United States District Court, S.D. California
ORDER ADOPTING REPORT AND RECOMMENDATION; AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
LARRY ALAN BURNS, District Judge.
Petitioner Brandon Shawn Burrus, a prisoner in state custody who is represented in this proceeding by counsel, filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636 and Fed.R.Civ.P. 72, this matter was referred to Magistrate Judge William Gallo for report and recommendation. On November 19, 2014, Judge Gallo issued his report and recommendation (the "R&R"), which recommended denying the petition. Burrus has filed objections.
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). This section does not require some lesser review by the district court when no objections are filed. Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The "statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original).
Burrus objects solely to the R&R's conclusion that his fifth and sixth claims, regarding the constitutionality of Cal. Penal Code § 667.6(d), are foreclosed by Oregon v. Ice, 555 U.S. 160 (2009). Instead, he argues, he is entitled to relief under Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne v. United States, 133 S.Ct. 2151 (2013).
Because Burrus does not challenge the R&R's factual findings, or of its analysis or recommended disposition of any of his other claims, the Court need not conduct a de novo review of those portions of the R&R. The Court has reviewed those portions of the R&R, however, finds them to be correct, and ADOPTS them.
Burrus' conviction stems from the kidnapping and rape of a victim, Cristina B., on or around February 19, 2009. Burrus picked up his victim in a bar, on the pretext of giving her a ride home. Over the course of the evening until around dawn of the next day he committed multiple acts of assault, forced copulation and rape, some in his vehicle (at different locations) and some in a motel room. The evidence against him, and the timeline of his actions, are summarized in the R&R at 24:1 to 25:23.
Burrus was convicted of one count of violating Cal. Penal Code § 209(b)(1) (kidnapping to commit oral copulation - count 1), five counts of violating Cal. Penal Code § 288(c)(2) (forcible oral copulation - counts 2, 4, 5, 7, and 10), and two counts of violating Cal. Penal Code § 261(a)(2) (forcible rape - counts 6 and 9). The jury also found the aggravating circumstance of kidnapping, as set forth in Cal. Penal Code § 667.61(b)(c) and (e).
At sentencing, the judge, pursuant to Cal. Penal Code § 667.6(d), determined that the crimes against Cristina B. were committed on separate occasions and sentenced him to seven consecutive terms of fifteen years to life in prison - in effect, 105 years to life. Had the judge determined that the crimes were committed on the same occasion, Burrus would have been sentenced to seven concurrent terms of fifteen years to life.
Burrus exhausted most of his claims, then filed his petition in this case on July 31, 2013. At the same time, he filed a petition in the California Supreme Court raising claims under Alleyne, which the U.S. Supreme Court had decided approximately a month earlier. This petition was stayed pending the exhaustion of Burrus' Alleyne claims. The California Supreme Court denied relief without citation to authority. Because the state court provided no basis for its reasoning in rejecting Burrus' Alleyne claims, the Court must conduct an independent review of the record to determine whether the state court's decision was contrary to, or an unreasonable application of clearly established law, as determined by the U.S. Supreme Court. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
In Apprendi, the Supreme Court held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. 530 U.S. at 490. But, as the R&R correctly notes, the Supreme Court in Oregon v. Ice, 555 U.S. 160 (2009) held that states are free to assign to judges, rather than juries, the responsibility for finding facts necessary to the imposition of consecutive rather than concurrent offenses.
In Ice, the Court examined an Oregon statute providing that sentences were to run concurrently unless the judge found certain statutorily prescribed facts. 55 U.S. at 165. In the underlying case, the judge made factual findings regarding the defendant's willingness to cause additional harm in each criminal count for which he was convicted; the statute therefore gave the judge discretion to impose consecutive sentences. Id. In reaching its conclusion that the statute comported with the Sixth Amendment, the Court reasoned that the rule announced in Apprendi did not govern consecutive sentencing decisions. Id. at 167-69. The decision was founded on the reasoning that the decision whether sentences should run concurrently or consecutively was never entrusted to juries, and that it was the prerogative of the states to set the rules for administering multiple sentences:
These twin considerations-historical practice and respect for state sovereignty-counsel against extending Apprendi 's rule to the imposition of sentences for discrete crimes. The decision to impose sentences consecutively is not within the jury function that "extends down centuries into the common law." Apprendi, 530 U.S., at 477, 120 S.Ct. 2348. Instead, specification of the regime ...