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Wagener v. Kenan

August 22, 2008

WENDY LEA WAGENER, PETITIONER,
v.
RON KENAN, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER: (1) ADOPTING THE REPORT AND RECOMMENDATION AND (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS

Presently before the Court is Petitioner Wendy Lea Wagener's ("Petitioner") petition for a writ of habeas corpus (the "Petition") pursuant to 28 U.S.C. § 2254. Petitioner challenges her convictions for robbery, assault with a deadly weapon, possession of methamphetamine for sale, possession of methamphetamine, and unlawful possession of a hypodermic syringe.

On April 15, 2008, United States Magistrate Judge Barbara Lynn Major issued a Report and Recommendation ("Report") advising this Court to deny the Petition. [Doc. No. 11.] On May 27, 2008, Petitioner timely objected to the Report. [Doc. No. 13.] For the following reasons, the Court ADOPTS the Report and DENIES the Petition.

BACKGROUND

On January 21, 2003, in San Diego Superior Court, a jury unanimously convicted Petitioner of robbery while using a deadly and dangerous weapon, assault with a deadly weapon, possession of methamphetamine for sale, possession of methamphetamine, and unauthorized possession of a hypodermic syringe. [Lodgment 3, vol. 4 at 739-41.] On September 10, 2003, the trial judge denied Petitioner's motion for a new trial. [Lodgment 3, vol. 5 at 933-38.] During the hearing on Petitioner's motion for a new trial (the "Hearing"), the trial judge found Petitioner's prior convictions to be true, "numerous," and "increasing in seriousness." [Id. at 949.] As a result of these findings, the trial judge imposed the upper term sentence for Petitioner's robbery, assault with a deadly weapon, and possession of methamphetamine convictions. [Memo. ISO Pet. at 8-11.]

On October 22, 2004, the California Court of Appeal affirmed Petitioner's convictions and sentence. [Lodgment 9.] Petitioner then filed a petition for review with the California Supreme Court. [Lodgment 10.] On January 12, 2005, the California Supreme Court accepted the petition for review. On September 7, 2005, the court dismissed the petition for review. [Lodgment 12.]

On February 27, 2006, Petitioner filed a habeas petition in San Diego Superior Court challenging her convictions on four grounds. [Lodgment 13.] On April 18, 2006, the Superior Court denied the habeas petition in a reasoned opinion. [Lodgment 14.]

Subsequently, Petitioner filed a habeas petition with the California Court of Appeal raising the same four grounds for relief. [Lodgment 15.] On September 14, 2006, the Court of Appeal denied the petition in a reasoned opinion. [Lodgment 16.]

On November 15, 2006, Petitioner filed a habeas petition with the California Supreme Court raising the same four grounds for relief. [Lodgment 17.] On June 13, 2007, the California Supreme Court summarily denied the petition without citation to authority. [Lodgment 18.]

On August 9, 2007, Petitioner filed the instant Petition in the United States District Court for the Southern District of California pursuant to 28 U.S.C. § 2254. [Doc. No. 1.] The Petitioner raised the following five claims as to why her incarceration violated the Constitution or federal law: (1) the judge imposed an upper term sentence based on aggravating factors found by the judge, not by a jury beyond a reasonable doubt; (2) Petitioner's counsel provided ineffective assistance; (3) the trial court erroneously admitted highly prejudicial hearsay declarations into evidence; (4) the trial court refused to define preponderance of the evidence for the jury; and (5) the Petitioner was shackled during trial for no reason. On October 22, 2007, Respondent filed an answer to the Petition. [Doc. No. 7.] On December 17, 2007, Petitioner filed a timely traverse. [Doc. Nos. 9 & 10.] On April 15, 2008, United States Magistrate Judge Barbara Lynn Major issued the Report advising this Court to deny the Petition. [Doc. No. 11.] On May 27, 2008, Petitioner filed her Objection to the Report ("Objection"). [Doc. No. 13.] In the Objection, Petitioner raised the same five grounds for relief contained in the original Petition. [Id.]

LEGAL STANDARD

Rule 72(b) of the Federal Rules of Civil Procedure and United States Code Section 636(b)(1) set forth the duties of the district court in connection with review of a magistrate judge's report and recommendation. The district court must review de novo the portions of the report to which respondent objects and may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. 636(b)(1)(C); seealsoUnited States v. Remisng, 874 F.2d 614, 617 (9th Cir. 1989). The Court may grant a petitioner's Section 2254 petition, only if the Court determines that the final California state court that reviewed the petition on the merits decided in a manner that was either "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States," or "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); Williams v. Taylor, 529 U.S. 362, 403, 412-13 (2000).

ANALYSIS

I. The Upper Term Sentence Did Not Violate Petitioner's Federal Rights

Petitioner argues that the trial judge violated her Sixth Amendment right to a jury trial by imposing the upper term sentence based on aggravating factors found by the judge, not by a jury beyond a reasonable doubt. [Memo. ISO Pet. at 8-11.] The Court disagrees.

The United States Supreme Court has stated that "other than the fact of a prior conviction, any fact that increases the penalty beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); Almendarez-Torres v. United States, 523 U.S. 224, 244 (1998) (stating that a judge may use the defendant's prior convictions as an aggravating factor to justify imposing an upper term sentence); People v. Black, 41 Cal. 4th 799, 815 (Cal. 2007) ("Black II") (holding that the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence). The "'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely v. Washington, 542 U.S. 296, 303 (2004) (citations omitted, emphasis in original). Recently, in Cunningham v. California, __ U.S. __, 127 S.Ct. 856, 868 (2007), the Supreme Court stated that the "middle term prescribed in California's [determinate sentencing] statutes, not the upper term, is the relevant statutory maximum." Cunningham did not announce a new rule of criminal procedure and, therefore, applies retroactively to federal habeas cases. Butler v. Curry, 528 F.3d 624, 634, 639 (9th Cir. 2008).

In the present case, Petitioner's upper term sentence did not violate the Sixth Amendment because the trial judge relied on Petitioner's prior convictions as aggravating factors. Specifically, the trial judge relied on Petitioner's prior convictions of conspiracy to commit robbery, possession of methamphetamine, battery, and burglary to impose the upper term sentence. [Lodgment 3, vol. 5 at 945-47.] The trial judge explained that he imposed the upper term sentence on three out of the seven convictions because he found the prior convictions to be "numerous" and "increasing in seriousness." [Id. at 949-50.] As a result, the Court finds that the trial judge lawfully imposed an upper term sentence. Accordingly, the Court DENIES Petitioner's first claim for relief.

II. Petitioner's Counsel Did Not Provide Ineffective Assistance

Petitioner raised six reasons as to why her counsel provided ineffective assistance. The Court ...


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