United States District Court, S.D. California
ORDER: (1) DENYING MOTION FOR DISCOVERY AND EVIDENTIARY HEARING;
(2) DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND (3) DENYING MOTION FOR CERTIFICATE OF APPEALABILITY
GONZALO P. CURIEL, District Judge.
Rodney Lee Riggins (hereinafter "Petitioner"), is a state prisoner proceeding pro se and in forma pauperis with a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner was convicted by a San Diego County Superior Court jury of robbery, burglary, grand theft and petty theft, and the jury found he had personally used a deadly weapon in the commission of the robbery. (Lodgment No. 1, Clerk's Tr. ["CT"] at 80-83.) The trial judge found, after a bifurcated bench trial, that Petitioner had suffered three prior felony robbery convictions which constituted strikes under California's Three Strikes law, and sentenced him to 42 years-to-life in state prison. (CT 187-89.)
Petitioner alleges here, as he did in state court, that his federal constitutional rights were violated because: (1) his sentence was enhanced by facts found by a judge rather than a jury; (2) his appellate counsel failed to raise several of the claims presented here; (3) the waiver of his right to a jury trial on the truth of the prior conviction allegations was invalid, and his trial counsel did not properly advise him in that respect; (4) the use of his prior convictions to enhance his sentence violated the plea bargains of those convictions; (5) trial counsel failed to investigate and challenge the prior convictions on the basis they resulted from improperly advised pleas; (6) trial counsel failed to adequately argue that the prior convictions should be stricken; (7) the prior convictions were based on pleas which lacked jury findings on, or proper admissions to, the elements of the offenses; (8) the jury was not instructed that the use of force or fear must have been motivated by an intent to steal in order to constitute robbery; (9) trial counsel failed to challenge the restitution fine; (10) the jury was improperly instructed on consciousness of guilt; (11) the prosecutor committed misconduct to which trial counsel failed to object; (12) trial counsel entered into a stipulation without Petitioner's consent; and (13) the use of the prior convictions to enhance his sentence violated the Contracts Clause of the United States Constitution, and trial counsel failed to object on that basis. (Pet. at 14-128.)
Respondent has filed an Answer ("Ans.") to the Petition along with an incorporated Memorandum of Points and Authorities in support ("Ans. Mem."), and has lodged portions of the state court record. (ECF Nos. 18.) Respondent argues that federal habeas relief is not available because Petitioner's claims are without merit and any errors are harmless, and because the adjudication of the claims by the state court is neither contrary to, nor involves an unreasonable application of, clearly established federal law. (Ans. at 2; Ans. Mem. at 12-50.) Petitioner has filed a Traverse. (ECF No. 38.)
Petitioner has also filed a Motion for discovery and an evidentiary hearing. (ECF No. 12.) Petitioner states that shortly after filing the instant Petition, he sent interrogatories to his trial counsel, who responded by sending Petitioner the trial file, including counsel's notes, and stated that his notes would be more reliable than his memory. ( Id. at 4 & Ex. A.) Petitioner requests an evidentiary hearing on the ineffective assistance of counsel claims in order to obtain testimony from his trial and appellate counsel, or, in the alternate, discovery in order to obtain declarations from both counsel. ( Id. at 3-6.) He seeks discovery regarding his prior convictions in order to support his allegations that the plea bargains he entered in those cases were breached by their use to enhance his sentence, and that the prior convictions themselves were insufficient for that use. ( Id. at 6.)
Respondent has filed an Opposition, arguing that Petitioner has not shown good cause for discovery and is not entitled to an evidentiary hearing. (ECF No. 22 at 2-7.) Respondent argues that Petitioner waived the attorney-client privilege with respect to communications with counsel, and requests Petitioner be ordered to turn over counsel's notes. ( Id. at 7-8.) Petitioner thereafter attached his trial counsel's notes as an exhibit to the Traverse. (Traverse at 121-38.) Petitioner has also filed a Motion for a Certificate of Appealability. (ECF No. 34.)
For the following reasons, the Court finds that Petitioner is not entitled to discovery, that an evidentiary hearing or expansion of the record is neither necessary nor warranted, that federal habeas relief is unavailable, and that Petitioner has not satisfied the requirements for issuance of a Certificate of Appealability. Accordingly, the Court DENIES the Motion for discovery and an evidentiary hearing, DENIES the Petition, and DENIES a Certificate of Appealability.
In a four-count amended information filed in the San Diego County Superior Court on January 11, 2010, Petitioner was charged with robbery in violation of California Penal Code section 211; grand theft of personal property in violation of Penal Code section 487(a); petty theft with a prior in violation of Penal Code section 484; and burglary in violation of Penal Code section 459. (CT 13-15.) The amended information alleged as sentence enhancements that Petitioner had personally used a deadly and dangerous weapon, a box cutter, during the robbery, that he had previously been convicted of three serious felonies which constituted strikes under California's Three Strikes law, and that he had served three prison terms. (CT 16-18.) On May 4, 2010, Petitioner was convicted on all four counts and the jury returned a true finding on the deadly weapon use allegation. (CT 184-85.) Petitioner waived his right to a jury trial on the prior conviction allegations, and the trial judge, following a bench trial, made true findings as to all of the allegations. (CT 178, 186-87.) On August 17, 2010, the trial judge denied a defense motion to strike the prior convictions, and sentenced Petitioner to 42 years-to-life in state prison. (CT 189.) The sentence consisted of 25 years-to-life on the robbery count under the Three Strikes law, plus three consecutive five-year terms, one for each of the three prior felony convictions, plus a one-year term for the deadly weapon use finding and a one-year term for one of the prison priors; terms on the remaining counts and prison priors were ordered to run concurrently. (Lodgment No. Reporter's Tr. ["RT"] at 814-15.)
Petitioner filed an appeal raising Claims 8 and 10 here, along with two additional claims not presented in this action. (Lodgment No. 4.) The appellate court reversed the grand theft conviction, finding it was a lesser-included offense of robbery, and affirmed in all other respects. (Lodgment No. 7.) A petition for review presenting Claims 8 and 10 was summarily denied by the California Supreme Court on March 23, 2012. (Lodgment Nos. 8-9.) As detailed below in the discussion of the individual claims, Petitioner filed several pro se habeas petitions in the state courts raising the remaining claims presented here.
The following statement of facts is taken from the appellate court opinion affirming Petitioner's conviction on direct review. This Court gives deference to state court findings of fact and presumes them to be correct. Sumner v. Mata, 449 U.S. 539, 545-47 (1981).
At approximately 6:00 p.m. on April San 15, 2009, Riggiins entered an Adidas store at the Carlsbad Premium Outlets in San Diego County. Riggins was wearing a jacket and holding a large duffel bag. He approached a sales associate who was at a cash register. The sales associate handed Riggins two empty shopping bags. [Footnote: These facts are based on a surveillance video from the store. The record does not indicate why the sales associate handed Riggins the empty shopping bags.] Riggins then went into a footwear aisle of the store, removed a pair of shoes from a shoe box, and placed the empty box back on the shelf.
Riggins proceeded to pick up a white shirt and place it inside his duffel bag. Riggins then placed multiple pairs of shoes into the empty shopping bags. Riggins picked up his duffel bag and the shopping bags, which were now full, and walked out of the store.
Riggins did not pay for any of the merchandise that he took from the Adidas store. The total value of the stolen merchandise was $359.88.
Between 6:00 and 7:00 p.m. that same evening, Riggins walked into the Gap store at the same shopping mall. He was carrying a duffel bag that was nearly empty, and two full Adidas shopping bags.
Before Riggins entered the Gap store, Terence Wilkerson, a loss prevention agent for the Gap, noticed Riggins. The fact that Riggins was walking around the mall with an empty duffel bag caught Wilkerson's eye because, in Wilkerson's experience, people who shoplift tend to engage in this kind of behavior. Wilkerson followed Riggins into the Gap store.
Once Riggins was inside the Gap store, he entered the women's department and began looking at some women's denim pants and some shirts. He placed his bags on the floor and interacted with several of the store's sale associates. Riggins told the sales people that he needed help finding "something for his girlfriend or his wife." Riggins selected three pair of women's pants and two women's shorts, and then pulled out his wallet. Riggins told a sales associate that he did not have any money and thanked her for the assistance. He said that he would return later to pick up the merchandise.
After the sales associate headed toward the back of the store, Riggins picked up the merchandise that he had gathered with the associate's help, and took that merchandise, together with his duffel bag and the two Adidas shopping bags, over to the men's department of the store. Riggins set down his duffel bag and the Adidas shopping bags behind a building fixture, and then placed the women's clothing on top of the duffel bag. After waiting for other shoppers to leave the vicinity, Riggins bent down, unzipped his duffel bag, and put the women's clothing inside the duffel bag.
After he placed the women's clothing in the duffel, Riggins stood up, looked around, and headed toward a wall of men's denim pants. Riggins "grabbed a stack of men's denim" and placed the merchandise on top of the duffel bag. He again waited for other customers to leave the area, and then bent down and placed the pants in his duffel bag.
Wilkerson had been observing Riggins from several feet away. Based on his prior experience, Wilkerson was fairly certain that Riggins was about to leave the store with the concealed items. Wilkerson informed the store's management team that he was planning to apprehend Riggins. Wilkerson then exited the store and waited immediately outside the store, so that he could maintain an unobstructed view of Riggins.
Riggins eventually walked past the cash registers without making any attempt to pay for the merchandise that he had placed inside his duffel bag. As Riggins approached the front of the store, Wilkerson was about to apprehend him exiting the store when a man and two children effectively "cut (Wilkerson) off." Wilkerson stopped abruptly, and Riggins also stopped abruptly. Riggins allowed the man and his children to enter the store, made eye contact with Wilkerson, turned around, and walked toward the back of the store. Wilkerson continued to wait outside.
After walking around the store, Riggins eventually walked toward the front of the store and placed his duffel bag and the two full Adidas bags on the floor, about 15 feet away from the front doors to the store. Riggins walked outside and started talking on his cell phone. Wilkerson overheard Riggins ask, "Where are you at?" and "You almost here?" Riggins then ended the call and approached Wilkerson. Riggins struck up a conversation with Wilkerson, asking him whether he worked in the area and what he did for work. Wilkerson did not want to "blow (his) cover, " so he told Riggins that he worked for TaylorMade, a golf company. Wilkerson mentioned that he was waiting for his girlfriend, and the two continued to make small talk.
In the meantime, the store manager, who had noticed Riggins's "very shifty behavior" while he was in the store, had seen Riggins place the duffel bag and two Adidas shopping bags on the floor near the entrance to the store. The store manager started asking to whom the bags belonged, and Riggins entered the store and said that they were his bags. Riggins then picked up all three bags and walked out of the store.
Wilkerson approached Riggins outside the store, identified himself as the store's loss prevention agent, and said that they needed to talk about the merchandise that Riggins was concealing inside his duffel bag. Wilkerson asked Riggins if he could look inside the duffel bag to see what was in there. According to Wilkerson, Riggins became loud and obnoxious, and started to yell. Riggins denied that he had stolen anything and stated that the items in the bags belonged to him.
Wilkerson tried to grab the duffel bag, but Riggins also grabbed the bag. After trying to rip the bag from Wilkerson's hand, Riggins reached his hand into one of his pockets and pulled out a box cutter. Riggins told Wilkerson to back up, while he motioned toward Wilkerson's chest with the exposed blade. Fearing for his safety, Wilkerson let go of the bag and said, "(I)t's yours, take it."
Riggins proceeded to head north, through the mall, at "a fairly high rate of speed." He was carrying the duffel bag, which was filled with the Gap merchandise that he had not paid for, as well as the two Adidas shopping bags, which were filled with the Adidas merchandise that he had not paid for.
Wilkerson called 911 on his cell phone. He explained to the operator what had just occurred and described Riggins. While Wilkerson was on the phone with the 911 operator, he, together with Brad Hunter, an off-duty Oceanside police detective who happened to be in the Gap store when the events transpired, followed Riggins through the mall, in the direction of some nearby car dealerships. Once Wilkerson reached one of the dealerships, he no longer had Riggins in sight and told the operator that he was unable to follow Riggins any farther. A few minutes later, Carlsbad Police Sergeant Greg White met Wilkerson at the car dealership. Wilkerson described Riggins's clothing and the bags that he was carrying. Sergeant White then drove northbound and entered another car dealership, approximately a half mile from the shopping center.
At that dealership, Sergeant White spotted Riggins in between some cars in the middle of the parking lot. Riggins moved to a position behind a car where Sergeant White could not see him. Riggins then briskly walked away from Sergeant White and another officer, who was also pursuing him. Riggins became distracted by the other officer, and Sergeant White was able to catch up with him. Riggins refused to comply with Sergeant White's order to put his hands on a car. Riggins complied only when the other officer arrived with a taser. By this time, Riggins had changed his appearance. He was still wearing jeans and yellow cowboy boots that Wilkerson had seen him wearing, but he had removed a baseball cap and glasses, and had put on a white sweatshirt.
The officers arrested Riggins. Wilkerson and Hunter positively identified Riggins as the person who had taken the items from the Gap store without paying. Wilkerson also identified the duffel bag and two Adidas shopping bags as the bags that Riggins had been carrying. Officers found the bags behind one of the dealership's cars, in a different area of the dealership from where Riggins had been detained. The brown jacket that Riggins had been wearing was found lying on top of the duffel bag. Inside the duffel bag were Riggins's North County Transit District photo identification card, some of Riggins's mail and bank statements, the box cutter that Riggins had used against Wilkerson, and the Gap merchandise that Riggins had taken.
Wilkerson and a Carlsbad police officer returned to the Gap store with the merchandise that Riggins had placed in his duffel bag. The value of the merchandise was $575.11.
(Lodgment No. 7, People v. Riggins, No. D057957, slip op. at 2-7 (Cal.App.Ct. Jan. 10, 2012).)
For the following reasons, the Court finds that Petitioner's claims do not warrant federal habeas relief. The Court also finds that neither discovery, expansion of the record, nor an evidentiary hearing are necessary or warranted, and that Petitioner has not satisfied the requirements for issuance of a Certificate of Appealability.
A. Standard of Review
As discussed below, all claims presented here, except Claim 11, were adjudicated on the merits in state court. In order to merit habeas relief, Petitioner must demonstrate that the state court adjudication: "(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.A. § 2254(d) (West 2006). A state court's decision may be "contrary to" clearly established Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth in [the Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision may involve an "unreasonable application" of clearly established federal law, "if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407. Relief under the "unreasonable application" clause of § 2254(d) is available "if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no fairminded disagreement' on the question." White v. Woodall, 572 U.S. ___, 134 S.Ct. 1697, 1706-07 (2014), quoting Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770, 787 (2011).
"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.... Rather, that application must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (internal quotation marks and citations omitted). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the United States Supreme] Court's decisions..." Williams, 529 U.S. at 412. In order to satisfy section 2254(d)(2), a federal habeas petitioner must demonstrate that the factual findings upon which the state court's adjudication of his claims rest, assuming it rests upon a determination of the facts, are objectively unreasonable. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Even if a petitioner can satisfy section 2254(d), or, as with Claim 11 here, it does not apply, Petitioner must still demonstrate a federal constitutional violation. Fry v. Pliler, 551 U.S. 112, 119-22 (2007); Frantz v. Hazey, 533 F.3d 724, 735-36 (9th Cir. 2008) (en banc).
B. Claim 1
Petitioner alleges in Claim 1 that his sentence was enhanced based on two facts not admitted by him or found by a jury: (1) his identity as the person who suffered the three prior convictions alleged in the amended information, and (2) whether they constituted "strikes" under California's Three Strikes law. (Pet. at 14-15.) He alleges that the prior convictions could only be used to enhance his sentence once those facts were established, and because those facts were found by a judge rather than a jury, he was deprived of his right to a jury trial under the Sixth and Fourteenth Amendments, as that right is articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding that other than the fact of a prior conviction, any fact used to increase a sentence above the statutory maximum must be found by a jury beyond a reasonable doubt), Blakely v. Washington, 542 U.S. 296 (2004) (holding that the statutory maximum for Apprendi purposes is the maximum sentence permitted to be imposed solely by the jury verdict or a defendant's admission) and Cunningham v. California, 549 U.S. 270 (2007) (holding that California's three-tier determinate sentencing law violated the right to a jury trial to the extent it permitted a judge to impose an upper term sentence in the absence of an aggravating factor established by the jury's verdict, a defendant's admission, or a prior conviction). (Pet. at 14-25.)
Respondent answers that Petitioner waived his right to a jury trial on the truth of the prior conviction allegations, and that in any case the right to a jury trial on the priors is a state-law right, the denial of which does not raise a federal claim. (Ans. Mem. at 19-21.) Respondent also contends that the Apprendi line of cases exempts prior convictions which, like those here, were obtained in proceedings which provided the right to a jury trial and required proof beyond a reasonable doubt. ( Id. at 21.)
Petitioner replies that his waiver was invalid, but that even if it was valid, he only waived his state law right to a jury trial as to whether the prior convictions existed, not his federal constitutional right to have the jury determine whether he was the person who was convicted and whether the priors satisfied the statutory definition of "serious" or "violent" so as to constitute strikes. (Traverse at 11-20.)
This claim was presented to and summarily denied by the state supreme court. (Lodgment Nos. 16, 18.) Petitioner presented the same claim to the state appellate court in his pro se habeas petition, which was denied on the merits in a reasoned order. (Lodgment No. 12 at 4-7, 28-31; Lodgment No. 13.) The Court will look through the silent denial by the state supreme court and apply the provisions of 28 U.S.C. § 2254(d) to the appellate court opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 803-06 (1991) ("Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.") The state appellate court denied the claim, stating:
The rule pronounced in Apprendi does not apply to an indeterminate sentence enhanced by prior convictions. ( Apprendi v. New Jersey, supra, 530 U.S. at pp. 487-490.) The holdings in Blakely v. Washington, supra, 542 U.S. 296 and Cunningham v. California, supra, 549 U.S. 270 do not change this ruling.
(Lodgment No. 13, In re Riggins, No. D062731, order at 1-2 (Cal.App.Ct. Oct. 25, 2012).)
Clearly established federal law provides that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the proscribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. As Petitioner points out, the Court in Apprendi recognized that the "prior conviction exception" arose from Almendarez-Torres v. United States, 523 U.S. 224 (1998), and observed that "the certainty that procedural safeguards attached to any fact' of prior convictions, and the reality that Almendarez-Torres did not challenge the accuracy of that fact' in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a fact' increasing punishment beyond the maximum of the statutory range." Apprendi, 530 U.S. at 488, citing Jones v. United States, 526 U.S. 227, 249 (1999) ("One basis for that constitutional distinctiveness is not hard to see: unlike virtually any other consideration used to enlarge the possible penalty for an offense... a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt and jury trial guarantees.")
Unlike the petitioner in Almendarez-Torres, however, Petitioner here did not admit in the instant criminal proceeding that he had suffered the prior convictions, and he challenges the accuracy of the trial court's findings with respect to them. In Wilson v. Knowles, 638 F.3d 1213 (9th Cir. 2011), the state trial judge found three facts in relation to two prior convictions which were necessary to use those convictions as strikes to increase a sentence to 25 years-to-life, including whether the petitioner had personally inflicted bodily injury on the victim, whether that injury was great, and whether the victim was an accomplice. Id. at 1215. The Ninth Circuit found that the petitioner did not have an incentive to challenge those facts when he entered no contest pleas in the prior convictions for driving under the influence of alcohol, and for causing bodily injury while driving under the influence of alcohol, because those facts were not necessary to convict the petitioner of the prior convictions. Id . The court found that although courts "may reasonably disagree about some of the precise boundaries of the [Apprendi] exception, " it was an objectively unreasonable application of Apprendi for the state trial judge, rather than a jury, to find that the victim was not an accomplice in the prior conviction and that Petitioner had personally inflicted great bodily injury on the victim, findings which were necessary under state law to use the prior convictions as strikes. Id. at 1215-16; but see id. at 1216 (Kozinski, C. J., dissenting) (opining that it is has not yet been clearly established that the who, what, when and where of a prior conviction is exempt from the jury trial requirement, because the courts have "debated and disagreed about the scope of the [Apprendi] exception, and the Supreme Court hasn't stepped in to draw a clear line for us."); People v. Black, 41 Cal.4th 799, 819 (2007) (holding that California and numerous other jurisdictions interpret the Apprendi exception to encompass not only the fact that a prior conviction occurred, but other related issues that may be determined by examining the records of the prior convictions."); In re Richardson, 196 Cal.App.4th 647, 659 (2011) (stating that California courts are not bound by the Ninth Circuit's Wilson v. Knowles decision.)
Respondent relies on Davis v. Woodford, 446 F.3d 957 (9th Cir. 2006), in which the petitioner had been sentenced under California's Three Strikes law after the trial judge counted eight strikes arising from a single conviction which involved eight robberies, but which was obtained though a guilty plea where the petitioner was promised the conviction would count as only one strike in any future sentencing proceedings. Id. at 958. The petitioner in Davis alleged, as does Petitioner here, that he did not knowingly and intelligently waive his right to a jury trial on the truth of the prior conviction allegation, and that the plea agreement in the prior conviction was violated by its use as a strike. Id . The Davis court granted federal habeas relief on the breach of plea agreement claim, but denied relief on the waiver claim, stating that where " only the existence of a prior conviction is at issue, " a petitioner "has no federal constitutional right to have a jury decide that question, " irrespective of whether he had a state law right to a jury trial on the prior convictions, "so long as the convictions were themselves obtained in proceedings that required the right to a jury trial and proof beyond a reasonable doubt." Id. at 963 (emphasis added).
A federal habeas court must apply clearly established federal law as "squarely established" by United States Supreme Court holdings. White, 134 S.Ct. at 1702 n.2, 1706, citing Parker v. Matthews, 567 U.S. ___, 132 S.Ct. 2148, 2155 (2012) ("[C]ircuit precedent does not constitute clearly established Federal law, as determined by the Supreme Court, '... [and] cannot form the basis for habeas relief under AEDPA."), quoting 28 U.S.C. § 2254(d)(1). With respect to the first "fact" challenged by Petitioner, whether his three prior California robbery convictions constituted strikes, the Court need not examine the extent of clearly established federal law regarding the Apprendi exception, because it is clear that Petitioner was not deprived of his federal constitutional right to a jury determination with respect to that fact. Under California law, any California robbery conviction constitutes a strike. See Cal. Penal Code §§ 667(b)-(i) & 1170.12, and §§ 667.5(c)(9) & 1192.7(c)(19). Thus, unlike Knowles, the trial judge here did not have to find anything other than the fact of the three prior robbery convictions in order to find they constituted strikes. The state court's adjudication of this aspect of Claim 1 did not involve an objectively unreasonable application of clearly established federal law. Davis, 446 F.3d at 963.
There are two reasons why the Court need not determine whether the Apprendi exception encompasses the trial judge's finding that Petitioner is the person who suffered the three prior robbery convictions. First, as discussed below in Claim 3, Petitioner waived his right to a jury determination with respect to that fact. Second, even if Petitioner's waiver was, as he alleges, invalid, and even if there was Apprendi error, federal habeas relief is not available because any error is clearly harmless.
In conducting a harmless error analysis on an Apprendi claim, relief is appropriate only if the Court is "in grave doubt' as to whether a jury would have found the relevant aggravating factors beyond a reasonable doubt." Butler v. Curry, 528 F.3d 624, 648 (9th Cir. 2008), quoting O'Neal v. McAninch, 513 U.S. 432, 436 (1995). At the bench trial on the prior conviction allegations here, the prosecutor proffered certified documents relating to robbery convictions from 1991 and 1998 which contained the perpetrator's photograph and fingerprints, along with certified copies of documents related to a 1993 robbery conviction without a fingerprint card but with the perpetrator's photograph. (RT 449-50.) The documents were introduced into evidence over defense counsel's objection that they contained extraneous information and violated the Confrontation Clause. (RT 450-54.) The court then heard testimony from a forensic technician employed by the San Diego County District Attorney's office, who was a sworn member of the Southern California Association of Fingerprint Officers and a member of the International Association of Identification, and who compared fingerprints from Petitioner's booking card for the instant offenses to fingerprints from Petitioner's prison packets and fingerprints contained in the certified copies of the 1991 and 1998 robbery convictions, and had those comparisons checked by an independent examiner. (RT 457-60.) The technician testified that in her opinion the fingerprints were from the same person. (Id.) After cross-examination and re-direct, the parties rested and the trial judge examined the documents in chambers. (RT 464.)
The attorneys then presented closing arguments. The prosecutor argued that all three prior convictions satisfied the statutory definition of a strike because they were robberies, and argued that although the certified document regarding the 1993 conviction did not contain fingerprints, it did have Petitioner's photograph, and the certified document regarding the 1998 conviction indicated that the sentence in that case had been enhanced by Petitioner's 1993 conviction. (RT 463-64; CT 17.) Defense counsel argued that the evidence was insufficient with respect to all the priors, and in particular objected to the use of the 1998 case as evidence that Petitioner suffered the 1991 and 1993 convictions, arguing that prior conviction allegations are not usually subject to sufficient scrutiny in such cases due to the informal nature of plea bargaining. (RT 465.) The trial judge then stated:
I'm always frustrated in this situation because there is no question the prosecution has proven beyond a reasonable doubt that this defendant has suffered all these prior convictions.
But is this the best evidence they could have put on? No. So I always get frustrated. I feel like finding him not guilty just so they will start doing it different and better. They never listen to me anyway, so I go back to what's my responsibility here. At this point, it's to determine the facts based on the evidence before me.
And again, is this the best evidence? No. Is it sufficient to prove beyond a reasonable doubt he suffered all this priors? Yes. [¶] So I find each of the priors ...