The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
ORDER (1) ADOPTING REPORT AND RECOMMENDATION AND (2) ) DENYING PETITION FOR WRIT OF HABEAS CORPUS.
On January 30, 2012, Petitioner Travis L. Montgomery, a prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in San Diego County Superior Court for conspiracy to rob and attempted robbery, and possession of a firearm by a felon. (Doc. No. 1.) On March 19, 2012, Petitioner filed his first Amended Petition, (Doc. No. 4). On June 12, 2012, Respondent answered, (Doc. No. 9). Petitioner did not file a Traverse. On August 30, 2012, United States Magistrate Judge Bartick issued his report and recommendation ("R&R") that the petition should be denied. (Doc. No. 12.) On September 26, 2012, the Petitioner filed an objection to the R&R, (Doc. No. 14), which the Court considered before issuing this Order.
On November 19, 2007, Petitioner and two co-defendants were charged in San Diego Superior Court on a seven count Consolidated Amended Information, and tried jointly before the same jury. (Doc. No. 12, p. 2-3.) Subsequently, the jury found Petitioner guilty of all charges against him, including: conspiracy to rob and robbery of Skyline Farms Market; conspiracy to rob and attempted robbery of the Eastridge Liquor Store; and possession of a firearm by a felon. (Id., p. 3.) The jury also found true allegations that four of the crimes were committed for the benefit of a gang, a principle was personally armed with a handgun, and that Petitioner had two former juvenile robbery convictions that qualified as strikes under the California Three Strikes law. (Id.) On January 23, 2009, the trial court denied Petitioner's motion to dismiss the prior strike allegations. (Id.) Petitioner was sentenced to 50 years to life plus 11 years in state prison. (Id.) On direct appeal, the Court of Appeal reversed Petitioner's convictions for the Skyline Farms Market robbery, however rejected Petitioner's other claims and affirmed his remaining convictions. (Id.) Petitioner's sentence was reduced to 25 years to life plus 11 years. (Id.) On December 21, 2012, the California Supreme Court denied Petitioner's Petition for Review without comment. (Id.)
In the instant Petition for Writ of Habeas Corpus, Petitioner states two grounds for relief, that the trial court erred by: (1) allowing his juvenile adjudications to be used as "strikes" to enhance his sentence; and (2) consolidating the cases against him. (Doc. No. 1.) In his objections to the R&R, filed on September 26, 2012, Petitioner raises the same two grounds included in his original petition. (Doc. No. 14.)
A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. Fed. R. Civ. P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Id. "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."
28 U.S.C. § 636(b)(1). The Court reviews de novo those portions of the R&R to which specific written objection is made. United States v. Reyna--Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). "The statute makes it clear that the district judge must review the magistrate judge's findings and recommen- dations de novo if objection is made, but not otherwise." Id. When no objections are filed, the Court need not review de novo the R&R. Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005).
The Petitioner's first objection to the R&R asserts that his Sixth Amendment right to a jury trial was violated when the trial court used his non-jury juvenile adjudications as prior strikes to enhance his sentence. (Doc. No. 12, p. 5.) Additionally, Petitioner argues the trial court abused its discretion and imposed an unconstitutionally disproportionate sentence by declining to dismiss his prior juvenile adjudications. (Doc. No. 14, p. 4.)
As the R&R explains, there is currently no clearly established federal law as to whether non-jury juvenile adjudications can be used to enhance sentences for subsequent adult convictions. (Doc. No. 12, p. 7.) The United States Supreme Court has held prior convictions do not need to be submitted to a jury, and found beyond a reasonable doubt, to be used to enhance a penalty. (Id; see Apprendi v. New Jersey, 530 U.S. 466 (2000).) Whether the Apprendi holding extends to non-jury juvenile adjudications, however, remains undetermined. (Id.) Consequently, the Ninth Circuit has held that in the absence of clear direction from the United States Supreme Court, California courts' use of non-jury juvenile adjudications to enhance adult sentences cannot be contrary to, or an unreasonable application of, clearly established federal law. (Id; see Boyd v. Newland, 467 F.3d 1139 (9th Cir. 2006).) Accordingly, the state court's decision to use Petitioner's juvenile adjudications as prior strikes was not contrary to federal law and Petitioner has not proven the Court of Appeal's decision was otherwise unreasonable.
Additionally, the R&R concludes that Petitioner's objection asserting the trial court's abuse of discretion and the disproportionate sentence, does not present a federal question cognizable on habeas review. (Doc. No. 12, p. 9.) Federal courts cannot review state court decisions on state court law. (Id.) Moreover, Petitioner has not shown his sentence was so grossly disproportionate to the severity of his crimes to raise an Eighth Amendment issue. (Id., p. 10.) When viewing Petitioner's case in comparison to other Supreme Court opinions upholding indeterminate sentences under the California Three Strikes law, it is clear that the Court of Appeal's judgment was ...