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SANDERS v. HAMLET

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.

  ...


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