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November 21, 2005.

J. VALADEZ, Acting Warden, Respondent.

The opinion of the court was delivered by: JEFFREY WHITE, District Judge

Petitioner, a state prisoner incarcerated at the California Medical Facility at Vacaville, filed a pro se petition on September 19, 2002, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 24, 2003, this Court ordered Respondent to show cause why the writ should not be granted (docket no. 6). On July 10, 2003, Respondent filed an answer to the petition (docket no. 13). Petitioner filed a traverse on July 25, 2003 (docket no. 19). This order denies the petition for a writ of habeas corpus on the merits.


  Petitioner was convicted by a Santa Clara County jury of two counts of first degree burglary under California Penal Code sections 459 and 460, subdivision (A). (Clerk Tr. 586-88, 592.) The jury found that Petitioner suffered ten prior strike convictions for prior residential burglaries under California Penal Code sections 667(b)-(I) and 1170.12. (Clerk Tr. 589-94.) The trial court denied probation and sentenced Petitioner to eight five-year prior serious felony conviction enhancements and two consecutive terms of twenty-five years-to-life pursuant to the Three Strikes Law, amounting to a total of ninety years to life. (Clerk Tr. 664-66.) On direct appeal, the California Court of Appeal, Sixth Appellate District, affirmed the conviction. The California Supreme Court denied review on June 12, 2002. Petitioner sought habeas corpus relief from the state courts. On November 26, 2002, the California Supreme Court denied his state habeas petition.


  The facts underlying the commitment offense, as found by the Court of Appeal of the State of California, Sixth Appellate District, are summarized below as follows:
Linda Marsh returned to her home one afternoon at approximately 2:00 p.m. [on November 8, 1997]. She saw a Black man 18 feet away from her carrying something wrapped in her flannel nightshirt under his left arm. When the two passed each other they exchanged "hellos." Marsh reached her front door and saw that the door was open. She entered her home and saw that her VCR was missing. She also saw that her second VCR had been disconnected, dresser drawers were open, and a screen had been removed from the master bedroom window. At the police station, Marsh identified from a photo lineup a person whom she though was the one she had seen outside her home. The photo was not of defendant, and Marsh was only 80 percent certain of the identification. Fingerprints removed from the screen and a windowsill matched defendant's fingerprints. At the preliminary hearing, Marsh immediately recognized defendant as the man she had seen outside her home. She so testified. And she again identified defendant at trial.
[On December 1, 1997,] Police officers responded to a call from neighbors and saw defendant exit Tim Weir's residence carrying a television, VCR, and electronic devices. They apprehended defendant after a chase. They found defendant's fingerprints on a removed window screen and a windowsill.
On January 28, 1999, the trial court appointed Dr. Rudolph Cook, Ph.D. to examine defendant pursuant to section 1368. On February 17, Dr. Cook filed his report, which opined that defendant was competent to stand trial. The trial court found defendant competent to stand trial.
During trial on October 12, 1999, the trial court called a hearing outside the presence of the jury to determine whether defendant was able to continue given that defendant had caused delays by indicating that he was too sick to continue. It called Efren Garza as a witness.
Garza indicated the following: he was the nurse manager of the main jail health services; he was involved in defendant's health care; his duties included overseeing that defendant obtained several medications, primarily diabetes medication; he asked Dr. William Estrin, the medical doctor for the main jail health services, to examine defendant because defendant, who suffered from AIDS, believed that he had pneumonia; Dr. Estrin reported that defendant had a slight amount of fluid in his left ear and prescribed medication.
Defendant objected to Garza's testimony as hearsay to the extent that Garza related what Dr. Estrin had said to him or written in a report. The trial court remarked: "I think we can have the doctor over. I was told that he had obviously patients to see in the jail and I was in the hopes that the supervisor could testify." It sustained the objection. After more foundation as to Garza's qualifications as an expert, the trial court indicated that it would admit the evidence over defendant's objection. During the colloquy, defendant argued that, if the trial court admitted the evidence, he was entitled to call Dr. Estrin as a witness. The trial court inquired whether defendant had contacted Dr. Estrin, and defendant offered that he had not done so. The trial court then overruled the objection.
The trial court asked defense counsel whether defendant could continue. Defense counsel then moved for a competency hearing pursuant to section 1368. The trial court convened an in camera hearing in chambers. Trial counsel stated that defendant's demeanor had changed in the last couple of months to evince a preoccupation with the idea that the federal courts would order his release and he, defendant, would sue the state, county, district attorney, and alternate public defender for a conspiracy to violate his federal constitutional rights. He added that defendant had asked him to file numerous motions in federal court, some of which counsel had advanced in the in limine proceedings. He also noted that defendant had become less cooperative in recent weeks and expressed a belief that he, defendant, was not being given his proper medication in jail. He indicated that defendant was moaning during the testimony of Garza. He opined that defendant was suffering from AIDS-related dementia, was delusional, and was not competent to stand trial.
The trial court reconvened in the courtroom and denied the motion. It explained: "This case has been pending since December 1, 1997. Approximately 50 days have elapsed since the case has been filed and the defendant arrested. And the case was assigned to this department on September 29, 1999, this year. Since the trial started, the Court has had an opportunity to review the written materials filed by the defendant himself and has exchanged comments with the defendant in making rulings on the motions filed. The Court has observed the defendant during the time since the case was assigned to this department. The Court has noted the defendant to be alert and active and participating in the trial and vitally interested in the legal issues that were presented by this case. The Court today heard medical testimony regarding two referrals of the defendant to Health Services at the county jail on the 5th of October and again on the 12th of October. The testimony indicated in each case the defendant exhibited no confirmation of his articulation of his mental — medical problems — excuse me. And so the Court believes that at this point there is no medical reason why the defendant cannot continue with the trial. Further on the reasons in the Court's thought process concerning the 1368 request, the defendant was referred pursuant to Penal Code section 1368 early this year, and in a report prepared by Dr. Cook was found to be competent on February 17, 1999. No reasons were disclosed during the in-camera proceedings as to why any circumstances have changed since that report was issued. And in reviewing the report by Dr. Cook, the Court could find no reason to believe that the defendant was not competent then and again is not competent now. During the trial, has gone on since the beginning, the Court has observed the defendant taking an active role in the selection of the jury and has noticed exchange of information between the defense attorney and the defendant and believes that the defendant is active in his participation in this case. For those reasons, the Court is making its own observations in this matter, finds the necessity for a referral pursuant to Penal Code section 1368 simply is lacking based on the Court's observations. And I will deny the request based on those observations as articulated at this time."
Defense counsel then noted that defendant's arms were folded on the table, defendant's head was on the table, and defendant appeared unable to communicate. He again requested a section 1368 hearing, arguing that he presented substantial evidence of doubt. The trial court indicated that it would rely on the previous ruling, called the jury into the courtroom, and took a brief recess. When the jury was seated, defendant said to the jury words to the effect that "They won't let me see a doctor, they're fabricating evidence against me, they're trying to kill me, they're denying me my rights, they're trying to send me to prison for 150 years, please help me."
When the trial court returned and learned what had happened, it excused the jury. It then admonished defendant and warned that it would order him to a holding cell if he continued to disrupt the proceedings. It then called Dr. Estrin as a witness. Dr. Estrin indicated that he had examined defendant that morning for pneumonia and found a slight bulge in the eardrum and prescribed medication. He also indicated that defendant complained of fatigue. He further stated that defendant was alert and articulate and evinced no mental impairment. The trial court then reaffirmed the denial of defendant's section 1368 motion.
The trial court called back the jury. When the jury was seated, defendant exclaimed: "The Court has refused to let me see a doctor again. They will not give me medical treatment." He added: "I'm denied all my rights. I am sitting here sick and I am dying." He concluded: "They're trying to send me to jail for 100 years to life. They're trying to kill me for no reason. I need to see a doctor. They won't let me see a doctor. I hate you." The trial court ordered defendant removed from the courtroom. It turned on the holding cell monitor so defendant could listen to the proceedings.
(Resp. Exh. B.4) (People v. Holmes, No. H021031, slip op. at 2, 5-8 (Cal.Ct.App., March 14, 2002.))


  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). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. § 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 Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 413 (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 Supreme Court's decision but unreasonably applies that principle to the facts of the prisoner's case. Id. As summarized by the Ninth Circuit: "A state court's decision can involve an `unreasonable application' of federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable." Van Tran v. Lindsey, 212 F.3d 1143, 1150 (9th Cir. 2000) (citing Williams, 529 U.S. at 405-07), overruled in part on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).

  "[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." Williams, 529 U.S. at 411; accord Middleton v. McNeil, 541 U.S. 433, 436 (2004) (per curiam) (challenge to state court's application of governing federal law must be not only erroneous, but objectively unreasonable); Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam) ("unreasonable" application of law is not equivalent to "incorrect" application of law).

  In deciding whether the state court's decision is contrary to, or an unreasonable application of clearly established federal law, a federal court looks to the decision of the highest state court to address the merits of a petitioner's claim in a reasoned decision. LaJoie v. Thompson, 217 F.3d 663, 669 n. 7 (9th Cir. 2000). Where the state court gives no reasoned explanation of its decision on a petitioner's federal claim and there is no reasoned lower court decision on the claim, there is a somewhat different standard of review under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). In such a case, 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. Lambert, 288 F.3d 1081, 1088 (9th Cir. 2002); Bailey v. Newland, 263 F.3d 1022, 1028 (9th Cir. 2001); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).

  The federal court need not otherwise defer to the state court decision under AEDPA: "A state court's decision on the merits concerning a question of law is, and should be, afforded respect. If there is no such decision on the merits, however, there is nothing to which to defer." Greene, 288 F.3d at 1089. In sum, "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), abrogated on other grounds by Mancuso v. Olivarez, 292 F.3d 939, 944 n. 1 (9th Cir. 2002). A summary decision by a state court does not "implicitly" make any factual findings in support of the decision. Id. at 913.


  I. California's Application of the Three Strikes Law

  Petitioner contends that California's application of the Three Strikes law violates the Double Jeopardy and Ex Post Facto clauses of the Constitution. Petitioner further asserts that the Three Strikes law violates the constitutional guarantees of separation of powers, due process, and protection from cruel and unusual punishment. Petitioner also challenges the Three Strikes law as overbroad.

  The California Supreme Court did not issue a reasoned decision on its summary denial of Petitioner's challenges to the Three Strikes law presented in his habeas petition. Because there is no reasoned explanation of the State court's decision, the Court must review the record independently to determine whether the State court's decision was objectively reasonable. See Himes, 336 F.3d at 853.

  A. Double Jeopardy Clause

  In his first claim, Petitioner contends that the Three Strikes law violates the Double Jeopardy Clause and the doctrine of collateral estoppel "by using the factual case information earlier adjudicated." (Pet. 3(b).) The constitutional guarantee against double jeopardy includes the concept of collateral estoppel. See Ashe v. Swenson, 397 U.S. 436, 445 (1970); United States v. James, 109 F.3d 597, 600 (9th Cir. 1997); Newton v. Superior Court of California, 803 F.2d 1051, 1057 (9th Cir. 1986), cert. denied, 481 U.S. 1070 (1987).

  With regard to this claim, both the Supreme Court as well as the Ninth Circuit Court of Appeals have found that the use of prior convictions to enhance sentences for subsequent convictions does not violate the Double Jeopardy Clause. See Spencer v. Texas, 385 U.S. 554, 560 (1967) (upholding use of prior convictions to enhance sentences for subsequent convictions even if in a sense defendant must relitigate in sentencing proceeding conduct for which he was already tried). Any such challenge is wholly without merit. See Jackson v. Nelson, 435 F.2d 553, 553 (9th Cir. 1971) (dismissing contentions of equal protection, bill of attainder, double jeopardy and ex post facto against recidivist statute as meritless). Accordingly, the California Supreme Court's denial of this claim was not contrary to, or an unreasonable application of, clearly established federal law, and therefore must be denied. B. Ex Post Facto Clauses

  In his second claim, Petitioner argues that "[t]he 3-strikes law has aggravated [Petitioner's] past prior offenses and made them greater than they were when he was first convicted of them" in violation of the Ex Post Facto Clause. (Pet. 16.)

  The United States Constitution prohibits the federal government and the states from passing any "ex post facto Law." U.S. Const., Art. I, § 9, cl. 3 (federal government); Art. I, § 10, cl. 1 (states). These clauses prohibit the government from enacting laws with certain retroactive effects: any law that (1) makes an act done before the passing of the law, which was innocent when done, criminal; (2) aggravates a crime or makes it greater than it was when it was committed; (3) changes the punishment and inflicts a greater punishment for the crime than the punishment authorized by law when the crime was committed; or (4) alters the legal rules of evidence and requires less or different testimony to convict the defendant than was required at the time the crime was committed. See Stogner v. California, 539 U.S. 607, 611-12 (2003) (citing Calder v. Bull, 3 Dall. 386 (1798)); Carmell v. Texas, 529 U.S. 513, 519-538 (2000) (discussing Collins v. Youngblood, 497 U.S. 37 (1990), Beazell v. Ohio, 269 U.S. 167, 169-70 (1925) and Calder v. Bull, 3 Dall. 386 (1798)). The Ex Post Facto Clauses are designed to prevent manifestly unjust and oppressive retroactive effects. Stogner, 539 U.S. at 610-11.

  The state's application of an enhancement due to a prior conviction is not a violation of the Ex Post Facto Clause of the United States Constitution. See McDonald v. Massachusetts, 180 U.S. 311, 312-13 (1901); Fong v. United States, 287 F.2d 525, 526 (9th Cir.), cert. denied, 366 U.S. 971 (1961); see also United States v. Sorenson, 914 F.2d 173, 174 (9th Cir. 1990) (dismissing ex post facto challenge as meritless), cert. denied, 498 U.S. 1099 (1991). The enhancement is not a penalty for the prior offense. See McDonald, 180 U.S. at 312-13. It is the repetitive nature of the present offense that the enhancement punishes. See id. "The statute, imposing a punishment on none but future crimes, is not ex post facto." Id. at 313 (emphasis in original). Therefore, the California Supreme Court's decision denying this claim was not contrary to, or an unreasonable application of, clearly established federal law, and this claim must be denied.

  C. Separation of Powers

  In support of his third claim, Petitioner argues that by enacting the Three Strikes law, "[t]he legislative branch has mandated that the prosecution charge all known prior felony convictions in both subdivisions (f)(1) and (g) of penal code section 667," and has extended into the charging function of the state's executive branch, in violation of the separation of powers doctrine. (Pet. at 22.)

  A writ of habeas corpus is available under § 2254(a) "only on the basis of some transgression of federal law binding on the state courts." Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)), cert. denied, 478 U.S. 1021 (1986). It is unavailable for violations of state law or for alleged error in the interpretation or application of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Engle, 456 U.S. at 119; Peltier v. Wright, 15 F.3d 860, 861-62 (9th Cir. 1994).

  Petitioner's claim that California's Three Strikes law violates separation of powers between the California executive and legislative branches of governm ent is a state law claim that is not cognizable in a federal petition for a writ of habeas corpus. Accordingly, this claim is denied.

  D. Due Process

  In his fourth claim, Petitioner contends that "the state created a protected liberty interest . . . in the statute of limitations laws annexed to those past convictions" of the enhancement offenses, and that the sentence enhancement for those prior convictions violated his due process rights. (Pet. 25-27.) This claim is premised on the incorrect assumption that the sentence enhancement punishes his prior offenses. An enhancement for a prior offense is not a penalty for the prior offense, but rather for the current offense. See Nichols v. United States, 511 U.S. 738, 747 (1994); McDonald v. Massachusetts, 180 U.S. 311, 312-13 (1901). Specifically, it is the repetitive nature of the current offense that the enhancement punishes. See id. In sum, the use of a prior conviction to enhance a sentence is not an "`additional penalty for the earlier crimes' but `a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one." Monge v. California, 524 U.S. 721, 728 (1998) (quoting Gryger v. Burke, 334 U.S. 728, 732 (1948)). Consequently, the enhancement of Petitioner's sentence is not punishment for his having committed the prior offenses for which he was convicted, but rather for his commission of new offenses thereafter, in other words, recidivism. Because Petitioner is not being punished for his prior convictions, his sentence does not violate any protected liberty interest with respect to those convictions.

  Petitioner further contends that he had "no fair notice," at the time of his earlier plea agreements, that those convictions "could in the future be aggravated." (Pet. 26.) Petitioner argues that his prior plea agreements for his prior convictions created a "due process `liberty interest' that is entitled to minimum procedural protection." Id. at 27-28. While due process requires that a defendant be informed of all the direct consequences of a guilty plea, see Brady v. United States, 397 U.S. 742, 749 (1970); United States v. Neely, 38 F.3d 458, 461 (9th Cir. 1994), there is no violation of due process where a trial court fails to inform him or her of collateral consequences. See Torrey v. Estelle, 842 F.2d 234, 235 (9th Cir. 1988). Because the potential for enhancement in the future is a collateral consequence of the plea, due process did not require that Petitioner be advised of the possibility that a future sentence for a future conviction could be enhanced. United States v. Garrett, 680 F.2d 64, 65-66 (9th Cir. 1982). Accordingly, the fact that Petitioner pled guilty to his earlier offenses without knowing that those convictions could later be used to enhance his sentence on a future conviction does not violate due process.

  Petitioner further argues that pursuant to the plea agreements, the state agreed to a specific sentence for those prior offenses, and breaches those plea agreements "by giving him greater punishment on his prior convictions than the agreement stated." (Pet. 27.) As discussed above, the enhancement does not alter or increase Petitioner's sentence for the prior convictions because such enhancement is not punishment for his prior offenses, but rather his current ones. Consequently, the enhancement of Petitioner's current sentence does not breach any agreements pertaining to the sentence on his prior convictions. The California Supreme Court's decision denying this claim was not contrary to, or an unreasonable application of, clearly established federal law. Petitioner's due process claim must be denied.

  E. Cruel and Unusual Punishment

  In his fifth claim for habeas relief, Petitioner argues that his enhanced sentence of "[t]wo 25-years-to-life sentences, plus 40 years is plainly unreasonable for the offenses committed, which are non-violent offense of burglary," and amounts to cruel and unusual punishment in violation of the Eighth Amendment. (Pet. 31.) Petitioner states that his sentence requires him to serve at least fifty years before becoming eligible for parole. Id. at 33. Petitioner identifies himself as an HIV-positive inmate, and characterizes his sentence "as a death sentence mandated for him to die in prison, and or the equivalent of a life sentence without the possibility of ever achieving parole." Id. Petitioner argues that the harshness of his sentence is grossly disproportionate to the non-violent nature of his crimes. Id. at 35 (citing Solem v. Helm, 463 U.S. 277 (1983)).

  i. Legal Standard

  The Eight Amendment forbids only extreme sentences which are grossly disproportionate to the crime. See Harmelin v. Michigan, 501 U.S. 957, 997-1001 (1991). In judging the appropriateness of a sentence under a recidivist statute, a court may take into account the government's interest not only in punishing the offense of conviction, but also its interest "`in dealing in a harsher manner with those who [are] repeat[] criminal[s].'" United States v. Bland, 961 F.2d 123, 129 (9th Cir. 1992) (quoting Rummel v. Estelle, 445 U.S. 263, 276 (1980)).

  The Eighth Amendment does not preclude a state from making a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime, as may occur in a sentencing scheme that imposes longer terms on recidivists. Ewing v. California, 538 U.S. 11, 25 (2003) (upholding 25 year-to-life sentence for recidivist convicted of grand theft); Rummel, 445 U.S. at 284-85 (upholding life sentence with possibility of parole for recidivist convicted of fraudulent use of credit card for $80, passing forged check for $28.36 and obtaining $120.75 under false pretenses); Bland, 961 F.2d at 128-29 (upholding life sentence without the possibility of parole for being a felon in possession of a firearm with thirteen prior violent felony convictions, including rape and assault); Alford v. Rolfs, 867 F.2d 1216, 1221-23 (9th Cir. 1989) (upholding life sentence with possibility of parole for possession of stolen property worth $17,000 and having three prior non-violent convictions, including possession of a controlled substance and forgery).

  ii. Analysis

  The jury found true the allegations of Petitioner's ten prior convictions for residential burglaries, charged as strikes, and eight prior serious felony convictions for purposes of five-year enhancements. (Rep. Tr. 512-21; 554-56; 589-94.) At the time of sentencing, the state prosecutor presented the Superior Court with Petitioner's prior criminal history:
1973 — Residential Burglary — county jail
1975 — Commercial Burglary — county jail
1975 — Grand Theft — county jail
1976 — Auto Burglary — county jail 1976 — Grand Theft Person — county jail
1979 — Residential Burglary — county jail
1980 — Residential Burglary — three yrs state prison
1982 — Residential Burglary — three yrs state prison
1986 — Residential Burglary x 2 — seven yrs, four mo. state prison
1987 — Residential Burglary x 3 — eight mos.state prison consecutive to
1986 sentence
1992 — Residential Burglary — nine years state prison; only one of seven possible enhancement priors were charged.
(Clerk Tr. 625 (People's Sentencing Memorandum and Response to Defendant's Motion to Dismiss Prior Strike Convictions at 7)).

  Although Petitioner characterizes these offenses as non-violent, the state considers burglary of a residence to be "`so inherently dangerous that persons who repeatedly commit this type of offense should be punished as harshly as violent recidivists.'" (Clerk Tr. 620 (People's Sentencing Memorandum at 2 (citing People v. Cruz, 13 Cal.4th 764, 773 (1996)); Rep. Tr. 568.) The Superior Court stated at sentencing that an act of residential burglary "is incredibly violent toward the personal freedoms and living space of the victim of those crimes." (Rep. Tr. 570-71.) The Superior Court therefore denied probation and sentenced Petitioner to the term of twenty-five years to life for each count of burglary, and an enhancement of forty years pursuant to sections 667(A) and ...

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