The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITION
Petitioner Kevin Lomack, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition"). Petitioner claimed his constitutional rights were violated by a jury instruction regarding eyewitness identification, ineffective assistance of counsel, trial court's failure to sua sponte counter the defense counsel's defective performance, and sentencing based on fact findings made by the judge rather than the jury. The case was referred to United States Magistrate Judge William McCurine, Jr. for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(d).
The Magistrate Judge issued an initial Report and Recommendation, recommending the Petition be denied with respect to the first three claims and the action stayed with respect to claim four, pending exhaustion of state court remedies. The court adopted the Report and Recommendation as to the first three claims, which were denied. The fourth claim was remanded to the Magistrate Judge for further briefing and consideration in light of new legal authority. (See order filed Feb. 21, 2008.) Upon supplemental briefing of the fourth claim, the Magistrate Judge issued a Report and Recommendation recommending the claim be denied. Petitioner objected. Respondent did not respond. For the reasons which follow, the Report and Recommendation is ADOPTED. The Petition is DENIED.
In reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Under this statute, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en banc) (emphasis in original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to habeas review). Petitioner objects to the recommendation to deny his last remaining claim. Upon performing the requisite de novo review, the court adopts the Report and Recommendation.
On September 10, 2004, Petitioner was found guilty after a jury trial of twelve counts of robbery arising from eight separate incidents. The jury also found Petitioner used a gun during the robberies. Based on three prior felony convictions and enhancement for the firearm, Petitioner was sentenced to 335 years to life in state prison. Petitioner argues that the upper term sentences, some of which ran consecutively, were based on facts not found by the jury beyond a reasonable doubt, but on other aggravating factors found by the trial judge by a preponderance of the evidence, and were therefore imposed in violation of his Sixth Amendment rights under Blakely v. Washington, 542 U.S. 296 (2004).
Based on Blakely, United States v. Booker, 543 U.S. 220 (2005) and People v. Black, 35 Cal.4th 1238 (2005) ("Black I"), the state court concluded that Petitioner's right to a jury trial was not violated because the choice of an upper term under the California sentencing scheme, which provides the choice of a lower, middle and upper term, did not implicate the Sixth Amendment. (Lodgment Ex. 5 at 25-28.) The court also noted that the upper term was imposed based in part on his prior criminal record, a factor which did not require a jury finding under Blakely. (Id.)
After the state court decision in this case, the defendant in Black I filed a petition for a writ of certiorari in the United States Supreme Court. On January 22, 2007, the United States Supreme Court decided Cunningham v. California, 549 U.S. 270 (2007), which held that because the California sentencing scheme authorized the judge, not the jury, to find the facts permitting the imposition of the upper term, the system ran afoul of the Sixth Amendment. This decision was contrary to the California Supreme Court's decision in Black I. On February 20, 2007, the United States Supreme Court granted a writ of certiorari in Black I, and remanded the case to the California Supreme Court for reconsideration in light of Cunningham. Black v. California, 127 S.Ct. 1210 (2007). This was the state of the law when the Magistrate Judge issued the initial Report and Recommendation in this case.
The initial Report and Recommendation found, based on the intervening decision in Cunningham, that Petitioner's sentencing claim was rendered unexhausted because Cunningham cast Petitioner's claim in a fundamentally different light. The initial Report and Recommendation recommended staying this action while Petitioner exhausted his remaining claim in state courts.
Subsequently, the California Supreme Court reconsidered Black I on remand from the United States Supreme Court. People v. Black, 41 Cal. 4th 799 (2007), cert. den. 128 S.Ct.1063 (2008) (Black II). Black II held that "imposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions." Id. at 816; see also id. at 806, 812-16, 816-820. Because it appeared that the rationale initially relied upon by the Magistrate Judge for finding the claim unexhausted was foreclosed by Black II, the fourth claim was remanded for further briefing and consideration of exhaustion and, if appropriate, the merits.
Upon consideration of supplemental briefing, the Magistrate Judge found the claim exhausted. (R&R at 2 n.3, citing Butler v. Curry, 528 F.3d 624, 639 (9th Cir. 2008)). Petitioner does not object to this finding.
The Magistrate Judge next found that the trial judge's reliance on Petitioner's criminal history to impose the upper terms did not violate Blakely and that the reliance on other aggravating factors was harmless error. (R&R at 5-10.) Petitioner objects to these recommendations. (Objections at 4-6.)
Under the Sixth Amendment, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Blakely, 542 U.S. at 301, quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). A fact of a prior conviction need not be proved to a jury beyond a reasonable doubt. Almendarez-Torres v. United States, 523 U.S. 224, 244, 247 (1998). The exception for prior convictions was recognized in Blakely and Cunningham. Blakely, 542 U.S. at 301; Cunningham, 549 U.S. at 288. In California, the existence of a single aggravating circumstance, including a prior conviction, is sufficient to impose an upper term sentence. Black , 41 Cal. 4th at 813. Because the trial judge relied on Petitioner's prior convictions as an aggravating factor, Petitioner's Sixth Amendment rights were not implicated to the extent the sentence was based on his criminal record. (See R&R at 5-9.)
Petitioner objects on the ground that the prior criminal record exception established in Almendarez-Torres is "flawed and questionable." (Objections at 4-6.) Although some Supreme Court justices have indicated in dissenting opinions their disagreement with the applicability of Almerndarez-Torres after Blakely, it has not been overruled and this court is bound to follow it. See Butler, 528 F.3d at 643-44. Accordingly, Petitioner's objections in this regard are overruled.
The trial judge did not rely solely on Petitioner's prior convictions to set the upper terms but also on the viciousness of the attacks, great threat of bodily harm and danger to society. (See Lodgment No. 5 at 24-25.) Because these facts were not found by the jury beyond reasonable doubt, reliance on them was a Blakely error. The Magistrate Judge found the error was harmless because the upper terms could be imposed based on Petitioner's prior convictions alone, see , 528 F.3d at 642-43, and because, based on the record presented, a conscientious judge ...