(HC) Fowler v. Adams et al, No. 2:2006cv02230 - Document 17 (E.D. Cal. 2009)

Court Description: MEMORANDUM DECISION AND ORDER signed by Circuit Judge Richard C. Tallman on 11/3/09, ORDERING that Fowler's petition for a writ of hc is DENIED, and the case is DISMISSED with prejudice.The Clerk is directed to enter Judgment. CASE CLOSED(Kastilahn, A)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD WILLIAM FOWLER, 12 13 14 15 16 2:06-cv-02230-RCT Petitioner, v. D. ADAMS, et al., Respondents. ________________________________/ MEMORANDUM DECISION AND ORDER 17 18 19 20 21 This matter comes before the Court on Richard William Fowler s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. INTRODUCTION Petitioner Fowler is a state prisoner currently incarcerated at California State Prison, 22 Corcoran in Corcoran, California. He filed this petition for a writ of habeas corpus to challenge 23 a judgment of conviction entered against him in the Sacramento County Superior Court in 2004 24 on charges of assault, criminal threat, and witness intimidation. A review of the record shows 25 that the California Court of Appeal, Third Appellate District, correctly applied United States 26 Supreme Court law in rejecting Fowler s claims presented in the petition. Id. § 2254(d). 27 Accordingly, the petition is denied and the case is dismissed with prejudice. 28 1 2 3 PROCEDURAL AND FACTUAL HISTORY The Sacramento County Superior Court convictions resulted in a sentence of twelve years in prison. 4 The California Court of Appeal summarized the facts of this case as follows: 5 On the evening of April 27, 2003, defendant stopped by Louie s Cocktail Lounge for a beer. When he arrived, two people were present -bartender William Cox and patron Daniel Brown. Cox told defendant he could not serve him because defendant had recently thrown a beer bottle through the bar s big screen television. Defendant became verbally combative and demanded Cox serve him. When Brown looked in defendant's direction, defendant asked Brown if [he] wanted some and called him a fat ass and a fat cow. Brown told defendant that he did not want any trouble. Defendant then walked up to Brown and hit him in the head. Brown placed defendant in a choke hold and brought him to the ground. After awhile, defendant apologized and Brown released him. When Brown refused to shake defendant s hand, defendant said F-you guys and walked toward the exit. Brown returned to his seat. Moments later, defendant approached Brown from behind and struck him on the back of the head with the barrel end of a pool cue. Brown fell to the floor, lying on his back in a fetal like position. Defendant struck Brown in the head with the pool cue four more times as Brown laid on the floor. Brown was taken to the hospital, where he spent three nights. He suffered a front sinus fracture, a left superior orbital rim fracture and a three inch laceration on his forehead. The sinus fracture required surgery and the laceration required approximately 60 stitches. Defendant was arrested on May 19, 2003, and released on bail approximately one week later. On August 22, 2003, while out on bail, defendant saw Brown outside the Tumbleweed Bar. Defendant approached Brown and apologized for the incident at Louie s Cocktail Lounge. When Brown refused to shake defendant s hand and walked inside the bar, defendant followed and told Brown that Brown, Cox and another individual weren t going to be able to make it to the trial. I have people that will take care of that. I know where you live. I know where you work. There's no way I m going to jail for you. Defendant testified at trial and admitted striking Brown in the forehead with a pool cue one time. He said he did so only after Brown grabbed him by the throat, punched him and threw him around the bar. He denied striking Brown more than once and denied striking him in the back of the head. He also denied threatening Brown at the Tumbleweed Bar. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 (Lodged Doc. 4 at 2 3 (alteration in original).) 24 Based on the incident at Louie s Cocktail Lounge on April 27, 2003, the Sacramento 25 County jury convicted Fowler of assault with a deadly weapon or by means likely to produce 26 great bodily injury in violation of California Penal Code section 245(a)(1) (count I) and found 27 that Fowler personally inflicted great bodily harm upon Brown in violation of section 28 12022.7(a). Based on the incident at the Tumbleweed Bar on August 22, 2003, the jury found -2- 1 Fowler not guilty of making a criminal threat in violation of section 422 (count II) and of 2 witness intimidation by force in violation of section 136.1(c)(1) (count III). However, as to 3 count II, the jury did find Fowler guilty of the lesser included offense of attempting to make a 4 criminal threat in violation of sections 664 and 422. As to count III, the jury found Fowler 5 guilty of the lesser included offense of witness intimidation in violation of section 136.1(a)(1), 6 (a)(2), (b)(2). Finally, as to both counts II and III, the jury found that Fowler committed the 7 offenses while out on bail for assault, in violation of section 12022.1. (Lodged Doc. 8 at 8 186 90.) 9 The trial court sentenced Fowler to the upper term of four years for the assault, plus an 10 additional three year term, to be served consecutively, for the infliction of great bodily injury 11 (count I). (Lodged Doc. 7 at 341 42.) The upper term was imposed because of several 12 aggravating factors, including the fact that Fowler was on probation when the crime was 13 committed, he engaged in violent conduct that indicates a serious danger to society, his prior 14 convictions are numerous and of increasing seriousness, he has served a prior prison term, and 15 his prior performance on probation and parole was unsatisfactory. (Id. at 340 41.) It sentenced 16 Fowler to one year of imprisonment on count II, plus an additional two years for committing the 17 crime while out on bail, but stayed the term pursuant to section 654. (Id. at 342.) The trial 18 court imposed the middle term, two-year sentence as to count III, plus an additional two years 19 for committing the crime while out on bail, to be served consecutively to the sentence on count 20 I. (Id.) Finally, having found Fowler s prior felony conviction true beyond a reasonable doubt, 21 the trial court sentenced him to an additional consecutive term of one year. (Id.) Thus, in the 22 aggregate, the trial court sentenced Fowler to twelve years in state prison. 23 In an unpublished decision, the California Court of Appeal affirmed the superior court s 24 judgment on September 13, 2005. (Lodged Doc. 4 at 1, 12.) Fowler thereafter filed a petition 25 for review in the California Supreme Court, which was denied on November 16, 2005, without 26 comment or citation to authority. (Lodged Doc. 6.) 27 28 On October 10, 2006, Fowler filed this federal petition for a writ of habeas corpus. Respondents concede that Fowler s claims have been fully exhausted and are properly before -3- 1 this court. 2 CLAIMS 3 Fowler raises the following claims in his petition: 4 1. Violation of his right to due process based on the use of California Jury 5 Instruction Criminal 2.03, allowing the jury to infer Fowler s consciousness of guilt if they 6 found he made false pretrial statements. 7 8 9 2. Violation of his right to due process based on the use of California Jury Instruction Criminal 2.21.2 without defining the term material part. 3. Violation of his right to trial by jury due to the imposition of upper term and 10 consecutive sentences based on facts that were not found by the jury beyond a reasonable doubt. 11 LEGAL STANDARD 12 In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 13 ( AEDPA ), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which established that a 14 federal habeas corpus petition shall not be granted with respect to any claim adjudicated on the 15 merits in the state courts unless the adjudication either: (1) resulted in a decision that was 16 contrary to, or involved an unreasonable application of, clearly established federal law, as 17 determined by the United States Supreme Court; or (2) resulted in a decision that was based on 18 an unreasonable determination of the facts in light of the evidence presented to the state courts. 19 28 U.S.C. § 2254(d). 20 21 Under 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 Supreme Court] has on a set of materially indistinguishable facts. 22 Williams v. Taylor, 529 U.S. 362, 412 13 (2000). Under the unreasonable application clause, 23 a federal habeas court may grant the writ if the state court identifies the correct governing legal 24 principle from [the Supreme Court] s decisions but unreasonably applies that principle to the 25 facts of the prisoner s case. Id. at 413. 26 Under AEDPA, the federal courts review the last reasoned decision of the state courts. 27 Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991). Because the California Supreme Court denied 28 -4- 1 Fowler s petition for review without comment or citation to authority, the Court will here 2 review the decision of the California Court of Appeal. 3 4 5 6 7 8 9 DISCUSSION I. California Jury Instruction Criminal 2.03 Fowler claims that his right to due process was violated by the use of California Jury Instruction Criminal ( Instruction ) 2.03. Instruction 2.03 states, If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crimes for which he is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide. 10 (Lodged Doc. 8 at 123.) Fowler argues that this instruction was improper because his pretrial 11 statement and trial testimony were internally consistent and consistent with all the evidence 12 other than the testimony of his accusers, and therefore do not demonstrate consciousness of 13 guilt. He further contends that the instruction was highly prejudicial because the case hinged on 14 witness credibility and the instruction inappropriately focused the jury s scrutiny on Fowler s 15 credibility, and did not apply to that of the other witnesses. The trial court, in evaluating 16 Fowler s objection to the instruction, found no merit to these arguments. (See Lodged Doc. 7 at 17 252 53.) The California Court of Appeal also rejected Fowler s challenge to the instruction. 18 (Lodged Doc. 4 at 5 6.) 19 A. Legal Standard 20 The only question for a federal habeas court when a petitioner challenges a state jury 21 instruction is whether the ailing instruction by itself so infected the entire trial that the resulting 22 conviction violates due process. Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v. 23 Naughten, 414 U.S. 141, 147 (1973)). Thus, it is insufficient to demonstrate that the instruction 24 was improper under state law, or even that the state evidentiary rule allowing the instruction was 25 unwise. Id. at 71 72. Instead, the petitioner must show that the instruction, taken in the context 26 of the trial record as a whole, violated some due process right protected by the Fourteenth 27 Amendment. Id. at 72. In other words, a potentially erroneous instruction is reviewed to 28 determine whether there is a reasonable likelihood that the jury has applied the challenged -5- 1 instruction in a way that violates the Constitution. Id. (quoting Boyde v. California, 494 U.S. 2 370, 380 (1990)). Jury instructions that relieve the State of its burden to prove every element of 3 a charged offense beyond a reasonable doubt violate a defendant s due process rights. Carella 4 v. California, 491 U.S. 263, 265 (1989) (citations omitted). 5 B. Instruction 2.03 6 Fowler contends that Instruction 2.03 should not have been given because it lacks 7 evidentiary support: Where appellant s pretrial statement is internally consistent and consistent 8 with all evidence except his accuser s biased testimony, an instruction focusing on appellant s 9 consciousness of guilt, where no facts support such consciousness, is unwarranted and highly 10 prejudicial. (Lodged Doc. 1 at 11.) He further argues that the instruction creates an unproven 11 inference that Fowler made a misleading statement, which violates due process by removing an 12 element of the crime from the jury s consideration. (Lodged Doc. 3 at 4.) 13 On direct review, the California Court of Appeal rejected Fowler s argument. It first 14 accurately described the background to this claim, as described above. (Lodged Doc. 4 at 5.) 15 Proceeding to the merits, the court found that the instruction was proper under California law 16 even if Fowler s pretrial statement was consistent with his trial testimony. (Id.) The court 17 concluded that [i]f the jury believed the testimony of other witnesses, it could reasonably have 18 found that [Fowler] s pretrial statements were willfully false and deliberately misleading. 19 (Id. at 6.) 20 To the extent that Fowler contends that the trial court s use of Instruction 2.03 violated 21 state law because it lacked evidentiary support, such a claim is not cognizable on federal habeas 22 review. See Estelle, 502 U.S. at 67 68. This Court will determine only if the use of the 23 instruction violated Fowler s due process rights. The Ninth Circuit has previously held that 24 Instruction 2.03 is constitutional. Turner v. Marshall, 63 F.3d 807, 819 20 (9th Cir. 1995), 25 overruled on other grounds by Tolbert v. Page, 182 F.3d 677 (9th Cir. 1999). In Turner, the 26 court held that [s]o long as the instruction does not state that inconsistent statements constitute 27 evidence of guilt, but merely states that the jury may consider them as indicating a 28 consciousness of guilt, the instruction would not violate constitutional rights. Id. at 820. In -6- 1 this case, the jury was instructed that if they found that Fowler had made willfully false or 2 deliberately misleading statements before trial they could, but were not required to, consider that 3 as evidence tending to show a consciousness of guilt. This does not improperly relieve the State 4 of its burden of proof or require the jury to infer guilt or even a consciousness of guilt. See 5 Francis v. Franklin, 471 U.S. 307, 314 15 (1985) (holding that a permissive inference in a jury 6 instruction is not a violation of due process). 7 Based on the foregoing, this Court finds that the California Court of Appeal s rejection 8 of Fowler s instructional error claim as to Instruction 2.03 was neither contrary to, nor an 9 unreasonable application of, clearly established federal law as determined by the United States 10 Supreme Court. See 28 U.S.C. § 2254(d). Thus, habeas relief is not warranted on this claim. 11 II. 12 13 14 15 California Jury Instruction Criminal 2.21.2 Fowler claims that his right to due process was violated by the use of Instruction 2.21.2. Instruction 2.21.2 states, A witness, who is willfully false in one material part of his testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his testimony in other particulars. 16 (Lodged Doc. 8 at 131.) Fowler argues that this instruction was improper because the trial court 17 failed to sua sponte instruct the jury on the meaning of the phrase material part. Because 18 Fowler argues that this phrase has a technical meaning peculiar to the law, the court had a 19 duty to define it for the jury. The trial court s failure in this regard impeded the jury s ability to 20 properly weigh the conflicting statements of the various witnesses and the impact of any lying 21 about material matters. 22 Fowler did not object to this instruction at trial. In fact, in his argument against 23 Instruction 2.03, Fowler s counsel suggested that Instruction 2.21.2 negated the need for 24 Instruction 2.03, stating It certainly could be argued that [Fowler], if [the district attorney] 25 believes he was false, was false under 2.21.2 just like every other witness. (Lodged Doc. 7 at 26 252.) The California Court of Appeal rejected Fowler s argument on the basis that this 27 argument had been previously rejected in People v. Wade, 46 Cal. Rptr. 2d 645 (Cal. Ct. App. 28 -7- 1 1995). (Lodged Doc. 4 at 7.) In Wade, the California Court of Appeal held that, as used in the instruction, material 2 3 carries its ordinary meaning of substantial, essential, relevant or pertinent. 46 Cal. Rptr. 2d at 4 650. Fowler spends quite a bit of time arguing that the California courts should reconsider this 5 decision. The Court of Appeal, after several pages of analysis, declined this invitation and the 6 California Supreme Court denied review. Wade s interpretation of the meaning of material part is binding on this court. See 7 8 Mendez v. Small, 298 F.3d 1154, 1158 (9th Cir. 2002) (stating the long understood rule that [a] 9 state court has the last word on the interpretation of state law (citation omitted)). Because 10 material part carries its ordinary meaning Fowler s argument, based entirely on the premise 11 that material is used as a technical legal term, must fail. Certainly any error, although this 12 court sees none, would not rise to the level of a constitutional violation as required by Estelle. 13 See supra Part I.A. Therefore, this Court finds that the California Court of Appeal s rejection of 14 Fowler s instructional error claim as to Instruction 2.21.2 was neither contrary to, nor an 15 unreasonable application of, clearly established federal law as determined by the United States 16 Supreme Court. See 28 U.S.C. § 2254(d). Habeas relief is not warranted on this claim. 17 III. Imposition of Upper Term & Consecutive Sentences 18 Fowler claims that he was denied his federal constitutional right to a jury trial when he 19 was sentenced, based on facts not found to be true beyond a reasonable doubt by the jury, to an 20 upper term sentence for the assault conviction and his sentences were imposed consecutively, 21 rather than concurrently. The superior court indicated that it was sentencing Fowler to the upper 22 term for the assault conviction because of the following aggravating factors: (1) Fowler engaged 23 in violent conduct indicating he is a serious danger to society; (2) his prior convictions as an 24 adult and sustained petitions in juvenile delinquency proceedings were numerous and of 25 increasing seriousness; (3) he has served a prior prison term; (4) he was on probation when the 26 crimes were committed; and (5) his prior performance on probation and parole was 27 unsatisfactory. (Lodged Doc. 7 at 340 41.) It listed no factors leading to the imposition of 28 consecutive sentences. -8- 1 A. 2 Fowler s argument before the California Court of Appeal and the California Supreme 3 Court was based on Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 4 542 U.S. 296 (2004). After Fowler s conviction became final, the Supreme Court struck down 5 California s system of determinate sentencing in Cunningham v. California, 549 U.S. 270 6 (2007). In Cunningham, the Court held that California s determinate sentencing scheme 7 violated the Sixth Amendment and the Apprendi line of cases because it allowed judges to find 8 facts that increase[] the penalty for a crime beyond the prescribed statutory maximum. 549 9 U.S. at 288 (quoting Apprendi, 530 U.S. at 490). Under Apprendi, any such fact, other than a 10 prior conviction, must be submitted to a jury, and proved beyond a reasonable doubt. Id. at 11 288 89 (quoting Apprendi, 530 U.S. at 490). 12 Legal Standard Under the California system, the statute defining most offenses describes three terms of 13 imprisonment, a lower, middle, and upper term sentence. Id. at 277. In its discussion of the 14 California sentencing scheme, the Cunningham court noted that if California judges were free 15 to exercise their discretion to select a specific sentence within a defined range, the sentencing 16 scheme would be constitutional under United States v. Booker, 543 U.S. 220 (2005). 549 U.S. 17 at 292 (quoting Booker, 543 U.S. at 233 (stating that the court has never doubted the authority 18 of a judge to exercise broad discretion in imposing a sentence within a statutory range )). 19 However, the California system allowed trial judges to impose an upper term sentence only 20 when the judge had found an aggravating circumstance. Id. at 288 (citation omitted). 21 Therefore, the relevant statutory maximum for Apprendi is the middle term, id. (citing Blakely, 22 542 U.S. at 303), and other than the fact of a prior conviction, a defendant may be sentenced to 23 the upper term only based on facts submitted to a jury and proved beyond a reasonable doubt. 24 The Ninth Circuit has held that the result in Cunningham was clearly dictated by the 25 Apprendi line of cases, particularly Blakely, which struck down a similar sentencing scheme in 26 Washington. Butler v. Curry, 528 F.3d 624, 628 (9th Cir. 2008). Therefore, Cunningham 27 applies retroactively on collateral review. Id. at 639. Thus, this Court must determine if the 28 California Court of Appeal s opinion upholding Fowler s sentence is contrary to or involves an -9- 1 unreasonable application of Blakely and Cunningham. 2 B. Consecutive Sentences 3 The California Court of Appeal summarized Fowler s argument regarding his 4 consecutive sentences as follows: [Fowler] contends his . . . consecutive sentence for count 5 [III] must be reversed because the trial court relied on facts not submitted to the jury and proved 6 beyond a reasonable doubt, thus depriving defendant of the constitutional right to a jury trial on 7 facts legally essential to the sentence. (Lodged Doc. 4 at 10.) The court ruled that the 8 application of consecutive sentences did not violate the Sixth Amendment because California 9 Penal Code section 669 leaves the decision of whether terms should run consecutively or 10 concurrently to the discretion of the trial court. (Id. at 11 (citing People v. Reeder, 200 Cal. 11 Rptr. 479, 495 (Cal. Ct. App. 1984)).) The Reeder court held that there is no . . . statutory 12 presumption in favor of concurrent rather than consecutive sentences for multiple offenses 13 except where consecutive sentencing is statutorily required. 200 Cal. Rptr. at 495. 14 Fowler tries to avoid this conclusion by arguing that section 669 creates a presumption 15 in favor of concurrent sentencing when it states: Upon failure of the court to determine how the 16 terms of imprisonment on the second or subsequent judgment shall run, the term of 17 imprisonment on the second or subsequent judgment shall run concurrently. Cal. Penal Code 18 § 669. However, by its very terms, this presumption comes into play only if the trial court has 19 failed to decide whether the terms should run consecutively or concurrently. That is not the case 20 here, where the court clearly determined that Fowler s sentences should run consecutively. (See 21 Lodged Doc. 8 at 342.) 22 Fowler next argues that California Rule of Court 4.425 requires that a judge make 23 findings of fact before imposing consecutive sentences. Rule 4.425 contains [c]riteria affecting 24 the decision to impose consecutive rather than concurrent sentences. However, neither section 25 669 nor Rule 4.425 mandates that a trial judge find one or more factors before imposing 26 consecutive sentences. Furthermore, any requirement in Rule 4.425 that a judge make particular 27 factual findings would be impermissibly inconsistent with section 669, which leaves the 28 imposition of consecutive sentences to the discretion of trial judges. CAL. CONST . art. VI, § 6(d) -10- 1 ( rules adopted [by the Judicial Council] shall not be inconsistent with statute ). 2 When a sentencing decision is based on a judge s exercise of discretion rather than fact 3 finding, it does not violate the Sixth Amendment. See Booker, 543 U.S. at 233 (stating that the 4 court has never doubted the authority of a judge to exercise broad discretion in imposing a 5 sentence within a statutory range ). The trial judge in this case was free to exercise her 6 discretion under section 669 to sentence Fowler to consecutive or concurrent terms. Therefore, 7 this Court finds that the California Court of Appeal s rejection of Fowler s consecutive sentence 8 Sixth Amendment claim was neither contrary to, nor an unreasonable application of, clearly 9 established federal law as determined by the United States Supreme Court. See 28 U.S.C. § 10 2254(d). Habeas relief is not warranted on this claim. 11 C. 12 Fowler makes an identical argument regarding the imposition of an upper term sentence 13 for his assault conviction as he does regarding his consecutive sentences. The California Court 14 of Appeal rejected this argument on two grounds: (1) the California Supreme Court s holding in 15 People v. Black (Black I), 113 P.3d 534 (Cal. 2005), that the California sentencing scheme did 16 not violate the Sixth Amendment principles set forth in the Apprendi line of cases; and (2) that 17 because the trial court properly found that Fowler had numerous prior convictions, the rule from 18 Apprendi and Blakely does not apply to prior convictions, and this factor alone was sufficient to 19 expose Fowler to the upper term, the trial court s discussion of other aggravating factors did not 20 violate Apprendi or Blakely. (Lodged Doc. 4 at 11.) 21 Upper Term Sentence The Ninth Circuit has held that Black I applied a rule of decision contrary to clearly 22 established Supreme Court precedent, meeting the requirements of AEDPA. Butler, 528 F.3d 23 at 640 41. Thus, the Court of Appeal s reliance on Black I is contrary to clearly established 24 Federal law, as determined by the Supreme Court of the United States. 28 U.S.C. § 2254(d). 25 However, our inquiry must continue to the second basis for the Court of Appeal s 26 decision. The trial court found several aggravating factors justified sentencing Fowler to the 27 upper term, including California Rule of Court 4.421(b)(2), defendant s prior convictions as an 28 adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing -11- 1 seriousness. Specifically, the court found that his convictions were both numerous and of 2 increasing seriousness. (Lodged Doc. 7 at 341.) Because the rule is stated in the disjunctive, 3 requiring either that the convictions be numerous, or that they be of increasing seriousness, this 4 Court will look only at whether the convictions are numerous. Under California law, only one 5 aggravating factor is necessary to authorize an upper term sentence, shifting the relevant 6 maximum sentence for purposes of Apprendi from the middle to the upper term. Butler, 528 7 F.3d at 642 43 (relying on interpretation of California law in People v. Black (Black II), 161 8 P.3d 1130 (Cal. 2007)). 9 Fowler has several prior convictions, including juvenile convictions for felony grand 10 theft and misdemeanor vehicle theft, and adult convictions for felony assault with a deadly 11 weapon, misdemeanor criminal threat, and two driving under the influence convictions.1 The 12 Ninth Circuit has held that the prior conviction exception does not extend to nonjury juvenile 13 adjudications. United States v. Tighe, 266 F.3d 1187, 1194 95 (9th Cir. 2001). However, 14 several years later, in Boyd v. Newland, 467 F.3d 1139 (9th Cir. 2006), the court held that 15 because several circuits disagreed with Tighe and the Supreme Court had not spoken on the 16 issue, a state court s use of a juvenile adjudication as a sentencing enhancement was not 17 contrary to, [and did not] involve[] an unreasonable application of, Supreme Court precedent. 18 467 F.3d at 1152. The Supreme Court still has not spoken on the issue; therefore, the trial 19 court s consideration of Fowler s juvenile convictions was neither contrary to, nor an 20 unreasonable application of, clearly established federal law as determined by the United States 21 Supreme Court. See 28 U.S.C. § 2254(d); see also Kessee v. Mendoza-Powers, 574 F.3d 675, 22 679 (9th Cir. 2009) (according similar AEDPA deference to California courts finding that 23 petitioner committed crimes while on probation despite Ninth Circuit s determination that such 24 a finding did not fall within the prior conviction exception). 25 Nor has the United States Supreme Court spoken to the issue of whether a trial court s 26 27 28 1 The first driving under the influence conviction occurred in 2002. (Lodged Doc. 8 at 206.) The second occurred in 2003 and Fowler pled guilty and was sentenced during his sentencing for the convictions at issue in this case. (Lodged Doc. 7 at 335 36.) -12- 1 determination that convictions are sufficiently numerous under Rule 4.421(b)(2) fits within the 2 prior conviction exception. The California Supreme Court has held that this question does fit 3 within the exception because [t]he determinations whether a defendant has suffered prior 4 convictions, and whether those convictions are numerous or of increasing seriousness require 5 consideration of only the number, dates, and offenses of the prior convictions alleged. Black 6 II, 161 P.3d at 1143 (internal quotation and citation omitted). In Black II, the Court held that 7 three misdemeanor and two felony convictions were numerous for the purposes of the rule. Id. 8 at 1142. Fowler has two felony and four misdemeanor convictions, thus, his prior convictions 9 are numerous and he is eligible for the upper term sentence. Any further fact finding was thus 10 11 irrelevant for the purposes of Apprendi. Butler, 528 F.3d at 643. The California Court of Appeal s decision upholding Fowler s upper term sentence was 12 neither contrary to, nor an unreasonable application of, clearly established federal law as 13 determined by the United States Supreme Court. See 28 U.S.C. § 2254(d). The trial court 14 found that Fowler s numerous prior juvenile and adult convictions were an aggravating factor 15 supporting the imposition of an upper term sentence. Only one aggravating factor needs to be 16 established to raise the maximum statutory sentence to the upper term for the purposes of 17 Apprendi. Butler, 528 F.3d at 642 43. Established Supreme Court precedent states that a trial 18 court may consider prior convictions in sentencing, even if the existence of those convictions 19 has not been determined by a jury beyond a reasonable doubt. Cunningham, 549 U.S. at 288 89 20 (quoting Apprendi, 530 U.S. at 490). Consideration of the juvenile convictions, although 21 improper under Ninth Circuit precedent, is not an unreasonable application of clearly 22 established Supreme Court precedent. Boyd, 467 F.3d at 1152. In sum, the trial court s 23 determination that Fowler had numerous convictions was proper and sufficient to make the 24 upper term the maximum statutory sentence under Apprendi and Blakely. Thus, the California 25 Court of Appeal did not err in upholding Fowler s upper term sentence and federal habeas relief 26 is not warranted under AEDPA on this claim. 27 28 -13- 1 Therefore, it is hereby 2 ORDERED that Fowler s petition for a writ of habeas corpus pursuant to 28 U.S.C. 3 § 2254 is DENIED and the case is DISMISSED with prejudice. 4 The Clerk is directed to enter the accompanying Judgment and to send uncertified copies 5 of this Order and the Judgment to all counsel of record and to any party appearing pro se at said 6 party s last known address. 7 DATED this 3rd day of November, 2009. 8 9 10 /s/ Richard C. Tallman UNITED STATES CIRCUIT JUDGE Sitting by designation 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -14-

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