United States District Court, N.D. California
February 26, 2004.
MICHAEL LYNN HUGHES, Petitioner,
GEORGE GALAZA, Respondent
The opinion of the court was delivered by: THELTON HENDERSON, Senior District Judge
ORDER DENYING PETITION
FOR WRIT OF HABEAS
Michael Lynn Hughes, who is currently incarcerated at California State
Prison at Corcoran, filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. After conducting an initial review of the
petition, the Court concluded that the petition stated cognizable claims
under § 2254 and ordered Respondent, George Galaza, to show cause as
to why the petition should not be granted. Respondent filed an answer
contending that the petition should be denied, and Hughes filed a
traverse. Hughes also requested oral argument, which this Court heard on
April 17, 2002. After having spent many months carefully considering the
parties' written and oral arguments and the record herein, the Court now
DENIES Hughes's petition for the reasons discussed below.
II. FACTUAL AND PROCEDURAL BACKGROUND
The California Court of Appeal's opinion described the facts and
evidence presented in this case, which the Court summarizes here. Resp't
Ex. A at 2-4 (hereinafter "Cal. Ct. App. Op."). On November 5, 1997, San
Jose Police Officer Victoria Napolitano was working undercover. She had
been given a pre-marked $20 bill to make drug purchases, and other
officers were in the area to provide cover for Napolitano and assist her
with making arrests.
At around 6:30 PM, Napolitano was approached by a man who called
himself "James." A few minutes later, while James and Napolitano were
talking, Hughes approached Napolitano and offered to sell her
methamphetamine. Napolitano asked if Hughes had $20 worth of
methamphetamine, and Hughes responded affirmatively. Hughes wanted to
complete the deal in the men's restroom of a nearby restaurant with
James, but Napolitano said that she wanted to deal with Hughes directly
because it was her money.
Hughes and Napolitano went into an alley, where Hughes pulled out a
baggie containing an off-white substance from his shoe. Hughes poured a
small amount of the substance from the baggie into a piece of paper,
which he then folded and handed to Napolitano. Napolitano gave Hughes the
marked $20 bill, which Hughes put in his back pocket before inserting the
baggie back into his shoe. Napolitano and Hughes then left the alley and
walked in opposite directions down the street. Napolitano joined her
cover officers in an unmarked car and radioed Hughes's description to
other officers parked nearby.
Officer Mark Bustillos was the officer who first located Hughes. When
Bustillos approached Hughes, he saw Hughes talking to a man on a bicycle.
Bustillos told the man on the bicycle to leave and detained Hughes.
Hughes closed his mouth and made gurgling sounds, as if he were choking,
so Bustillos applied the Heimlich maneuver until Hughes said he was okay.
Based on his experience, Bustillos believed that Hughes swallowed drugs
that he had in his mouth. Bustillos then arrested Hughes, who had $16 in
his pocket. Hughes did not have the marked $20 bill, nor did Bustillos
find any drugs, drug paraphernalia, or other evidence of drug sales on
Hughes's person. However, Napolitano positively identified
Hughes as the person who sold her what was later identified as 0.03
grams of methamphetamine.
On February 11, 1998, a jury found Hughes guilty of selling a
controlled substance in violation of California Health and Safety Code
section 11379(a). On February 17, 1998, the trial court found that Hughes
had a prior robbery conviction and a prior sexual assault conviction,
both from Illinois. The court further found that each of these
convictions qualified as a "strike" under California's Three Strikes
law.*fn1 Cal. Penal Code §§ 667(b)-(i), 1170.12. Under the provisions
of this law, the court sentenced Hughes to a term of twenty-five years to
life on June 19, 1998.
Hughes timely appealed to the California Court of Appeal. On December
13, 1999, the appellate court denied all of Hughes's claims and affirmed
his conviction and sentence. Hughes then filed a petition for review in
the California Supreme Court. The petition was denied on March 29, 2000.
On June 20, 2001, Hughes filed the instant habeas petition, raising
some of the claims he unsuccessfully asserted on direct appeal.
Respondent filed an answer to the petition on October 12, 2001, and
Hughes filed a traverse on January 16, 2002. Following Hughes's request,
this Court heard oral argument on April 17, 2002.
In this petition, Hughes challenges his conviction on grounds that the
trial court constitutionally erred by (1) denying his request for a
continuance and failing to issue a writ of attachment for a subpoenaed
defense witness who failed to appear at trial and (2) improperly limiting
his cross-examination of a prosecution witness. Hughes also challenges
the constitutionality of his sentence under the Three Strikes law.
This Court has subject matter jurisdiction over the petition under
28 U.S.C. § 2254 and 1331. Venue is proper because the challenged
conviction occurred in Santa Clara County, California, which is located
within this district. 28 U.S.C. § 2241 (d). The parties do not
dispute that Hughes has exhausted his state court remedies for the claims
raised here, and this Court may therefore proceed to address the
III. LEGAL STANDARD
This Court may entertain a petition for a 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). Under
the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), this
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
28 U.S.C. § 2254(d); see Williams v. Taylor,
529 U.S. 362
, 409-12 (2000) (O'Connor, J., concurring
and delivering the opinion of the Court on this point). A state court
decision is "contrary to" clearly established federal law "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 Supreme] Court has on a set of materially
indistinguishable facts." Williams, 529 U.S. at 412-13.
A decision is an "unreasonable application of clearly established federal
law "if the state court identifies the correct governing legal principle
from [the Supreme] Court's decisions but unreasonably applies that
principle to the facts of the prisoner's case." Id. at 413. The
writ may not be granted simply because the district court "concludes in
its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or
incorrectly." Id. at 411. Instead, the district court must ask
whether the state court's application of clearly established law was
"objectively unreasonable." Id. at 409.
A. Trial Errors
Hughes first challenges his conviction by asserting that the trial
court committed constitutional error. In particular, Hughes argues that
the trial court impermissibly denied his request for a continuance and
refused to issue a writ of attachment for a subpoenaed defense witness
who failed to appear at trial. Hughes also argues that the trial court
improperly limited his cross-examination of a prosecution witness. The
Court addresses each argument in turn.
1. Denial of Continuance Request and Failure to
Issue Writ of Attachment
Hughes contends that the trial court violated his rights to confront
adverse witnesses and to present a defense, and therefore his right to
due process, because he was unable to present trial testimony from
Officer Annie Nguyen, the surveillance officer during the undercover
operation in which Hughes was arrested. Hughes's trial counsel subpoenaed
Nguyen, who testified at Hughes's preliminary hearing, to testify at
trial on February 10, 1998. On February 9, 1998, counsel learned that
Nguyen would not appear because, although served with the subpoena, she
would be out of town from February 9 to February 20. Counsel informed the
trial court of these facts before jury voir dire began on February 9 and
requested either that the trial be continued until February 23 or that
the court issue a writ of attachment for Nguyen.*fn2 The trial court
found that Nguyen was not a "necessary" witness and denied both requests.
The case was tried over Hughes's counsel's continuing objection.
Hughes now asserts that the trial court's actions violated the
Confrontation Clause and Compulsory Process Clause of the Sixth
Amendment. The Confrontation Clause ensures that a criminal defendant has
the right "to be confronted with the witnesses against him." U.S. Const,
amend. VI. The Compulsory Process Clause guarantees that a criminal
defendant has the right "to compulsory process for obtaining witnesses in
his favor." Id. This provision applies only to witnesses whose
testimony is both material and favorable to the accused. United
States v. Valertzuela-Bernal, 458 U.S. 858, 867 (1982).
A trial court has broad discretion to grant or deny a request for
continuance that might impinge upon a defendant's right to confront
witnesses, and such decisions are reviewed only for abuse of discretion.
United States v. Flynt, 756 F.2d 1352, 1358 (9th Cir. 1985). The
reviewing court should evaluate four factors: (1) whether the petitioner
was diligent, (2) whether the continuance would have served a useful
purpose, (3) whether the continuance would have inconvenienced the trial
court or the government, and (4) the degree of prejudice suffered by the
petitioner as a result of the denial. Id. at 1359-61. Abuse of
discretion is found only if the denial of a continuance was arbitrary or
unreasonable. Id. at 1358-62.
In addition, even if the trial court abused its discretion by denying a
request for continuance, habeas relief can be granted only if there is "a
showing of actual prejudice." Gallego v. McDaniel,
124 F.3d 1065, 1072 (9th Cir. 1997). That is, the court can only grant
relief if the error was not harmless. Brecht v. Abramson,
507 U.S. 619, 637-38 (1993); see also Whelchel v.
Washington, 232 F.3d 1197, 1205 (9th Cir. 2000)
(holding that "[a] Confrontation Clause violation is subject to harmless
error analysis"); LaGrand v. Stewart,
133 F.3d 1253, 1267 (9th Cir. 1998) (requiring a showing
of prejudice under Brecht for a Compulsory Process Clause
challenge). Harmless error analysis does not ask if there was sufficient
evidence for the conviction in the absence of the trial error at issue.
Rather, it asks if the trial error had a "substantial and injurious
effect or influence" on the jury's determination. Brecht, 507
U.S. at 638.
Here, Hughes asserts that his inability to present Nguyen's testimony
at trial thwarted his misidentification defense*fn3 and barred him from
presenting testimony that would have impeached the testimony of Officers
Napolitano and Bustillos. As discussed below, each of these argument
fails, and Hughes therefore fails to demonstrate that Nguyen's testimony
would have been helpful to his defense. As a result, this Court concludes
that it was not an abuse of discretion for the trial court to deny
Hughes's requested continuance, and any error in proceeding with the
trial without Nguyen's testimony was harmless.
First, although Hughes states that Nguyen "maintained petitioner under
constant surveillance during the controlled buy," Hughes also admits that
Nguyen's testimony at the preliminary hearing reveals that she did not
observe Hughes during the actual transaction or while Officer Napolitano
walked towards and got into the unmarked police car. Pet. at 45. Thus,
Hughes was not under Nguyen's surveillance at all times, and he could
very well have disposed of the baggie and marked bill without being seen
by any officer, including Officer Nguyen. The trial testimony and
cross-examination of Nguyen therefore would not have supported Hughes's
defense, and Hughes's assertion that Nguyen "was the only witness capable
of testifying to petitioner's actions during the crucial `gap' in both
Napolitano's and Bustillos's observations," id. at 52, is simply
wrong. See Cal. Ct. App. Op. at 6-7 (in accord with this
Similarly, Nguyen's testimony at the preliminary hearing about the
value and quantity of the methamphetamine received by Napolitano was not
inconsistent with Napolitano's trial testimony. When Napolitano testified
at trial, she stated that she received "a small amount" of
methamphetamine; that every dealer sells a different amount of drugs for
$20; that she told Hughes, "I don't want you to rip me off; that she
agreed with defense counsel that it was "quite dark" in the alley; and
that she was "able to see how much of the drug" was in the piece of paper
because "it was almost in my face." Resp't Ex. C, Trial Tr. at 133-34. At
the preliminary hearing, Nguyen testified that, in her opinion, 0.03
grams is a very small amount
of methamphetamine to receive for $20; that she and Napolitano
conversed later that evening after they returned to the police station;
that Napolitano told her during that conversation that she did not get
much methamphetamine for her money; and that Napolitano made no mention
to her about arguing or remonstrating with Hughes to get more
methamphetamine for her money. Resp't Ex. C, Clerk's Tr. at 24-27.
Napolitano also provided the following explanation as to why Napolitano
did not get much for her money:
A: The transaction occurred where there was no
scale and, obviously, it was behind an area
where it's dark. And the subject just poured the
substance into her little ripped off paper from
another paper bag. There was no way an eye can
see the quantity until you weigh it back at the
department. But at the time when the subject
poured the substance into that little piece of
paper, that's her reason for why she got that
Q: So it was too dark to see how much she was
Id. at 27. Thus, both officers agreed it was dark and
therefore difficult to see the quantity. At the time of the transaction,
Napolitano expressed her concern about the quantity by demanding that
Hughes not "rip her off," to which he responded by holding the piece of
paper with the methamphetamine close to her face. Later, after the drug
was weighed, Napolitano told Nguyen that the quantity of drugs she
received was low. Nguyen explained that in a dark alley and without a
scale it was impossible to know that the quantity was only 0.03 grams.
These statements are not inconsistent.*fn4
Finally, there is also no serious inconsistency between the testimony
of Bustillos and Nguyen about whether Hughes was alone or in the company
of a man on a bicycle at the time he was arrested. Nguyen testified at
the preliminary hearing that after the transaction, while Napolitano was
walking to the vehicle, Hughes "was just walking around with another
the same subject that my partner [Napolitano] was with." Clerk's
Tr. at 19. Nguyen also testified that, prior to the arrest, she saw
Hughes alone and "just walking up and down the
area," and that, at the time of the arrest, she saw him sitting
down in front of a restaurant. Id. at 20. Bustillos testified at
trial that Hughes and another man with a bicycle were in front of a
restaurant, and that it appeared as if they were conversing. Trial Tr. at
163. Bustillos "shooed the man away on the bike." Id. at 164.
The discrepancies between these two accounts are trifling. After the
transaction, Nguyen observed Hughes in the company of another person,
walking alone up and down the block, and sitting in front of a
restaurant. Bustillos observed Hughes in front of the restaurant,
possibly talking to a man on a bicycle. There is no necessary
contradiction between these two accounts, and the only discrepancies are
inconsequential. Nguyen did not testify, for example, that she did not
see anyone with Hughes sitting in front of the restaurant, but only that
she saw him walking alone prior to the arrest. Moreover, even if she had
so testified, her observation "could be explained by Bustillos's
testimony that prior to detaining [Hughes] he had sent the man on the
bicycle away." Cal. Ct. App. Op. at 8.
For all of the above reasons, the Court finds that Plaintiff cannot
demonstrate that Nguyen's trial testimony would have had any substantial
influence on the jury's deliberations, or even that Nguyen's testimony
would have been favorable. To the contrary, Nguyen did not observe Hughes
at all times, and she therefore would have been unable to testify that he
had no opportunities to dispose of the baggie of drugs and the marked
bill. Nor could her testimony have impeached Napolitano or Bustillos. In
short, Hughes has failed to show that the trial court's decisions to deny
the continuance and refuse to issue a writ of attachment resulted in any
actual prejudice or anything but harmless error. Accordingly, habeas
relief based on these decisions is unwarranted.
2. Limiting Cross-Examination
Hughes next argues that his Confrontation Clause rights were violated
because he was unable to cross-examine Napolitano about Nguyen's role in
the surveillance, or about Napolitano's conversation with Nguyen about
Hughes's arrest. When Hughes sought to cross-examine Napolitano about
these issues, the trial court sustained the prosecution's objections.
Trial Tr. at 128-38.
Hughes, who was seeking to impeach Napolitano, now argues that the
trial testimony given by Napolitano was inconsistent with the preliminary
hearing testimony given by Nguyen. However, as discussed above, this
Court agrees with the state appellate court that found "no inconsistency"
between Napolitano's and Nguyen's testimony. Cal. Ct. App. Op. at 8.
Absent this alleged inconsistency, Hughes had no basis on which to
Moreover, even assuming that such an inconsistency existed, and that
Hughes's attempt to impeach Napolitano could have succeeded to some
degree, Hughes's claim is subject to harmless error analysis. In an
analogous setting, the Supreme Court described the analysis as follows:
The correct inquiry is whether, assuming that the
damaging potential of the cross-examination were
fully realized, a reviewing court might
nonetheless say that the error was harmless beyond
a reasonable doubt. Whether such an error is
harmless in a particular case depends upon a host
of factors, all readily accessible to reviewing
courts. These factors include the importance of
the witness' testimony in the prosecution's case,
whether the testimony was cumulative, the presence
or absence of evidence corroborating or
contradicting the testimony of the witness on
material points, the extent of cross-examination
otherwise permitted, and, of course, the overall
strength of the prosecution's case.
Delaware v. Van Arsdall, 415 U.S. 673, 684 (1986). Here,
the inconsistency to which Hughes points is so minor that any damage it
could have caused to Napolitano's credibility would have been greatly
outweighed by the overall effect of Napolitano's testimony regarding
Nguyen's surveillance and their conversation after the arrest, as well as
by the admission into evidence of Nguyen's testimony at the preliminary
hearing regarding these issues (which would have resulted from this line
of questioning). As discussed above, Nguyen's testimony at the
preliminary hearing affirmed Napolitano's trial testimony on every
important point. Napolitano also positively identified Hughes. In short,
no "damaging potential of the cross-examination" would have been
realized, and any error that might have resulted from limiting
Napolitano's cross-examination was therefore "harmless beyond a
reasonable doubt." Id.
As a result, Hughes has not demonstrated that the limitations placed on
his cross-examination of Officer Napolitano warrant habeas relief. Nor,
as discussed above, is Hughes entitled to habeas relief based on the
trial court's failure to continue the trial or issue a writ of attachment
for Officer Nguyen. Thus, Hughes has failed to establish that the trial
court committed any errors that require relief from his conviction.
B. Sentencing Errors
The Court now turns to Hughes's challenges to the sentence he received
under California's Three Strikes law. Hughes first argues that the
prosecution failed to prove beyond a reasonable doubt that he was ever
convicted of robbery in Illinois. He also argues that counting his prior
Illinois convictions as strikes violated the Full Faith and Credit
Clause, the Eighth Amendment, and due process. The Court addresses each
argument in turn.
1. Sufficiency of the Evidence for the Illinois
First, Hughes claims that the evidence presented at trial was
insufficient to prove beyond a reasonable doubt that he had a prior
conviction for robbery from Illinois. This Court reviews claims of
insufficient evidence de novo. United States v. Antonakeas,
255 F.3d 714, 723 (9th Cir. 2001). Evidence of a prior conviction is
sufficient if, "viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the fact of the
prior conviction beyond a reasonable doubt." United States v.
Okafor, 285 F.3d 842, 848 (9th Cir. 2002) (finding conviction to be
established beyond a reasonable doubt by evidence that the defendant's
name, birth date, and social security number matched the record of
In this case, fingerprints, photographs, and other records from
Hughes's incarceration for the sexual assault were admitted at trial.
Hughes stipulated that the fingerprints proved the October 1987 sexual
assault conviction and subsequent incarceration. However, he disputes
whether the evidence proved a prior conviction for robbery beyond a
reasonable doubt. The following evidence on this point was presented at
trial: Hughes's incarceration
records refer twice to a concurrent sentence for receipt,
possession, or sale of a stolen vehicle, case number 87CR-3409. Clerk's
Tr. at 133, 137 (emphasis added). To link the robbery conviction to
Hughes, the prosecution presented the "statement of
conviction/disposition" for case number 87CR-2266, in which a "Michael
Hughes" was convicted of robbery and sentenced to two years of probation
in July 1987. In addition to the robbery conviction, the statement of
conviction/disposition for 87CR-2266 referred to a concurrent sentence of
probation for an unspecified crime, case number 86CR-3409. Id.
at 126 (emphasis added). The sexual assault conviction and prison records
never referred directly to a previous robbery conviction, or to case
number 87CR-2266, but only to case number 87CR-3409. Although the
prosecutor did not explain the discrepancy in the case numbers (87CR-3409
in Hughes's incarceration records and 86CR-3409 in the statement of
conviction/disposition for 87CR-2266), the trial court reviewed the
documents and found-also without addressing the discrepancy that
the evidence was sufficient to prove that Hughes had been convicted of
robbery. Trial Tr. at 310-15.
While the evidence linking Hughes to the robbery conviction could have
been much stronger, Hughes offers no evidence suggesting that he was not
convicted of robbery in Illinois. Additionally, after careful review of
the records, this Court cannot find any inconsistency, beyond the
discrepancy in case numbers, within the records of convictions.*fn5 As
to the different case numbers, the Court concludes that, in the absence
of any contrary evidence, a rational trier of fact could have found,
beyond a reasonable doubt, that the discrepancy was due to a
typographical error and, therefore, that the records of the sexual
assault conviction tied the robbery conviction to Hughes beyond a
reasonable doubt.*fn6 Thus, Hughes's insufficiency of the evidence claim
2. Counting Illinois Convictions as Previous
Hughes also challenges the trial court's finding that the Illinois
robbery and sexual assault convictions qualified as strikes under
California's Three Strikes law. State sentencing courts must be accorded
"wide latitude in their decisions as to punishment." Walker v.
Endell, 850 F.2d 470, 476 (9th Cir. 1987). As a result, a federal
court may generally not review a state sentence that is within statutory
limits, id., unless that sentence violates the Eighth Amendment
or due process. Solem v. Helm, 463 U.S. 277, 303 (1983);
Marzano v. Kincheloe, 915 F.2d 549, 552 (9th Cir. 1990). Here,
Hughes claims that the trial court's sentence under the Three Strikes law
fits under both of these exceptions. Hughes also argues that his sentence
violates the Full Faith and Credit Clause.
a. Due Process Claim
The Court first considers Hughes's due process argument. The
constitutional guarantee of due process is fully applicable at
sentencing. Gardner v. Florida, 430 U.S. 349, 358 (1977).
However, federal courts must defer to a state court's interpretation of
state sentencing laws. 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).
Thus, this Court must consider, as a threshold matter, whether Hughes has
demonstrated that his sentence is fundamentally unfair.
A showing of fundamental unfairness has been found under only two
circumstances: where a state trial judge (1) imposed a sentence in excess
of state law, Marzano, 915 F.2d at 552 (guilty plea does not
permit state to impose sentence in excess of state law despite agreement
of defendant to sentence), or (2) enhanced a sentence based on materially
false or unreliable information or based on a conviction infected by
constitutional error, United States v. Hanna, 49 F.3d 572, 577
(9th Cir. 1995). Here, Hughes argues that his sentence fits under the
first circumstance because it was imposed in excess of state law.
However, the Three Strikes law provides for a sentence of twenty-five
years to life if two previous serious felonies are "pled and proved."
Cal. Penal Code § 667(e)(2)(A). Consequently, Hughes cannot argue
that the law does not provide for his sentence, as in Marzano,
but only that the California courts misinterpreted whether the Illinois
convictions qualified as strikes under California's Three Strikes law.
The Three Strikes law prescribes increased terms of imprisonment for
defendants who have previously been convicted of certain "violent" or
"serious" felonies. Cal. Penal Code §§ 667(a)(1), 667(d)(1). Robbery
and rape are both "serious felonies" under this provision. Id.
§§ 667(a)(4), 1192.7. A conviction from another jurisdiction that
includes all of the elements of a "serious felony" can be used to enhance
a defendant's sentence. Id. §§ 667(d)(2), 1170.12(b)(2).
To determine if an out-of-state crime involved conduct that satisfies all
of the elements of a comparable California "serious felony" offense, a
court may look to the entire record leading up to the conviction.
People v. Avery, 27 Cal.4th 49, 53 (2002). If the record is
silent as to the conduct involved, then the court may use the least
adjudicated elements test. People v. Meyers, 5 Cal.4th 1193,
1200 (1993). Under this test, the court must assume that the out-of-state
conviction was based on the least punishable offense described in the
statute. People v. Guerrero, 44 Cal.3d 343, 355 (1988).
Hughes argues that, in this case, there are no facts as to the
underlying conduct in the record of convictions because he pled to both
previous convictions, and that the trial and appellate courts erred by
relying on facts in the charging documents to equate Hughes's conduct
with a "serious felony." According to Hughes, the courts should have
least adjudicated elements test, under which the courts should have
found that the elements of his Illinois crimes are not equivalent to
their California counterparts.
However, this Court is not persuaded by Hughes's arguments. First, the
determination of previous strikes is considered a state law question and
fundamental unfairness is typically not even considered. See Miller
v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989) (holding that
whether assault with a deadly weapon qualifies as a "serious felony"
under California's sentence enhancement provisions, Cal. Penal Code §§
667(a) and 1192.7(c)(23), is a question of state sentencing law and does
not state a constitutional claim); Hodges v. Newland,
172 F. Supp.2d 1245, 1251 (N.D. Cal. 2001) (starting its analysis by accepting
state habeas court's determination that juvenile conviction qualifies as
a strike under California law). Morever, for the reasons discussed below,
the Court concludes that Hughes has failed to make a showing of
fundamental unfairness in this case, thereby failing to establish a
constitutional due process violation even if this Court were to consider
whether the state court's application of Three Strikes was fundamentally
(1) The Illinois Sexual Assault
The Court first addresses Hughes's Illinois conviction for sexual
assault. The trial court found this conviction to be equivalent to the
California crime of rape. Subsequently, following the prosecution's
request, the court also added that the conviction was equivalent to the
California crimes of attempted rape and assault with intent to commit
Hughes argues that Illinois's crime of sexual assault is much
broader and encompasses behavior that would not be considered rape under
California law. He also argues that he cannot be guilty of attempted rape
or assault with intent to rape because, by pleading guilty to the general
intent crime of sexual assault, he never admitted to the specific intent
Rape in California is defined as forced intercourse with a "person
not the spouse of the perpetrator."*fn8 Cal. Penal Code § 261.
Intercourse is defined as "[a]ny sexual penetration, however slight."
Id. § 263. At the time of Hughes's conviction, sexual
assault in Illinois was defined as "sexual penetration by the use of
force or threat of force." Ill. Rev. Stat. 1987, ch. 38, ¶
12-13(a)(1) (now found at 720 Ill. Comp. Stat 5/12-13(a)(1)). "Sexual
penetration" was defined as: "[a]ny contact, however slight, between the
sex organ of one person and the sex organ . . . of another person, or
any intrusion, however slight, of any part of the body of one
person . . . into the sex organ . . . of another person." Ill. Rev.
Stat. 1987, ch. 38, ¶ 12-12(f) (now found in amended form at 720
Ill. Comp. Stat. 5/12-12(f)).
In addition to relying on a comparison of the above statutes, the state
court relied on the charging document as part of the entire record of
conviction. That document reads: "an act of sexual penetration, upon
Yuette P[.] to wit: contact between Michael Hughes['s] penis and the
vagina of Yuette P[.], by the use of force and by the threat of force."
Clerk's Tr. at 112. Hughes argues that the state court erred by
considering the charging document as part of the entire record. In his
view, the fact that he pled guilty to the charge does not establish the
facts mentioned in the charging document. While the Court is somewhat
sympathetic with Hughes's argument, what constitutes the entire record of
conviction for purposes of Three Strikes is a state issue for which
federal review is unavailable. See Avery, 27 Cal.4th at 53
(allowing courts to look to the entire record of conviction to determine
whether the out-of-state conduct constitutes a "serious felony" under
Three Strikes); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir.
1985) (holding that habeas relief is "unavailable for alleged error in
the interpretation or application of state law"). Moreover, in this case,
any error was harmless because the facts relied on in the charging
document describe the lowest level of conduct punishable by the crime of
sexual assault in Illinois at the time of Hughes's conviction, and Hughes
does not dispute that his conviction was based on genital-to-genital
contact. In light of the above, the Court does not find it improper
for the state court to have relied on information contained in the
Based on the different definitions of penetration in the two
jurisdictions, Hughes maintains that he could be guilty of forcing only
"contact" between his genitals and that of the victim, not actual
"penetration," as required under the California rape statute. The
charging document supports his position by using the word "contact" to
describe Hughes's actions. However, the California appellate court held
that Hughes's conduct i.e., contact between Hughes's penis and
his victim's vagina constituted a "serious felony" in California,
whether it was labeled as rape, attempted rape, or assault with intent to
commit rape. Cal. Ct. App. Op. at 15. While the appellate court could
have better addressed the intricacies of state criminal law, and
reasonable minds might differ on whether "contact" is sufficient to
establish "penetration, however slight," this Court does not find the
state court's conclusion to be unreasonable, let alone fundamentally
(2) The Illinois Robbery Conviction
Hughes next argues that the Illinois robbery conviction cannot be used
as a strike because California law requires proof of the intent to
permanently deprive, while, at the time of Hughes's conviction, it was
unclear whether Illinois law contained a similar requirement. Robbery in
California is defined as the "felonious taking of personal property in
the possession of another, from his person or immediate presence, and
against his will, accomplished by means of force or fear." Cal. Penal
Code § 211. The common law definition of "felonious taking" has been
interpreted by California courts as the "intent to permanently deprive."
California recently expanded its definition of felonious taking to
include the "intent to deprive temporarily but for an unreasonable time
so as to deprive the person of the major portion of its value or
enjoyment." Avery, 27 Cal.4th at 58. Hughes contends that,
although he pled guilty to robbery in Illinois, he never admitted the
intent to permanently deprive required to commit robbery in California.
However, the record of conviction described Hughes's conduct as a purse
snatching. Clerk's Tr. at 122. Under California law, a court may infer
intent to permanently deprive
from all of the circumstances of a case, People v. Hall,
253 Cal.App.2d 1051, 1054 (1967), and it was reasonable for the court
in this case to infer that, as a purse snatcher, Hughes had the requisite
intent to permanently deprive. Any contrary argument that, for
example, Hughes snatched the purse but intended to return it
defies all credibility.
Additionally, although the Illinois Supreme Court had yet to rule
definitively on this issue at the time of Hughes's conviction,*fn9
intermediate Illinois appellate courts had held that intent to
permanently deprive could be logically presumed from a robbery charge.
People v. Romo, 85 Ill. App.3d 886, 894 (1980); People v.
Beck, 42 Ill. App.3d 923, 924 (1976). These cases provide
additional justification for the California appellate court's conclusion
that Hughes's 1987 conviction for Illinois robbery could reasonably be
considered the equivalent of California robbery. In short, the state
court's decision was not an unreasonable application of state law,*fn10
and Hughes fails to make the showing of fundamental unfairness required
for a due process violation.
b. Eighth Amendment Claim
Hughes also argues that his sentence violates the Eighth Amendment's
prohibition against cruel and unusual punishment. In part, this argument
rests on Hughes's assertion that California misapplied its own procedures
to evaluate out-of-state convictions. Such misapplication of law is more
properly considered a potential violation of due process a
contention rejected in the previous section of this order.
In his traverse, Hughes also articulated an Eighth Amendment
proportionality challenge based on the Ninth Circuit's decision in
Andrade v. California Attorney General,
270 F.3d 743 (9th Cir. 2001). However, as Hughes effectively
argues, the circumstances of this case are very similar to
Andrade. Therefore, although the Court is sympathetic to
Hughes's proportionality argument, this argument is foreclosed by the
Supreme Court's reversal of the Ninth Circuit in Lockyer v.
Andrade, 538 U.S. 63 (2003). Accordingly, the Court denies Hughes's
Eighth Amendment claim.*fn11
c. Full Faith and Credit Clause
Finally, Hughes argues that his sentence violates the Full Faith and
Credit Clause because the California state courts failed to give full
faith and credit to the manner in which Illinois defined robbery and
sexual assault. However, Hughes offers no legal precedent, and the Court
can find none, supporting a federal court's interference with a state
sentencing scheme based on an alleged Full Faith and Credit Clause
violation. Moreover, as discussed during the above analysis of Hughes's
due process claim, this Court does not find that the California state
courts in any way disturbed the meaning of robbery or sexual assault
under Illinois law. Instead, the courts concluded, based on a reasonable
interpretation of the record of each conviction, that Hughes's conduct
satisfied California's requirements for rape and robbery.
For all of the reasons discussed above, Hughes has failed to show that
trial error or sentencing error warrants habeas relief in this case.
Accordingly, Hughes's petition for a writ of habeas corpus is DENIED, and
the Clerk shall close the file.
IT IS SO ORDERED.