David Leon Stokes, Ii, Petitioner-appellant, v. Dora B. Schriro, Director, Respondent-appellee, 465 F.3d 397 (9th Cir. 2006)

A jury found David Leon Stokes, II (Stokes) guilty of attempted kidnapping and attempted robbery in Arizona state court. The jury also found the offenses to be "dangerous." At sentencing, the trial judge opted to sentence Stokes to twenty years as a repetitive offender whose previous convictions were for non-dangerous offenses. The judge then enhanced the sentence to twenty-five years by finding aggravating circumstances. After Stokes's habeas petition was denied in district court, we granted a certificate of appealability (COA) on the issue of whether Stokes "was sentenced in violation of the Sixth Amendment pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), because the trial court disregarded the jury's findings of dangerousness and sentenced appellant as a non-dangerous repetitive offender." We conclude that the trial court's election of one statutory sentencing option over another was not contrary to Apprendi. However, the court ran afoul of Apprendi when it relied on judicial factfinding to increase Stokes's sentence beyond the statutory maximum. Accordingly, we affirm in part, reverse in part, and remand.

In May 1999, the Milners pulled their car into a convenience store parking lot. Mr. Milner went into the store while Mrs. Milner remained in the car. Stokes entered the car, grabbed Mrs. Milner's neck, threatened her with a "blade," and told her he was going to steal the car. Mrs. Milner grabbed the keys from the ignition and jumped out of the car, but not before Stokes slashed her neck with the "blade." Mrs. Milner survived, and Stokes was eventually apprehended.

An Arizona state jury subsequently found Stokes guilty of attempted kidnapping and attempted robbery, both class three felonies. The jury also found the offenses for which Stokes was convicted to be "dangerous."

Stokes's sentencing presented the Arizona state judge with two options. Because this was Stokes's first conviction for a dangerous felony, the judge could sentence Stokes as a first-time dangerous offender under Arizona Revised Statute § 13-604(I), for a maximum sentence of fifteen years.¹  In the alternative, and in view of Stokes's prior convictions for at least two non-dangerous felonies, the judge could sentence Stokes as a repetitive offender whose previous convictions were for non-dangerous offenses. Under Arizona Revised Statute § 13-604(D), the maximum sentence under the latter option was twenty years.² 

The judge elected the latter option after finding that Stokes had been convicted of driving under the influence, theft, and possession of a narcotic drug. The judge then enhanced the twenty-year sentence to twenty-five years under Arizona Revised Statute § 13-702(C) and § 13-702.01(E) by finding three aggravating circumstances: (1) "physical and emotional harm to the victim," (2) "the defendant was previously convicted of felonies within 10 years immediately preceding the date of this offense," and (3) "defendant's 1981 convictions for kidnapping and aggravated assault . . . are strikingly similar to the instant offenses."³  The judge ultimately sentenced Stokes to two "super-aggravated" terms of twenty-five years to be served concurrently.

Stokes appealed to the Arizona Court of Appeals, asserting, inter alia, that his sentence was "unlawful" because the jury found that his offenses were dangerous, yet the judge disregarded the jury's findings and instead sentenced him as a non-dangerous repetitive offender, resulting in a longer sentence.

Relying on State v. Smith, 171 Ariz. 54, 828 P.2d 778 (1992), the Court of Appeals rejected Stokes's argument. The Court of Appeals reasoned that Smith, which addressed an almost identical scenario, recognized the judge's discretion to sentence under either subsection. Stokes's appeal to the Arizona Supreme Court was denied.⁴ 

Stokes requested post-conviction relief on a basis other than his unlawful sentence claim. His request and petitions for review were denied.

Stokes then petitioned for a writ of habeas corpus under 28 U.S.C. § 2254 in federal district court. Citing Apprendi, he again argued that his sentence was unlawful because the judge disregarded the jury's findings of dangerousness and opted to sentence him as a non-dangerous repetitive offender.

The magistrate judge recommended that the district court deny Stokes's petition. The district court accepted the magistrate judge's recommendation and concluded that Stokes was not sentenced in violation of Apprendi under the sentencing statutes as construed by the Arizona state courts.

The district court denied Stokes's request for a COA. However, we granted a COA on the issue of "whether appellant was sentenced in violation of the Sixth Amendment pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), because the trial court disregarded the jury's findings of dangerousness and sentenced appellant as a non-dangerous repetitive offender."⁵ 

II

We review a district court's decision to deny a habeas petition de novo and its findings of fact for clear error. Fowler v. Sacramento County Sheriff's Dep't, 421 F.3d 1027, 1034 (9th Cir. 2005). Because Stokes filed his petition after April 24, 1996, it is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Id.

To obtain habeas relief under AEDPA, Stokes must show that the relevant state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d) (1).

" [A] decision is contrary to clearly established federal law . . . if the state court applies a rule that contradicts the governing law set forth in the Supreme Court's cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from that precedent." Fowler, 421 F.3d at 1034-35 (citation, alterations, and internal quotation marks omitted).

" [C]learly established Federal law, as determined by the Supreme Court" refers to Supreme Court precedent at the time of the last-reasoned state court decision.⁶  Id. at 1034.

A. The judge did not violate Apprendi by opting to sentence Stokes as a repetitive offender whose previous convictions were for non-dangerous offenses.⁷ 

According to Stokes, the Court of Appeals's memorandum decision affirming the judge's sentencing order is contrary to Apprendi in the following way: The jury found Stokes's offenses to be dangerous. Under § 13-604(I) (the first-time dangerous offender statute), the judge could only impose a sentence of fifteen years. However, the judge opted to sentence Stokes as a repetitive offender whose previous convictions were for non-dangerous offenses. Under § 13-604(D) (the repetitive offender statute), the judge sentenced Stokes to twenty years (not counting the additional five-year enhancement based on aggravating circumstances).

Apprendi was violated, Stokes argues, when the judge disregarded the jury's findings of dangerousness and exposed him to a sentence greater than that allowed by the jury's verdicts. The jury's verdicts were sufficient to expose Stokes to a twenty-year sentence, however. In disregarding the dangerousness finding, the judge did not negate that finding. Instead, the existence or nonexistence of the crime's dangerousness was irrelevant to the application of § 13-604(D), which requires only that the defendant have previous non-dangerous convictions. See, e.g., State v. Sammons, 156 Ariz. 51, 749 P.2d 1372, 1376 (1988) (regarding as "mere surplusage" under § 13-604D a finding that the current offense was dangerous); Smith, 828 P.2d at 780 (holding that § 13-604(D) applied " [b]ecause [defendant's] prior convictions were for non-dangerous felonies"). Accordingly, under Arizona law the applicable statutory maximum was the greater of those provided by §§ 13-604(D) and 13-604(I). See Sammons, 749 P.2d at 1376 (considering the greater of the two a proper "sentencing option selected by the trial court"); Smith, 828 P.2d at 780 (same); cf. State v. Quinonez, 194 Ariz. 18, 976 P.2d 267, 270 (1999) (holding in a similar situation that "the only sentencing range that applied in this case was . . . the more severe one").

Contrary to Stoke's arguments, the Arizona state courts' interpretation of these provisions does not contradict any clearly established federal law. A statutory maximum need not be defined by every one of the facts found at trial, so long as the defendant is not "expose [d] . . . to a greater punishment than that authorized" solely by those facts (or the fact of a prior conviction). Apprendi, 530 U.S. at 490, 494, 120 S. Ct. 2348. The application of § 13-604(D) did not depend on any fact that was not submitted to the jury, other than the facts of Stokes's prior convictions. See id. at 490, 120 S. Ct. 2348. Because the twenty-year sentence was authorized by the jury's findings, no Apprendi violation occurred. See United States v. Sua, 307 F.3d 1150, 1154 (9th Cir. 2002). Stokes is therefore not entitled to habeas relief on this claim.

B. The judge violated Apprendi by enhancing Stokes's sentence based on aggravating circumstances found by the judge.

The sentencing judge enhanced Stokes's sentence by finding three aggravating circumstances: (1) "physical and emotional harm to the victim," (2) "the defendant was previously convicted of felonies within 10 years immediately preceding the date of this offense," and (3) "defendant's 1981 convictions for kidnapping and aggravated assault . . . are strikingly similar to the instant offenses." These findings enhanced Stokes's sentence to twenty-five years, beyond the prescribed statutory maximum of twenty years. Because these findings were not made by a jury, the sentence violated applicable federal law. See Apprendi, 530 U.S. at 490-92, 120 S. Ct. 2348.⁸ 

The judge's findings of aggravating circumstances are not covered by Apprendi's prior conviction exception. Even if the prior conviction exception covers the finding that "the defendant was previously convicted of felonies within 10 years immediately preceding the date of this offense," neither of the other two findings is covered by the exception because each was directed at Stokes's present offenses, not the fact of his prior offenses.

The judge found that there was "physical and emotional harm to the victim." This finding, directed at the present offenses, is not covered by the prior conviction exception. See United States v. Matthews, 312 F.3d 652, 664 (5th Cir. 2002) (holding that the judge violated Apprendi when he enhanced the defendant's sentence by finding that the defendant committed his offenses (1) while participating in a criminal street gang with knowledge of its criminal activities and (2) with intent to promote criminal activities or to maintain or increase his position in the gang because those findings were "unrelated to the fact of a prior conviction, but directly related to the current charged offense.") (emphasis added).

The judge also found that Stokes's "1981 convictions for kidnapping and aggravated assault . . . are strikingly similar to the instant offenses." This finding similarly focuses on the present offenses as a basis of comparison to past offenses and is beyond the scope of the prior conviction exception. See United States v. Kortgaard, 425 F.3d 602, 608-09 (9th Cir. 2005) (holding that the sentence enhancement violated the defendant's Sixth Amendment right to a jury trial because the findings that trigger the enhancement "do not follow necessarily from the fact of any prior conviction or sentence but instead call for the judgment of a factfinder.").

Because the prior conviction exception does not inoculate an enhancement predicated upon judicial factfinding, Stokes's sentence violated Apprendi. See Apprendi, 530 U.S. at 490-92, 120 S. Ct. 2348. Where a court imposes a sentence beyond the statutory maximum, the government has the burden of showing that the error was harmless beyond a reasonable doubt. See United States v. Banuelos, 322 F.3d 700, 706 and n. 4 (9th Cir. 2003). As the government failed to meet its burden, Stokes is entitled to habeas relief on this claim.

III

The district court correctly concluded that the Arizona Court of Appeals's decision upholding Stokes's enhanced sentence as a repetitive offender was not contrary to Apprendi. However, the sentencing judge committed Apprendi error when he used judicial findings to enhance Stokes's sentence. Because the government failed to show that the Apprendi error was harmless, Stokes is entitled to habeas relief on that claim. Accordingly, we affirm in part, reverse in part, and remand for the district court to grant the habeas petition as to the imposition of the sentence enhancement predicated upon judicial factfinding.

AFFIRMED in part; REVERSED in part; and REMANDED.