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Kurt Dineso andrillion v. Bruno Stolc

January 19, 2012

KURT DINESO ANDRILLION PETITIONER,
v.
BRUNO STOLC, WARDEN RESPONDENT.



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 sentence he received after he was convicted of robbery and possession of a firearm by a felon on June 30, 2006, in the Sacramento County Superior Court. Petitioner has also filed a motion to amend his habeas petition to add additional claims. Upon careful consideration of the record and the applicable law and for the reasons set forth below, the undersigned will recommend that petitioner's application for habeas corpus relief and his motion to amend both be denied.

I. Background

Petitioner filed his federal habeas petition in this court on March 21, 2011. On March 29, 2011, the petition was dismissed with leave to amend granted for petitioner to name the correct respondent. On April 14, 2011, petitioner filed an amended petition raising four separately articulated grounds for federal habeas relief. Respondent filed an answer on June 24, 2011, and petitioner filed a traverse on July 27, 2011. The petition is now submitted for decision.

On August 5, 2011, petitioner filed a motion for leave to amend his habeas petition to add additional claims. Respondent filed an opposition to that motion on August 9, 2011, and petitioner filed a reply on October 3, 2011.

II. Standards of Review Applicable to Habeas Corpus Claims

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 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.

For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010).

A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), 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.*fn1

Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, 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." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S.___,___,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington,131 S. Ct. at 786-87.

If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").

The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784.

When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

III. Habeas Claims

A. Description of Claims

In his amended petition, petitioner raises four separate grounds for relief. His first claim is that the trial court failed to require proof beyond a reasonable doubt that he had suffered a prior "strike" for purposes of enhancing his sentence under California's Three Strikes Law. (Doc. No. 1 at 4.) Petitioner claims that because he received a suspended sentence with in connection with his prior "strike" conviction, "judgment was never properly entered in that case and reliance on that case as a conviction to enhance petitioner's sentence beyond statutory maximum is improper." (Id.)

In his second claim for relief, related to his first, petitioner alleges that the prosecutor in his case improperly relied on "two (969b) prison packets to falsely prove alleged prior conviction." (Id.) Petitioner argues that because he was placed on probation in connection with his prior conviction, and probation in that prior case was later "terminated without the pronouncement of judgment or sentence," his prior conviction could not be used to enhance his sentence in his 2006 case. (Id.)

In his third claim for relief, petitioner contends that "a probation order is not a 'judgment' or 'sentence' when the imposition of sentence is suspended." (Id. at 5.) In this regard, petitioner explains that "when trial court grants order of probation after a conviction, it may suspend imposition of sentence, in which case no judgment of conviction is thus rendered, or it may impose sentence and order its execution to be stayed. In the latter case 'only' a judgment of conviction is rendered." (Id.)

In his fourth claim for relief, petitioner argues that "a sentence which does not comply with the letter of the criminal statute is erroneous." (Id.) Petitioner also states that "an excessive sentence need to be corrected . . . by a appropriate amendment of the invalid sentence by the court of original jurisdiction." (Id.) In essence, in this claim petitioner is merely one again asserting that his sentence on the robbery and possession of a firearm charges was improperly enhanced by his prior conviction because the suspended sentence and probation imposed with respect to that prior conviction precluded it from being a qualified "strike" ...


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