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SANDERS v. HAMLET

United States District Court, N.D. California


April 19, 2004.

SHEPARD SANDERS, Petitioner,
v.
J. HAMLET, Warden, Respondent

The opinion of the court was delivered by: VAUGHN WALKER, District Judge

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner was convicted by a jury of second degree robbery on October 15, 1997. The jury also found that petitioner had suffered two prior juvenile adjudications, which counted as "strikes" under California's Three Strikes law. The court sentenced petitioner to 25 years to life in prison.

On appeal, the California Court of Appeal affirmed petitioner's robbery conviction, but found that the trial court did not make the necessary findings to use one of his prior juvenile adjudication as a strike. The court reversed petitioner's sentence and remanded the case to the trial court to make the necessary findings.

  On remand, the trial court made the required finding to use petitioner's prior adjudication as a strike and again sentenced him to 25 years to life. The California Court of Appeal affirmed the sentence and the Supreme Court of California denied review.

  Because the rulings of the California Court of Appeal were not contrary to, or involved an unreasonable application of, Supreme Court precedent, or were based on an unreasonable determination of the facts, petitioner's petition for a writ of habeas corpus is denied.

  STATEMENT OF FACTS

  The California Court of Appeal summarized the facts of the case as follows:

Sanders was charged by information with robbery ([Cal. Penal Code] II 211, 212. 5) and the personal use of a handgun ([id] S 12022. 5, subd. (a)). The information was later amended to allege that he suffered two previous juvenile adjudications, [] which brought him within the Three Strikes sentencing scheme upon conviction.
Sanders represented himself at trial. The prosecution's case showed that a dark-skinned African-American man with long curly hair and wearing a baseball cap and sunglasses handed a note to Lisa Aguirre, a teller in a Brentwood bank. Aguirre thought the man's hair could have been real or a wig. The note read, "I have a gun. You have got 20 seconds to hand over the money or I will start shooting. No bank roll." Aguirre gave the robber money and he left. A second teller, Dena Craig, witnessed the robbery and saw the robber. A bank manager also saw the robber, while they were both standing in line, before the robbery occurred. None of the witnesses positively identified Sanders as the robber at trial. Aguirre testified that Sanders had the same skin color and was about the same height as the robber. Craig testified that Sanders's face had the same roundness as the robber's, he was about the same height, and he looked like the robber. The bank manager testified that Sanders's skin color was the same as the robber's and he had the same wide neck and lower face as the robber.
The demand note had Sanders's thumbprint on it. Detective Janes Nartinez of the Brentwood Police Department went to Sanders's sister's house about five months after the robbery. Martinez went to Susan Muhlenbruch's apartment after he learned from the sister that Sanders lived with Muhlenbruch. Sanders answered the door with his hands up, and said that his sister told him that Martinez was coming. Martinez asked about the bank robbery, but Sanders denied knowing of the robbery and said he had never been to the bank. Martinez found it hard to believe, given Sanders's fingerprint on the note, and told Sanders so. Sanders continued denying any knowledge until Martinez pressed him on the fingerprint. Sanders then said, " You know, I might have wrote a note for someone else." He said the note was for Ricky Green, then later said that he meant Chris Green. Sanders said he also wrote a separate note for Kevin Sims. Martinez eliminated a person named Christopher Green as a suspect because he was taller and heavier than the robber. Martinez found two people named Kevin Sims. One was in prison. The other testified at trial that he was the director for Victory Outreach Ministries in Pittsburg, California, and did not rob the bank. All three witnesses to the robbery ruled out Sims as the robber before trial, and two of the witnesses testified that Sims was not the robber.
Sanders did not testify but presented an alibi defense. Muhlenbruch testified that he was "most likely" with her on the date of the robbery. A fingerprint expert testified for the defense that there is no way to determine when a fingerprint is left on a surface. The expert concurred with the prosecution's expert that Sanders's thumbprint was on the demand note. Sanders presented other testimony that the police tried but failed to lift fingerprints from other surfaces that the robber may have touched. A witness testified that she had not, in the previous seven years, known Sanders to have long hair or wear glasses, nor had she ever known him to possess a gun.
The jury found Sanders guilty of robbery and deadlocked on the gun enhancement, which the court later dismissed. The jury also found true the allegations that Sanders suffered a juvenile adjudication for "Robbery, a felony, a violation of Penal Code section 211, " and "Kidnapping, a felony, a violation of Penal Code section 207." The court sentenced Sanders to a prison term of 25 years to life.
People v Sanders (Sanders I). No A080890, slip op at 2-3 (Cal Ct App. August 27, 1999)(footnote omitted)(Respt Ex B).

  STATEMENT OP THE CASE

  Petitioner was convicted by a jury of second degree robbery on October 15, 1997. The jury also found true that petitioner suffered prior juvenile adjudications for robbery and kidnapping, which counted as two "strikes" under California's Three Strikes law. The court sentenced petitioner to 25 years to life in prison.

  On August 27, 1999, the California Court of Appeal affirmed petitioner's conviction for robbery. However, the California Court of Appeal reversed petitioner's sentence and remanded the case because the trial court did not make a finding that petitioner was adjudged a ward of the juvenile court as a result of the juvenile adjudication for kidnapping.

  On October 7, 1999, petitioner filed a petition for review in the California Supreme Court, claiming that his constitutional rights were violated by the use of his prior juvenile adjudications as "strikes" and by the denial of his motion for advisory counsel in his absence. On November 23, 1999, the California Supreme Court denied the petition for review.

  On remand, the trial court held proceedings consistent with the California Court of Appeal's opinion. On July 7, 2000, the trial court denied petitioner's motion to dismiss the "strikes" and sentenced him to 25 years to life for his conviction of second degree robbery.

  On May 30, 2002, the California Court of Appeal affirmed the sentence imposed on petitioner in the remand proceedings and denied petitioner's petition for a writ of habeas corpus.

  On July 1, 2002, petitioner filed a petition for review in the California Supreme Court. Petitioner claimed that the remand proceedings in the trial court to determine whether petitioner suffered a prior juvenile adjudication under the Three Strikes law violated the Double Jeopardy Clause, equitable principles of res judicata and law of the case, and his right to a jury trial. Petitioner also claimed that his appellate counsel rendered ineffective assistance. On August 15, 2002, the California Supreme Court denied the petition for review.

  On September 4, 2002, petitioner filed this instant petition for writ of habeas corpus under 28 U.S.C. S 2254. Petitioner raised seven claims in his petition: (1) petitioner was deprived of the constitutional right to be present at all critical stages of his criminal proceeding when the trial court decided his motion for advisory counsel outside his presence; (2) use of petitioner's juvenile adjudication to enhance his sentence violated his constitutional rights to a jury trial, due process and equal protection; (3) the remand to the trial court for further proceedings violated res judicata and double jeopardy; (4) petitioner was deprived of his right to a jury trial on the question of whether his juvenile adjudication qualified as a strike; (5) ineffective assistance of appellate counsel for failing to raise issues of sufficiency of the evidence; (6) ineffective assistance of appellate counsel for failing to raise issue of incomplete and erroneous jury instructions; and (7) ineffective assistance of appellate counsel for failure to raise the issue that the jury failed to make required finding that petitioner was adjudged a ward of the court in his prior juvenile robbery proceeding.

  On December 12, 2002, this court found that, liberally construed, petitioner's claims appear colorable under S 2254 and merit an answer from respondent. This court issued an order for respondent to show cause why a writ of habeas corpus should not be issued.

  Respondent filed a response to the order to show cause and petitioner filed a traverse and a supplemental traverse.

  DISCUSSION

 A. Standard of Review

  A federal writ of habeas corpus nay 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. S 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.

  The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Id at 412; Clark v Murphy, 331 F.3d 1062, 1069 (9th Cir 2003). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Id.

  In determining whether a state court decision is contrary to, or involved an unreasonable application of, clearly established federal law, a federal court looks to the state's "last reasoned decision" as the basis for its judgment. Avila v Galaza, 297 F.3d 911, 918 (9th Cir 2002). However, where the state gives no reasoned explanation of its decision, a review of the record is the only means of deciding whether the state court's decision was objectively reasonable. See Himes v Thompson. 336 F.3d 848, 853 (9th Cir 2003); Greene v Lasabert, 288 F.3d 1081, 1088 (9th Cir 2002). And "while we are not required to defer to a state court's decision when that court gives us nothing to defer to, we must still focus primarily on Supreme Court cases in deciding whether the state court's resolution of the case constituted an unreasonable application of clearly established federal law." Fisher v Roe. 263 F.3d 906, 914 (9th Cir 2001).

 B. Analysis

  1. Petitionr's right to be present at All Critical Stages of Proceedings

  Petitioner claims that the trial court denied him his right to be present at all critical stages of his criminal proceeding when it considered and decided his motion for advisory counsel outside of his presence. Petitioner argues that deciding to deny his motion for advisory counsel in his absence denied him "an opportunity to voice any objection he has regarding the court proceeding and decision." Pet Writ at 3.

  The Sixth Amendment's Confrontation Clause and the Fifth Amendment's Due Process Clause guarantee a defendant the right to be present at any stage of a criminal proceeding if his presence would contribute to the fairness of the proceeding. See Kentucky v Stincer, 482 U.S. 730, 745 (1987).

  The California Court of Appeal rejected petitioner's claim on the ground that "there was no `proceeding' at which [petitioner] could have been present." Sanders I, No A080890, slip op at 7-8. The California Court of Appeal noted that the trial court "invited Sanders to file any motions, including a request for advisory counsel" and "informed him that he needed to show good cause for advisory counsel." Id at 9. Petitioner's "bare-bones request for advisory counsel merely stated he wanted advisory counsel and could not afford to retain counsel. The court's order stated that Sanders failed to show good cause for advisory counsel." Id.

  State court findings of fact are entitled to a presumption of correctness unless petitioner presents clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1). The California Court of Appeal's finding that there was no proceeding is entitled to a presumption of correctness. Petitioner does not rebut this finding with clear and convincing evidence to the contrary.

  In addition, there is no indication whatsoever that petitioner's presence at the time the court denied his motion for advisory counsel would have contributed any fairness to the proceedings. Cf Stincer, 482 US at 745.

  It is clearly established that a criminal defendant has no right to advisory counsel. See Locks v Summer, 703 F.2d 403, 408 (9th Cir 1983). The denial of a hearing on a meritless motion for advisory counsel in no way violated petitioner's constitutional rights.

  The California Court of Appeal's rejection of petitioner's claim was not contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or result in a decision that was based on an unreasonable determination of the facts. See 28 U.S.C. I 2254(d). Petitioner is not entitled to federal habeas relief on this claim.

  2. Use of Petitioner's Prior Juvenile Adjudication to Enhance Sentence

  Petitioner claims that using his two prior juvenile adjudications to enhance his sentence for the second degree robbery conviction, pursuant to the California Three Strikes law, violated his right to a jury trial, due process and equal protection. He contends that "the use of prior juvenile adjudications as strikes deny him due process and equal protection because he did not have the right to a jury trial at the previous juvenile adjudications while other defendants with prior convictions as an adult had a right to a jury trial." Sanders I, No A080890, slip op at 14. He argues that "an order adjudging a minor to be a ward of the juvenile court shall not be deemed a conviction of a crime for any purpose, nor shall a proceeding in the juvenile court be deemed a criminal proceeding." Pet Writ at 4. Petitioner argues that, based on Jones v United States, 526 U.S. 227, 249 (1999), "a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees." Pet Traverse at 7. He argues that because his prior juvenile adjudications were not subject to these procedural protections, they can not be used as prior convictions to enhance his sentence. Id.

  The California Court of Appeal found that the use of his prior juvenile adjudications as strikes did not violate his rights to jury trial, due process, and equal protection. The court reasoned as follows:

Sanders . . . contends that the use of prior juvenile adjudications as strikes denies him due process and equal protection because he did not have the right to a jury trial at the previous juvenile adjudications while other defendants with prior convictions as an adult had a right to jury trial. His arguments lack merit.
His principal argument to support his due process contention is that the effect of the Three Strikes law in classifying some juvenile adjudications as strikes has changed the fundamental purpose of juvenile law from rehabilitation to punishment such that the right to a jury trial is now necessary to juvenile proceedings involving those offenses listed in Welfare and Institutions Code section 707, subdivision (b), or serious and violent felonies. The court in In re Myreahela W. (1998) 61 Cal.App.4th 734, 739-41, rejected this same argument. The court found that the juvenile offenses that qualify as strike priors are a relatively snail proportion of the juvenile court case load, authority existed prior to the Three Strikes law for criminal courts to consider prior juvenile adjudications in determining that base term for sentencing, and the overall purpose of the juvenile court system remains focused on rehabilitation as distinguished from the criminal justice system's focus on punishment. (Ibid.) For these reasons, the Three Strikes law did not change prior pronouncements of our Supreme Court that there was no right to a jury trial in juvenile adjudications. (Id. At p. 741; see People v. Superior Court (Carl W.) (1975) 15 Cal.3d 271, 274.) We agree with the reasoning of the In re Myreabela W. court.
The equal protection argument is equally unsuccessful. We quote the nub of his arguments "Section 667 creates two groups for disparate treatment: those charged with a `strike based on an adult conviction, and those charged with a `strike' based on a juvenile conviction. Under the terms of the statute, the first group will have sentences enhanced only by convictions in which they enjoyed the right to a jury trial. The second will have the same sentences enhanced by convictions in which they were denied the SUM right."
First, Sanders fails to identify the disparate treatment. Both groups that he identifies are treated exactly the same: they are subject to the Three Strikes law. He does not show that there are two similarly situated groups that are affected in an unequal manner. Second, to the extent he claims it is unfair, under the Three Strikes law, to equate prior adult convictions obtained by means of a jury trial, with prior juvenile adjudications where no right to a jury trial existed, his claim is a rehash of his due process argument. As we held above, treating a prior adult conviction and a prior juvenile adjudication equally is not a denial of due process.
Third, assuming that Sanders is actually attacking his prior juvenile adjudication, by arguing that he should have been given a jury trial during the proceedings in juvenile court, a rational basis exists for treating juveniles differently from adults. [] The focus of the juvenile adjudicative process is on fact-finding, with the ultimate goals of reunification and rehabilitation. These concerns provide a sufficient basis for distinguishing the process from criminal proceedings, and create a legitimate justification for not requiring that a jury make juvenile adjudications. (See In re Myresheia W., supra, 61 Cal.App.4th at pp. 737-738, 740-741).
The Legislature, by enacting the Three Strikes law, did not transform juvenile adjudications into criminal convictions. It simply determined that, under certain circumstances, some prior juvenile adjudications will be treated as if they are prior convictions. This treatment affects only the length of the sentence of the adult offender. It does not impact the finding of guilt nor the adjudicative process in the juvenile court. The Legislature can legitimately find that some offenses, if committed by a juvenile, are egregious or serious enough that they should be treated as prior convictions if that person reoffends as an adult. Nothing about such a scheme offends due process or equal protection. Sanders I, No A080890, slip op at 14-16.
  The California Court of Appeal's rejection of petitioner's claim was not contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable determination of the facts. See 28 U.S.C. S 2254 (d).

  It is clearly established that there is no constitutional right to a jury trial in juvenile adjudications. McKeiver v Pennsylvania. 403 U.S. 528, 545 (1970); United States v williams, 391 F.2d 212, 215 (9th Cir 1989). And it is also clearly established that " [i] f it does not violate due process for a juvenile to be deprived of his or her liberty without a jury trial", there is no "violation of due process when a later deprivation of liberty is enhanced due to this juvenile adjudication." Id. Simply put, consideration of the juvenile record of an adult defendant for purposes of sentence enhancement does not violate due process. Id.

  "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. Hew Jersey. 530 U.S. 466, 490 (2000). There is no right under the Sixth Amendment to have a jury hear and rule on a sentencing enhancement allegation based on a prior conviction. See id.

  Here, petitioner's sentence was enhanced due to his two prior juvenile adjudications. Because it did not violate due process to deprive petitioner of his liberty in his juvenile adjudications without a jury trial, it did not violate due process now to enhance his sentence based on these adjudications. See Williams, 891 F.2d at 215. And petitioner's prior adjudications need not be subject to fair notice, reasonable doubt and a jury trial because they are not considered an element of the offense of second degree robbery. See Apprendi, 430 US at 490. The sentencing court can consider petitioner's juvenile record for purposes of sentence enhancement without violating petitioner's right to due process or right to a jury trial.

  Petitioner's claim of denial of equal protection is also unpersuasive. Petitioner claims that the Equal Protection Clause was violated "by incorporating juvenil[e] proceeding[s] into the adult sentencing scheme." Pet Traverse at 8. While juvenile proceedings can be used to enhance the sentences of adult offenders, this does not create two or more similarly situated groups of defendants that receive disparate treatment. See City of Cleburne v Cleburne Living Center, 473 U.S. 432, 439 (1985) (quoting Plyer v Doe. 457 U.S. 202, 216 (1985). The use of certain juvenile adjudications as "strikes" under the California Three Strikes law applies to all defendants. All defendants are subject to possible sentence enhancement based on their juvenile record. Petitioner has not shown that the use of prior juvenile adjudications to enhance adult sentences creates unequal treatment of two or more similarly situated groups of defendants.

  Again, the California Court of Appeal's rejection of petitioner's claim was not contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable determination of the facts. See 28 U.S.C. I 2254(d). Petitioner is not entitled to federal habeas relief on this claim. 3. Res judicata and Double Jeopardy

  The California Court of Appeal found that one of petitioner's juvenile adjudications did not qualify as a strike without a determination that petitioner was adjudged a ward of the court. The court then reversed his sentence and remanded the case for further proceedings. Petitioner claims that both principles of res judicata and the Double Jeopardy Clause were violated by the proceedings on remand.

  In rejecting petitioner's argument, the California Court of Appeal reasoned as follows:

Defendant argues that retrial on the kidnap strike violated the Double Jeopardy Clause of the United States Constitution, asserting he was "functionally acquitted of the prior adjudication finding" when this court reversed his original sentence. We disagree.
In Monge v. California (1998) 524 U.S. 721 (Monge), the United States Supreme Court held the bar of double jeopardy does not apply to noncapital sentencing determinations based on a defendant's prior criminal history. (Id. At pp. 731-732, 734.) The California Supreme Court has reached the same conclusion, holding that neither state nor federal prohibitions against double jeopardy apply to noncapital sentencing determinations. (People v. Monge (1997) 16 Cal.4th 826; People v. Hernandez (1998) 19 Cal.4th 835, 337.)
Defendant acknowledges Mange's holding but asserts it is not controlling. First, he urges that the increased severity of his sentence under the Three Strikes Law requires that double jeopardy protections apply as a matter of "fundamental fairness." We cannot agree. In Monge, the court hypothesized that "one could imagine circumstances in which fundamental fairness would require* that double jeopardy protections apply to an enhancement fact. The court, however, flatly rejected the notion that double jeopardy applies any time an enhancement increases the defendant's potential sentence, specifically noting that it had upheld an enhancement authorizing a tenfold increase for two to twenty years. (Supra, 524 U.S. at p. 728; see also Almendarez-Torres v. United States (1998) 523 U.S. 224.) Here, the kidnapping strike resulted in a sentence of 25 years to life rather than the 12-year term defendant would have received with only the robbery prior. Defendant's assertion that "the sentencing determination in this case resulted in a life sentence for an offense that would otherwise carry a maximum sentence of six years" is inaccurate. The jury found true two strikes, only one of which was reversed and retried. Assuming arguendo that retrial on the kidnapping strike were barred, the remaining strike would still double defendant's maximum term to 12 years. (Pen. Code, S 667, subd. (e)(1).) The increase based upon the second strike does not exceed the constitutionally permissible range.
We also reject defendant's contention that this case is controlled by Bullington v. Missouri (1981) 451 U.S. 430 (Bullington). There the Supreme Court held that "a capital defendant who had received a life sentence during a penalty phase that bore `the hallmarks of [a] trial on guilt or innocence' could not be resentenced to death upon retrial following appeal." (Monge, supra, 524 U.S. at p. 726.) Rejecting a contention that Bullington governs California's proceedings to determine the truth of prior conviction allegations, Monge clarified that Bullington "established a `narrow exception' to the general rule that double jeopardy principles have no application in the sentencing context" and that its rationale "is confined to the unique circumstances of capital sentencing." (Id. at pp. 730, 734.) Defendant's reliance on Bullington is therefore unavailing.
. . .
[Apprendi, 530 U.S. at 499-523] reaffirms the continued vitality of Monge as applied to recidivism enhancements . . ., [In Apprendi], the Court held the defendant was entitled to a jury trial with proof beyond a reasonable doubt in the assessment of those facts that increased his potential range of penalties. (Id. at p. 490.) The Court, however, expressly exempted recidivism statutes from this rules "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule . . ." (Ibid., italics added; see also People v. Thomas (2001) 91 Cal.App.4th 212, 220; Cherry v. Superior Court (2001) 86 Cal.App.4th 1296, 1306 (cone. opn. of Epstein, J.).) Under the continuing authority of Monge, we conclude that double jeopardy is inapplicable here.
II. Res Judicata and Law of the Case Do Not Bar Retrial
. . .
At its core, defendant's argument is that it was simply unfair to allow the prosecution a second chance to prove a strike that more than doubled his sentence. We are not blind to this consequence. In the words of the Sotello court, however: "Our concern in addressing the issue of fundamental fairness is that all defendants who have similar histories of past felonious conduct should be sentenced similarly. This goal serves the interests of both defendants and the People and is promoted by allowing an allegation to be retried [when] appellate review has determined the trial court erroneously found sufficient evidence to sustain a true finding at the first trial." ([People v Sotello. 94 Cal App. 4th 1349, 1354-56 (2002)]) While this case does not involve a reversal for insufficient evidence, Sotello's analysis is equally apt here.
We conclude the retrial on the prior kidnapping adjudication was not precluded by any doctrinal or constitutional consideration.
People v Sanders (Sanders II), No A091833, Slip Op at 4-7 (Cal Ct App. Nay 30, 2002)(Respt Ex F).

  The Double Jeopardy Clause of the Fifth Amendment guarantees that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb". US Const amend V. In Benton v Maryland. 395 U.S. 784 (1969), its protections were held applicable to the states through the Fourteenth Amendment. The guarantee against double jeopardy protects against (1) a second prosecution for the same offense after acquittal or conviction, and (2) multiple punishments for the same offense. See Witte v United States. 515 U.S. 389, 395-96 (1995); United States v DiFrancesco, 449 U.S. 117, 129 (1980).

  Contrary to petitioner's argument, the United States Supreme Court has clearly established that "the Double Jeopardy Clause does not preclude retrial on a prior conviction allegation in the noncapital sentencing context." Monge v California. 524 U.S. 721, 734 (1998). Here, petitioner was retried for a prior conviction for sentencing purposes. He was retried only to establish the fact of a prior conviction in a noncapital sentencing context. See id; see also Apprendi, 530 US at 491. This did not violate double jeopardy or any other constitutional principle recognised by the Supreme Court.

  The California Court of Appeal's rejection of petitioner's claim was not contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). Petitioner is not entitled to federal habeas relief on this claim.

  4. Right to a Jury Trial

  Petitioner claims that he was entitled to a jury trial on remand from the California Court of Appeal to determine whether he had been adjudged a ward of the state. The California Court of Appeal rejected this claim, reasoning as follows:

[W]e remanded the case for a finding on whether, in the proceeding on the kidnapping prior, defendant had been adjudged a ward of the court on the basis of a Welfare and Institutions code section 707, subdivision (b) offense. That fact was critical because, tinder [People v. Garcia, 21 Cal.4th 1 (1999)], a juvenile adjudication only constitutes a strike if defendant had been adjudged a ward in the course of that proceeding. Because, on remand the court denied defendant's request for a jury trial, defendant now contends he was denied this statutory and constitutional right.
We start with the proposition that "[t]he right, if any, to a jury trial of prior conviction allegations derives from [Penal Code] sections 1025 and 1158, not from the state or federal Constitution." (People v. Epps (2001) 25 Cal.4th 19, 23.) In Eppa, the Court considered the effect of a 1997 amendment to Penal Code section 1025 and concluded that it "considerably narrowed, " but did not eliminate, the right to a jury trial of prior conviction allegations, assigning the issue of identity to the court and leaving the jury to determine only whether the defendant so identified had suffered the [prior] conviction." (Id. at p. 21, 26; see also People v. Kelii (1999) 21 Cal.4th 452, 458-459; People v. Kilty (1995) 9 Cal.4th 580.) In practical terms, Epps observes, the jury's task is now generally limited to determining the authenticity and sufficiency of the documents admitted to establish the prior convictions. (Supra, at p. 27) The Court further held that the erroneous deprivation of a jury trial of priors is assessed under the [People v Watson. 46 Cal.2d 818, 836 (1956)] test for harmless error. (Id. at p. 29.)
Here, defendant asserts the findings on remand "went directly to the essence" of whether he had "suffered the prior conviction" (Epps, supra) because whether he had been adjudged a ward of the court in the 1986 juvenile proceeding was one of the criteria used to determine whether the juvenile adjudication qualifies as a "conviction" under the Three Strikes law. We do not reach the merits of this assertion because there is no reasonable probability that a jury trial would have resulted in a more favorable outcome. The only question on remand was whether defendant had been adjudged a ward of the court because of a section 707, subdivision (b) offense. The evidence at retrial included a minute order from that proceeding showing that the court ordered defendant continued as a ward of the court for his adjudications for kidnapping with personal use and assault with a deadly weapon, both of which are section 707, subdivision (b) offenses. [] (S 707, subds. (b)(13), (17).) The probation report, also admitted into evidence, noted defendant's status as a ward and recommended continued wardship with a commitment to California Youth Authority. Defendant introduced no contrary evidence. [T]he prior conviction records were official government documents clearly describing the alleged convictions. As such, the fact of the convictions was presumptively established. [Citation.] Under those circumstances, the trial court's error could not possibly have affected the result." (Eppa, supra, 25 Cal.4th at pp. 29-30.)
So too here. Assuming, without deciding, that defendant was entitled to a jury trial on remand, the deprivation of that right could not have affected the result.
Sanders II. No A091833, slip op at 6-7.

  There is no federal constitutional right to a jury trial on sentencing issues. See Walton v Arizona, 497 U.S. 639, 648-49 (1990); Spaziano v Florida. 468 U.S. 447, 457-465 (1984); United States v Kinsey, 843 F.2d 383, 391 (9th Cir 1988). Nor is there a federal constitutional right to a jury trial on the fact of a prior conviction. See Apprendi, 530 US at 490; United States v Zepeda, 234 F.3d 411, 414-15 (9th Cir 2001).

  California law provides a criminal defendant with a statutory right to have a jury determine "whether or not the defendant has suffered the prior conviction." Cal Penal Code 1025(b); Dillard v Roe. 244 F.3d 758, 769 6 n 13 (9th Cir 2001). In 1997, however, the controlling statute was amended to also provide that the court, rather than the jury, shall determine "whether the defendant is the person who has suffered the prior conviction," except when the prior conviction is charged as an element of the offense or as a special circumstance pursuant to Penal Code I 190. 2. See Cal Penal Code I 1025(c), (d) (2001); Dillard, 244 F.3d. at 770 n 15. The Supreme Court of California has now made clear that the jury's task is now generally limited to determining the authenticity and sufficiency of the documents submitted to establish the prior convictions. See People v Epps, 25 Cal.4th 19, 23 (2001).

  While there is no right under the Sixth Amendment to have a jury hear and rule on a sentencing enhancement allegations based on a prior conviction, see Apprendi. 530 US at 476-77, the deprivation of a statutory entitlement to a jury trial implicates the federal Due Process Clause. See Hicks v Oklahoma. 447 U.S. 343, 346 (1980); People v Odle, 45 Cal.3d 386, 412 (1988). Where a state has provided for the imposition of criminal punishment in the discretion of the trial jury, it is not correct to say that the defendant's interest in the exercise of that discretion is merely a matter of state procedural law. See Hicks, 447 US at 346. The defendant in such a case has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion, and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the state. See id (citing Greenholtz v Nebraska Penal Inmates, 442 U.S. 1 (1979); Vitek v Jones, 445 U.S. 480 (1979); Wolff v McDonnell. 418 U.S. 539 (1974); Morrissey v Brewer. 408 U.S. 471 (1972)).

  In sum, petitioner's denial of a jury trial claim can succeed only if California gave him a right to a jury trial, thereby implicating the federal Due Process Clause, and then arbitrarily denied him this right. See Hicks. 447 US at 346. On remand, the trial court made the determination that petitioner had been adjudged a ward of the court in connection with his kidnapping prior. A jury had earlier found true the allegations that petitioner suffered juvenile adjudications for robbery and kidnapping, but had failed to find that petitioner had been adjudged a ward of te court in connection with the kidnapping prior.

  Relying on Epps, the California Court of Appeal noted that "the jury's task is now generally limited to determining the authenticity and sufficiency of the documents admitted to establish the prior convictions" and "any erroneous deprivation of a jury trial of priors is assessed under the Watson[] test for harmless error." Sanders II, No A091833, slip op at 6-7. The court did not consider whether petitioner was entitled to a jury trial because the court found that there was "no reasonable probability that a jury trial would have resulted in a more favorable outcome." Id at 7.

  In Dillard v Roe, 244 F.3d at 768, the Ninth Circuit held that a California trial court's alleged error in removing from the jury the question of the authenticity of the records submitted to establish two prior felony convictions did not merit habeas relief because the error, if any did not have a substantial and injurious effect in determining the jury's verdict as set forth in Brecht v Abrahamson, 507 U.S. 619 (1993). See Dillard, 244 F.3d at 770 (noting that there was an abundance of other, uncontradicted evidence that petitioner had suffered the convictions alleged). Here, the California Court of Appeal similarly determined that the alleged error in not having a jury determine on remand the authenticity of the documents submitted to show that petitioner had been adjudged a ward of the court in connection to the kidnapping prior adjudication was harmless. A jury had previously determined that petitioner had suffered the alleged prior juvenile adjudications and the evidence submitted at retrial to show that the court ordered petitioner continued as a ward of the court for his kidnapping adjudication was uncontradiated. The state appellate court reasonably applied the rationale of Brecht and Dillard; its rejection of petitioner's claim accordingly must stand. See Early v Packer. 537 U.S. 3, 10-11 (2002). *fn1

  5. Ineffective Assistance of Appellate Counsel

  Petitioner claims that his counsel rendered constitutionally inadequate representation in petitioner's first appeal by failing to raise issues of sufficiency of evidence, misinstruetion of the jury and the jury's failure to make findings required by People v. Garcia, 21 Cal.4th 1 (1999). The California Court of Appeal rejected these claims as follows:

"The burden of proving ineffective assistance of counsel is on the defendant. [Citation.] To establish constitutionally inadequate representation, the defendant must show that (1) counsel's representation was deficient, i. e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's deficient representation subjected the defense to prejudice, i. e., there is a reasonable probability that but for counsel's failings the result would have been more favorable. [Citations.]" (People v. Babbitt (1988) 45 Cal.3d 660, 707.) We do not reach the question of deficient representation because, even were defendant to meet his burden of proving ineffective assistance, he cannot show prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 697.) We turn first to defendant's claim that appellate counsel should have argued the evidence in the first trial was insufficient to establish either of the two strikes. As to the kidnapping prior, this court reversed as to the enhancement on other grounds. On remand, based in part on additional evidence, the trial court found the allegation to be true. [] Even if the reversal had also been based on insufficient evidence, the result upon remand would have been no different.
Defendant's claim as to his 1984 robbery prior suffers a similar flaw. As with the kidnapping prior, defendant argues the evidence was insufficient to show he had been adjudged a ward of the court in the 1984 juvenile proceedings and that his appellate counsel should have raised that issue on appeal. We disagree. Defendant's 1986 probation report, which was admitted into evidence, included a Contra Costa County Probation Department record of prior arrests showing that the 1984 robbery with gun use count was sustained frith a disposition of wardship. While defendant now asserts the probation department record was inadmissible hearsay, there is no indication before us that trial counsel preserved that objection for appeal by raising it at the first trial. An attempt to raise the issue in appeal no. A080890 would, therefore, have been highly unlikely to prevail. (People v. Chain (1971) 22 Cal.App.3d 493, 497.)
Finally, defendant contends the jury should have been instructed under Garcia to determine whether, as to both priors, he had been adjudge ward of the court based on section 707, subdivision (b) offense; and that the jury should have made express findings on whether the 1984 robbery with gun use offense was among those offenses listed in section 707, subdivision (b). Because appellate counsel failed to raise these in the first appeal, he asserts, both priors must be reversed.
Again, we must disagree. The robbery and kidnapping priors, both of which included gun use findings, are indisputably section 707, subdivision (b) offenses. (Welf. 6 Inst. Code, I 707, subds. (b)(3), (17).) Again assuming for purposes of discussion that appellate counsel had raised and prevailed on these points, the merits of which we do not reach, success on appeal would have entitled defendant only to a retrial at which, on this record, we see no reasonable probability of a more favorable outcome.
As none of the asserted failings on the part of appellate counsel could have subjected defendant to prejudice, we deny the petition for habeas corpus without reaching the merits of his claims of deficient representation.
Sanders II, No A091833, Slip Op at 8-9.

  The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right. See Evitts v Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of appellate counsel are reviewed according to the standard set out in Strickland v Washington, 466 U.S. 668 (1984). Miller v Keeney, 882 F.2d 1428, 1433 (9th Cir 1989); United States v Birtle, 792 F.2d 846, 847 (9th Cir 1986). A defendant therefore must show that counsel's advice fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, he would have prevailed on appeal. Miller, 882 F.2d at 1434 & n 9 (citing Strickland, 466 US at 688, 694; Birtle, 792 F.2d at 849). The burden of proving ineffective assistance of counsel is on the defendant. Strickland, 466 US at 688. In making a determination on counsel's performance, a court must exercise deferential scrutiny. Id at 689.

  Petitioner has not shown that counsel's failure to raise the alleged issues on appeal fell below an objective standard of reasonableness. And even if he had made this showing, petitioner has not demonstrated that there is a reasonable probability that, but for appellate counsel's unprofessional errors, petitioner would have prevailed on appeal.

  The California Court of Appeal considered petitioner's ineffective assistance of counsel claims and found that, even if counsel's representation fell below an objectively reasonable standard, petitioner was prejudiced under Strickland. The court reasonably concluded that the alleged issues had little merit and were highly unlikely to prevail if they had been raised. The California Court of Appeal's rejection of petitioner's claim was not contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). Petitioner is not entitled to federal habeas relief on his claim for ineffective assistance of appellate counsel.

  CONCLUSION

  For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.

  The clerk shall enter judgment in favor of respondent and close the file.

  SO ORDERED.


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