FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the trial judge's imposition of consecutive sentences after the jury found petitioner guilty of multiple counts. Because controlling legal authorities foreclose petitioner's theory of relief, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
Petitioner is confined pursuant to a judgment of conviction entered in the Sacramento County Superior Court in 2005. Resp't's Mot. to Dismiss, Exs. 1 & 2.*fn1 Following a jury trial, petitioner was found guilty of ten counts of second degree robbery in violation of California Penal Code § 211, with ten firearm enhancements under California Penal Code § 12022.53(b). Id. The trial judge sentenced petitioner to a state prison term of 52 years -- a thirteen-year term for one robbery count*fn2, which the court took as the principal term, and four-years-and-four- months terms for the remaining nine counts*fn3, all terms running consecutively. Id., Ex. 2; RT 1662-1664. The court stated that it imposed consecutive sentences based upon the fact there are separate acts of violence and threats of violence, that these events occurred during a three-week period.
There were three separate bank robberies during that period, and this clearly is not aberrant or idiosyncratic behavior. This is something that continued, and it amounts essentially to a crime spree.
Petitioner appealed his sentence to the California Court of Appeal, arguing, inter alia, that the trial court violated his right to have a jury determine the aggravating factors it used to impose consecutive sentences. Resp't's Lodged Doc. No. 5 at 22-26. The Court of Appeal rejected that argument as foreclosed by People v. Black, 35 Cal.4th 1238, 1244, 1262 (2005). Resp't's Lodged Doc. No. 3 at 2. Petitioner then sought review with the California Supreme Court. Resp't's Lodged Doc. No. 2 at 5. That court denied 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.
Resp't's Mot. to Dismiss, Ex. 9.
Petitioner again challenged his consecutive sentence in a habeas petition filed in the Sacramento County Superior Court, after the United States Supreme Court issued its decision in Cunningham v. California, 549 U.S. 270 (2007). Id., Ex. 10. The Superior Court denied the petition, stating:
Petitioner is not entitled to relief under Cunningham. No upper term was imposed in Case No. 03F08862 [petitioner's trial court case], and Cunningham was limited to determining only that a court cannot rely on judicial factfinding in imposing the upper term. Cunningham made no ruling with respect to the imposition of consecutive sentencing.
Regardless, even if Blakely and Cunningham were to apply to consecutive sentencing, the court's imposition of consecutive sentencing in Case No. 03F08862 did not violate the judicial factfinding rule, as the court did not engage in any impermissible judicial factfinding. Rather, the court specifically relied on facts that were determined by the jury in their verdicts: multiple acts of robbery committed against multiple victims, on three different occasions, within three weeks of each other. The court could reasonably infer from those facts that petitioner had engaged in a crime spree, and reliance on that and the basic facts of multiple acts of violence on multiple occasions was within the permissible sentencing parameters set forth in Blakely and Cunningham.
Petitioner then filed the instant federal habeas corpus petition.
A. Standards of Review Applicable to Habeas ...