The opinion of the court was delivered by: Alex Kozinski Chief Circuit Judge Sitting by designation
Michael Glenn Braxton was convicted of attempted murder for shooting at his neighbor. Braxton now seeks a writ of habeas corpus under 28 U.S.C. § 2254. He claims that the trial court's imposition of the upper sentencing term violated his Sixth Amendment rights. He further argues that he was denied due process by the admission of earlier statements he made to police, the court's erroneous jury instructions and jury misconduct.
On August 30, 1999, Braxton shot his gun into the ground following an altercation with a neighbor. Police were called and arrested Braxton after he admitted discharging the weapon. When the officers told him they were going to confiscate his gun, Braxton retorted that he could easily get another one. He told page 2 them that his childhood nickname was "hit man" and that he had hurt people before and wouldn't hesitate to do so again. People v. Braxton, Nos. A096083, 110446, 2007 WL 241648, at *2 (Cal. Ct. App. Jan. 30, 2007).
Because of his arrest, the managers of his mobile park served Braxton with a notice of eviction. Two days later, Braxton passed by the assistant manager of the mobile park, Beatrice Bruno. According to Bruno and several bystanders, Braxton called out Bruno's name, pulled out a gun and shot her several times, once in the finger and three times in the chest. Braxton fled but was arrested within the hour, with his blood alcohol level at 0.18 percent. He admitted to the shooting. Id. at *2--3.
At trial, Braxton defended on the ground that he "blacked out" during the incident and didn't intend to harm Bruno, but the jury returned a verdict of attempted murder. Id. at *3--4. Braxton's motion for a new trial was denied. The California Court of Appeal upheld his conviction, and the California Supreme Court granted, held and ultimately dismissed his petition for discretionary review after deciding another case, People v. Black (Black II), 161 P.3d 1130 (Cal. 2007), that raised one of the same issues. Braxton now seeks habeas relief.
"[S]tate courts are the principal forum for asserting constitutional challenges to state convictions." Harrington v. Richter, 131 S. Ct. 770, 787 (2011). Federal habeas review provides a backstop against "extreme malfunctions in the state criminal justice systems," but it does not function as an ordinary step in the chain of appeals. Id. at 786 (internal quotation marks omitted). Accordingly, a state prisoner must give state courts the opportunity to remedy the alleged constitutional errors before he seeks relief from conviction in federal court. Baldwin v. Reese, 541 U.S. 27, 29 (2004). And, once a state court has considered and rejected the prisoner's federal claims on the merits, we owe substantial deference to its disposition.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a writ will not issue unless the state's adjudication of the claim "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." 28 U.S.C. § 2254(d)(1). "[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 v. Taylor, 529 U.S. 362, 411 (2000). Furthermore, the state court's constitutional error must have had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation marks omitted).
We have less reason for restraint in the "rare cases" where a petitioner properly exhausts his claims but the state courts nonetheless decline to reach them on the merits. Williams v. Cavazos, 646 F.3d 626, 637--38 (9th Cir. 2011), certiorari granted in 132 S. Ct. 1088 (2012). In such circumstances, habeas review doesn't frustrate federalism values because the state courts have declined to take a first pass at petitioner's constitutional claims. Id. at 637. Neither does it undermine "the State's significant interest in repose for concluded litigation," because its courts have chosen to leave federal issues unresolved. Id. at 637--38 (internal quotation marks omitted). Where the state court fails to reach the merits of an exhausted federal claim, we review de novo. Id. at 637; Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004).
Here the state courts decided only one of Braxton's federal claims on the merits. The California Supreme Court granted review of his constitutional challenge to the length of his sentence, which it ultimately dismissed in light of its holding in Black II. The court's rules allow it to grant and hold cases while it decides another case raising the same issue. Cal. S. Ct. R. 8.512(d). Once it decides the main case, it may "dismiss review in any pending companion case . . . that appears correctly decided in light of the lead case and presents no additional issue requiring resolution by the Supreme Court or the Court of Appeal." Cal. S. Ct. R. 8.528 advisory committee comment. We review such a dismissal as an adjudication on the merits. Thompson v. Lea, 681 F.3d 1093, 1095 n.3 (9th Cir. 2012). As to the remaining claims, the California Court of Appeal was the last to consider them on the merits. Because that court denied those claims on state law grounds without passing upon the federal issues, we review de novo. Williams, 646 F.3d at 637.
1. Braxton claims that his Sixth Amendment rights were violated because the state trial judge relied on facts other than his prior convictions when she imposed the upper term for his sentence. He argues that the state judge's statements that "defendant has engaged in violent conduct which indicates a serious danger to society" and "defendant's prior convictions are numerous" were questions of fact for the jury to determine. He relies on Cunningham v. California, 549 U.S. 270, 274 (2007), where the Supreme Court held that California's procedure for selecting upper terms violated the Sixth and Fourteenth Amendments because it "assigns to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated 'upper term' sentence."
The California Supreme Court disposed of this argument in Black II, 161 P.3d at 1138, where it held that a sentencing judge may consider facts not found by the jury in imposing the upper term so long as at least one aggravating factor was established in accordance with the Sixth Amendment. Under state law, only one aggravating factor is needed to expose defendant to the upper sentencing term. See Butler v. Curry, 528 F.3d 624, 643 (9th Cir. 2008).
Braxton had one such aggravating factor in his prior convictions, which included one for felony assault. The U.S. Supreme Court has consistently stated that prior convictions are an exception to the general rule that "'any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'" Butler, 528 F.3d at 643 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). Whether Braxton's previous convictions were "numerous" is part of the fact of conviction, which the sentencing judge was entitled to find on her own. See AlmendarezTorres v. United States, 523 U.S. 224, 243--44 (1998). Because at least one aggravating factor was established in accordance with ...