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United States District Court, N.D. California

February 26, 2004.


The opinion of the court was delivered by: THELTON HENDERSON, Senior District Judge


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. Page 2


  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 Page 3 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. Page 4

  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 petition's merits.


  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 proceeding.
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 Page 5 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. Page 6

  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. Page 7

  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 conclusion).

  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 Page 8 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 quantity.
Q: So it was too dark to see how much she was getting?
A: Yes.
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 Page 9 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. Page 10

  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 impeach Napolitano.

  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. Page 11

  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 Robbery Conviction

  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 conviction).

  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 Page 12 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 Page 13 assault conviction tied the robbery conviction to Hughes beyond a reasonable doubt.*fn6 Thus, Hughes's insufficiency of the evidence claim fails.

  2. Counting Illinois Convictions as Previous Strikes

  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. Page 14

  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 applied the Page 15 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 unfair.


(1) The Illinois Sexual Assault Conviction
  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 rape.*fn7 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 to rape. Page 16

  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 Page 17 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 charging document.

  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 unfair.

  (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 Page 18 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, Page 19 270 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.


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