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Fernando Valenzuela v. Tim Virga

June 28, 2012



Petitioner, a state prisoner, proceeds pro se with a first amended petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. This matter is submitted for decision and proceeds before the undersigned pursuant to 28 U.S.C. § 636(c) and the parties' consents, filed on May 5, 2010 and September 20, 2011.


Petitioner sustained multiple convictions in two separate cases in the Sacramento County Superior Court which were consolidated for appeal. The facts underlying his various convictions are not at issue, with the exception of the count discussed in subsection C, infra.

For now, suffice it to say that in case number SF101123a, a jury convicted petitioner of assault with force likely to produce great bodily injury, assault with a firearm with personal use of a firearm, three counts of making criminal threats, discharging a firearm with gross negligence, and misdemeanor battery. Lodged Document ("LD") 1 at 197. In a bifurcated court trial, the court found he had previously incurred a juvenile robbery conviction. LD 1 at 353. The trial court imposed an aggregate term of 24 years in state prison comprised, in part, of terms that were doubled due to his juvenile robbery conviction under California's habitual criminals, or "three strikes" law (see Cal. Penal Code §§ 667(d), 1170.12(b)). LD 2 at 453-54.

In case number SF101413B, petitioner pleaded guilty to receiving stolen property in exchange for the dismissal of several other counts. LD 3 at 225-26. For this offense, he was sentenced to a term of three years, doubled to six years due to the previous robbery conviction, and ordered to run concurrently with the sentence imposed in case SF101123a. LD 4 at 36.


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 presented in the State court proceeding.

28 U.S.C. § 2254(d).

Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents 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 different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).

Under the "unreasonable application" clause of section 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. Williams, 529 U.S. 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; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (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.'")

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). Under AEDPA, a state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Ybarra v. McDaniel, 656 F.3d 984, 989 (9th Cir. 2011). 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 section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).

II. Petitioner's Claims

A. Use of Juvenile Conviction as Strike Prior

As set forth, petitioner's aggregate sentence was increased due to the fact that he had a prior juvenile robbery conviction. For ground one, petitioner claims the use of his juvenile robbery conviction to enhance his sentence according to state sentencing law violated his federal constitutional rights because he was not ...

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