United States District Court, N.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS
M. CHEN, United States District Judge
Delano Read filed this pro se action for a writ of
habeas corpus under 28 U.S.C. § 2254. The Court issued
an order to show cause why the writ should not be granted.
Respondent has filed an answer and Mr. Gonzalez has filed a
traverse. For the reasons explained below, the petition will
petition now before the Court concerns Mr. Read's recent
efforts to be resentenced under California's Three
Strikes Reform Act of 2012, rather than his original
conviction from 1996 and the sentence thereon imposed in
1997. Nonetheless, it is necessary to describe his conviction
and sentence to evaluate his claims regarding the denial of
his request for resentencing.
1996, Mr. Read was convicted in the San Mateo County Superior
Court of possession of methamphetamine, possession of
methamphetamine for sale, and two counts of being a felon in
possession of a firearm. Docket No. 12-3 at 13. Sentencing
enhancement allegations were found true that he "had
been convicted of two prior serious or violent felonies"
within the meaning of California Penal Code section
667(c)-(e); "had served three prior prison terms"
within the meaning of California Penal Code section 667.5(b);
and had previously been convicted of violations of California
Health and Safety Code sections 11379 and 11383(a), within
the meaning of California Health and Safety Code section
11370.2(c). Docket No. 12-3 at 13. Mr. Read was sentenced in
1997 to a total of 109 years to life in prison. Id.
at 1. On appeal, his conviction was reversed as to one of the
felon-in-possession-of-a-firearm counts, and otherwise
affirmed. His sentence then was recalculated to be 84 years
to life in prison.
2012, California voters approved Proposition 36, the Three
Strikes Reform Act of 2012 ("the Reform Act"). The
Reform Act provides that "under three specified
eligibility criteria and subject to certain disqualifying
exceptions or exclusions, a prisoner currently serving a
sentence of 25 years to life under the pre-Proposition 36
version of the Three Strikes law for a third felony
conviction that was not a serious or violent felony may be
eligible for resentencing as if he or she only had one prior
serious or violent felony conviction." People v.
White, 223 Cal.App.4th 512, 517 (Cal.Ct.App. 2014). (The
details about the resentencing, and exclusions therefrom, are
discussed later in this order.)
Read filed a petition in San Mateo County Superior Court to
have his Three Strikes sentence recalled so that he could be
resentenced under the Reform Act. The superior court held a
hearing on May 31, 2013, and denied the petition. The
superior court found that Mr. Read was ineligible for
resentencing because he was armed with a firearm during the
commission of the offense for which he received a Three
Strikes sentence in 1997.
Read appealed from the denial of his petition to recall his
sentence. On November 24, 2014, the California Court of
Appeal affirmed the denial of his petition to recall his
sentence in a reasoned decision. On February 11, 2015, the
California Supreme Court denied his petition for review
without comment. Mr. Read then filed this action.
Read's federal petition for writ of habeas corpus alleged
three claims. First, he claimed that the denial of his
petition to recall his sentence violated his rights under
state law. That claim was dismissed earlier because federal
habeas relief is not available for state law errors.
See Docket No. 3 at 2-3. Second, Mr. Read claimed
that the state court's failure to require the prosecutor
to plead and prove the exception that made him ineligible for
resentencing under the Reform Act violated his Fourteenth
Amendment right to due process. See ECF No. 1-1 at
Mr. Read claimed that the "Sixth Amendment jury trial
right preclude[d] the [superior] court from engaging in
judicial factfinding for purposes of disqualifying a
defendant from resentencing consideration under the Reform
Act." See Id. at 38.
Court issued an order to show cause why the writ should not
be granted on the due process and jury trial claims.
Respondent has filed an answer and Mr. Read has filed a
traverse. The matter is now ready for a decision on the
JURISDICTION AND VENUE
Court has subject matter jurisdiction over this habeas action
for relief under 28 U.S.C. § 2254. 28 U.S.C. §
1331. This action is in the proper venue because the petition
concerns the sentence of a person convicted and sentenced in
San Mateo County, California, which is within this judicial
district. 28 U.S.C. §§ 84, 2241(d).
STANDARD OF REVIEW
Court may entertain a petition for writ of habeas corpus
"in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties
of the United States." 28 U.S.C. § 2254(a).
Antiterrorism And Effective Death Penalty Act of 1996
("AEDPA") amended § 2254 to impose new
restrictions on federal habeas review. A petition may not be
granted with respect to any claim that was adjudicated on the
merits in state court 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).
the 'contrary to' clause, a federal habeas court may
grant the writ if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question
of law or if the state court decides a case differently than
[the] Court has on a set of materially indistinguishable
facts." Williams (Terry) v. Taylor, 529 U.S.
362, 412-13 (2000).
the 'unreasonable application' clause, 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." Id.
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 411. "A federal habeas court making the
'unreasonable application' inquiry should ask whether
the state court's application of clearly established
federal law was 'objectively unreasonable.'"
Id. at 409.
state-court decision to which § 2254(d) applies is the
"last reasoned decision" of the state court.
See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991);
Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir.
2005). "When 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." Ylst, 501 U.S. at 803. The presumption
that a later summary denial rests on the same reasoning as
the earlier reasoned decision is a rebuttable presumption and
can be overcome by strong evidence. Kernan v.
Hinojosa, No. 15-833, slip op. at 3 (U.S. May 16, 2016).
Although Ylst was a procedural default case, the
"look through" rule announced there has been
extended beyond the context of procedural default and applies
to decisions on the merits. Barker, 423 F.3d at 1092
n.3. In other words, when the last reasoned decision is a
decision on the merits, the habeas court can look through
later summary denials to apply § 2254(d) to the last