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Bowlin v. Chrones

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 12, 2008

GARY CHARLES BOWLIN, II, PETITIONER,
v.
C. CHRONES, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 7]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

BACKGROUND

On May 7, 2003, following jury trial in the Stanislaus County Superior Court, Petitioner was convicted of attempted murder (Cal. Pen. Code §§ 664/187, count one),*fn1 shooting at an occupied dwelling (§ 246, count three), assault with a firearm (§ 245(a)(2), count four), and possession of a firearm by a felon (§ 12021(a), count five).*fn2 It was further alleged that during the commission of count one, Petitioner intentionally and personally discharged an assault rifle within the meaning of section 12022.53(c); as to count one and counts three through five, it was also alleged that Petitioner personally used a firearm within the meaning of section 12022.5.

Petitioner was sentenced to twenty-nine years and eight months in state prison.*fn3 (CT 219-222, 238.)

Petitioner filed a timely notice of appeal to the California Court of Appeal, Fifth Appellate District. (Lodged Doc. No. 1.) On April 16, 2004, the Court of Appeal affirmed the judgment. (Lodged Doc. No. 3.) On May 3, 2004, the Court of Appeal modified the opinion in a manner that did not affect the judgment. (Lodged Doc. No. 4.)

Petitioner filed a petition for review in the California Supreme Court on May 18, 2004. (Lodged Doc. No. 5.) The petition was denied on June 23, 2004. (Id.)

On or about November 5, 2004, Petitioner filed a petition for writ of habeas corpus in the Stanislaus County Superior Court. The petition was denied on November 15, 2004. (Lodged Doc. No. 6.)

On February 9, 2005, Petitioner filed a petition for writ of habeas corpus in the Fifth District Court of Appeal. The petition was denied on February 24, 2005. (Lodged Doc. No. 7.)

On March 28, 2005, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, which was denied on February 22, 2006. (Lodged Doc. No. 8.)

Petitioner filed the instant federal petition for writ of habeas corpus on September 28, 2006, and a first amended petition on November 9, 2006. (Court Docs. 1, 7.)

Respondent filed an answer to the amended petition on January 19, 2007. (Court Doc. 13.) Petitioner did not file a traverse.

STATEMENT OF FACTS

In October 2001, Watkins lived at 3204 Doris Court, in Modesto, California, at a home that was owned by his ex-girlfriend, Polly Latino. Watkins had lived at the home for approximately 12 to 13 years. (RT 65-67.) Jack Blood was also living in the home with Watkins. (RT 68.) Ms. Latino had moved out of the home after their breakup. Watkins made the mortgage payments until he encountered financial difficulties and had failed to pay the rent for a couple months.

Sometime in June of 2001, Watkins telephoned Latino regarding the late mortgage payments. David Ramos answered the telephone and advised Watkins to pack up and leave the house. Watkins told Ramos it was none of his business. (RT 77-78.) Latino thereafter initiated eviction proceedings. (RT 69-70.) Sometime in July or August of 2001, Ramos and another unidentified person served Watkins with eviction papers. (RT 69-72, 95-96, 99, 148.) Thereafter, in September 2001, Watkins observed Ramos drive by the home and take a photograph of him cleaning up the front yard. Watkins followed the car and after it stopped, Ramos and Watkins "exchanged words,"during which time Ramos was "belligerent" and "angry." (RT 79-93.)

On October 1, 2001, Watkins had been out during the day and returned home at approximately 9:30 p.m. (RT 100-103.) As he was getting ready for bed the front doorbell rang. (RT 105.) At that time, the front door open, however, the steel-mesh security door covering it was closed. (RT 104-109.) Watkins went to the front door and immediately noticed Ramos who was "prancing" around. (RT 111-112.) Ramos appeared to be "agitated and very nervous." (RT 110-111.) Watkins asked Ramos what he was doing there, and he replied "Why don't you come on outside." (RT 111.) Ramos was holding an object which Watkins believed to be a billy club. (RT 112-115.) Watkins observed "a shadow" of another person moving about 15 feet away in his right field of peripheral vision. (RT 118-120, 146-147, 167, 170-171, 176, 352-353.) However, Watkins could not identify Petitioner as the second shooter at trial. (RT 144.) Watkins did not go outside and instead turned around to call 911, and as he did so he "felt a blast from a shotgun and [he] went down" just inside the doorway. (RT 121-122.)

Watkins was shot several times through the security door. (RT 123-124.) The first gunshot struck him on his left side torso. (RT 122, 125.) The second struck him on his left hip and arm. The third gunshot struck him in his left torso, and the fourth struck him in his left arm and torso. (RT 124.) Watkins also heard four or five additional gunshots that did not hit him. (RT 125.) Watkins believed that he heard between eight and ten gun shots. (RT 126, 152-153.)

Watkins called for his roommate Blood to help. (RT 128.) Blood called 911 at 10:17 p.m. (RT 128, 603.) Watkins did not recall if he talked to the 911 operator, but acknowledged that it was his voice on the 911 tape recording. (RT 141-142.) An ambulance arrived a short time later and Watkins was taken to the hospital emergency room where he stayed for eight days. (RT 131, 142.) As a result of his injuries, Watkins had to undergo a couple of surgeries, and still had pellets lodged in his body. (RT 132-136, 139-141.) At trial, he testified that he still had physical limitations and was in pain. (RT 138.)

Police Officer, Jason Stewart, of the city of Modesto, responded to the home. (RT 180-181.) He followed the ambulance to the hospital, where he spoke with Watkins who told him that "Little Dave" (Ramos) had shot him at his front door. (RT 182.) He also stated that a second person was standing in the shadows near the street. (RT 183-184.) Officer, Michelle Wentink, also confirmed that Watkins indicated that "Little Dave" shot him. (RT 186-187.)

An identification technician from the Modesto Police Department, responded to the scene of the shooting on the night of October 1, 2001. (RT 358-359.) There, he recovered casings from a 7.62 by 39 caliber bullet (two of the casings were found in the gutter by the street in front right side of the house and the other two casings were found in the corner of the neighbor's yard) (RT 361-367) and "numerous" empty and expended 20-gauge shotgun shells in the front door (RT 368-370, 376-377). He observed that the inside of the hallway to the residence had been torn by the impact from the lead of the pellets. (RT 371.) He retrieved a shotgun wadding from the inside of the front door.*fn4 (RT 374.)

Monique Randal, who was employed at the AM/PM Arco in Ceres in October 2001, testified that she was responsible for changing the tapes for the surveillance cameras. (RT 211-212.)

Petitioner, his wife, and their son lived with Kimberly Barela on October 1, 2001. (RT 234-235.) She stated that Ramos and Petitioner hung out together around the time of October 1, 2001. (RT 237.) In fact, she had observed Ramos and Petitioner in the car together on prior occasions. (RT 239-240.)

On October 2, 2001, the day after the shooting, Ramos telephoned Kimberly Barela and asked her to "hide something for him" and she agreed to do so. (RT 240-241.) Petitioner and Ramos arrived at Barela's residence in Ramos' car a short time later. Ramos then told Barela to remove a bag from the car's trunk and hide it. (RT 241-242, 246, 257-258.) She grabbed a blue pillowcase, that she recognized as hers, and although she noticed there was something in it she did not look inside. Instead, she took it into her house and looked after her children until Ramos and Petitioner left. (RT 246.) A few minutes later, Petitioner telephoned Barela and asked whether she had hidden the pillowcase. (RT 247, 257.) She indicated that she had not, and Ramos told her to hide it in the water heater vent. (RT 248-250.) Barela did and did not look in the pillowcase. (RT 252, 256.) Ramos was the maintenance man at Barela's apartment complex, and he had been in her apartment on a few previous occasions. (RT 248-249.)

Minutes later, Modesto Police Detective Allen Brocchini, knocked on Barela's apartment door.*fn5 (RT 252.) She initially lied about seeing or receiving any property from Petitioner and Ramos because she was nervous. (RT 252.) However, upon further questioning, she admitted she received some property from them and told Detective Brocchini it was hidden in the heater vent. (RT 254-259.) Detective Brocchini removed the pillowcase from the vent and found three boxes of Federal 20-gauge shotgun shells, four boxes of assault rifle rounds, nine-millimeter rounds, and five hundred .22 caliber rounds. (RT 310-313.)

Tiffany Steenburg testified that she knew both Ramos and Petitioner, and had been close friends with Ramos for a couple of years. (RT 315-316, 323-324, 418.) On October 2, 2001, the day after the shooting, while Steenburg was at Charlene Waterfield's home, she received a phone call from a person she could not identify who said he needed to drop something off at her home.*fn6

(RT 321-325, 404-407.) Approximately twenty minutes later, Petitioner and Ramos arrived at Waterfield's home, and Steenburgh went outside to speak with them. Steenburgh took an empty diaper bag out of the house with her, and Ramos put another bag inside the diaper bag.*fn7

Steenburgh took the diaper bag into Waterfield's home and looked inside of it, and although she acknowledged that there was "something" inside the bag, but could not elaborate further. (RT 332-333.) However, Waterfield testified that Steenburgh opened the bag and showed her the contents, which contained two gun magazines. (RT 413-414.) Steenburgh subsequently took the bag home, and at one point noticed a black metallic shape inside. (RT 332.) She ultimately placed the bag inside of a dresser drawer. (RT 334.)

A couple days later, on October 4, 2001, Detective Brocchini went to Steenburgh's home and asked her to give him what she had received. Steenburgh initially told Brocchini that she did not know what he was talking about; however, Brocchini said, "I already know what you have, David already told me." (RT 334-344.) In response, Steenburgh then went to the bedroom to get the bag from the dresser and gave it to Brocchini. (RT 335-336.) Brocchini found a fully loaded (25 rounds of 7.62 x 39 millimeter rounds) magazine for an SKS assault rifle, a loaded magazine (40) rounds for a .22 caliber rifle, and a loaded nine-millimeter hand gun. (RT 342-349.)

In an unrelated matter, on September 24, 2001, Officer Jeff Eastwood, of the Modesto city police, went to a house on Yosemite and found three expended shotgun shells, which were presented as People's Exhibit 38, at trial. (RT 419-422.)

Ronald Welsh, a criminalist for the California Department of Justice, examined the shotgun shells found by Eastwood. (RT 424-425, 431, 433-434.) He compared the shells found by Eastwood to the shells found at the scene of the shooting of Watkins and determined they were fired by the same weapon. (RT 434-437.)

Two of the shells found by Eastwood appeared to have blood on them. (RT 452-453.) Walsh used a swab to collect a sample of the blood. Walsh collected a sample and sent it to the Department of Justice laboratory in Richmond. (RT 454-458.)

Colleen Spurgeon, a criminalist at the Department of Justice's Richmond laboratory, examined the sample sent by Walsh and compared it to Petitioner's DNA sample taken from his blood and determined that the blood matched the blood found on the shotgun shells found by Walsh. (RT 465-467, 484-487, 494-500.)

Joanna Torres testified that in October of 2001, she had known Ramos for approximately three weeks to a month. Although they were "interested" in each other, the relationship had not yet become romantic. (RT 557-558.) On October 1, 2001, she was working at the AM/PM Mini Market in Ceres. (RT 559.) Ramos and another individual whom she could not recall, picked her up at that location. (RT 558-562, 575-577.) The other individual was driving Ramos' car. (RT 562, 573-574.) Torres denied telling detectives that the person with Ramos was Petitioner. (RT 566, 569, 573-574, 584.) An AM/PM store videotape revealed that Torres left the store at 10:33 p.m. after getting into the backseat of Ramos' car. (RT 211-221, 575.) All three of them went back to her apartment where they spent the night. (RT 577-578.)

At trial, Torres acknowledged that she had identified Petitioner as "G" in a photographic lineup on October 5, 2001. She indicted that she met him only once through their mutual friend, Steenburgh. (RT 560, 568, 574, 579.)

Torres was impeached by the testimony of Detective Brocchini, who interviewed her after the shooting. (RT 586, 607.) Brocchini testified that Torres unequivocally identified Petitioner "within seconds" as "G" in a photographic lineup. (RT 589-590.) She told him she met him through Steenburgh and Ramos and had seen him on several occasions prior to the shooting. (RT 591.) Torres told Brocchini that Steenburgh and "G" had recently been in a car accident while both were in the same car. (RT 602.) Brocchini determined that the AM/PM Market was approximately a ten minute drive from the scene of the Watkin's shooting. (RT 604-606.)

DISCUSSION

A. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Stanislaus County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 2241(d).

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997; Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

B. Standard of Review

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 U.S.C. § 2254(a).

The AEDPA altered the standard of review that a federal habeas court must apply with respect to a state prisoner's claim that was adjudicated on the merits in state court. Williams v. Taylor, 120 S.Ct. 1495, 1518-23 (2000). Under the AEDPA, an application for habeas corpus will not be granted unless the adjudication of the claim "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 "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); Lockyer v. Andrade,123 S.Ct.1166 (2003) (disapproving of the Ninth Circuit's approach in Van Tran v. Lindsey, 212 F.3d 1143 (9th Cir. 2000)); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). "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." Lockyer, at 1175 (citations omitted). "Rather, that application must be objectively unreasonable." Id.(citations omitted).

While habeas corpus relief is an important instrument to assure that individuals are constitutionally protected, Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391-3392 (1983); Harris v. Nelson, 394 U.S. 286, 290, 89 S.Ct. 1082, 1086 (1969), direct review of a criminal conviction is the primary method for a petitioner to challenge that conviction. Brecht v. Abrahamson, 507 U.S. 619, 633, 113 S.Ct. 1710, 1719 (1993). In addition, the state court's factual determinations must be presumed correct, and the federal court must accept all factual findings made by the state court unless the petitioner can rebut "the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769 (1995); Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457 (1995); Langford v. Day, 110 F.3d 1380, 1388 (9th Cir. 1997).

C. Insufficient Evidence to Support Convictions

Petitioner contends that there was insufficient evidence to prove that he was present during the crime or that he personally discharged a firearm.

Petitioner presented this claim on direct appeal to the California Court of Appeal and California Supreme Court. (Lodged Doc. Nos. 1, 3, 5.) Because the California Supreme Court's opinion is summary in nature, however, this Court "looks through" that decision and presumes it adopted the reasoning of the California Court of Appeal, the last state court to have issued a reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 804-05 & n. 3, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (establishing, on habeas review, "look through" presumption that higher court agrees with lower court's reasoning where former affirms latter without discussion); see also LaJoie v. Thompson, 217 F.3d 663, 669 n. 7 (9th Cir.2000) (holding federal courts look to last reasoned state court opinion in determining whether state court's rejection of petitioner's claims was contrary to or an unreasonable application of federal law under § 2254(d)(1)).

The law on insufficiency of the evidence claim is clearly established. The United States Supreme Court has held that when reviewing an insufficiency of the evidence claim on habeas, a federal court must determine whether, viewing the evidence and the inferences to be drawn from it in the light most favorable to the prosecution, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Sufficiency claims are judged by the elements defined by state law. Id. at 324, n. 16.

There was sufficient, albeit circumstantial evidence, to support the jury's finding that Petitioner was present and participated in the shooting.*fn8 Mr. Watkins stated unequivocally that defendant Ramos confronted him at the front door and he observed another individual's shadow standing near the road. (See RT 109-120, 141, 146-147, 167, 170-171, 182-184.) In addition, several other witnesses testified that Petitioner was with Ramos on the day of the shooting. (RT 237, 325, 407-409.) Then after the shooting occurred, Petitioner asked his housemate to hide evidence from the shooting. (RT 240-242, 246, 248-250, 256-257.) Based on this evidence, a rationale trier of fact could reasonably determine that the person standing fifteen feet away from the victim was Petitioner.

It was also reasonable and rationale for the jury to find that Petitioner was armed with a firearm at the scene of the shooting. Such finding is supported by the evidence that two persons were armed at the scene, and Ramos clearly had the shotgun as the victim was shot at close range by several shotgun blasts. (RT 112-115, 121-125.) In addition to the five expended shotgun shells, several casings for an automatic weapon were found at the scene. (RT 366-368.) Furthermore, both Petitioner and Ramos asked friends to hide evidence from the shooting, including ammunition of the same type used and found at the scene of the shooting. (RT 240, 247, 257, 310-313, 342-349.) Additionally, Petitioner and Ramos were together in Ramos' car at the AM/PM store, a ten minute drive from the scene of the shooting, within fifteen minutes of the shooting.

Based on the foregoing, after viewing the evidence in the light most favorable to the state court judgment and after considering all reasonable inferences in support of that judgment, a rational trier of fact could have found Petitioner guilty beyond a reasonable doubt. Accordingly, the state courts' determination of this issue was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent.

D. Trial Court Err During Sentencing*fn9

Petitioner contends the trial court erred by failing to "stipulate whether" his sentence for a violation of section 12022.53(c) was concurrent or consecutive under section 669.*fn10

Petitioner presented this claim to the California Supreme Court by way of petition for writ of habeas corpus, which was summarily denied, without comment. (Lodged Doc. No. 8.) AEDPA's strict standard of review is relaxed when the state court reaches a decision on the merits but provides no reasoning to support its conclusion. Under such circumstances, the federal court must "independently review the record to determine whether the state court clearly erred in its application of Supreme Court law." Brazzel v. Washington, 491 F.3d 976, 981 (9th Cir.2007), quoting Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.2002); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.2000) ("Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law.").

First, this claims does not raise a federal constitutional violation and is not cognizable via section 2254. State law rules in the application of state sentencing law does not raise a federal constitutional issue. Johnson v. Arizona, 462 F.2d 1352, 135301354 (9th Cir. 1972). Specifically, an alleged error in consecutive sentences is not a federal question. Beaty v. Stewart, 303 F.3d 975, 986 (9th Cir. 2002); Cacoperdo v. Demosthenes, 37 F.3d 504, 507-508 (9th Cir. 1994). The misinterpretation of state law results in a due process violation only if the sentence is arbitrary and capricious. Richmond v. Lewis, 506 U.S. 40, 50 (1992). Indeed, relief is only available if it is determined that the sentence is arbitrary or fundamentally unfair. Newton v. Superior Court, 803 F.2d 1051, 1055 (9th Cir. 1986). In this instance, even if Petitioner's claim can be characterized as raising a federal constitutional violation, it nonetheless fails on the merits.

There was no violation of section 669. Specifically, the transcript of the sentence, reflects that the trial court imposed the aggravated term of nine years on count one (§§ 664/187), then enhanced the sentence on that count pursuant to section 12022.53 which adds an additional and consecutive twenty years.*fn11 (RT 776.) The court imposed the aggravated term of seven years on count three (§ 246), enhanced by ten years pursuant to 12022.5, yet it was stayed pursuant to section 654. (Id.) As to count four (§ 245(a)(2)), the court imposed an aggravated four-year term, enhanced by ten years pursuant to section 12022.5, then stayed its imposition pursuant to section 654. (Id.) Last, with regard to the section 12021(a) offense (count five), the court indicated that it "intended to do eight months consecutive on that as far as it's separate and not a 654." (Id.) After defense counsel agreed such sentence was correct, the court imposed "the middle-term of two years for the 12021(a), that's a totally separate offense, running that consecutive, staying two-thirds, one-third be imposed, for a total of eight months to be served." (RT 776-777.) As reflected above, the court properly determined that the sentence of eight months on count five for a violation of section 12021(a) was to be served "consecutive" to the twenty-nine years imposed on count one, for a total sentence of twenty-nine years and eight months. All other terms and enhancements were stayed. (Id.) Based on the foregoing, Petitioner's claim to the contrary is rejected.

E. Imposition of Upper Term/Violation of Sixth Amendment Right to Jury Trial Petitioner contends that the trial court violated his right to a jury trial under the Sixth

Amendment by imposing the upper term based on factors that were not found true beyond a reasonable doubt by the jury.

Petitioner presented this claim to the Stanislaus County Superior Court in his petition for writ of habeas corpus. The Superior Court dismissed the petition on November 15, 2004, stating:

The Court, having received the Defendant's Petition for a Writ of Habeas Corpus on November 8, 2004, hereby denies it. The Court also denies his request for appointment of counsel.

These requests based on Blakely v. Washington (2004) 124 S.Ct. 2531 are premature. The law in California is still unsettled. Based on the fact that Defendant, even if successful in this matter, has many more years to serve.

The Court notes that People v. Picado (11-5-04) 2004 DJDAR 12609 holds that the trial court may impose an upper term without the jury finding aggravating factors. This 1st District Court of Appeal decision is contrary to two from the 4th District Court of Appeal. People v. Lemus (9-20-04) 2004 DJDAR 11763 and People v. George (9-15-04) 2004 DJDAR 11568. Even if none of these cases are considered by the California Supreme Court, the issue is presently before it in People v. Towne (S125677).

Therefore, this Court will select the reasoning in Picado now, but will reconsider should the California Supreme Court rule otherwise. (See Lodged Doc. No. 6, Order of Denial.) Petitioner then raised the claim in his habeas corpus petition filed in the Fifth District Court of Appeal. The petition was denied without comment on February 24, 2005. (Lodged Doc. No. 7.) The California Supreme Court subsequently denied the claim, without comment or citation, on February 22, 2006. (Lodged Doc. No. 8.) However, in such instance, "where there has been on reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Lacy v. Lewis, 123 F.Supp.2d 533, 539-540 (C.D. Cal. 2000). As previously stated, the Superior Court denied the petition reasoning that "a trial court may impose an upper term without the jury finding aggravating factors," but noted that the law was unsettled and had not been addressed by the California Supreme Court.

(Lodged Doc. No. 6.)

At the beginning of the sentencing hearing, the court expressed its initial inclination regarding the appropriate punishment:

THE COURT: Just to give you a tentative where I am before I hear comments, as far as [Petitioner], the maximum punishment as to Count I is five, seven and nine. The Court would impose the aggravated term of nine years because of the seriousness of the offense and likely that a jury would have found it was premeditated and deliberated based on what happened to the co-defendant. And from my own personal view of the evidence. Also added to that would be twenty years for the 12022.53, and everything else would be stayed pursuant to 654.

(4 RT 767-768.)

After listening to argument by counsel, the Court imposed the aggravated term stating:

THE COURT: . . . As far as [Petitioner], you were very fortunate there was a slip-up, actually fortunately you weren't the one that caused the actual injury, although you certainly tried, but just by quirk it becomes a second degree attempted murder for Count I, Court is imposing the aggravated term of nine years, and clearly it's a violent act. It should be punishable by life similar to the co-defendant. However, it is not.

Clearly, the crime involved planning and sophistication and furthermore, [Petitioner] was on probation at the time, so the Court is imposing the aggravated term of nine years as to Count I. (RT 776, emphasis added.)

The trial court cited and relied on the probation report filed April 30, 2003, which stated:

CIRCUMSTANCES IN AGGRAVATION

Rule 4.42(b)(1)[*fn12 ]: The defendant engaged in violent conduct, which indicates a serious danger to society.

Rule 4.421(a)(8): The manner in which the crime was carried out indicates planning, sophistication, or professionalism.

Rule 4.421(b)(4): The defendant was on probation when the crime was committed.

CIRCUMSTANCES IN MITIGATION

None.

(CT 230-231.)

In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), the Supreme Court overturned a sentencing scheme that allowed a state judge to enhance a defendant's penalty beyond the prescribed statutory maximum upon finding, by a preponderance of the evidence, that the defendant "acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation, or ethnicity." Apprendi v. New Jersey, 530 U.S. at 469. The Supreme Court reversed, holding that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to jury, and proved beyond a reasonable doubt." Id. at 490. (Emphasis added.)

In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004), the Court explained that the "statutory maximum" for Apprendi purposes is the "maximum" sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant "statutory maximum " is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional facts." Id. at 303-304.

In both Apprendi and Blakely, state law established an ordinary sentencing range for the crime the defendant was convicted of committing, but allowed the court to impose a sentence in excess of that range if it determined the existence of specified facts not intrinsic to the crime. In each case the Supreme Court held that a sentence in excess of the ordinary range was unconstitutional because it was based on facts that were not admitted by defendant or found true by the jury beyond a reasonable doubt.

In United States v. Booker, 543 U.S. 220, 125 S.Ct. 788 (2005), the Court applied its holding in Blakely to the Federal Sentencing Guidelines, finding the Guidelines unconstitutional. In reforming the Guidelines, the Court stated "If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range." Id. at 233. "For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant." Id.

In People v. Black, 35 Cal. 4th 1238 (June 20, 2005), the California Supreme Court held that California's Determinative Sentencing Law satisfied federal constitutional law as follows: "Blakely and Booker established a constitutionally significant distinction between a sentencing scheme that permits judges to engage in the type of judicial fact finding typically and traditionally involved in the exercise of judicial discretion employed in selecting a sentence from within the range prescribed for an offense, and a sentencing scheme that assigns to judges the type of fact-finding role traditionally exercised by juries in determining the existence or nonexistence of elements of an offense." People v. Black, 35 Cal.4th at 1253. "[I]n operation and effect, the provisions of the California determinate sentence law simply authorize a sentencing court to engage in the type of fact-finding that traditionally has been incident to the judge's selection of an appropriate sentence within a statutorily prescribed sentencing range." Id. at 1254. The Court held that the "presumptive" midterm does nothing more than establish a "reasonableness" constraint on an otherwise wholly discretionary sentencing choice akin to that which the United States Supreme Court has deemed constitutional. Id. at 1261.

In Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856 (2007), the Supreme Court overruled the holding in Black, and held that the middle term in California's determinate sentencing law was the relevant statutory maximum for the purpose of applying Blakely and Apprendi. Id. at 868. Specifically, the Court held that imposing the upper sentence violated the defendant's Sixth and Fourteenth Amendment right to a jury trial because it "assigns to the trial judge, not the jury, authority to find facts that expose a defendant to an elevated 'upper term' sentence." Id. at 860.

Most recently, in Butler v. Curry, 528 F.3d 624 (June 9, 2008), the Ninth Circuit found that the Supreme Court's decision in Cunningham did not announce a new rule of constitutional law under Teague's non-retroactivity rule.*fn13 Id. at 633-639. Rather, Cunningham "simply applied the rule of Blakely [v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004)], to a distinct but closely analogous sentencing scheme. 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 636.

Respondent filed its answer to the petition prior to the Supreme Court's decision in Cunningham, and obviously prior to the Ninth Circuit's recent decision in Butler. However, for the reasons explained below, further briefing is not necessary. Petitioner's conviction became final on September 22, 2004, when the time for filing a petition for writ of certiorari expired (i.e., ninety days after the California Supreme Court denied the petition for review. (Lodged Doc. No. 5). See Cal. S.Ct. R. 13.

In order to determine whether existing precedent dictated that California's DSL was inconsistent with the Sixth Amendment right to a jury trial, the Court must "'ascertain the legal landscape as it . . . existed'" before September 22, 2004, the date Petitioner's conviction became final. Butler, 528 F.3d at 634. Blakely was decided on June 24, 2004, and contrary to Respondent's argument, under this Court's current Circuit authority, California's Determinate Sentencing Law ("DSL") clearly violated the principle established in Apprendi and Blakely, that any fact, other than a prior conviction, that increases the penalty for the crime beyond the statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt. In Butler, the Ninth Circuit found that California's sentencing law was virtually identical to Washington's sentencing law struck down in Blakely. Butler, 528 F.3d at 635-636. Like the Washington sentencing statute at issue in Blakely, California's DSL, required imposition of the middle term unless the judge found factors in aggravation or mitigation, provided a nonexhaustive list of possible reasons for an exception sentence and an exceptional sentence could be based on factors other than those found by a jury beyond a reasonable doubt. Id. at 635-636. In sum, California's DSL, like the Washington sentencing law at issue in Blakely, violated the Sixth Amendment because the maximum penalty for the crime could be based on facts found only by a judge and not a jury. Therefore, Cunningham did nothing more than reiterate and apply the holding from Blakely to California's DSL. Id. at 636.

Based on the foregoing, the last reasoned state court opinion of the Stanislaus County Superior is contrary to clearly established federal law in Apprendi and Blakely.*fn14 However, such finding does not automatically entitle Petitioner to relief. Instead, the "power to grant the writ of habeas corpus to a state inmate depends on his actually being 'in custody in violation of the Constitution or laws . . . of the United States.'" Butler, at 641 (citing 28 U.S.C. § 2241(c)(3).) To this end, the Court must apply a de novo standard of review to determine whether a constitutional violation has occurred. Butler, at 641.

Butler dispelled any argument that a defendant's probationary status at the time of the current offense falls within the "prior conviction" exception as established in Almendarez-Torres v. United States, 523 U.S. 224, 244, 247 (1998). Butler, 528 F.3d at 641-644. The Ninth Circuit's finding was based on the narrow scope of the prior conviction and the exception was limited to factual findings that are readily apparent from the face of the conviction documents themselves. Id. at 644. As applied to the probationary status, the Ninth Circuit reasoned that although the fact that the defendant was initially sentenced to probation may be reflected on the conviction document itself, the fact that a defendant was on probation at the time of the current offense, will not be reflected in the documents of the prior conviction, nor could it be conclusively inferred from such document. Butler, 528 F.3d at 645-646. Therefore, because the fact that Petitioner was on probation at the time of the current offense does not fall within the narrow prior conviction exception, the judge is not authorized to make such finding for imposition of the upper aggravated term.

As a consequence, it must be determined whether the error in sentencing Petitioner to the aggravated term based on his probationary status was harmless. See Washington v. Recuenco, 548 U.S. 212 (2006) (sentencing errors are subject to harmless error analysis). In Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710 (1993), the U.S. Supreme Court substantially restricted state prisoners' access to federal habeas relief by requiring a showing that the violation of a federally guaranteed right had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 1714 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253 (1946)). In order for an error to have a "substantial and injurious effect or influence," it must have "affected the verdict." O'Neal v. McAnnich, 513 U.S. 432, 115 S.Ct. 992 (1995). More specifically, "[u]nder that standard, we must grant relief if we are in 'grave doubt' as to whether a jury would have found the relevant aggravating factors beyond a reasonable doubt." Butler, 528 F.3d at 648 (citing O'Neal v. McAninch, 513 U.S. 432, 436 (1995).). "Grave doubt exists when, 'in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.'" Butler, 528 F.3d at 648 (citing O'Neal, at 435.).

"[T]he relevant question is not what the trial court would have done, but what it legally could have done." Butler, 528 F.3d at 648-649 (emphasis in original). It is clear that under California law only one aggravating factor need to be proven for imposition of the upper aggravated term where the aggravating factor outweighs the cumulative effect of all mitigating factors. People v. Nevill, 167 Cal.App.3d 198, 202 (1985); see also People v. Black, 41 Cal.4th 799, 806 (2007), Butler, 528 F.3d at 642-643.

As previously stated, in imposing the upper term, the court cited three factors in aggravation: 1) Petitioner engaged in violent conduct, which indicates a serious danger to society; 2) the manner in which the crime was carried out indicates planning, sophistication, or professionalism; and 3) the defendant was on probation when the crime was committed. (RT 776.)

Here, as to the third factor, unlike in Butler, the record in this Court contains a copy of the probation report which was submitted to and relied on by the trial court in imposing Petitioner's sentence. (CT 226-232; see Butler, 528 F.3d at 651-652 (case remanded to district court because the court did not find a probation report or any other document that reflected Butler's probationary status at the time of the crime.)). It was noted in the probation report, and adopted by the trial court at sentencing, that Petitioner was on probation when the crime was committed. (CT 230.) The current commitment offense occurred on October 1, 2001. The criminal history section of the probation report indicates that, in addition to others, on January 27, 1999, in the Stanislaus County Superior Court, Petitioner was convicted of a violation of California Vehicle Code section 10851 (case # 194914) and California Health and Safety Code section 11350 (case # 197696), both felonies. (CT 228.) Petitioner was sentenced to three years probation and 270 days in jail, as to both conviction. (Id.) Accordingly, any error in sentencing Petitioner to the upper aggravated term based on his probationary status was harmless because had such information been submitted to the jury, there is no doubt the jury would have found Petitioner's probationary status proven beyond a reasonable doubt.

Accordingly, because it is clear, beyond a reasonable doubt, that there is at least one aggravating factor in support of Petitioner's upper term sentence, any error was harmless. For this reason, the Court need not and does not elaborate on whether the first two findings are likewise supported by proof beyond a reasonable doubt.

F. Ineffective Assistance of Counsel for Failing to Object to Pronouncement of Sentence

Petitioner contends that trial counsel was ineffective for failing to object at the sentencing hearing and argues the outcome would have been different.

Petitioner presented this claim to the California Supreme Court by way of petition for writ of habeas corpus, which was summarily denied, without comment. (Lodged Doc. No. 8.) Accordingly, this court must "independently review the record to determine whether the state court clearly erred in its application of Supreme Court law." Brazzel v. Washington, 491 F.3d 976, 981 (9th Cir.2007), quoting Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.2002); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.2000).

The law governing ineffective assistance of counsel claims is clearly established for the purposes of the AEDPA deference standard set forth in 28 U.S.C. § 2254(d). Canales v. Roe, 151 F.3d 1226, 1229 (9th Cir. 1998.) In a petition for writ of habeas corpus alleging ineffective assistance of counsel, the court must consider two factors. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). First, the petitioner must show that counsel's performance was deficient, requiring a showing that counsel made errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The petitioner must show that counsel's representation fell below an objective standard of reasonableness, and must identify counsel's alleged acts or omissions that were not the result of reasonable professional judgment considering the circumstances. Id. at 688; United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995). Judicial scrutiny of counsel's performance is highly deferential. A court indulges a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984); Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir.1994).

Second, the petitioner must show that counsel's errors were so egregious as to deprive defendant of a fair trial, one whose result is reliable. Strickland, 466 U.S. at 688. The court must also evaluate whether the entire trial was fundamentally unfair or unreliable because of counsel's ineffectiveness. Id.; Quintero-Barraza, 78 F.3d at 1345; United States v. Palomba, 31 F.3d 1356, 1461 (9th Cir. 1994). More precisely, petitioner must show that (1) his attorney's performance was unreasonable under prevailing professional norms, and, unless prejudice is presumed, that (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different.

A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the petitioner as a result of the alleged deficiencies. Strickland, 466 U.S. 668, 697, 104 S.Ct. 2052, 2074 (1984). Since it is necessary to prove prejudice, any deficiency that does not result in prejudice must necessarily fail.

Ineffective assistance of counsel claims are analyzed under the "unreasonable application" prong of Williams v. Taylor, 529 U.S. 362 (2000). Weighall v. Middle, 215 F.3d 1058, 1062 (2000).

First, and fatal to Petitioner's claim, Petitioner fails to explain the basis upon which counsel should have objected to the pronouncement of sentence, or how the outcome would have been different. As such, Petitioner's claim is nothing more than a conclusory allegation unsupported by factual circumstances in the record. Conclusory allegations do not warrant habeas relief. See Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir.1995) (holding that conclusory allegations made with no reference to the record or any document do not merit habeas relief).

To the extent Petitioner contends that defense counsel should have objected to the court's alleged failure "to specify at the time of judgment whether petitioner subsequent judgment, exfelon in possession of firearm [] would be concurrent or consecutive to the principle judgment of attempted murder. . . .", he is mistaken. For the reasons explained under section D, ante, there was no sentencing err under California law. In addition, to the extent Petitioner contends that counsel was ineffective for failing to object to the imposition of the upper term based on holding in Blakely (which was pending at the time of sentencing), it is likewise without merit. Counsel could not have been incompetent because counsel was not required to object on that basis as the law was unsettled. See e.g. Fields v. United States, 201 F.3d 1025 (8th Cir. 2000). Moreover, even if counsel was ineffective for failing to object on that basis, Petitioner suffered no prejudice as any error was harmless. See sections D & F, ante. Accordingly, Petitioner has not and cannot demonstrate that counsel was incompetent or that he was prejudiced thereby, and Petitioner's claim fails on the merits.

G. Ineffective Assistance of Appellate Counsel

Petitioner further contends that appellate counsel was ineffective for "failing to set forth all arguable" claims during the sentencing phase. (Petition, at 7.)

Effective assistance of appellate counsel is guaranteed by the Due Process Clause of the Fourteenth Amendment. Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of appellate counsel are reviewed according to Strickland 's two-pronged test. See, e.g. 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 must therefore 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, defendant would have prevailed on appeal. Miller, 882 F.2d at 1434 & n. 9 (citing Strickland, 466 U.S. at 688, 694; Birtle, 792 F.2d at 849). However, appellate counsel does not have a constitutional duty to raise every non-frivolous issue requested by defendant. Jones v. Barnes, 463 U.S. 745, 751-54 (1983); Miller, 882 F.2d at 1434 n.10.

Nor does appellate counsel have a duty to raise nonmetirorious arguments. See Strickland, 466 U.S. at 697; see also Boac v. Raines, 769 F.2d 1341, 1344 (9th Cir.1985); Shah v. United States, 878 F.2d 1156, 1162 (9th Cir.1989) (failure to raise a meritless legal argument does not constitute ineffective assistance of counsel); Cooper v. Fitzharris, 551 F.2d 1162, 1166 (9th Cir.1977). The weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy. Id. at 1434 (footnote and citations omitted). As a result, appellate counsel will frequently remain above an objective standard of competence and have caused her client no prejudice for the same reason--because she declined to raise a weak issue. Id.

Petitioner presented this claim to the California Supreme Court in his petition for writ of habeas corpus, which was summarily denied. (Lodged Doc. No. 8.)

For the same reasons as discussed above under sections D and F, because there is no merit to Petitioner's claim that the trial court erred in sentencing him under either the Constitution or California law, appellate counsel could not and was not ineffective for failing to raise such meritless claims.

RECOMMENDATION

Based on the foregoing, it is HEREBY RECOMMENDED that:

1. The instant petition for writ of habeas corpus be DENIED; and,

2. The Clerk of Court be directed to enter judgment in favor of Respondent.

This Findings and Recommendation is submitted to the assigned United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Replies to the objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.


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