The opinion of the court was delivered by: Ronald M. Whyte United States District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction for twenty counts of lewd acts on a child under the age of fourteen (Cal. Pen. Code § 288(a)) and one count of intimidating a witness (Cal. Pen. Code § 137(b)). This petition was filed in the Central District of2 California on November 8, 2005. On January 9, 2006, the petition was transferred to this court. On October 10, 2006, this court dismissed seven of petitioner's claims for failure to state a cognizable basis for federal habeas relief, found the one remaining claim to be cognizable, and ordered respondent to show cause why the petition should not be granted based on the cognizable claim. On October 30, 2006, petitioner filed an amended petition setting forth in expanded form the one claim that the court had found to be cognizable in the October 10, 2006 order.*fn1 Respondent filed an answer addressing the merits of the amended petition, and petitioner filed a traverse. After reviewing the papers and the underlying record, the court concludes that petitioner is not entitled to habeas relief and denies the petition.
Petitioner had been living with the victim's family for some time. In 1999, both while he was living there and after he had moved, petitioner babysat the victim on twenty separate occasions. On each occasion he molested her. The victim came forward several years after this series of incidents. When confronted with her accusation, petitioner verified her report. On August 1, 2003, petitioner pled guilty to twenty counts of lewd act on a child under the age of fourteen (Cal. Pen. Code § 288(a)) and one count of intimidating a witness (Cal. Pen. Code § 137(b)). On October 24, 2003, petitioner was sentenced to forty-nine years in state prison. Under California law, a defendant can be sentenced to an "upper, middle, or lower term on each count for which the defendant has been convicted" upon consideration of "circumstances in aggravation or mitigation" of the crime. Cal. Rules of Court §§ 4.420(a)-(b). Section 288(a)*fn3 is punishable by three, six, or eight years in state prison. The trial court found two aggravating circumstances; that petitioner "took advantage of a position of trust or confidence to molest this child" and that petitioner's prior convictions "as an adult are numerous and of increasing seriousness." Reporter's Transcript, October 24, 2003 ("RT") at (citing Cal. Rules of Court §§ 4.421(a)(11), (b)(2)). The court also found that these aggravating circumstances outweighed the one mitigating circumstance -2 - that petitioner "acknowledge[d] wrongdoing at an early stage of the criminal process." RT at 23 (citing Cal. Rules of Court § 4.423(b)(3)). In accordance with those findings, the court sentenced petitioner to the upper term of eight years for one of the counts of violating section 288(a). The aggravated sentence for this one count is the issue being 6 considered in this petition. For each of the remaining nineteen counts of violating section 288(a), petitioner was sentenced to nineteen consecutive two-year terms.*fn4 Finally, petitioner was sentenced to one consecutive three-year term (the midterm) for the one count of violating section 137. Petitioner appealed the judgment to the California Court of Appeal, which affirmed Petitioner's conviction and sentence on August 31, 2004. The Supreme Court of California denied Petitioner's petition for review on November 10, 2004. The instant petition followed.
This court may entertain a petition for 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 19 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the 22 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). The first prong applies both to questions of law and to mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 384-86 (2000), while the second prong applies to decisions based on factual determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). "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 (Terry), 529 U.S. at 412-13. A state court decision is an "unreasonable application of" Supreme Court authority, falling under the second clause of § 2254(d)(1), if the state court correctly identifies the 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 federal court on habeas review 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." Id. at 411. Where, as here, the highest state court to consider petitioner's claims issued a summary opinion which does not explain the rationale of its decision, federal review under § 2254(d) is of the last state court opinion to reach the merits. See Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991); Bains v. Cambra, 204 F.3d 964, 970-71, 973-20 78 (9th Cir. 2000). In this case, the last state court opinion to address the merits of petitioner's claims is the unpublished opinion of the California Court of Appeal. See Pulley, 2004 Cal. App. Unpub. LEXIS 7991.
Petitioner's claim challenges the upper term of eight years that he received on one of the twenty counts of committing lewd acts on a child under the age of fourteen under California. Penal. Code section 288(a). The upper term was justified by the trial court's finding that the two aggravating circumstances -- that petitioner "took advantage of a position of trust or confidence to molest this child" and that petitioner's prior convictions "as an adult are numerous and of increasing seriousness" -- outweighed the one mitigating circumstance -- that petitioner "acknowledge[d] wrongdoing at an early stage of the criminal process". RT at 23 (citing Cal. Rules of Court §§ 4.421(a)(11), (b)(2) & 4.423(b)(3)). He claims that this sentence violates his Sixth and Fourteenth Amendment rights to a jury because the aggravating circumstances were found by the trial judge and not the jury. Petitioner also argues that his Sixth and Fourteenth Amendment rights were violated because he was not given notice in the charging documents of the allegations of prior convictions. See Traverse at 10.
1. Retroactive Application of Cunningham
Petitioner's claim is based on the United States Supreme Court decision in Cunningham v. California, 127 S.Ct. 856 (2007), which held that California's determinate sentencing law violated the Sixth and Fourteenth Amendment right to a jury trial because "circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt[.]" Id. at 868. In Cunningham, the Court's decision was based upon its prior decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (1999), and United States v.Booker, 543 U.S. 220 (2005). See Cunningham, 127 S.Ct. at 871. Petitioner argues that, even though Cunningham had not been decided until 2007, years after petitioner's sentence became final in 2004, the decision nevertheless applies retroactively to his case. In Teague v. Lane, the Supreme Court held that a federal court may not grant habeas corpus relief to a prisoner based on a new constitutional rule of criminal procedure announced after his conviction and sentence became final.*fn5 Teague v. Lane, 489 U.S. 288, 310 (1989). In order to determine whether a constitutional rule is new, the court must "survey the legal landscape as it then existed" and determine whether a court, considering the defendant's claim at the time his conviction became final, would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution. Caspari v. Bohlen, 510 U.S. 383, 390 (1994). The inquiry must focus on whether the rule was dictated by precedent, i.e., whether no other interpretation was reasonable. Lambrix v. Singletary, 520 U.S. 518, 538 (1997). Put simply: "[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague, 489 U.S. at 301. In Butler v. Curry, No. 07-56204, 2008 U.S. App. LEXIS 12324 (9th Cir. June 9, 2008), the Ninth Circuit determined that "the Supreme Court held for the first time that California's sentencing scheme violates the Sixth Amendment does not render its decision in Cunningham a new rule." Id. at *24. Butler was sentenced to the upper term of the range based on two aggravating factors found by the trial judge; that his "victim was particularly vulnerable" and that Butler was on "probation. . . when the crime was committed[.]" Id. at *10 (citing Cal. Rules of Court §§ 4.421(a)(3), (b)(4)). A month after Butler filed a petition for writ of habeas corpus in federal district court, the United States Supreme Court decided Cunningham. In deciding whether to affirm the district court's grant of a conditional writ of habeas corpus, the Ninth Circuit "survey[ed] the legal landscape as it then existed," see Caspari, 510 U.S. at 390, and determined that the Supreme Court's decision in Cunningham was compelled by existing Sixth Amendment case law at the time Butler's conviction became final. Butler, 2008 U.S. App. LEXIS 12324, at *19. The court determined that the Supreme Court's decisions in "Apprendi, Blakely, and Booker, firmly established that a sentencing scheme in which the maximum possible sentence is set based on facts found by a judge is not consistent with the Sixth Amendment." Butler, 2008 U.S. App. LEXIS 12324, at *20. Cunningham is not a new constitutional rule. Butler, 2008 U.S. App. LEXIS 12324, at *24. Therefore, its mandate that upper term sentences may only be imposed when juries, not judges, find circumstances in aggravation beyond a reasonable doubt is applicable to petitioner's sentence despite of the fact that Cunningham was decided after petitioner's sentence became final on direct review.
Respondent claims that petitioner has failed to exhaust his state court remedies, as is necessary in order for his federal habeas corpus claims to be considered. §2254(b)(1)(A). Respondent relies on the premises that "a state prisoner who believes that some decision of the United States Supreme Court subsequent to the state court decision in his case requires that his conviction or sentence be set aside should first pursue any state remedy. . . before applying for a federal writ of habeas corpus." Mem. of P. & A. at 7 (quoting Blair v. California, 340 F.2d 741, 745 (9th Cir. 1965)). Thus, respondent argues that, "to the extent petitioner seeks application of Cunningham to his case, he should return to state court to present his upper term sentencing claim in light of Cunningham." Mem. of P. & A. at 7. The State in Butler presented an identical argument to the Ninth Circuit. Butler, 2008 U.S. App. LEXIS 12324, at *33. The court determined that "[w]here there is ...