United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
with a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. Petitioner challenges a judgment of conviction
entered against him on December 13, 2010 in the Placer County
Superior Court on one count of driving under the influence.
He seeks federal habeas relief on the grounds that his three
strikes sentence of 25 years to life violates his rights to
due process, equal protection of the laws, to be free of
cruel and unusual punishment, and to be free of double
jeopardy. Upon careful consideration of the record and the
applicable law, the undersigned will recommend denial of
petitioner's application for habeas corpus relief.
unpublished memorandum and opinion affirming petitioner's
judgment of conviction on appeal, the California Court of
Appeal for the Third Appellate District provided the
following factual and procedural summary:
Under the influence of valium, cocaine, and alcohol,
defendant nonetheless got behind the wheel of his van in
December 1987. Going southbound on Highway 89, defendant sped
around a blind curve in the oncoming lane to pass cars in his
own lane. He hit an oncoming car head-on, killing the driver
of the oncoming car. As a result, in 1988, he pleaded guilty
to DUI manslaughter. (Pen. Code, § 191.5, subd. (a).)
The 1988 DUI manslaughter conviction was not defendant's
first brush with the law, and it would not be his last. Most
seriously, defendant was convicted of spousal abuse in 1996
and assault with a deadly weapon in 2007.
In August 2008, defendant again drove drunk on Highway 89,
this time northbound, and again he passed on a blind curve.
Fortunately, defendant did not cause another collision, and,
again fortunately, a sheriff's deputy saw the unsafe
driving and stopped defendant. After observing that defendant
was drunk, the deputy arrested defendant for DUI.
The district attorney charged defendant by information with
felony DUI, with a prior DUI manslaughter. (Veh. Code,
§§ 23152, subds. (a) & (b), 23550.5, subd.
(b).) The district attorney also alleged that defendant had
two prior strike convictions (the 1988 DUI manslaughter
conviction (Pen. Code, § 191.5) and the 2007 assault
with a deadly weapon conviction (Pen. Code, § 245)) and
had four prior prison terms (Pen. Code, § 667.5, subd.
Defendant pleaded guilty to felony DUI, with a prior DUI
manslaughter. He also admitted the prior serious felony
convictions and prison terms. He did so with the
understanding that this exposed him to a potential sentence
of 29 years to life under the Three Strikes law.
The trial court considered and denied a Romero[fn]
motion to strike one or both of the prior serious felony
convictions. The court sentenced defendant under the Three
Strikes law to state prison for an indeterminate term of 25
years to life. It stayed the prior prison term enhancements.
[fn] People v. Superior Court (Romero) (1996) 13
Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628
People v. Doyle, 220 Cal.App.4th 1251, 1256-57
(2013) (one footnote omitted).
OF REVIEW APPLICABLE TO HABEAS CORPUS CLAIMS
application for a writ of habeas corpus by a person in
custody under a judgment of a state court can be granted only
for violations of the Constitution or laws of the United
States. 28 U.S.C. § 2254(a). A federal writ is not
available for alleged error in the interpretation or
application of state law. See Wilson v. Corcoran,
562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 U.S.
62, 67-68 (1991); Park v. California, 202 F.3d 1146,
1149 (9th Cir. 2000).
28 U.S.C. § 2254(d) sets forth the following standards
for granting federal habeas corpus relief:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the 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;
(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.
purposes of applying § 2254(d)(1), “clearly
established federal law” consists of holdings of the
United States Supreme Court at the time of the last reasoned
state court decision. Greene v. Fisher, 565 U.S. 34,
37 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th
Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362,
405-06 (2000)). Circuit court precedent “‘may be
persuasive in determining what law is clearly established and
whether a state court applied that law
unreasonably.'” Stanley, 633 F.3d at 859
(quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir.
2010)). However, circuit precedent may not be “used to
refine or sharpen a general principle of Supreme Court
jurisprudence into a specific legal rule that th[e] [Supreme]
Court has not announced.” Marshall v. Rodgers,
133 S.Ct. 1446, 1450 (2013) (citing Parker v.
Matthews, 567 U.S. 37 (2012)). Nor may it be used to
“determine whether a particular rule of law is so
widely accepted among the Federal Circuits that it would, if
presented to th[e] [Supreme] Court, be accepted as
correct.” Id. at 1451. Further, where courts
of appeals have diverged in their treatment of an issue, it
cannot be said that there is “clearly established
Federal law” governing that issue. Carey v.
Musladin, 549 U.S. 70, 76-77 (2006).
court decision is “contrary to” clearly
established federal law if it applies a rule contradicting a
holding of the Supreme Court or reaches a result different
from Supreme Court precedent on “materially
indistinguishable” facts. Price v. Vincent,
538 U.S. 634');">538 U.S. 634, 640 (2003) (quoting Williams, 529 U.S.
at 405-06). “Under the ‘unreasonable
application' clause of § 2254(d)(1), a federal
habeas court may grant the writ if the state court identifies
the correct governing legal principle from th[e] [Supreme]
Court's decisions, but unreasonably applies that
principle to the facts of the prisoner's
case.'” Lockyer v. Andrade, 538 U.S. 63,
75 (2003) (quoting Williams, 529 U.S. at 413);
Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004).
“[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, 529 U.S. at 411; see also Schriro v.
Landrigan, 550 U.S. 465, 473 (2007); Lockyer,
538 U.S. at 75 (“It is not enough that a federal habeas
court, in its independent review of the legal question, is
left with a firm conviction that the state court was
erroneous.” (Internal citations and quotation marks
omitted.)). “A state court's determination that a
claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree' on the
correctness of the state court's decision.”
Harrington v. Richter, 562 U.S. 86, 101 (2011)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). Accordingly, “[a]s a condition for obtaining
habeas corpus from a federal court, a state prisoner must
show that the state court's ruling on the claim being
presented in federal court was so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement.” Richter, 562 U.S. at 103.
are two ways a petitioner may satisfy subsection (d)(2).
Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir.
2012). He may show the state court's findings of fact
“were not supported by substantial evidence in the
state court record” or he may “challenge the
fact-finding process itself on the ground it was deficient in
some material way.” Id. (citing Taylor v.
Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004)); see
also Hurles v. Ryan, 752 F.3d 768, 790-91 (9th Cir.
2014) (If a state court makes factual findings without an
opportunity for the petitioner to present evidence, the
fact-finding process may be deficient and the state court
opinion may not be entitled to deference.). Under the
“substantial evidence” test, the court asks
whether “an appellate panel, applying the normal
standards of appellate review, ” could reasonably
conclude that the finding is supported by the record.
Hibbler, 693 F.3d at 1146 (9th Cir. 2012).
second test, whether the state court's fact-finding
process is insufficient, requires the federal court to
“be satisfied that any appellate court to whom the
defect [in the state court's fact-finding process] is
pointed out would be unreasonable in holding that the state
court's fact-finding process was adequate.”
Hibbler, 693 F.3d at 1146-47 (quoting Lambert v.
Blodgett, 393 F.3d 943, 972 (9th Cir. 2004)). The state
court's failure to hold an evidentiary hearing does not
automatically render its fact finding process unreasonable.
Id. at 1147. Further, a state court may make factual
findings without an evidentiary hearing if “the record
conclusively establishes a fact or where petitioner's
factual allegations are entirely without credibility.”
Perez v. Rosario, 459 F.3d 943, 951 (9th Cir. 2006)
(citing Nunes v. Mueller, 350 F.3d 1045, 1055 (9th
petitioner overcomes one of the hurdles posed by section
2254(d), this court reviews the merits of the claim de novo.
Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir.
2008); see also Frantz v. Hazey, 533 F.3d 724, 735
(9th Cir. 2008) (en banc) (“[I]t is now clear both that
we may not grant habeas relief simply because of §
2254(d)(1) error and that, if there is such error, we must
decide the habeas petition by considering de novo the
constitutional issues raised.”). For the claims upon
which petitioner seeks to present evidence, petitioner must
meet the standards of 28 U.S.C. § 2254(e)(2) by showing
that he has not “failed to develop the factual basis of
[the] claim in State court proceedings” and by meeting
the federal case law standards for the presentation of
evidence in a federal habeas proceeding. See Cullen v.
Pinholster, 563 U.S. 170, 186 (2011).
court looks to the last reasoned state court decision as the
basis for the state court judgment. Stanley, 633
F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044,
1055 (9th Cir. 2004). “[I]f the last reasoned state
court decision adopts or substantially incorporates the
reasoning from a previous state court decision, [this court]
may consider both decisions to ‘fully ascertain the
reasoning of the last decision.'” Edwards v.
Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc)
(quoting Barker v. Fleming, 423 F.3d 1085, 1093 (9th
Cir. 2005)). “When a federal claim has been presented
to a state court and the state court has denied relief, it
may be presumed that the state court adjudicated the claim on
the merits in the absence of any indication or state-law
procedural principles to the contrary.”
Richter, 562 U.S. at 99. This presumption may be
overcome by showing “there is reason to think some
other explanation for the state court's decision is more
likely.” Id. at 99-100 (citing Y1st v.
Nunnemaker, 501 U.S. 797, 803 (1991)). Similarly, when a
state court decision on a petitioner's claims rejects
some claims but does not expressly address a federal claim, a
federal habeas court must presume, subject to rebuttal, that
the federal claim was adjudicated on the merits. Johnson
v. Williams, 568 U.S. 289, 292 (2013).
summary denial is presumed to be a denial on the merits of
the petitioner's claims. Stancle v. Clay, 692
F.3d 948, 957 & n. 3 (9th Cir. 2012). Where the state
court reaches a decision on the merits but provides no
reasoning to support its conclusion, a federal habeas court
independently reviews the record to determine whether habeas
corpus relief is available under § 2254(d).
Stanley, 633 F.3d at 860; Himes v.
Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
“Independent review of the record is not de novo review
of the constitutional issue, but rather, the only method by
which we can determine whether a silent state court decision
is objectively unreasonable.” Himes, 336 F.3d
at 853 (citing Delgado v. Lewis, 223 F.3d 976, 981
(9th Cir. 2000)). This court “must determine what
arguments or theories . . . could have supported, the state
court's decision; and then it must ask whether it is
possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a
prior decision of th[e] [Supreme] Court.”
Richter, 562 U.S. at 102. The petitioner bears
“the burden to demonstrate that ‘there was no
reasonable basis for the state court to deny
relief.'” Walker v. Martel, 709 F.3d 925,
939 (9th Cir. 2013) (quoting Richter, 562 U.S. at
is clear, however, that a state court has not reached the
merits of a petitioner's claim, the deferential standard
set forth in 28 U.S.C. § 2254(d) does not apply and a
federal habeas court must review the claim de novo.
Stanley, 633 F.3d at 860; Reynoso v.
Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph
v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
claims are directed at his sentence. He states five claims
for relief: (1) the dual use of sentencing factors violates
the Fifth and Fourteenth Amendments; (2) the trial court
abused its discretion when it refused to strike the prior
conviction; (3) the imposition of a 25 years-to-life sentence
on a misdemeanor DUI is a violation of the Equal Protection
Clause; (4) the imposition of a 25 years-to-life sentence on
a misdemeanor violates the Eighth Amendment; and (5)
double-counting the prior DUI violates the Double Jeopardy
argues that petitioner's first two claims are unexhausted
because petitioner made arguments based only on state law
before the California Supreme Court. In addition, respondent
argues the state court's decision denying the remaining
claims, was not contrary to or an unreasonable application of
federal law. Finally, respondent argues that petitioner's
claims are barred as untimely.
statute of limitations issue is not jurisdictional and courts
may consider the merits of a habeas petition despite a
timeliness issue if the merits may be more easily resolved.
Day v. McDonough, 547 U.S. 198, 205, 210 (2006) (a
district court has discretion to decide whether the
administration of justice is better served by dismissing the
case on statute of limitations grounds or by reaching the
merits of the petition); Bruno v. Director, CDCR,
No. CIV S-02-2339 LKK EFB P, 2010 WL 367538, at *2 (E.D. Cal.
Jan. 26, 2010) (“[T]he court elects to deny
petitioner's habeas petition on the merits rather than
reach the equitable tolling issues.”). In the present
case, the court finds it can resolve the merits of
petitioner's claims without reaching the statute of
limitations and potential tolling issues.
Claims One and Two - Dual Use of Prior Conviction ...