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Rosenblum v. Yates

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


January 13, 2009

PHILLIP ROSENBLUM, PETITIONER,
v.
JAMES YATES, WARDEN, RESPONDENT.

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 James V. Selna, 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.

PROCEEDINGS

Petitioner filed a "Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody" on February 26, 2008, accompanied by a supporting Memorandum ("Pet. Mem."). Respondent filed an Answer on April 10, 2008. Petitioner filed a Reply on September 3, 2008.

BACKGROUND

An Information charged Petitioner with one count of battery by a prisoner on a non-confined person, in violation of California Penal Code section 4501.5. The Information also alleged that Petitioner had suffered a prior burglary conviction qualifying as a "strike" under California's Three Strikes Law, California Penal Code sections 667(b) - (i) and 1170.12(a) - (d).*fn1 A jury found Petitioner guilty of the alleged battery (Reporter's Transcript ["R.T."] 514; Clerk's Transcript ["C.T."] 386-87, 436). Petitioner admitted suffering the prior first degree burglary conviction (R.T. 341-42; C.T. 381). The court imposed an upper term sentence of four years, doubled pursuant to the "one strike" provision of the Three Strikes Law,*fn2 for a total term of eight years (R.T. 578-59, 580; C.T. 475-76, 539).

The Court of Appeal affirmed the judgment on May 3, 2005 (Respondent's Lodgment 11; see also People v. Rosenblum, 2005 WL 1022771 (Cal. Ct. App., 4th Dist., Div. 2, May 2, 2005). The California Supreme Court denied Petitioner's petition for review on July 20, 2005, "without prejudice to any relief to which defendant might be entitled upon finality of People v. Black (2005) 35 Cal. 4th 1238 regarding the effect of Blakely v. Washington (2004) 542 U.S. ___, 124 S.Ct. 2531, and United States v. Booker (2005) 543 U.S. , 125 S.Ct. 738, on California law" (Respondent's Lodgment 13).

Petitioner filed a habeas corpus petition in the California Court of Appeal on October 23, 2007, which that court denied without opinion on October 31, 2007 (Respondent's Lodgments 14, 15). Petitioner filed a petition for review in the California Supreme Court on November 16, 2007, which that court denied without opinion on December 19, 2007 (Respondent's Lodgments 16, 17).

PETITIONER'S CONTENTIONS

Petitioner contends:

1. Petitioner allegedly received an upper term sentence in violation of Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856 (2007) (Petition, Grounds One and Four*fn3 );

2. California Penal Code section 654 allegedly precluded the use of a prior prison term as an aggravating factor because Petitioner assertedly was still serving that prison term when he committed the instant offense (Petition, Ground Two); and

3. California Penal Code section 1170(b) allegedly precluded the use of a prior prison term both as an aggravating factor and as a strike under the Three Strikes Law (Petition, Ground Three).

STANDARD OF REVIEW

A federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the 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) (as amended); see also Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).

"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision. Lockyer v. Andrade, 538 U.S. 63 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts. . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.

Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).

A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. at 407 (citation omitted).

"In order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been 'objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Clark v. Murphy, 331 F.3d 1062, 1068 (9th Cir.), cert. denied, 540 U.S. 968 (2003). In applying these standards, this Court looks to the last reasoned state court decision. See Franklin v. Johnson, 290 F.3d 1223, 1233 n.3 (9th Cir. 2002). Where no such reasoned opinion exists, as where a state court rejected a claim in an unreasoned order, this Court must conduct an independent review to determine whether the decisions were contrary to, or involved an unreasonable application of, "clearly established" Supreme Court precedent. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).

DISCUSSION

I. Petitioner's Cunningham Claim Does Not Warrant Habeas Relief

In Apprendi v. New Jersey, 530 U.S. 466 (2000) ("Apprendi"), the United States Supreme Court held that, regardless of its label as a "sentencing factor," any fact other than the fact of a prior conviction that increases the penalty for a crime beyond the prescribed statutory maximum must be "proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490 (emphasis added). In Blakely v. Washington, 542 U.S. 296 (2004) ("Blakely"), the Supreme Court held that 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, 542 U.S. at 303 (original emphasis). In Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856 (2007) ("Cunningham"), the Supreme Court held that a California judge's imposition of an upper term sentence based on facts found by the judge rather than the jury violated the Constitution. Cunningham, 127 S.Ct. at 871.

Respondent contends, inter alia, that Cunningham should not apply retroactively to cases on collateral review. However, after Respondent filed the Answer, the Ninth Circuit held Cunningham to be retroactively applicable to cases on collateral review. See Butler v. Curry, 528 F.3d 624 (9th Cir. 2008). This Court is bound by Butler v. Curry. See Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001) (district judge may not "disagree with his learned colleagues on his own court of appeals who have ruled on a controlling legal issue"); Zuniga v. United Can Co., 812 F.2d 443, 450 (9th Cir. 1987) ("[d]istrict courts are, of course, bound by the law of their own circuit"). Therefore, Cunningham applies here.

Under California's Determinate Sentencing Law, "three terms of imprisonment are specified for most offenses." People v. Sandoval, 41 Cal. 4th 825, 836, 62 Cal. Rptr. 3d 588, 161 P.3d 1146 (2007). The statute defining the offense generally prescribes three terms of imprisonment: an upper term, a middle term and a lower term. Cunningham, 127 S.Ct. at 861. At the time Petitioner was sentenced, California Penal Code section 1170(b) required the sentencing court to impose the middle term "unless there [were] circumstances in aggravation or mitigation of the crime."*fn4 Under California sentencing rules promulgated pursuant to California Penal Code section 1170.3, selection of the upper term was justified "only if, after a consideration of all the relevant facts, the circumstances in aggravation outweigh[ed] the circumstances in mitigation." See former Cal. Ct. R. 4.420(b).*fn5 "Circumstances in aggravation" meant "facts which justify the imposition of the upper term." See former Cal. Ct. R. 4.420(e). At the time of Petitioner's sentencing, Rule 4.421 of the California Rules of Court set forth a non-exhaustive list of circumstances in aggravation, including that: the defendant's prior adult convictions were "numerous," the defendant had served a prior prison term, and the defendant's prior performance on probation or parole was unsatisfactory. See former Cal. Ct. R. 4.421(b)(2), (3), (5).*fn6

At sentencing, the court found the following circumstances in aggravation: (1) Petitioner's prior adult convictions were "numerous"; (2) Petitioner had served prior prison terms; and (3) Petitioner's prior performance on probation and parole had "clearly been unsatisfactory" (R.T. 579). The court found no circumstances in mitigation. Id. The court imposed the upper term. Id.

Petitioner contends his upper term sentence violated the constitution because the jury did not find the aggravating circumstances true beyond a reasonable doubt. On direct review, the Court of Appeal rejected this claim, reasoning that "[t]he holdings in Blakely and Apprendi do not apply when the exercise of judicial discretion is kept within a sentencing range authorized by statute for the specific crime of which the defendant is convicted by jury" (see Respondent's Lodgment 11, p. 10; People v. Rosenblum, 2005 WL 1022771, at *4-5).

On June 20, 2005, a month before the California Supreme Court denied Petitioner's first petition for review, 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"). Black held that California's statutory scheme providing for the imposition of an upper term sentence did not violate the constitutional principles set forth in Apprendi and Blakely. The Black Court reasoned that the discretion afforded to a sentencing judge in choosing a lower, middle or upper term rendered the upper term the "statutory maximum." Black, 35 Cal. 4th at 1257-61. On July 20, 2005, the California Supreme Court denied Petitioner's first petition for review without prejudice to any relief to which Petitioner might be entitled following the finality of Black. On January 22, 2007, the United States Supreme Court issued its decision in Cunningham, expressly disapproving the California Supreme Court's holding and reasoning in Black. See Cunningham, 127 S.Ct. at 868. The Cunningham Court held that, "[i]n accord with Blakely, . . . the middle term prescribed in California's statutes, not the upper term, is the relevant statutory maximum." (Id.) (citation omitted).

By summary orders, the state courts denied the Cunningham claim contained in Petitioner's habeas corpus petitions. Therefore, the last reasoned opinion on this claim is that of the Court of Appeal on direct review. As indicated above, however, the Court of Appeal applied a legal analysis similar to that in Black, an analysis expressly rejected in Cunningham. Because the Court of Appeal applied an incorrect legal standard, this Court's review is de novo. See Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("we may not grant habeas relief simply because of § 2254(d)(1) error . . . if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised"); Butler v. Curry, 528 F.3d at 641 (applying de novo review to Cunningham claim where Court of Appeal applied Black, contrary to clearly established Supreme Court law); see also Panetti v. Quarterman, 127 S.Ct. 2842, 2855, 2858-59 (2007) (where state court's decision constituted an unreasonable application of Supreme Court law, review of petitioner's claim is "unencumbered by the deference [section 2254(d)] normally requires").

As indicated above, the sentencing court based its choice of the upper term on, inter alia, the numerosity of Petitioner's prior convictions. At trial, Petitioner admitted suffering a prior first degree residential burglary conviction in May of 2000 (R.T. 341-42). At trial, Petitioner also admitted that he was convicted of an "auto theft related felony" in February of 1999 and a "felony first degree residential burglary" in May of 2000 (R.T. 343). Further, Petitioner did not contest the sentencing court's recitation of Petitioner's criminal history. The sentencing court indicated that, in February of 1999, Petitioner suffered a prior felony conviction for unlawful driving or taking of a vehicle in violation of California Vehicle Code section 10851(a), for which Petitioner received three years' probation and a one-year jail term (R.T. 578). The court also indicated that, in May of 2000, Petitioner's probation was revoked and he was sentenced to state prison for two years (R.T. 578). The court further indicated that, on January 7, 2000, Petitioner was convicted of residential burglary in violation of California Penal Code section 459, and three misdemeanors for trespass, battery and delaying or resisting an officer, and received a two-year prison term (R.T. 578). According to the court, Petitioner paroled in that case in May of 2001, but was returned to prison on a parole violation in September of 2002 (R.T. 578).

The law is clear that the imposition of an upper term sentence based on a prior conviction does not violate Cunningham. In endorsing a "prior conviction exception" to its requirement that a jury find true the facts used to increase a sentence beyond the statutory maximum, the Apprendi Court cited its earlier decision in AlmendarezTorres v. United States, 523 U.S. 224 (1998) ("Almendarez-Torres"). Apprendi, 530 U.S. at 487-90. In Almendarez-Torres, the Court ruled that an indictment was not defective for failure to charge the fact of a prior conviction used as a sentence enhancement. Almendarez-Torres, 523 U.S. 224, 238-47 (1998). Both Cunningham and Blakely reaffirm the holding in Apprendi that "[o]ther than the fact of a prior conviction," a jury must decide any fact that increases punishment beyond the statutory maximum. See Cunningham, 127 S.Ct. at 869; Blakely, 542 U.S. at 301; Butler v. Curry, 528 F.3d at 643-44 ("we have repeatedly recognized our obligation to apply the AlmendarezTorres exception"); see also United States v. Martin, 278 F.3d 988, 1006 (9th Cir. 2002) ("Apprendi expressly excludes recidivism from its scope. Defendant's criminal history need not be proved to a jury beyond a reasonable doubt. [citations].").

The Ninth Circuit has cautioned that the prior conviction exception is a "narrow" one. See Butler v. Curry, 528 F.3d at 644-45; United States v. Kortgaard, 425 F.3d 602, 620 (9th Cir. 2005). In Butler v. Curry, the court set forth three "prerequisites":

First, "[t]he fact of a prior conviction is the only fact that both increases a penalty beyond the statutory maximum and can be found by a sentencing court." [citation]. Second, the narrow prior conviction exception applies only to facts directly reflected in the documents of conviction, not to secondary "facts that are derived or inferred" from a prior conviction or from the conviction documents. [citation]. Third, as the prior conviction exception is justified by the reliability of court documents created as part of a process with Sixth Amendment safeguards, it does not extend to facts that may be proven only by reference to documents that were not developed as a result of such a process. [citation].

Butler v. Curry, 528 F.3d at 645 (original emphasis). Thus, the exception "does not extend to qualitative evaluations of the nature or seriousness of past crimes, because such determinations cannot be made solely by looking to the documents of conviction." Id. at 644 (citation omitted).

The Court need not decide whether Petitioner's poor performance on probation or parole, or his service of a prior prison term, falls within the prior conviction exception. As discussed below, the prior conviction exception does encompass the fact that Petitioner had suffered "numerous" prior convictions, and that fact alone supports Petitioner's sentence.

The number of Petitioner's prior convictions was a fact directly reflected in the records of those convictions. See United States v. Hernandez-Castro, 473 F.3d 1004, 1007 (9th Cir. 2007) (in calculating number of criminal history points under federal Sentencing Guidelines based on prior convictions, district court "is simply ascertaining prior convictions, a determination that passes constitutional scrutiny under [Almendarez Torres], as reaffirmed in [Apprendi]"); United States v. Harris, 447 F.3d 1300, 1303 (10th Cir. 2006) (in determining whether to impose increased sentence pursuant to 18 U.S.C. section 924(e), "the requisite number of convictions is a question for the court"); United States v. Barrero, 425 F.3d 154, 157-58 (2d Cir. 2005) (prior conviction exception encompasses number of prior convictions and sentences received for each conviction); United States v. Bradshaw, 281 F.3d 278, 294 (1st Cir.), cert. denied, 537 U.S. 1049 (2002) (argument that Apprendi barred court from imposing sentence under federal Three Strikes Law, 18 U.S.C. section 3559(c), based on prior convictions was a "non-starter"); Dahler v. United States, 259 F.3d 763, 765 (7th Cir. 2001) (under Apprendi and Almendarez-Torres, "maximum sentences may be enhanced on account of prior convictions without submitting to the jury any questions about the number or significance of those convictions").

Several district court decisions issued after Butler v. Curry have held that the numerosity of prior convictions falls within the prior conviction exception. See, e.g., Wagener v. Kenan, 2008 WL 3925721, at *18 (S.D. Cal. Aug. 22, 2008); Leslie v. Kernan, 2008 WL 3835638, at *7-8 (E.D. Cal. Aug. 15, 2008); Gerolaga v. Adams, 2008 WL 3408389, at *12 (E.D. Cal. Aug. 11, 2008); Pulley v. Harrison, 2008 WL 2873350, at *6 (N.D. Cal. July 23, 2008). Only one decision has seriously questioned whether the prior conviction exception extends to a finding that the prior convictions were numerous. See Pena-Silva v. Prosper, 2008 WL 4104302, at *5 (E.D. Cal. Sept. 2, 2008) (characterizing the issue as "an open question," but opining that Butler "suggests" that numerosity "is the sort of fact that must be found by a jury").

Absent defining case law, California's aggravating circumstance of numerosity arguably might involve a qualitative determination regarding what number of prior convictions would be sufficiently high to be deemed "numerous." Under defining California case law, however, Petitioner's two prior felonies and three prior misdemeanors render Petitioner's prior convictions "numerous" as a matter of California law. See People v. Black, 41 Cal. 4th 799, 818, 62 Cal. Rptr. 3d 569, 161 P.3d 1130 (2007), cert. denied, 128 S.Ct. 1063 (2008) ("Black II") (two prior felony convictions and three prior misdemeanor convictions were "numerous"); People v. Searle, 213 Cal. App. 3d 1091, 1098, 261 Cal. Rptr. 898 (1989) (three prior convictions "numerous" under predecessor to Cal. Ct. R. 4.421(b)(2)). This Court must defer to the California state courts' interpretations of the term "numerous" as used in the California Rules of Court. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (United States Supreme Court has "repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus"); Ring v. Arizona, 536 U.S. 584, 603 (2002) (state court's construction of state law is "authoritative" on federal habeas review); see also Butler v. Curry, 528 F.3d at 642 ("We are bound to accept a state court's interpretation of state law, except in the 'highly unusual case' in which the 'interpretation is clearly untenable and amounts to a subterfuge to avoid federal review' of a constitutional violation. [citations]."); Holgerson v. Knowles, 309 F.3d 1200, 1202 (9th Cir. 2002), cert. denied, 538 U.S. 1005 (2003) (habeas court "bound by California's interpretation of its state law") (citation omitted). "[S]tate courts are the ultimate expositors of state law." Mullaney v. Wilbur, 421 U.S. 684, 691 (1975); see also Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir.), cert. denied, 493 U.S. 942 (1989). Thus, in the present case, the "numerosity" determination was a mere legal conclusion; no "qualitative" factual analysis ever came into play.

Because Petitioner's prior convictions were numerous as a matter of law, no jury determination was necessary to impose an upper term sentence based on numerosity. Therefore, the sentencing court's imposition of an upper term sentence did not violate the Sixth Amendment as construed in Apprendi, Blakely and Cunningham.

In California "the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term." Black II, 41 Cal. 4th at 813; see also Butler v. Curry, 528 F.3d at 641-41. "Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not 'legally entitled' to the middle term sentence, and the upper term sentence is the 'statutory maximum.'" Black II, 41 Cal. 4th at 813. This Court is bound to accept the California Supreme Court's interpretation of state law in this regard. See Butler v. Curry, 528 F.3d at 642-43. Here, the existence of Petitioner's numerous prior convictions rendered the upper term the "statutory maximum" under Black II. Because Petitioner's sentence did not exceed the statutory maximum, Petitioner's sentence did not violate Apprendi, Blakely or Cunningham (regardless of whether Petitioner's sentencing court also cited factors outside of the prior conviction exception).

For the foregoing reasons, the state courts' rejection of Petitioner's claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. Petitioner is not entitled to habeas relief on Grounds One and Four of the First Amended Petition.

II. Petitioner's Claim that California Law Precluded the Use of a Prior Prison Term as an Aggravating Sentencing Factor Does Not Merit Habeas Relief

California Penal Code section 654(a) provides, in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of punishment, but in no case shall the act or omission be punished under more than one provision." Petitioner contends the trial court violated this statute by allegedly using Petitioner's prior prison term for burglary as an aggravating sentencing factor when that prison term assertedly was the prison term Petitioner allegedly was serving at the time of the current offense. The Court of Appeal rejected this assertion, ruling that, in light of the other two circumstances in aggravation, i.e., Petitioner's numerous prior convictions and his poor performance on probation and parole, and in light of the absence of mitigating factors, it was not reasonably probable that the sentencing court would have imposed a lesser sentence if it had known that one of the three aggravating factors upon which the court relied allegedly was invalid (Respondent's Lodgment 11, pp. 8-9; People v. Rosenblum, 2005 WL 1022771, at *4).

Federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Mere errors in the application of state law are not cognizable on habeas corpus. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Matters relating to sentencing and serving of a sentence generally are governed by state law and do not raise a federal constitutional question. See Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989) (holding that question of whether particular prior conviction qualifies for sentence enhancement under California law is not cognizable on federal habeas corpus); see also Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986) (federal habeas relief "unavailable for alleged error in the interpretation or application of state law"); Sturm v. California Adult Authority, 395 F.2d 446, 448 (9th Cir. 1967), cert. denied, 395 U.S. 947 (1969) ("a state court's interpretation of its [sentencing] statute does not raise a federal question"). "[S]tate courts are the ultimate expositors of state law." Mullaney v. Wilbur, 421 U.S. 684, 691 (1975); see also Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir.), cert. denied, 493 U.S. 942 (1989).

Under narrow circumstances, however, the misapplication of state sentencing law may violate due process. See Richmond v. Lewis, 506 U.S. 40, 50 (1992). "[T]he federal, constitutional question is whether [the error] is so arbitrary or capricious as to constitute an independent due process" violation. Id. (internal quotation and citation omitted); see also Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) ("Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief.").

In People v. Coronado, 12 Cal. 4th 145, 48 Cal. Rptr. 2d 77, 906 P.2d 1232 (1995), cert. denied, 519 U.S. 833 (1996), the California Supreme Court ruled that California Penal Code section 654 did not prohibit the use of a prior conviction and resulting prior prison term both to elevate a driving under the influence charge to a felony and to trigger a prior prison term sentence enhancement pursuant to California Penal Code section 667.5(b). The court explained that, "[b]y its own terms, section 654 applies only to an 'act or omission' made punishable in different ways by different statutes." Id. at 156. Thus, prior prison term enhancements are not imposed for "acts or omissions" within the meaning of section 654. Id. "Prior prison term enhancements are attributable to the defendant's status as a repeat offender [citations]; they are not attributable to the underlying criminal conduct which gave rise to the defendant's prior and current convictions. Id. at 158; see also People v. Murphy, 25 Cal. 4th 136, 154, 105 Cal. Rptr. 2d 387, 19 P.3d 1129 (2001). Although the sentencing court in the present case used the prior prison term as a sentencing factor rather than an enhancement, the rationale of People v. Coronado applies. Petitioner's prison term for burglary was not an "act or omission" within the meaning of section 654. Thus, the use of Petitioner's prison term for burglary as an aggravating factor did not violate California Penal Code section 654.

Assuming, arguendo, the sentencing court erred in the manner alleged by Petitioner, Petitioner still would not be entitled to habeas relief. On federal habeas review of trial-type errors, this Court must apply the harmless error standard set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993) ("Brecht"). Brecht forbids a grant of habeas relief for a trial-type error unless the error had a "substantial and injurious effect or influence" on Petitioner's sentence. See id. at 637-38.*fn7

Under California law, the finding of even one aggravating factor justifies an upper term sentence where there are no mitigating factors. See People v. Steele, 83 Cal. App. 4th 212, 226 99 Cal. Rptr. 2d 458 (2000); People v. Castaneda, 75 Cal. App. 4th 611, 614-15, 89 Cal. Rptr. 2d 367 (1999). In Petitioner's case, the sentencing court found that there were no mitigating factors and properly relied in aggravation on a factor other than Petitioner's service of a prison term in connection with the burglary charge (R.T. 579). In such circumstance, any error was harmless. See Sudduth v. Almager, 2008 WL 2037288, at *5-6 (C.D. Cal. May 8, 2008) (use of prior prison term both as enhancement and to support upper term sentence harmless, where sentencing court also relied on petitioner's criminal history and unsatisfactory performance on parole, and petitioner submitted no mitigating evidence); Torres v. Lamarque, 2007 WL 3034269, at *11-12 (E.D. Cal. Oct. 16, 2007), adopted, 2008 WL 339785 (E.D. Cal. Feb. 5, 2008) (California Court of Appeal's rejection of challenge to upper term sentence not unreasonable, where, although sentencing court relied on some improper factors, sentencing court properly imposed upper term based on petitioner's disregard for community safety, and there were no mitigating factors).

For the foregoing reasons, the Court of Appeal's rejection of Petitioner's claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d). Petitioner is not entitled to habeas relief on this claim.

III. Petitioner's Claim that His Sentence Violated California Penal Code Section 1170(b) Does Not Merit Habeas Relief

California Penal Code section 1170(b) forbids a court from imposing an upper term sentence "by using the fact of any enhancement upon which sentence is imposed under any provision of law." Petitioner contends the sentencing court erred by allegedly using the fact of Petitioner's service of a prior prison term both to impose an upper term sentence and to enhance Petitioner's sentence under the Three Strikes Law (Pet Mem., pp. 12-13).

Petitioner raised this claim in his habeas petitions filed in the Court of Appeal and California Supreme Court (see Respondent's Lodgments 14, 16). Because the state courts denied those petitions summarily, this Court must conduct an independent review to determine whether the decisions were contrary to, or involved an unreasonable application of, "clearly established" Supreme Court precedent. See Delgado v. Lewis, 223 F.3d at 982.

In this claim, Petitioner alleges only a state law sentencing error for which habeas relief generally is unavailable. See Miller v. Vasquez, 868 F.2d at 1118-19; Middleton v. Cupp, 768 F.2d at 1085; Sturm v. California Adult Authority, 395 F.2d at 448; see generally Estelle v. McGuire, 502 U.S. at 67-68. In any event, no state law error occurred.

"The Three Strikes Law . . . articulates an alternative sentencing scheme for the current offense rather than an enhancement." People v. Superior Court (Romero), 13 Cal. 4th 497, 527, 53 Cal. Rptr. 2d 789, 917 P.2d 628 (1996) (citations omitted). Therefore, it was not unlawful under California Penal Code section 1170(b) to use Petitioner's prior prison term to impose an upper term sentence and also to use Petitioner's prior conviction as a strike under the Three Strikes Law. See People v. Cressy, 47 Cal. App. 4th 981, 990-92, 55 Cal. Rptr. 2d 237 (1996) (prior conviction could be used as a strike and to impose prior prison term enhancement pursuant to California Penal Code section 667.5(b)); Thomas v. Clark, 2000 WL 335611, at *6 (N.D. Cal. Mar. 20, 2000) (same).

For the foregoing reasons, the state courts' rejection of Petitioner's claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d). Petitioner is not entitled to habeas relief on this claim.

RECOMMENDATION

For the reasons set forth above, IT IS RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court approves and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein by United States mail on Petitioner and counsel for Respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY.

JAMES V. SELNA UNITED STATES DISTRICT JUDGE

JUDGMENT

Pursuant to the Order Adopting Findings, Conclusions and Recommendations of United States Magistrate Judge,

IT IS ADJUDGED that the Petition is denied and dismissed with prejudice.


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