentence to be imposed. The California state courts'
rejection of Hodges' claim was not contrary to or an unreasonable
application of clearly established federal law.
For the foregoing reasons, the petition for writ of habeas corpus is
DENIED. The clerk shall close the file.
IT IS SO ORDERED.