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United States District Court, Northern District of California

May 14, 2003


The opinion of the court was delivered by: Susan Illston, United States District Judge


The petition for writ of habeas corpus is denied on the merits.



This matter is now before the court for consideration of the merits of the pro se petition for writ of habeas corpus filed by Bruce Joel Hall. For the reasons discussed below, the court will deny the petition on the merits. The court also will lift the stay that had been imposed pending the decision from the U.S. Supreme Court in Lockyer v. Andrade, 123 S.Ct. 1166 (2003).


Bruce Joel Hall was observed using a stolen credit card in two Mervyn's stores on one day in April 1997. The credit card belonged to Lois Dubois, who had discovered that several of her credit cards had been stolen after a construction crew had been in her home doing a remodeling job. Hall was one of the workers on that construction crew. When Hall was arrested at Mervyn's, the police retrieved from Hall several credit cards belonging to Dubois.

Hall pled no contest in the San Mateo County Superior Court to a charge of petty theft with a prior burglary conviction, see Cal. Penal Code § 666, and admitted that he had suffered three prior serious felony "strike" convictions and four prior prison term enhancements. See Cal. Penal Code §§ 667.5(b), 1170.12. The sentencing court struck one of the "strike" conviction allegations and all of the prior prison term allegations and, on April 3, 1998, sentenced Hall to imprisonment for 25 years to life.

He appealed. The California Court of Appeal affirmed the judgment of conviction and the California Supreme Court denied Hall's petition for writ of habeas corpus.

Hall then filed this action. Hall's federal habeas petition contains nine grounds for relief. In grounds 1-7, Hall contends that the sentence imposed on him under California's Three Strikes law violates his rights under the Double Jeopardy Clause, the Due Process Clause, the Eighth Amendment and the Ex Post Facto Clause of the U.S. Constitution. In grounds 8 and 9, he contends that he received ineffective assistance of counsel in the 1998 proceeding (i.e., the one in which the current conviction occurred) in that counsel did not move to dismiss the prior conviction allegation concerning a 1987 conviction on the ground that the guilty plea in the 1987 case was not knowing and voluntary. After the parties briefed the merits of the petition, two decisions from the Ninth Circuit Court of Appeals were issued that impacted the Eighth Amendment analysis. The court ordered further briefing in light of those cases, but later stayed the case pending a decision from the U.S. Supreme Court on a key Eighth Amendment sentencing case. That case was decided several weeks ago, so the stay is no longer necessary. The parties filed supplemental briefs addressing the two recent Supreme Court cases on the Eighth Amendment issue. The case is now ready for the court's consideration.


This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in San Mateo County, California, within this judicial district. 28 U.S.C. § 84, 2241(d).


Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254 (b), (c). The parties do not dispute that state court remedies were exhausted for the claims asserted by Hall.


This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d).

"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

"Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.


A. Ex Post Facto Claim

Hall alleges that his sentence under California's Three Strikes law violated the Ex Post Facto Clause of the U.S. Constitution. He argues that an Ex Post Facto violation exists because the enhancements for his prior convictions are greater now than they were when the prior crimes were committed. He contends that the state should not be able to sentence him to more than the 2-5 year enhancements that the law allegedly provided for when he committed the crimes that led to his prior convictions. He also argues that California's Three Strikes law increases the prior convictions' "weight as evidence." Petition, Appendix A, p. 41.

The application of a sentencing enhancement due to a prior conviction is not a violation of the Ex Post Facto Clause of the U.S. Constitution. See Brown v. Mayle, 283 F.3d 1019, 1040 (9th Cir. 2002), vacated on other grounds, 71 U.S. L.W. 3572, 3576 (U.S. Mar. 10, 2003); McDonald v. Massachusetts, 180 U.S. 311, 312-13 (1901); Fong v. United States, 287 F.2d 525, 526 (9th Cir.), cert. denied, 366 U.S. 971 (1961). The enhancement is not a penalty for the prior offense. See McDonald, 180 U.S. at 312-13. It is the repetitive nature of the present offense that the enhancement punishes. See id. "The statute, imposing a punishment on none but future crimes, is not ex post facto." Id. at 313 (emphasis in original). If the present crime occurred after the enactment of the statute, prior convictions which occurred before the enactment of the statute may be used to enhance the sentence for the present crime. See Fong, 287 F.2d at 526; cf. United States v. Kaluna, 192 F.3d 1188, 1199 (9th Cir. 1999), cert. denied, 529 U.S. 1056 (2000) (upholding federal recidivist sentencing law; "[t]he Supreme Court and this court uniformly have held that recidivist statutes do not violate the Ex Post Facto Clause if they are `on the books at the time the [present] offense was committed.'")

California's Three Strikes law was enacted in March 1994, several years before Hall's current theft offense. His prior convictions would have had no further consequence had he not committed a new offense in 1997 for which he was convicted in 1998. Hall received a harsher sentence in 1998 due to the repetitive nature of the substantive offense for which he was convicted in 1998. That was permissible under the Ex Post Facto Clause.

Hall's assertion that his prior convictions were given increased "weight as evidence" under the Three Strikes law is meritless. Although the Ex Post Facto Clause does prohibit laws that alter the legal rules of evidence and require less or different testimony to convict than was required at the time the crime was committed, see Carmell v. Texas, 529 U.S. 513, 522, 552 (2000), this prohibition is not at issue in Hall's case because the evidence was used for sentencing purposes rather than to convict. Also, the Three Strikes law was used to affect the sentence for the 1997 crime, and there was no change in the Three Strikes law between the time Hall committed the 1997 crime and the time he was convicted for it. The use of the prior convictions for sentencing enhancement purposes did not violate the Ex Post Facto Clause's restriction on changes in the rules of evidence. Hall's claim for a violation of the Ex Post Facto Clause is denied.*fn1

B. Eighth Amendment Claim

Hall next alleges that his sentence of 25 years to life amounts to cruel and unusual punishment. His lengthy sentence was imposed following a conviction of petty theft with a prior theft-related conviction and with a finding of three prior felony convictions.

Two very recent U.S. Supreme Court cases require a denial of Hall's claim. In Lockyer v. Andrade, 123 S.Ct. 1166, 1173 (2003), the Court rejected the notion that its case law was clear or consistent enough to be clearly established federal law within the meaning of 28 U.S.C. § 2254 (d), except that it was clearly established that a gross disproportionality principle does apply to sentences for terms of years (as well as to the death penalty), but the precise contours of that principle "are unclear, applicable only in the `exceedingly rare' and `extreme' case." 123 S.Ct. at 1173. Andrade casts doubt on almost any non-death penalty petitioner's ability to show that a state court's pre-March 2003 rejection of his Eighth Amendment claim was contrary to or an unreasonable application of clearly established federal law. The other key case is Ewing v. California, 123 S.Ct. 1179 (2003), which upheld a sentence of 25-years-to-life for a recidivist convicted most recently of grand theft. Ewing explained that California's Three Strikes law was not constitutionally infirm and that states may deal in a harsher manner with repeat offenders. Id. at 1190.

Hall's sentence of 25 years to life imprisonment does not raise an inference of gross disproportionality to his crime. In the present case, Hall was convicted of petty theft with a prior theft-related conviction. For purposes of the "with a prior" part of the petty theft charge, he admitted that he had suffered a prior burglary conviction. And he was found to have suffered two other prior convictions for serious crimes (i.e., a 1987 conviction for lewd and lascivious acts with a child under 14 and a 1980 conviction for assault with a deadly weapon, see CT 11), which Ewing explained properly may be considered in a sentencing decision. The two prior convictions actually charged as sentence enhancements were but part of a lengthy criminal history. As explained in the probation officer's report and recommendation, Hall had a 1971 conviction for disorderly conduct conviction for being under the influence of a controlled substance, a 1972 burglary conviction, a 1975 conviction for carrying a concealed weapon, a 1976 drug conviction, the 1980 conviction for assault with a deadly weapon referred to above, a 1981 conviction for escape from prison, the 1987 lewd and lascivious conduct conviction referred to above, and a 1993 burglary conviction. Resp. Exh. B, pp. 7-9. Several of these offenses were committed while Hall was on parole or probation.

A 25-to-life sentence does not raise an inference of gross disproportionality to Hall's current crimes in light of his criminal record. See, e.g., Harmelin v. Michigan, 501 U.S. 957 (1991) (plurality opinion) (upholding sentence of life without possibility of parole for first offense of possession of 672 grams of cocaine); Hutto v. Davis, 454 U.S. 370, 370-71, 375 (1982) (rejecting challenge to a 40-year sentence for possession with intent to distribute less than nine ounces of marijuana); Rummel v. Estelle, 445 U.S. 263, 265-66 (1980) (upholding a life sentence imposed under a recidivist statute where the three felonies were passing a forged $28.36 check, fraudulent use of a credit card to obtain $80.00 worth of goods and services, and obtaining $120.75 by false pretenses); United States v. Carr, 56 F.3d 38, 39 (9th Cir.), cert. denied, 516 U.S. 895 (1995) (sentence of 22 years upon conviction for sale of 66.92 grams of cocaine base with enhancement under federal Sentencing Guidelines' career offender provision for two previous convictions for minor drug sales was not grossly disproportionate). Hall is not entitled to the writ on his Eighth Amendment claim.

C. Double Jeopardy Claim

Hall's double jeopardy argument is essentially a contention that the court should follow Judge Scalia's dissent in the case of Monge v. California, 524 U.S. 721 (1998). See Petition, Appendix A, pp. 7-11. In Monge, the issue was whether the Double Jeopardy Clause precluded retrial on an allegation of a prior conviction in a noncapital sentencing proceeding where a state appellate court had ruled that the evidence was insufficient to establish the prior conviction in the first sentencing proceeding. The Court held that the Double Jeopardy Clause did not preclude retrial on a prior conviction allegation in a noncapital sentencing proceeding. See Monge, 524 U.S. at 734. Justice Scalia's dissent criticized California's use of sentencing enhancements to circumvent the need for constitutional protections that would be required if the sentence enhancement allegations were instead treated as elements of an offense. See id. at 737-21 (Scalia, J., dissenting). Justice Scalia thought that California's system took the first steps down the road toward the elimination of constitutional protections such as the right to jury trial and the right to proof beyond a reasonable doubt by creating an array of sentencing enhancements that looked exactly like separate crimes and that exposed the defendant to additional punishments. See id. at 738-39. He found it troubling that California's substantial reliance on sentence enhancements enabled California to avoid the protections of the Double Jeopardy Clause because that Clause, as the Court recognized, did not apply to non-capital sentence enhancements. See id. at 740.

The Monge dissent does not provide a basis for federal habeas relief for several reasons. First, the dissent is not the holding of the Court. The holding of the Court in Monge was that California's sentencing enhancement scheme did not violate the Double Jeopardy Clause — a holding diametrically opposed to Hall's current position. Because a dissent is not clearly established federal law as determined by the U.S. Supreme Court, Hall could not show that the state court's rejection of his claim was contrary to or an unreasonable application of clearly established federal law, as required under 28 U.S.C. § 2254 (d). Second, Hall's case does not have a necessary ingredient for a double jeopardy claim: unlike the situation in Monge, there was no failed first attempt to prove up the enhancements. There was no prior proceeding or determination in Hall's case that the evidence was insufficient to prove the sentence enhancements. In Monge, the state appellate court had determined that the evidence was insufficient to prove the sentence enhancement allegations and the question was whether the defendant could be subjected to renewed proceedings to try to establish those same sentence enhancement allegations. Here, Hall admitted the prior convictions.

Finally, insofar as Hall's claim concerns the substantive crime itself, i.e., the charge of petty theft with a prior conviction, a prior conviction is an element of the offense rather than a sentence enhancement allegation, and therefore must be proven beyond a reasonable doubt. Had Hall gone to trial, the prosecution would have had to prove beyond a reasonable doubt that he had earlier "been convicted of petit theft, grand theft, auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496" to obtain a conviction under California Penal Code § 666. See Cal. Penal Code § 666 (Deering 1998); CALJIC 14.40. Proving that prior conviction in order to prove up the crime of petty theft with a prior conviction does not even implicate the concerns raised by Justice Scalia because the prior conviction, being an element of the crime, was covered by all the procedural protections Justice Scalia worried about losing if it was treated as a sentence enhancement rather than an element. This court declines Hall's invitation to follow Justice Scalia's dissent in Monge. Hall is not entitled to the writ on his double jeopardy claim.

D. Due Process Claim

Hall argues that the evidence was insufficient to trigger the sentence enhancement provisions because his "prior convictions used at the trial were not proven beyond a reasonable doubt." Petition, Appendix A, p. 5. This claim is based on the erroneous factual premise that Hall had a trial. In fact, Hall pled no contest to the crime and admitted the prior convictions. Because he admitted the prior convictions, there was no need for them to be proven. The claim is meritless.

E. Claims For Breach of Earlier Plea Agreements

Hall claims that his current sentence breached the plea agreement entered with respect to a prior conviction because he did not agree, in entering the agreement, that the conviction later could be used to enhance his sentence under the Three Strikes law. He has not shown that the future use of his conviction was discussed when he pled guilty in the earlier proceeding.

Due process concerns of fundamental fairness require that a prosecutor keep the promises upon which a defendant relies in entering into a plea agreement. See Santobello v. New York, 404 U.S. 257, 262 (1971); Johnson v. Lumpkin, 769 F.2d 630, 633 (9th Cir. 1985). Claims of a breached plea agreement are analyzed according to contract law standards of interpretation, such that a court looks to what was reasonably understood by the parties to be the terms of the agreement and whether or not those terms were fulfilled. See United States v. Kramer, 781 F.2d 1380, 1387 (9th Cir.), cert. denied, 479 U.S. 819 (1986).

Hall's claim fails because he does not allege that the prosecutor failed to abide by any particular term of the plea agreement. He has not shown any promise by the prosecutor that the convictions would not be used later to enhance a future sentence under a law that did not yet exist and he has not shown that there was a promise that the law would not change. It appears that the subjects were not addressed in the earlier proceeding. Hall does not assert that he received a state prison term for his earlier crime greater than that stated in the plea bargain for the earlier crime.

Any contention that the trial court that imposed his sentence in 1998 breached his prior plea agreement does not compel a different conclusion. The sentencing court was not a party to petitioner's earlier agreement and was not bound or restricted by it. The claim for a breach of the earlier plea bargain is without merit.

F. Claim That Earlier Guilty Plea Was Involuntary And Unintelligent

Hall urges that his guilty pleas in the 1997 case was unknowing/involuntary because he was not informed that the conviction could be used for sentence enhancements greater than the enhancements on the books at the time he pled guilty.

Hall's claim that his plea was unknowing and involuntary is barred by Lackawanna v. Coss, 532 U.S. 394 (2001). Lackawanna held that, where a prior conviction is used for sentence enhancement purposes, a petitioner generally may not challenge an enhanced sentence in a habeas petition on the ground that the prior conviction was unconstitutionally obtained if the sentence on the prior conviction has expired. Since the sentence on Hall's prior conviction had expired, it can no longer be challenged in a federal habeas action.

Even if the ongoing nature of the registration requirement provided an exception to the Lackawanna rule and Hall's challenge to his earlier plea could be entertained in this proceeding, the fact that the trial court that accepted petitioner's guilty plea in the prior proceedings did not warn him of the possibility of future enhancements under a law that did not yet exist did not violate his constitutional rights. See Torrey v. Estelle, 842 F.2d 234, 235 (9th Cir. 1988) (no duty to warn defendant of collateral consequences of plea); United States v. Garrett, 680 F.2d 64, 65-66 (9th Cir. 1982) (possibility of future sentence enhancement based on plea is collateral consequence). His guilty plea was not involuntary or unintelligent based on the fact that he was not advised that the law might change and that his conviction might result in a longer sentence enhancement than that in force when he pled guilty. Hall is not entitled to the writ on this claim.

G. Ineffective Assistance of Counsel Claim

Hall's final claim is that he received ineffective assistance of counsel from his counsel in 1998. He alleges that counsel was deficient in that he did not challenge Hall's 1987 guilty plea to a sex offense on the ground that it was involuntary and unintelligent because Hall was not informed of the lifetime registration requirement under California Penal Code § 290. Hall asserts that his counsel told him he only had to register once, rather than every time he moved.

The California Court of Appeal rejected this claim. The court determined that Hall had not established that counsel in the 1998 proceeding performed deficiently by failing to collaterally challenge the 1987 conviction. Cal. Ct. App. Opinion, p. 7. The record did not establish that Hall was inadequately advised about the registration consequences of his 1987 plea or that a reasonably competent attorney representing him in 1998 would so conclude. Id. at 5. The state appellate court also determined that reasonably competent counsel in the 1998 proceedings could have concluded that Hall's prior conviction could not be collaterally attacked. Lastly, the court determined that Hall had not shown prejudice, i.e., he had not shown that the 1987 prior conviction would have been stricken if his counsel in 1998 actually challenged it. Id. at 8.

The Sixth Amendment to the U.S. Constitution guarantees not only assistance, but effective assistance, of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984). The purpose of the right is to ensure a fair trial, and the benchmark for judging any claim of ineffectiveness is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." See id. To prevail on an ineffective assistance of counsel claim, a habeas petitioner must show that (1) counsel's performance was "deficient," i.e., his "representation fell below an objective standard of reasonableness" under prevailing professional norms, id. at 687-88, and (2) prejudice flowed from counsel's performance, i.e., that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different, see id. at 691-94. The relevant inquiry under Strickland is not what defense counsel could have done, but rather whether his choices were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998), cert. denied, 525 U.S. 1159 (1999).

The California Court of Appeal's rejection of Hall's ineffectiveness claim was not contrary to or an unreasonable application of clearly established federal law. The court correctly described the two-prong test to be applied to an ineffectiveness claim. See Cal. Ct. App. Opinion, pp. 4-5. And the court's conclusion that Hall had failed to show that counsel in 1998 should have realized there was a problem with the 1987 plea was a reasonable conclusion.

Petitioner has not submitted a transcript of the plea proceedings or any court document which shows petitioner was not sufficiently advised of the registration requirement. Exhibit A to the petition is a copy of the first page of a the declaration petitioner made before entering his plea to the section 288 prior. That document states, in part: "I understand that the maximum punishment and/or consequence that I could received [sic] as a result of my plea are: . . . that I will be required to register as a sex offender pursuant to Penal Code section 290." The fact that this portion of this particular document describes the registration requirement by expressly referencing section 290 does not establish that the scope and nature of the registration requirement was not adequately explained to petitioner when he entered his plea.
More important, an attorney representing petitioner in a subsequent proceeding, such as the present one, and who reviewed Exhibit A would not be guilty of deficient performance by concluding that petitioner was accurately and fully a vised pursuant to prior. Petitioner's 1996 declaration [stating that his 1987 counsel told him he would have section 290 of the registration requirement when he p leaded guilty to the section 288 to register once and that if he had known he would be required to register in every community to which he moved, he would not have guilty pled to the charge] does not change our mind. Petitioner does not contend that he shared that declaration or the information contained therein with his counsel in the present case. Nor does he explain why counsel in this case should have suspected that the attorney representing petitioner in the section 288 proceeding misinformed petitioner about the nature of the registration requirement. We in no evidence in this record that would cause reasonably competent counsel to suspect or conclude that petitioner was inadequately advised about the registration requirement when he pleaded guilty to the section 288 violation.
Cal. Ct. App. Opinion, pp. 5-6. Hall has given this court no reason to depart from this determination by the state court. Like the state court, this court sees no evidence that would have alerted the 1998 counsel to the fact that there was any problem with the 1987 conviction. Likewise, Hall has not shown any error in the state court's determination that counsel in 1998 could not have successfully challenged the 1987 conviction even if he attempted to do so. The California Court of Appeal explained that the alleged misadvisement of the penal consequences on the 1987 plea could not be challenged by a motion to strike in the 1998 proceedings because the misadvisement was not a constitutional error and because existing California case law precluded a collateral attack on a prior conviction based on misadvisement of the penal consequences of the plea. Cal. Ct. App. Opinion, pp. 6-7.

Hall's federal claim fails for a lack of showing of deficient performance and lack of showing of prejudice. He has not shown that, under the circumstances, competent counsel would have been alerted to the fact that the 1987 conviction could be challenged or that competent counsel would have challenged the 1987 conviction. And he has not shown prejudice resulting from the absence of a challenge to the 1987 conviction. The state court's rejection of his ineffectiveness claim was not an unreasonable application of, or contrary to, clearly established federal law. Hall is not entitled to the writ on this claim.


The stay of the proceedings imposed on June 28, 2002 is lifted.

The petition for writ of habeas corpus is denied on the merits. The clerk shall close the file.


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