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Roy v. Felker

November 15, 2010

DAVID STEWART ROY, PETITIONER,
v.
TOM FELKER, WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury in 2006 of robbery in the second degree, in violation of Cal. Penal Code § 211, and assault with a firearm, in violation of Cal. Penal Code § 245(a)(2), with a special allegation that petitioner used a firearm in the commission of the offense, in violation of Cal. Penal Code § 12022.53(b). (Reporter's Transcript ("RT") at 321.) The jury also found three prior felonies (one juvenile adjudication and two federal armed bank robbery convictions). (Id. at 367-68.) Petitioner was sentenced to an aggregate term of fifteen years to life, plus twenty-five years to life.

This action is proceeding on three claims concerning petitioner's sentence and raised in the petition, filed October 8, 2008. Petitioner claims that his juvenile adjudication should not have been used as a basis for enhancing his sentence; he was denied the right to effective assistance of trial counsel when his attorney failed to object to the court's use of his prior juvenile adjudication as a "strike"; and there was insufficient evidence to support the jury's finding that his two prior armed robbery convictions qualified as "strikes."

FACTUAL AND PROCEDURAL BACKGROUND*fn1

A jury found [petitioner] guilty of second degree robbery and assault with a firearm. The jury also found true an enhancement for personal use of a firearm in connection with the robbery conviction and three prior felony convictions. The court sentenced him to an aggregate term of 15 years to life, plus 25 years to life. . . .

We omit the facts surrounding [petitioner]'s current conviction because they are not relevant to the resolution of this appeal.

In addition to the robbery and assault charges, the information alleged that [petitioner] had three prior strikes -- a 1992 juvenile adjudication for robbery and two 1995 federal convictions for bank robbery.

The issue of [petitioner]'s prior convictions was tried to the jury along with the current offenses. As proof of [petitioner]'s 1995 strike convictions, the People introduced a certified copy of the "JUDGMENT INCLUDING SENTENCE UNDER THE SENTENCING REFORM ACT" from the United States District Court, Eastern District of California, which states that in 1995 appellant pled guilty to two counts of an offense described as "AIDING AND ABETTING ARMED BANK ROBBERY" in violation of 18 U.S.C. section 2113(a) and (d), and was committed to federal prison for a term of 156 months. The judgment further provides that [petitioner] pled guilty to "USE OF A FIREARM DURING A CRIME OF VIOLENCE" in violation of 18 U.S.C. section 924(c)(1).

After reviewing the evidence, the jury found the prior conviction allegations true. The court then found the convictions were "strikes" and, as a result, sentenced [petitioner] to an aggregate term of 15 years to life, plus 25 years to life. (People v. Roy, slip op. at 1-2.)

PROCEDURAL BACKGROUND

Petitioner timely appealed to the California Court of Appeal, Third Appellate District. (Lodgment 1.) The state appellate court affirmed petitioner's conviction and sentence on March 13, 2008. (Lodgment 4.)

Petitioner timely petitioned the California Supreme Court for review. (Lodgment 5.) Review was denied on May 21, 2008. (Lodgment 6.)

On October 8, 2008, 2009, petitioner filed a petition for writ of habeas corpus in this court. On December 22, 2008, respondent filed an answer. On January 15, 2009, petitioner filed a traverse.

ANALYSIS

I. Standards for a Writ of Habeas Corpus

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 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 ...


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