Unpublished Disposition, 902 F.2d 39 (9th Cir. 1986)

MEMORANDUM^** 

Richard R. Kingsberry ("Kingsberry"), a California state prisoner, appeals pro se from the district court's denial of his habeas petition seeking relief from his sentence as a repeat offender. We affirm.

BACKGROUND

Kingsberry was charged by information in the Los Angeles Superior Court with one count of attempted robbery. The information included an enhancement allegation for use of a firearm. The information, as amended, also charged Kingsberry with two prior felony convictions in order to invoke California Penal Code Sec. 667(a), which provides that any person convicted of a "serious felony" who has had a prior serious felony conviction shall receive a five-year enhancement for each such prior conviction.¹ 

The jury found Kingsberry guilty of attempted robbery and found true the allegation that Kingsberry used a firearm in the attempted robbery. Kingsberry waived jury trial on the issue of prior convictions, and the court found that Kingsberry had been previously convicted of robbery and second degree robbery. Kingsberry was sentenced to a total prison term of fourteen years: the middle term of two years for the attempted robbery, with an additional two years for use of a firearm and five years for each of the two prior serious felony convictions, all to run consecutively. Kingsberry's conviction and sentence were affirmed on appeal. In due course, the California Supreme Court denied a petition for review and two postconviction personal restraint petitions.

Kingsberry then sought habeas relief in the federal district court. The present petition, his second, was assigned to a magistrate who issued a written report recommending that Kingsberry's claims be rejected on the merits. The district court adopted the findings, conclusions, and recommendations of the magistrate and dismissed the petition with prejudice. From that dismissal, Kingsberry timely appeals.

STANDARD OF REVIEW

We review de novo a district court's decision on a petition for habeas corpus. Curtis v. Eikenberry, 877 F.2d 802, 803 (9th Cir. 1989).

DISCUSSION

As noted earlier, section 667(a) provides an additional five-year prison term for repeat offenders convicted of a "serious felony" who previously have been convicted of another "serious felony." Section 667(d) defines "serious felony" by reference to section 1192.7(c), which provides in pertinent part: "As used in this section 'serious felony' means any of the following: ... (19) robbery; ... (25) any attempt to commit a crime listed in this subdivision other than assault."

Kingsberry's first argument on appeal is that section 667(a) should not have been applied to his sentence because his attempted armed robbery is, he contends, a "violent felony" within the meaning of section 667.5 (an enhancement provision providing for an additional and consecutive three-year sentence). Although the district court rejected this argument on its merits, we need not address it. Whether attempted robbery--with or without the use of a firearm--qualifies as a "serious felony" within the meaning of section 667(a) is a question of state law. See Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989) ("Whether assault with a deadly weapon qualifies as a 'serious felony' under California's sentence enhancement provisions is a question of state sentencing law.") Federal habeas relief is " 'unavailable for alleged error in the interpretation or application of state law.' " Id. at 1119 (quoting Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986)).

Kingsberry next argues that he was denied due process because the trial court incorrectly believed that it had no discretion to strike or stay either or both of the section 667 prior conviction enhancements. Shortly after Kingsberry was sentenced, the California Supreme Court held that notwithstanding the mandatory language of section 667, trial courts retain power under Penal Code section 1385 to strike or otherwise render unenforceable the enhancement provisions provided for in section 667. People v. Fritz, 40 Cal. 3d 227, 219 Cal. Rptr. 460, 707 P.2d 833 (1985).² 

Kingsberry first raised this due process claim on direct appeal in state court. The California Court of Appeal, in an unpublished decision, held that Kingsberry was not prejudiced by the trial court's erroneous belief that it lacked discretion regarding the enhancements because the trial court indicated on the record that it would not have stayed the enhancements even if it had the discretion to do so.³  People v. Kingsberry, 2d Crim. No. B012193 (Cal.App. December 1, 1986). On federal habeas review, the district court below likewise found that the record clearly indicates that the trial court would have exercised its discretion adversely to Kingsberry, and that under the circumstances there is no need to send this case back to state court for resentencing. We agree with the district court's conclusion.

We also reject Kingsberry's alternative argument that he was deprived of due process because the trial court violated the California rule prohibiting dual use of facts. We do so for two reasons. First, the trial court did not violate the California rule. The rule provides in pertinent part: "A fact used to enhance the defendant's prison sentence may not be used to impose the upper term." Cal.Ct.R. 441(c). Here, the trial court sentenced Kingsberry to the middle term for the attempted robbery. The sentence enhancements for use of the firearm and the prior serious felony convictions did not, therefore, constitute dual use of facts. And, contrary to Kingsberry's oblique assertion, a fact used to impose an enhancement may be considered and used by the sentencing court in deciding not to strike a prior serious felony conviction.

Second, even if Kingsberry could show that the trial court violated the California rule, he has not alleged any basis for federal habeas relief. It is well established that " [v]iolations of state law, without more, do not deprive a defendant of due process." Cooks v. Spalding, 660 F.2d 738, 739 (9th Cir. 1981), cert. denied, 455 U.S. 1026 (1982). The habeas petitioner must allege a basis for finding that the state court's action was arbitrary, discriminatory, or fundamentally unfair. Id.; Kennick v. Superior Court, 736 F.2d 1277, 1280 (9th Cir. 1984). Kingsberry's habeas petition fails to allege any basis for such a finding.

Kingsberry next claims that his sentence of fourteen years is so disproportionate to the crime that it violates the constitutional ban against cruel and unusual punishment. This claim is wholly without merit. Kingsberry received the sentence prescribed by the California Legislature for repeat offenders convicted of a serious felony who previously have been convicted of another serious felony. The Supreme Court has repeatedly affirmed "the proposition that federal courts should be 'reluctan [t] to review legislatively mandated terms of imprisonment,' [citation omitted] and that 'successful challenges to the proportionality of particular sentences' should be 'exceedingly rare.' " Hutto v. Davis, 454 U.S. 370, 374 (1982) (quoting Rummel v. Estelle, 445 U.S. 263, 272-74 (1980)).

In Rummel, the petitioner was sentenced to life imprisonment under a Texas recidivist statute upon being convicted of his third felony: obtaining $120.75 by false pretenses. He had been previously convicted of passing a forged check in the amount of $28.36, and of fraudulent use of a credit card to obtain $80 worth of goods or services. 445 U.S. at 264-66. The Court held that "the mandatory life sentence imposed upon this petitioner does not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments." Id. at 285.

The sentence imposed on Kingsberry, then, does not even begin to approach the constitutional ban against cruel and unusual punishment. We find that the sentence imposed on Kingsberry, when measured against objective criteria, cannot possibly be said to be so "significantly disproportionate" to his crime that it is prohibited by the Eighth Amendment. Cf. Solem v. Helm, 463 U.S. 277, 303 (1983).

Finally, Kingsberry claims on appeal that his sentence is constitutionally flawed because (1) the state failed to give him adequate notice that it intended to seek enhancement of his sentence under section 667(a); (2) there was insufficient evidence adduced at the preliminary hearing to support the enhancement allegations; and (3) he did not make a knowing waiver of his right to jury trial on the issue of his prior convictions. These claims were not presented to the district court and, therefore, we will not consider them. See Powell v. Spalding, 679 F.2d 163, 167 (9th Cir. 1982); Stevens v. Municipal Court, 603 F.2d 111, 113 (9th Cir. 1979).

CONCLUSION

The district court's dismissal of Kingsberry's petition for habeas corpus is AFFIRMED.