McGilberry v. Marshall, No. 4:2006cv01427 - Document 29 (N.D. Cal. 2009)

Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS re 1 Petition for Writ of Habeas Corpus filed by Robert Dell McGilberry, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 2/6/09. (nah, COURT STAFF) (Filed on 2/6/2009) (Additional attachment(s) added on 2/9/2009: # 1 Certificate of Service) (nah, COURT STAFF).
Download PDF
McGilberry v. Marshall Doc. 29 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 ROBERT DELL McGILBERRY, 9 11 For the Northern District of California United States District Court 10 No. C 06-1427 PJH (PR) Petitioner, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS vs. JOHN MARSHALL, Warden, 12 Respondent. / 13 14 This is a habeas corpus case filed pro se by a state prisoner pursuant to 28 U.S.C. § 15 2254. The court ordered respondent to show cause why the writ should not be granted 16 based on petitioner’s three cognizable claims for relief. Respondent filed an answer and a 17 memorandum of points and authorities in support of it, and has lodged exhibits with the 18 court. Petitioner thereafter filed a traverse. Pursuant to an order for supplemental briefing 19 in light of Cunningham v. California, 127 S. Ct. 856 (2007), respondent filed a supplemental 20 answer and petitioner filed a supplemental traverse. For the reasons set out below, the 21 petition is denied. 22 BACKGROUND 23 On December 5, 2003, a jury found petitioner guilty of grand theft in Alameda 24 County Superior Court. In a bifurcated proceeding, the trial court found that petitioner had 25 a prior “strike” conviction under California’s “Three Strikes” law, and that he had served five 26 prior prison terms. On January 20, 2004, the trial court sentenced petitioner to a term of 27 eleven years in state prison. The sentence consisted of the upper term of three years on 28 the grand theft conviction, doubled to six years based on the prior “strike” conviction, plus 1 five one-year terms for each of the five prior prison terms. Petitioner unsuccessfully 2 appealed his conviction to the California Court of Appeal and the Supreme Court of 3 California denied review. Petitioner has also filed several unsuccessful state habeas 4 petitions. 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 The following factual background is from the probation report and is undisputed by the parties:1 According to the Union City Police Department Report #030315022, on 3-15-03 officers responded to 17909 Decoto Road at the Safeway Store regarding defendant who was in custody for petty theft. Upon arrival the officer spoke with the reporting person, security guard Medlin. Mr. Medlin stated that he was outside of the store looking inside when he observed the defendant pushing a cart full of groceries. He stated that the defendant looked as if he was watching for the clerks and “timing” them so he could walk past them. He states that he saw the defendant push the cart past the checkout line and walk outside of the door. He states that the defendant made no attempt to pay for the items. The security officer states that he detained the defendant outside and escorted him back inside of the store. All of the items were recovered and totaled $473.18. 13 (Clerk’s Transcript (“CT”) at 132.) 14 STANDARD OF REVIEW 15 A district court may not grant a petition challenging a state conviction or sentence on 16 the basis of a claim that was reviewed on the merits in state court unless the state court's 17 adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an 18 unreasonable application of, clearly established Federal law, as determined by the 19 Supreme Court of the United States; or (2) resulted in a decision that was based on an 20 unreasonable determination of the facts in light of the evidence presented in the State court 21 proceeding." 28 U.S.C. § 2254(d). The first prong applies both to questions of law and to 22 mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2000), 23 while the second prong applies to decisions based on factual determinations, Miller-El v. 24 Cockrell, 537 U.S. 322, 340 (2003). 25 A state court decision is “contrary to” Supreme Court authority, that is, falls under the 26 27 28 1 A more detailed account is not necessary because the instant petition only challenges petitioner’s sentence, not his conviction. 2 For the Northern District of California United States District Court 1 first clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to that 2 reached by [the Supreme] Court on a question of law or if the state court decides a case 3 differently than [the Supreme] Court has on a set of materially indistinguishable facts.” 4 Williams (Terry), 529 U.S. at 412-13. A state court decision is an “unreasonable application 5 of” Supreme Court authority, falling under the second clause of § 2254(d)(1), if it correctly 6 identifies the governing legal principle from the Supreme Court’s decisions but 7 “unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. The 8 federal court on habeas review may not issue the writ “simply because that court concludes 9 in its independent judgment that the relevant state-court decision applied clearly 10 established federal law erroneously or incorrectly.” Id. at 411. Rather, the application must 11 be “objectively unreasonable” to support granting the writ. Id. at 409. 12 Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual 13 determination will not be overturned on factual grounds unless objectively unreasonable in 14 light of the evidence presented in the state-court proceeding.” Miller-El, 537 U.S. 322 at 15 340; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). 16 When there is no reasoned opinion from the highest state court to consider the 17 petitioner’s claims, the court looks to the last reasoned opinion. See Ylst v. Nunnemaker, 18 501 U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079, n. 2 (9th 19 Cir.2000). 20 21 DISCUSSION Petitioner asserts by imposing the upper term on the offense, and then doubling that 22 term for a previous strike, the trial court violated his Sixth Amendment right to trial by jury 23 as set out in Blakely v. Washington, 542 U.S. 296, 303-04 (2004). The trial court based its 24 imposition of the upper term upon finding numerous aggravating factors under California 25 Rule of Court 421. The trial court found that the crime reflected “some planning and intent,” 26 that he could be considered a career criminal because he had at least eight prior felony 27 convictions over the past 25 years, that he had suffered six previous prison terms, that he 28 3 For the Northern District of California United States District Court 1 had poor performance on parole and probation, and that he had not expressed remorse. 2 (CT at 122-23. citing Cal. Rules of Court §§ 4.421(a)(8), (b)(1) -(3), (b)(5) & (b)(7).) The 3 trial court doubled the upper term sentence based upon its finding that petitioner had 4 suffered a prior “strike” conviction. (Id. at 125-26.) He claims that this sentence violates his 5 Sixth and Fourteenth Amendment rights to a jury because the aggravating circumstances 6 were found by the trial judge and not the jury. 7 1. 8 Petitioner’s claim is based on the United States Supreme Court decision in 9 Cunningham v. California, 127 S. Ct. 856 (2007), which held that California’s determinate 10 sentencing law violated the Sixth and Fourteenth Amendment right to a jury trial because 11 “circumstances in aggravation are found by the judge, not the jury, and need only be 12 established by a preponderance of the evidence, not beyond a reasonable doubt[.]” Id. at 13 868. In Cunningham, the Court’s decision was based upon its prior decisions in Apprendi 14 v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (1999), and 15 United States v.Booker, 543 U.S. 220 (2005). See Cunningham, 127 S.Ct. at 871. 16 Respondent argues that Cunningham had not been decided until 2007, after Retroactive Application of Cunningham 17 petitioner’s sentence became final in 2005, and does not apply retroactively to his case. 18 Respondent’s argument has since been rejected by the Ninth Circuit, however. In Butler v. 19 Curry, the Ninth Circuit held that Cunningham “did not announce a new rule of 20 constitutional law and may be applied retroactively on collateral review.” 528 F.3d 624, 639 21 (9th Cir. 2008).2 The court determined that the Supreme Court’s decisions in “Apprendi, 22 Blakely, and Booker, firmly established that a sentencing scheme in which the maximum 23 possible sentence is set based on facts found by a judge is not consistent with the Sixth 24 Amendment.” Id. at 635. As Cunningham is not a new constitutional rule, its mandate that 25 2 26 27 28 Butler was sentenced to the upper term of the range based on two aggravating factors found by the trial judge; that his victim was in a vulnerable position and that Butler was on probation when the crime was committed. Id. at 631; see Cal. Rules of Court §§ 4.421(a)(3), (b)(4)). A month after Butler filed a petition for writ of habeas corpus in federal district court, the United States Supreme Court decided Cunningham. 4 For the Northern District of California United States District Court 1 upper term sentences may only be imposed when juries, not judges, find circumstances in 2 aggravation beyond a reasonable doubt is applicable to petitioner’s sentence despite the 3 fact that Cunningham was decided after petitioner’s sentence became final on direct 4 review. 5 2. Constitutional Violation 6 In Apprendi, the Supreme Court held that any fact that increases the penalty for a 7 crime beyond the prescribed statutory maximum must be submitted to a jury and proved 8 beyond a reasonable doubt. Apprendi, 530 U.S. at 466. In Blakely, the Supreme Court 9 explained that “the statutory maximum for Apprendi purposes is the maximum sentence a 10 judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by 11 the defendant.” Blakely, 542 U.S. at 303. This meant that the “the middle term prescribed 12 in California’s statutes, not the upper term, is the relevant statutory maximum.” 13 Cunningham, 127 S. Ct. at 868. In Cunningham, the Supreme Court, citing Apprendi and 14 Blakely, held that California’s Determinate Sentencing Law violates a defendant’s right to a 15 jury trial to the extent that it contravenes “Apprendi’s bright-line rule: Except for a prior 16 conviction, ‘any fact that increases the penalty for a crime beyond the statutory maximum 17 must be submitted to a jury, and proven beyond a reasonable doubt.’” Id. (quoting 18 Apprendi, 530 U.S. at 490). 19 There is no constitutional error in this case because of the prior conviction exception 20 to the general rule in Apprendi, providing that the fact of a prior conviction need not be 21 pleaded in an indictment or proved to a jury beyond a reasonable doubt. Butler, 538 F.3d 22 at 643 (citing Apprendi, 530, U.S at 490 and Almendarez-Torres v. United States, 523 U.S. 23 224, 244 (1998)). “[O]ur reexamination of our cases in this area, and of the history upon 24 which they rely confirms” that the right to a jury applies to all sentencing factors, “[o]ther 25 than the fact of a prior conviction.” Apprendi, 530 U.S. at 490. The Ninth Circuit has 26 recognized that “the Supreme Court has not overruled the Almendarez-Torres exception for 27 prior convictions” and therefore the “obligation to apply the Almendarez-Torres exception 28 5 1 For the Northern District of California United States District Court 2 [remains] unless and until it is rejected by the Supreme Court.” Butler, 528 F.3d at 643-44. Here, petitioner was sentenced to the upper term of three years based on several 3 aggravating factors – one of which is that he had numerous prior convictions. When 4 sentencing, the trial court cited “at least eight prior felony convictions over the past 25 5 years.” (CT at 123.) The doubling of petitioner’s upper term sentence under the Three 6 Strikes law also was based on the fact that petitioner had a prior conviction. (Id. at 125.) 7 Petitioner’s prior convictions clearly fall into the “prior conviction” exception from 8 Almendarez-Torres and Apprendi. As such, petitioner was not entitled to a jury 9 determination of that aggravating circumstance. Therefore, consistent with the Sixth 10 Amendments, petitioner’s prior convictions could be considered by the trial court in 11 imposing the upper term sentence and doubling it without a jury determination beyond a 12 reasonable doubt. 13 The fact that the trial court also found additional aggravating circumstances – such 14 as petitioner’s advance planning, lack of remorse, and his prior prison terms – does not 15 alter this conclusion. “[U]nder California law, only one aggravating factor is necessary to 16 set the upper term as the maximum sentence.” Butler, 528 F.3d at 641. “[I]f at least one of 17 the aggravating factors on which the judge relied in sentencing [petitioner] was established 18 in a manner consistent with the Sixth Amendment, [petitioner’s] sentence does not violate 19 the Constitution.” Id. at 643. Therefore, as it was within the trial court’s discretion to 20 sentence petitioner to the upper term and then double it based solely upon his prior 21 convictions, petitioner’s sentence is constitutional irrespective of “[a]ny additional 22 factfinding” with respect to additional aggravating circumstances. Id. The trial court could, 23 consistent with the Sixth Amendment, rely on petitioner’s prior convictions to increase the 24 sentence without a jury determination beyond a reasonable doubt. Because the trial court 25 relied upon at least one factor “established in a manner consistent with the Sixth 26 27 28 6 1 Amendment,” the sentence petitioner received did not violate his Sixth Amendment rights.3 2 CONCLUSION 3 For the foregoing reasons, the petition for writ of habeas corpus is DENIED. 4 The clerk shall enter judgment and close the file. 5 IT IS SO ORDERED. 6 Dated: February 6, 2009. PHYLLIS J. HAMILTON United States District Judge 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 G:\PRO-SE\PJH\HC.06\MCGILBERRY427.RUL.wpd 25 26 27 28 3 As there was no error, the court need not reach respondent’s additional argument that any error was harmless. 7