The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable George H. Wu, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on January 23, 2007. The Petition asserted four grounds for relief:
(1) the trial court allegedly violated Due Process by using CALJIC 2.15, assertedly instructing that the jury could infer Petitioner was guilty of carjacking from the fact that Petitioner was in possession of stolen property (Petition, Ground One);
(2) the trial court allegedly erred in failing to give a voluntary intoxication instruction (Petition, Ground Two);
(3) the sentencing court allegedly violated the Constitution by:
(a) using the same facts to impose an upper term sentence and to impose a consecutive sentence on the gun use enhancement; and
(b) imposing an upper term sentence based on facts allegedly not found by the jury, assertedly in violation of Blakely v. Washington, 542 U.S. 296 (2004) ("Blakely") (Petition, Ground Three); and
(4) the California Court of Appeal erroneously failed to order a correction of the trial court's restitution order on remand (Petition, Ground Four).
Respondent filed an Answer on April 11, 2007, accompanied by a Memorandum of Points and Authorities ("Ans. Mem.") and lodged documents. Respondent asserted, inter alia, that Grounds Three and Four of the Petition were unexhausted, and that Ground Four of the Petition alleged only a claim of state law error not cognizable on federal habeas corpus. Petitioner filed a Reply on May 18, 2007. On June 14, 2007, the Court issued an order: (1) dismissing Ground Four of the Petition with prejudice; (2) requiring further exhaustion of Ground Three of the Petition; and (3) staying the Petition to allow Petitioner to exhaust Ground Three of the Petition.
On March 3, 2008, Petitioner filed a request that the stay be lifted. On April 1, 2008, Respondent filed a notice of non-opposition to Petitioner's request to lift the stay. On April 8, 2008, the Court issued a Minute Order lifting the stay and ordering Respondent to file a Supplemental Answer addressing the merits of Grounds One, Two and Three of the Petition. On July 9, 2008, Respondent filed a Supplemental Answer, accompanied by additional lodged documents.*fn1 On August 12, 2008, Petitioner filed a Supplemental Reply.
A jury convicted Petitioner of carjacking in violation of California Penal Code section 215(a), and found true the allegation that Petitioner personally used a firearm within the meaning of California Penal Code section 12022.53(b) (Reporter's Transcript ["R.T."] 173; Clerk's Transcript ["C.T."] 93-94). The court sentenced Petitioner to the upper term of nine years (R.T. 190-91; C.T. 104). The court imposed an additional consecutive ten-year sentence on the firearm enhancement pursuant to California Penal Code section 12022.53(b) (R.T. 191-92; C.T. 104-05).
On appeal, Petitioner raised his Blakely claim in a supplemental brief (see I Respondent's Lodgment 4). On November 16, 2004, the Court of Appeal ruled that Petitioner's upper term sentence violated Blakely, and that the Blakely error was not harmless (I Respondent's Lodgment 6, pp. 7-28; see also People v. Juarez, 21 Cal. Rptr. 3d 75, 80-91 (Cal. Ct. App. 2d Dist. 2004), rev. granted, 23 Cal. Rptr. 3d 692, 105 P.3d 113 (Cal. Jan. 19, 2005), transferred with directions to vacate, 34 Cal. Rptr. 3d 195, 119 P.3d 960 (Cal. Sept. 7, 2005), on remand, 2005 WL 3366962 (Cal. Ct. App. 2d Dist. Dec. 12, 2005)). The Court of Appeal remanded the case for resentencing, but otherwise affirmed the judgment (I Respondent's Lodgment 6; see also People v. Juarez, 21 Cal. Rptr. 3d at 80-91).*fn2
The State filed a petition for review (I Respondent's Lodgment 7). On January 19, 2005, the California Supreme Court granted review, but deferred further action "pending consideration of a related issue in People v. Black, S126182, and People v. Towne, S125677 . . . or pending further order of the court" (I Respondent's Lodgment 8).
On June 20, 2005, the California Supreme Court issued its decision in People v. Black, 35 Cal. 4th 1238, 29 Cal. Rptr. 3d 740, 113 P.3d 534 (2005), vacated, 127 S.Ct. 1210 (2007) ("Black"), holding that California's statutory scheme providing for the imposition of an upper term sentence did not violate the constitutional principles set forth in Blakely. On September 7, 2005, the California Supreme Court issued an order transferring Petitioner's case to the Court of Appeal "with directions to vacate and reconsider the cause in light of People v. Black . . . ." (I Respondent's Lodgment 9).
On December 12, 2005, the Court of Appeal issued an opinion affirming Petitioner's sentence (I Respondent's Lodgment 10). The Court of Appeal reasoned that it was bound by the California Supreme Court's decision in Black under principles of stare decisis.
On January 20, 2006, Petitioner filed a petition for review in the California Supreme Court (I Respondent's Lodgment 13).*fn3 On February 22, 2006, the California Supreme Court denied the petition for review "without prejudice to any relief to which defendant might be entitled after the United States Supreme Court determines in Cunningham v. California, No. 05-6551, the effect of Blakely v. Washington (2004) 542 U.S. 296 and United States v. Booker (2005) 543 U.S. 220, on California law" (Respondent's Lodgment 14).
On January 22, 2007, the United States Supreme Court issued its decision in Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856 (2007) ("Cunningham"). Cunningham held that a California judge's imposition of an upper term sentence based on facts found by the judge (other than the fact of a prior conviction) violates the constitutional principles set forth in Blakely. Cunningham expressly disapproved the holding and the reasoning of Black.
Petitioner filed a habeas petition in the California Supreme Court on July 23, 2007 containing his Blakely/Cunningham claim (II Respondent's Lodgment 3). On February 13, 2008, the California Supreme Court denied the petition "without prejudice to any relief to which petitioner might be entitled after this court decides In re Gomez, S155425: whether a habeas corpus petitioner whose conviction became final after Blakely v. Washington (2004) 542 U.S. 296 but before Cunningham v. California (2007) 549 U.S., 127 S.Ct. 856, is entitled to the benefit of the high court's decision in Blakely" (II Respondent's Lodgment 3).
The following factual summary is taken from the opinion of the California Court of Appeal in People v. Juarez, 2005 WL 3366962, at *1-2 (Cal. Ct. App. 2d Dist. Dec. 12, 2005). See Galvan v. Alaska Dep't of Corrections, 397 F.3d 1198, 1199 & n.1 (9th Cir. 2005) (taking factual summary from state appellate decision).
At the time of the incident at issue, the victim, Ryan Comstock, worked for Pizza Hut. Just before 8:00 p.m. one evening his employer sent him to deliver a pizza in Azusa. He parked his car in front of the customer's house. As he exited his car, Comstock saw a man standing across the street near a "light-colored pickup truck." The truck was not parked there when Comstock first drove down the street. Comstock would later identify this man as defendant Hugo Juarez.
As Comstock was standing next to the driver's side door of his car, Juarez approached. Juarez was holding a silver automatic handgun which was level with his waist and was pointed at Comstock. Juarez ordered Comstock to get down on the ground. Comstock got on his hands and knees in the street after Juarez pushed him down. Comstock felt afraid.
Juarez asked Comstock for the keys to the car. Comstock said the keys were in the ignition. Comstock saw Juarez get in the car, start the ignition and drive away. The light-colored pickup truck took off in the opposite direction. Comstock got up and went to the door of the customer's house. The customer allowed Comstock to enter the house and call the police.
Three days after the incident, the police located Comstock's car at a mobile home park in Palm Springs. Juarez and another man were sitting in the car at the time. A white pickup truck was parked nearby. A detective who searched Comstock's car found a backpack in the trunk which contained items belonging to Juarez. A couple of days later, another detective ...