The opinion of the court was delivered by: Lonny R. Suko United States District Judge
ORDER DENYING §2254 PETITION
BEFORE THE COURT is the Petitioner's Amended Petition for Habeas Corpus Reliefpursuant to 28 U.S.C. Section 2254 (Ct. Rec. 6).
The Amended Petition sets forth in summary and conclusory fashion four separate grounds for relief. The Petition is not accompanied by any memorandum of authorities, nor does it cite to any evidence in the record. In response thereto, the Respondent has filed a detailed Answer (Ct. Rec. 13) which includes a memorandum of authorities and citations to the record. Petitioner did not file a "traverse" in reply to Respondent's Answer.
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established 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 proceedings. 28 U.S.C. § 2254(d).
Under Section 2254(d)(1), a state court decision is "contrary to" clearly established Supreme Court precedent if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
Under the "unreasonable application" clause of § 2254(d)(2), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Id. at 413. 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. Rather, that application must also be unreasonable." Id. at 412. The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002).
A. Sufficient Evidence To Warrant "Great Bodily Injury" Enhancement
There was sufficient evidence to support the finding of the Siskiyou County Superior Court jury in case number 03-1999 that Petitioner, beyond a reasonable doubt, had inflicted "great bodily injury" upon his victim. The decision of the California Court of Appeal, Third Appellate District, in affirming the jury determination in its February 14, 2006 unpublished opinion, People v. Lee, 2006 WL 331366 at *4-5, was not contrary to, and did not involve an unreasonable application of, clearly established law as determined by the Supreme Court of the United States; and/or was not based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.
B. Constitutionality Of "Upper-Term" Sentence
The jury's "great bodily injury" finding pursuant to Cal. Penal Code § 12022.7(e) subjected Petitioner to an additional and consecutive term of imprisonment of three, four, or five years.*fn1 At the time that Petitioner was sentenced, Cal. Penal Code § 1170(b), part of California's "Determinate Sentencing Law" or "DSL," specified that "[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime." At the time that Petitioner was sentenced. the California Rules of Court, specifically Cal. R. Ct. 4.420(b), specified that "circumstances in aggravation and mitigation must be established by a preponderance of the evidence," and "[s]election of the upper term is justified only if, after a consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation." The sentencing judge selected the upper term of five years, finding that certain aggravated circumstances had been established by a preponderance of the evidence. A non-exhaustive list of aggravating factors found in Cal. R. Ct. 4.421, and relied upon by the sentencing judge, include: 1) the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness; 2) the defendant has engaged in violent conduct that indicates a serious danger to society; 3) the defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness; 4) the defendant has served a prior prison term; and 5) the defendant was on probation or parole when the crime was committed.
In People v. Black ("Black I"), 35 Cal. 4th 1238, 29 Cal. Rptr. 3d 740, 113 P.3d 534 (2005), the California Supreme Court held California's DSL and the upper term sentencing procedure was not invalidated by the U.S. Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 304-05, 124 S.Ct. 2531 (2004). In Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856 (2007), however, the U.S. Supreme Court vacated Black and held that by placing sentence-elevating factfinding within the judge's province, California's DSL violates a defendant's Sixth and Fourteenth Amendment rights to trial by jury. The Court found that in all material respects, California's DSL resembled the sentencing systems invalidated in Blakely and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005).
In Butler v. Curry, 528 F.3d 624, 639 (9th Cir. 2008), the Ninth Circuit Court of Appeals found that Cunningham did not announce a new rule of constitutional law within the meaning of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989), and therefore, could be applied retroactively on collateral review. In the case at bar, Petitioner's conviction did not become final until after April 26, 2006, when the California Supreme Court denied his petition for review.*fn2 At that time, Blakely (2004) and Booker (2005), as well as Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), represented clearly established law that sentencing schemes that raise the maximum possible term based on facts not found by a jury violate the constitutional rights of a defendant. Butler, 528 F.3d at ...