Kacy Duane Lloyd v. Teri Gonzalez, No. 2:2011cv03321 - Document 16 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. Finally, because Petitioner has not made a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability in this action. **PLEASE REVIEW DOCUMENT FOR FULL AND COMPLETE DETAILS** (ca)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 KACY DUANE LLOYD, Petitioner, 11 12 v. 13 TERI GONZALEZ, WARDEN, 14 Respondent. ) ) ) ) ) ) ) ) ) ) CASE NO. CV 11-3321-PJW MEMORANDUM OPINION AND ORDER DISMISSING PETITION AND DENYING CERTIFICATE OF APPEALABILITY 15 16 I. 17 INTRODUCTION 18 Petitioner brings this habeas corpus petition pursuant to 28 19 U.S.C. § 2254, alleging that his sentence is unconstitutional because 20 the trial court imposed an upper-term sentence based on facts that 21 were not proved to a jury beyond a reasonable doubt. 22 following reasons, the Court finds that the trial court did not err. 23 II. 24 For the STATEMENT OF FACTS 25 Petitioner was charged with selling crack cocaine. He faced a 26 25-years-to-life sentence due to the fact that, if convicted of the 27 charge, it would have been his third strike under California s Three 28 Strikes law. Instead of going to trial, Petitioner entered into a 1 plea agreement with the prosecutor in which Petitioner agreed to plead 2 to the charges and receive a ten-year prison sentence in exchange for 3 the prosecutor dropping one of the strike allegations. 4 Petitioner (and his co-defendants) appeared at a change of plea 5 hearing with counsel and were admonished by the prosecutor on the 6 record: 7 You each have a right to a jury trial. You would have 8 the right to have the charge and the allegations against 9 you, that s including all of the alleged prior convictions 10 and special allegation, decided by a jury of 12 persons. 11 Every charge and allegation would have to be proven by the 12 People beyond a reasonable doubt. 13 (Lodgment No. 8, Report s Transcript from Plea and Sentencing 14 (hereinafter RT ) at 6.) 15 Petitioner acknowledged that he had the right to a jury trial on 16 the substantive charge, the priors, and any special allegations (RT 7) 17 and, thereafter, pleaded no contest to the charge and admitted the 18 special allegation: 19 [The Prosecutor]: Now, as to [Petitioner], to the charge 20 in Count 1, violation of 11352(a), 21 that s a felony, commonly known as sale 22 of a controlled substance, to wit, 23 cocaine base, how do you plead? 24 [Petitioner]: No contest. 25 [The Prosecutor]: As to the special allegation pursuant to 26 Penal Code section 1170.12(a) through (d) and 27 667(b) through (I) that you suffered two 28 felony convictions that were serious or 2 1 violent felonies in Case No. TA022987, 2 violation 211, May 1, 1997 and NA027795, 3 violation of section 211 on November 1, 1996, 4 do you admit or deny this allegation? 5 6 7 [Petitioner]: Admit. (RT 11.) The trial court then sentenced Petitioner to ten years in prison 8 in conformance with the plea. (RT 13.) This sentence was based on 9 the high term of five years on the substantive charge doubled to ten 10 years based on the fact that Petitioner had a prior serious felony 11 conviction. 12 (RT 13.) Petitioner subsequently filed habeas corpus petitions in the 13 state superior court and state supreme court, claiming that his 14 sentence was unconstitutional because he did not receive a jury trial 15 on the sentence enhancement. 16 were denied. 17 instant Petition, alleging that the state courts erred in denying his 18 claim. 19 22 (Lodgment Nos. 4 and 6.) Both petitions Petitioner then filed the III. 20 21 (Lodgment Nos. 3 and 5.) STANDARD OF REVIEW The standard of review in this case is set forth in 28 U.S.C. § 2254: 23 An application for a writ of habeas corpus on behalf of 24 a person in custody pursuant to the judgment of a State 25 court shall not be granted with respect to any claim 26 that was adjudicated on the merits in State court 27 proceedings unless the adjudication of the claim 28 3 1 (1) resulted in a decision that was contrary to, or 2 involved an unreasonable application of, clearly established 3 Federal law, as determined by the Supreme Court of the 4 United States; or 5 (2) resulted in a decision that was based on an 6 unreasonable determination of the facts in light of the 7 evidence presented in the State court proceeding. 8 28 U.S.C. § 2254(d). 9 A state court decision is contrary to clearly established 10 federal law if it applies a rule that contradicts Supreme Court case 11 law or if it reaches a conclusion different from the Supreme Court s 12 in a case that involves facts that are materially indistinguishable. 13 Premo v. Moore, 131 S. Ct. 733, 743 (2011) (citing Bell v. Cone, 535 14 U.S. 685, 694 (2002)). 15 applied federal law, a petitioner must show that the state court s 16 application of Supreme Court precedent to the facts of his case was 17 not only incorrect but objectively unreasonable. 18 S. Ct. 1855, 1862 (2010). 19 squarely decided an issue, a state court s adjudication of that issue 20 cannot result in a decision that is contrary to, or an unreasonable 21 application of, Supreme Court precedent. 22 131 S. Ct. 770, 786 (2011). 23 To establish that the state court unreasonably Renico v. Lett, 130 Where no decision of the Supreme Court has See Harrington v. Richter, Petitioner raised the instant claim in his habeas petitions in 24 the state courts. The state supreme court did not explain its reasons 25 for denying the claim, but the superior court did. 26 presumes that the state supreme court rejected Petitioner s claim for 27 the same reasons the superior court did. 28 to the superior court s reasoning and will not disturb it unless it 4 This Court The Court, therefore, looks 1 concludes that fairminded jurists would all agree that the decision 2 was wrong. Id. 3 IV. 4 DISCUSSION 5 Petitioner claims that the trial court was not authorized to 6 sentence him to the upper term because no aggravating factors were 7 admitted in court or submitted to the jury and proven beyond a 8 reasonable doubt. 9 this claim is rejected. 10 (Petition at 9-23.1) For the following reasons, In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme 11 Court held that, [o]ther than the fact of a prior conviction, any 12 fact that increases the penalty for a crime beyond the prescribed 13 statutory maximum must be submitted to a jury, and proved beyond a 14 reasonable doubt. 15 the maximum sentence a judge could impose based solely on the facts 16 reflected in the jury verdict or admitted by the defendant. 17 Blakely v. Washington, 542 U.S. 296, 303-04 (2004). 18 California, 549 U.S. 270, 293 (2007), the Supreme Court held that the 19 middle term in California s sentencing scheme was the statutory 20 maximum for purposes of analysis under Apprendi, and that California 21 courts were barred from imposing a sentence beyond the middle term 22 based on any fact that was not determined by a jury and proven beyond 23 a reasonable doubt. 24 25 The statutory maximum for Apprendi purposes is See In Cunningham v. Petitioner alleges that his upper-term sentence is unconstitutional under Apprendi, Blakely, and Cunningham because it was not 26 27 28 1 Petitioner has appended to his federal Petition the argument section from his state petitions. He has not numbered those pages, however. The Court has, beginning with page 8 and ending with page 23. 5 1 based on any facts admitted by him or determined by a jury. 2 Petitioner is wrong. 3 First, Petitioner waived his right to a jury trial on both the 4 substantive charge and the prior conviction allegations and accepted a 5 negotiated sentence of ten years, in lieu of a possible 25-years-to- 6 life sentence. 7 ten because of a prior strike) resulted directly from Petitioner s 8 admissions in the plea agreement and not from any facts determined by 9 the judge. Thus, the upper-term sentence (five years, doubled to The trial court was not required to hold a mini-trial 10 following Petitioner s plea to determine whether there was a factual 11 basis for the aggravated sentence. 12 Sixth Amendment violation. 13 *6 (C.D. Cal. Sept. 30, 2011) (finding no constitutional error in 14 imposing upper term based on terms of the plea agreement); Bradley v. 15 Sullivan, 2010 WL 1609950, at *7 (C.D. Cal. Mar. 24, 2010) (same); see 16 also Amezcue v. Almager, 2009 WL 1513427, at *5 (C.D. Cal. May 25, 17 2009) (holding trial court had no duty to make independent findings 18 justifying its imposition of the upper term in a negotiated plea 19 agreement). 20 In this situation, there was no See Graves v. Salazar, 2011 WL 6942080, at Second, there is no clearly established Supreme Court law upon 21 which Petitioner can rely for relief. 22 applied the Apprendi/Blakely/Cunningham line of cases to bargained- 23 for sentences, where the defendant has explicitly agreed to the 24 sentence he is now challenging as unconstitutional. 25 Evans, 2010 WL 3928752, at *2 (C.D. Cal. Aug. 16, 2010). 26 state court s denial of this claim was not an unreasonable application 27 of clearly established Supreme Court law because no such rule has been 28 6 The Supreme Court has not See Oliver v. Thus, the 1 squarely established by the Supreme Court. 2 Mirzayance, 129 S. Ct. 1411, 1419 (2009). 3 See Knowles v. Third, though the United States Supreme Court held in January 4 2007 that state judges in California could not sentence a defendant 5 above the middle term without submitting certain enhancements to a 6 jury, see Cunningham, 549 U.S. at 293, in March 2007, the state 7 legislature amended the sentencing law to allow judges to sentence 8 defendants to any proscribed term within their sound discretion. 9 See Butler v. Curry, 528 F.3d 624, 652 n. 20 (9th Cir. 2008). Under 10 this new law, which applied to Petitioner in October 2009 (i.e., the 11 date on which he was sentenced), the trial judge was authorized in its 12 discretion to sentence Petitioner to the upper term without any 13 aggravating factors being proven to a jury or admitted by Petitioner. 14 See Pierce v. Stainer, 2011 WL 5104092, at *4 (E.D. Cal. Oct. 25, 15 2011) (holding under revised law neither a jury determination nor an 16 admission by petitioner was required in order to impose an aggravated 17 sentence ); Juarez v. Allison, 2011 WL 3654449, at *5 (C.D. Cal. Mar. 18 22, 2011) (finding the upper term is the statutory maximum under 19 revised law); Gomez-Perez v. McDonald, 2011 WL 285035, at *17 (E.D. 20 Cal. Jan. 25, 2011) (finding under revised law courts could impose 21 upper term based on traditional sentencing discretion ); Cal. Penal 22 Code § 1170(b) (as amended, effective March 30, 2007). 23 reasons, the Petition is denied and the action is dismissed with 24 prejudice. 25 For all these Finally, because Petitioner has not made a substantial showing of 26 the denial of a constitutional right, the Court will not issue a 27 certificate of appealability in this action. 28 7 See 28 U.S.C. 1 § 2253(c)(2); Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 2 322, 336 (2003). 3 It IS SO ORDERED. 4 DATED: January 10, 2012. 5 6 7 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-State Habeas\LLOYD, K 3321\Memorandum&Opinion.wpd 8
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