Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 Petitioner challenges the Solano County Superior Court's imposition of the upper term sentence of ten-years on a personal use of a firearm sentencing enhancement under California Penal Code § 12022.5(a)(1).*fn2 He seeks relief on the grounds that the trial court imposed the upper term in violation of his rights to due process and a jury trial as guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution. Upon careful consideration of the record and the applicable law, the undersigned concludes that petitioner's application for federal habeas corpus relief must be denied.
I. Petitioner's Offense and Sentencing
In its unpublished opinion affirming the trial court's imposition of sentence, following a remand with directions from the California Supreme Court, the California Court of Appeal for the First Appellate District provided the following factual summary:
The evidence at trial showed that on December 30, 2003, a gang-related altercation occurred on Phoenix Drive in Fairfield, during which Donshay Caldwell (Caldwell) knocked Cory Davis unconscious. Afterwards, Fontenot and Davis telephoned Caldwell and threatened to shoot him.
The following day, Caldwell returned to Phoenix Drive, where an unidentified person informed him that someone wanted to see him at the end of the street. Fontenot, Willie McClure and Markell Davis were there, and words were exchanged. Caldwell and Fontenot began shoving each other, with Fontenot indicating that he would "beat [his] ass." Caldwell walked back towards his car, and Fontenot shot him in the arm.
Caldwell told police officers that Fontenot shot him, and identified Fontenot in a photo lineup. Caldwell would not identify Fontenot as the shooter at trial.
A jury convicted Fontenot of attempted voluntary manslaughter. The jury found true the allegations that Fontenot used a handgun and inflicted great bodily injury on both counts.
The court sentenced Fontenot to the midterm of three years for attempted voluntary manslaughter, the aggravated term of ten years for the handgun use enhancement, and three years for the great bodily injury enhancement. On the second count, the court imposed a sentence of three years for assault with a firearm, plus ten years for the handgun use enhancement, but stayed this sentence pursuant to section 654. In imposing the upper term for the enhancement, the trial court relied on five aggravating factors:
 "the crime involved great violence, great bodily harm, threat of great bodily harm or other action disclosing a high degree of cruelty, viciousness and callousness, (2) [Fontenot] was armed with or used a weapon at the time of the commission of the offense, (3) the victim was particularly vulnerable, [(4)] the manner in which the crime was carried out indicates planning, sophistication or professionalism... and [(5) Fontenot's] prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are of numerous and increasing seriousness, and we'll leave it at that." (Resp't's Lod. Docs., Ex. D (hereinafter, "Second Opinion") at 2.)
I. First Court of Appeal Opinion
On appeal from his conviction and sentence, petitioner claimed that the trial court had violated his Sixth Amendment right to a jury trial by sentencing him to the upper term on the firearm enhancement based on aggravating factors not found by a jury, as barred by the United States Supreme Court's then-recent decision in Cunningham v. California, 549 U.S. 270 (2007). (Resp't's Lod. Doc., Ex. F.) On June 8, 2007, the California Court of Appeal for the First Appellate District agreed and remanded the case for re-sentencing in light of the decision in Cunningham which held that, except for a prior conviction, any fact that increases the penalty for a crime beyond the middle term as specified by California law must be submitted to a jury. (Resp't's Lod. Doc., Ex. C (hereinafter, "First Opinion") at 1, 5.) In doing so, the state appellate court noted that "[t]here is no dispute here that the trial court's reliance on four out of the five factors stated for imposing the upper term was error." (Id. at 8.) The state appellate court determined that it need not decide whether, after Cunningham, "recidivist factors" relied upon in imposing upper term sentences must be found by a jury, because "on this record, the court's erroneous reliance on other aggravating factors was not harmless beyond a reasonable doubt." (Id. at 6-7.)
In this regard, the California Court of Appeal for the First Appellate District explained:
While some cases have found this type of error to be harmless if the trial court indicated on the record that the recidivist factor, standing alone, would have been enough to impose the aggravated term [citation omitted], the trial court here made no such indication. Given that the trial court expressly refused to follow the probation report's recommendation of the middle term in order to "get the attention of those in the community to lead a law-abiding safe life," it is clear that the court did not rely solely on the 'recidivist' factor to impose the upper term. Moreover, the probation report here indicated that Fontenot's "limited" prior record and successful completion of juvenile probation were mitigating factors.
* * *... Given the probation report's characterization of Fontenot's criminal history as "limited" and his term of juvenile probation as "successful," together with the notable absence of any indication by the trial court that the "recidivist" factor alone would have supported the upper term, we cannot say beyond a reasonable doubt that the trial court would have imposed the aggravated term based solely on this factor. (Id. at 8-9.)
For these reasons, the California Court of Appeal affirmed petitioner's judgment of conviction but remanded the matter for re-sentencing in light of the decision in Cunningham and the views expressed in its first opinion. (Id. at 9.)
II. Second Court of Appeal Opinion
However, the California Supreme Court granted review of the June 8, 2007 decision and remanded the case to the California Court of Appeal for the First Appellate District with directions to vacate the June 8, 2007 opinion and reconsider it in light of the then-new decisions in People v. Black, 41 Cal. 4th 799 (2007) (Black II) and People v. Sandoval, 41 Cal. 4th 825 (2007). (Second Opinion at 1.)
On December 7, 2007, the state appellate court affirmed petitioner's upper term sentence. (Id. at 4.) In this second opinion the California Court of Appeal court explained that, under Black II, the 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 on the defendant's record of prior convictions....
Here, the trial court based its sentencing decision on five factors, one of which was that Fontenot's "prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are of numerous and increasing seriousness..." Under [state law], the upper term can be justified based on the trial court's determination that the defendant's prior convictions were numerous and of increasing seriousness, and only one legally sufficient aggravating circumstance is required. Accordingly, Fontenot's constitutional rights were not denied by imposition of the upper term on the gun enhancement based on factors relating to his recidivism. (Second Opinion at 3-4.)
On February 20, 2008, the California Supreme Court denied petitioner's petition for review. ...