Lyons v. Carey, No. 4:2006cv02860 - Document 22 (N.D. Cal. 2009)
Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 8/26/09. (Attachments: # 1 Certificate of Service)(nah, COURT STAFF) (Filed on 8/26/2009)
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Lyons v. Carey Doc. 22 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 BARNEY O. LYONS, Petitioner, 11 For the Northern District of California United States District Court 10 12 No. C 06-2860 PJH (PR) vs. ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS TOM CAREY, Warden, 13 Respondent. / 14 15 This is a habeas corpus case filed pro se by a state prisoner pursuant to 28 U.S.C. 16 § 2254. The court ordered respondent to show cause why the writ should not be granted. 17 Respondent has filed an answer and a memorandum of points and authorities, and has 18 lodged exhibits with the court. Petitioner has filed a traverse. For the reasons set forth 19 below, the petition is denied. 20 BACKGROUND 21 Petitioner was charged by information with violating section 290(g)(2) of the 22 California Penal Code by willfully failing to inform law enforcement of his new address 23 within five days of changing his residence. The information also alleged that petitioner had 24 suffered four prior convictions relevant under the Three Strikes law, see Cal. Penal Code 25 §§ 667(b)-(I), 1170.12, and that petitioner had served three prior prison terms, see id. at 26 §667.5(b). 27 /// 28 /// Dockets.Justia.com For the Northern District of California United States District Court 1 After a number of motions in which petitioner sought to have appointed counsel 2 replaced (“Marsden motions”1), petitioner pled no contest and admitted the prior conviction 3 and prior prison term allegations. After several more Marsden motions, sentencing was 4 held on November 27, 2001. On motion by petitioner the court struck three of the four prior 5 convictions. The trial court then imposed the upper term of three years for the violation of § 6 290(g)(2). The court doubled this sentence to six years pursuant to the Three Strikes law 7 for the remaining prior conviction. The trial court also imposed three consecutive one-year 8 enhancements for the three prior prison terms, for a total sentence of nine years. 9 Petitioner filed a timely notice of appeal, and the trial court granted his application for 10 a certificate of probable cause challenging the validity of his plea. On appeal he raised four 11 issues not pursued here. In a companion petition for a writ of habeas corpus he raised 12 eight issues not pursued here. The California Court of Appeal affirmed the trial court's 13 judgment in an unpublished opinion filed on August 7, 2003, and denied the habeas petition 14 on the same date. The Supreme Court of California denied review of the court of appeal’s 15 decisions affirming the conviction and denying the habeas petition. 16 Since then, petitioner has pursued numerous habeas petitions at various levels of 17 state court. All have been denied; the petitions relevant to the claims here are discussed 18 below. 19 20 STANDARD OF REVIEW A district court may not grant a petition challenging a state conviction or sentence on 21 the basis of a claim that was reviewed on the merits in state court unless the state court's 22 adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an 23 unreasonable application of, clearly established Federal law, as determined by the 24 Supreme Court of the United States; or (2) resulted in a decision that was based on an 25 unreasonable determination of the facts in light of the evidence presented in the State court 26 27 28 1 “So named after People v. Marsden, 2 Cal. 3d 118 (1970), it is a motion permitting a defendant to articulate why he is dissatisfied with his court-appointed counsel and why counsel should be relieved.” McNeely v. Blanas, 336 F.3d 822, 825 n. 3 (9th Cir. 2003). 2 1 proceeding." 28 U.S.C. § 2254(d). The first prong applies both to questions of law and to 2 mixed questions of law and fact, Williams v. Taylor, 529 U.S. 362, 407-09 (2000), while the 3 second prong applies to decisions based on factual determinations, Miller-El v. Cockrell, 4 537 U.S. 322, 340 (2003). For the Northern District of California United States District Court 5 A state court decision is “contrary to” Supreme Court authority, that is, falls under the 6 first clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to that 7 reached by [the Supreme] Court on a question of law or if the state court decides a case 8 differently than [the Supreme] Court has on a set of materially indistinguishable facts.” 9 Williams (Terry), 529 U.S. at 412-13. A state court decision is an “unreasonable application 10 of” Supreme Court authority, falling under the second clause of § 2254(d)(1), if it correctly 11 identifies the governing legal principle from the Supreme Court’s decisions but 12 “unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. The 13 federal court on habeas review may not issue the writ “simply because that court concludes 14 in its independent judgment that the relevant state-court decision applied clearly 15 established federal law erroneously or incorrectly.” Id. at 411. Rather, the application must 16 be “objectively unreasonable” to support granting the writ. Id. at 409. 17 Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual 18 determination will not be overturned on factual grounds unless objectively unreasonable in 19 light of the evidence presented in the state-court proceeding.” Miller-El, 537 U.S. 322 at 20 340; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). 21 When there is no reasoned opinion from the highest state court to consider the 22 petitioner’s claims, the court looks to the last reasoned opinion. See Ylst v. Nunnemaker, 23 501 U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079, n. 2 (9th 24 Cir.2000). 25 26 DISCUSSION As grounds for federal habeas relief, petitioner asserts that: (1) his trial counsel was 27 ineffective at sentencing for failing to argue that petitioner was entitled to additional credit 28 for presentence confinement; (2) his appellate counsel was ineffective for failing to argue 3 1 that the facts did not justify an aggravated sentence and for failing to object to the dual use 2 of a single fact in sentencing, and (3) his trial and appellate counsel were ineffective for 3 failing to object to the judge's imposition of an aggravated sentence based on facts that 4 were not found by a jury. 5 I. 6 For the Northern District of California Respondent contends that petitioner's claims are procedurally defaulted because his 7 state habeas petitions violated state procedural rules providing that issues must be raised 8 without substantial delay, that issues cannot be raised in a piecemeal manner in 9 successive petitions, and that issues cannot be raised again when they have already been 10 United States District Court Procedural Default raised in an earlier petition. 11 A federal court will not review a question of federal law decided by a state court if the 12 decision of the state court denying the claim rests on a state law ground that is independent 13 of the federal question and adequate to support the denial of the claim. Coleman v. 14 Thompson, 501 U.S. 722, 729-30 (1991). The procedural default rule is a specific instance 15 of the more general "adequate and independent state grounds'' doctrine. Wells v. Maass, 16 38 F.3d 1005, 1008 (9th Cir. 1994). In cases in which a state prisoner has defaulted his 17 federal claims in state court pursuant to an independent and adequate state procedural 18 rule, federal habeas review of the claims is barred unless the prisoner can demonstrate 19 cause for the default and actual prejudice as a result of the alleged violation of federal law, 20 or demonstrate that failure to consider the claims will result in a fundamental miscarriage of 21 justice. Id. at 750. 22 To be adequate, the state procedural bar cited must be clear, consistently applied, 23 and well-established at the time of a petitioner's purported default. Petrocelli v. Angelone, 24 248 F.3d 877, 885 (9th Cir. 2001); Maass, 38 F.3d at 1010. The state bears the burden of 25 proving the adequacy of a state procedural bar: 26 27 28 Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner. The petitioner may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent 4 application of the rule. Once having done so, however, the ultimate burden is the state's. 1 2 Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003). Where the procedural rule at 3 issue has previously been found to be inadequate as a procedural bar, a petitioner simply 4 needs to contest the adequacy of the rule to meet the burden of proof under Bennett. King 5 v. LaMarque, 464 F.3d 963, 966-67 (9th Cir. 2006). Furthermore, a federal court must look 6 at the actual practice of state courts in enforcing their procedural bars, and not just at the 7 rule as stated in state court decisions. Powell v. Lambert, 357 F.3d 871, 879 (9th Cir. 8 2004). 9 Petitioner filed many state habeas petitions – at least fifteen. Respondent contends that petitioner’s first issue, that trial counsel was ineffective in failing to argue for additional 11 For the Northern District of California United States District Court 10 presentence credits, is barred by the California Supreme Court’s denial in case number 12 S134288. The denial read: “Petition for writ of habeas corpus is DENIED. (See In re Clark 13 (1993) 5 Cal. 4th 750.)” Ex. G2.2 The In re Clark citation does not have a cite to a specific 14 page, and that case discusses at least three procedural bars, namely the successive 15 presentation of claims presented previously, the improper presentation of claims that could 16 have been raised in a previous petition (“piecemeal presentation”), and untimeliness. In 17 fact, the court specifically states as to the presentation of new claims in a second petition 18 that the bar on doing so is not the basis of its holding, but rather that Clark’s new claims 19 were barred by his unexplained delay in raising them, emphasizing the importance of the 20 timeliness bar to the court’s decision. Clark, 5 Cal. 4th at 782. Because there were several 21 bars discussed in Clark, and because the supreme court’s denial of petitioner’s state 22 habeas petition did not specify a particular page of Clark, it is impossible to determine from 23 the citation to Clark which bar the court relied upon – piecemeal presentation, 24 successiveness, or untimeliness. 25 The Ninth Circuit has determined that in the absence of a showing that the 26 timeliness bar in California now is being consistently enforced, it is not a bar to federal 27 28 2 Citations to “Ex.” are to the exhibits lodged with the court by the respondent. 5 For the Northern District of California United States District Court 1 relief. King v. LaMarque, 464 F.3d 963, 966-67 (9th Cir. 2006) (addressing California’s 2 timeliness bar, found to be inadequate in Morales v. Calderon, 85 F.3d 1387 (9th Cir. 3 1996)). Here respondent makes no effort to demonstrate that the bar now is consistently 4 enforced, so for purposes of this decision California’s timeliness bar is not sufficient to 5 preclude federal relief. The result is that the citation to Clark in S134288 could refer either 6 to an arguably valid state procedural bar – the ban on raising new issues that could have 7 been raised in an earlier petition or successiveness – or to an invalid one – the timeliness 8 bar. When it is not possible to tell whether a claim was rejected in state court on a valid 9 procedural ground, consideration of that claim in a federal petition is not barred. See 10 Washington v. Cambra, 208 F.3d 832, 833-34 (9th Cir. 2000) (state court opinion that 11 summarily denies more than one claim with a citation to more than one state procedural bar 12 is ambiguous, and therefore there is no procedural default if any one of the state procedural 13 bars is not adequate and independent). Respondent’s procedural default argument is 14 rejected as to petitioner’s first claim. 15 Petitioner’s second claim is that his appellate counsel was ineffective for failing to 16 argue that the facts did not justify an aggravated sentence and for failing to object to the 17 sentencing court’s dual use of a single fact. Respondent contends that this claim was 18 denied as successive in the Superior Court of California, denied without comment or 19 citation by the California Court of Appeal, and was not presented to the California Supreme 20 Court. Respondent asks that the court “look through” the court of appeal opinion to that of 21 the superior court and hold that the claim is procedurally defaulted. See Ylst v. 22 Nunnemaker, 501 U.S. 797, 801-06 (1991); Martinez-Villareal v. Lewis, 80 F.3d 1301, 1306 23 (9th Cir. 1996). 24 Respondent is correct that the court of appeal opinion in case number H029543, in 25 which petitioner did raise this issue, was a denial without comment or citation. Ex. G9. 26 Attached as an exhibit to the petition in H029543 is a superior court denial in case number 27 CC066573. Id. at petitioner’s attached ex. B. The ruling reads: “For the reasons stated in 28 this Court’s previous orders on habeas petitions from BARNEY LYONS the most recent 6 For the Northern District of California United States District Court 1 petition is denied. (See also the California Supreme Court order of June 22, 2005 citing In 2 re Clark (1993) 5 Cal.4th 750.)” Id. The superior court petition is not attached, so it is 3 impossible to know what issues petitioner raised, nor is it possible to know what reasons 4 the court was referring to when it said “[f]or the reasons stated in this Court’s previous 5 orders . . . .” And for the reasons discussed above, the citation to Clark, even if it were 6 treated as a basis for the superior court’s denial, is not sufficient to show a procedural 7 default. The state bears the burden of proving of a state procedural bar. Bennett v. 8 Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003). The state has not done so as to this issue. 9 Petitioner’s third claim is that his trial and appellate counsel were ineffective for 10 failing to object to the judge's imposition of an aggravated sentence in reliance on facts that 11 were not found by a jury, a claim that will be referred to here as an “Apprendi claim.” 12 Respondent contends that this claim was denied in the California Supreme Court in case 13 number S135670 as untimely and successive. The denial read: “Petition for writ of habeas 14 corpus is DENIED. (See In re Robbins (1998) 18 Cal. 4th 770, 780; In re Clark (1993) 5 15 Cal. 4th 750; In re Miller (1941) 17 Cal. 2d 734.)” Ex. G3. 16 There were two claims in the supreme court petition, including this federal claim that 17 counsel was ineffective in failing to object on Apprendi grounds. Id. This ruling relies on 18 more than one ground to bar more than one claim, and one of the grounds, Clark, is not 19 sufficient. The supreme court denial thus was not adequate and does not establish that 20 petitioner procedurally defaulted this claim. See Washington, 208 F.3d at 833-34. 21 22 There was no procedural default as to any claim. II. On the Merits 23 Petitioner contends that his attorneys, trial or appellate or both, were ineffective. 24 A. 25 A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Standard 26 Sixth Amendment right to counsel, which guarantees not only assistance, but effective 27 assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The 28 benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so 7 1 undermined the proper functioning of the adversarial process that the trial cannot be relied 2 upon as having produced a just result. Id. 3 First, the defendant must show that counsel's performance was deficient, that is, that 4 counsel's representation fell below an objective standard of reasonableness. Id. at 688. 5 The relevant inquiry is not what defense counsel could have done, but rather whether the 6 choices made by defense counsel were reasonable. Babbitt v. Calderon, 151 F.3d 1170, 7 1173 (9th Cir. 1998). Judicial scrutiny of counsel's performance must be highly deferential, 8 and a court must indulge a strong presumption that counsel's conduct falls within the wide 9 range of reasonable professional assistance. Strickland, 466 U.S. at 689. For the Northern District of California United States District Court 10 Second, the defendant must show that there is a reasonable probability that, but for 11 counsel's unprofessional errors, the result of the proceeding would have been different; a 12 reasonable probability is a probability sufficient to undermine confidence in the outcome. 13 Id. at 694. Where the defendant is challenging his conviction, the appropriate question is 14 "whether there is a reasonable probability that, absent the errors, the factfinder would have 15 had a reasonable doubt respecting guilt." Id. at 695. 16 The Strickland prejudice analysis is complete in itself. Therefore, there is no need 17 for additional harmless error review pursuant to Brecht v. Abrahamson, 507 U.S. 619, 637 18 (1993). See Avila v. Galaza, 297 F.3d 911, 918 n.7 (9th Cir. 2002); Gentry v. Roe, 320 19 F.3d 891, 902-03 (9th Cir. 2003) (granting habeas petition without applying Brecht after 20 finding prejudice under Strickland). It is unnecessary for a federal court considering a 21 habeas ineffective assistance claim to address the prejudice prong of the Strickland test if 22 the petitioner cannot even establish the first prong. Siripongs v. Calderon, 133 F.3d 732, 23 737 (9th Cir. 1998). 24 The Strickland framework for analyzing ineffective assistance of counsel claims is 25 "clearly established Federal law, as determined by the Supreme Court of the United States" 26 for the purposes of 28 U.S.C. § 2254(d) analysis. Williams v. Taylor, 529 U.S. 362, 405- 27 07 (2000). 28 /// 8 1 2 de novo. See Pirtle v. Morgan, 313 F.3d 1160, 1167-68 (9th Cir. 2002) (after concluding 3 that procedural bars invoked by state supreme court did not mean that petitioner had 4 procedurally defaulted federal claims, conducting de novo review because state supreme 5 court never reached merits of the claim). 6 A. 7 Petitioner contends that his trial counsel was ineffective at sentencing for failing to For the Northern District of California Presentence Credits 8 argue that under California law petitioner was entitled to additional credits for presentence 9 confinement. This claim is without merit. 10 United States District Court Because the supreme court did not reach the merits of petitioner’s claims, review is Several state courts, though not the supreme court, considered this issue. They 11 concluded that petitioner's presentence credits were properly calculated. See Exs. G1, G5, 12 G6, G7. This was because petitioner's "parole violation and incarceration were not solely 13 for the conduct for which he was convicted and he is therefore not entitled to the additional 14 credits he seeks.'' See, e.g., G7 at 9 (ruling on state habeas petition by Santa Clara 15 Superior Court) (emphasis in original). A state court's interpretation of state law binds a 16 federal court sitting in habeas corpus. Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Hicks 17 v. Feiock, 485 U.S. 624, 629 (1988). Accordingly, for the purposes of this petition, the 18 sentencing court’s calculation of presentence credits was correct. 19 Failure to make a meritless motion or objection is objectively reasonable. See 20 Strickland, 466 U.S. at 488. Furthermore, because such a motion or objection would have 21 been denied, counsel’s failure to make it could not have had any effect on the conviction or 22 sentence. See id. at 694. Because petitioner has not shown that his trial counsel's failure 23 to request more presentence credits was deficient performance or that he was prejudiced 24 by the absence of such a motion, his Sixth Amendment right to effective assistance of 25 counsel was not violated and he is not entitled to relief on this claim. 26 B. 27 Petitioner contends that his appellate counsel was ineffective for failing to raise as 28 Aggravated Sentence and Dual Use of a Single Fact issues on appeal contentions that the facts did not justify an aggravated sentence and that 9 1 2 defendant the effective assistance of counsel on his first appeal as of right. See Evitts v. 4 Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of appellate counsel 5 are reviewed according to the standard set out in Strickland. Miller v. Keeney, 882 F.2d 6 1428, 1433 (9th Cir. 1989); United States v. Birtle, 792 F.2d 846, 847 (9th Cir. 1986). A 7 defendant therefore must show that counsel's advice fell below an objective standard of 8 reasonableness and that there is a reasonable probability that, but for counsel's 9 unprofessional errors, he would have prevailed on appeal. Miller, 882 F.2d at 1434 & n.9 11 For the Northern District of California The Due Process Clause of the Fourteenth Amendment guarantees a criminal 3 10 United States District Court the sentencing court had made dual use of facts in determining the sentence. (citing Strickland, 466 U.S. at 688, 694; Birtle, 792 F.2d at 849). Under California law, a single factor in aggravation suffices to support an upper 12 term. People v. Osband, 13 Cal. 4th 622, 730 (1996). Petitioner does not dispute that he 13 was on parole when he failed to register as a sex offender. A defendant’s having been on 14 parole when the crime was committed is a statutory aggravating factor, see Cal. Rules of 15 Court, rule 4.421(b)(4), so raising this issue on appeal would have been futile. Counsel’s 16 failure to raise it was not deficient performance and did not prejudice petitioner. 17 “Dual use” of facts in sentencing is generally forbidden under California law. See 18 Cal. Penal Code § 1170(b) (“The court may not impose an upper term by using the fact of 19 any enhancement upon which sentence is imposed under any provision of law.”). 20 Petitioner asserts that appellate counsel should have contended on appeal that it was a 21 forbidden dual use of the fact of his earlier conviction for the sentencing court to use it both 22 (1) to enhance his sentence and (2) as a reason for imposing the upper term. 23 Petitioner received a one-year recidivism enhancement for his prior prison term, and 24 the court imposed the upper term of his sentence due to the fact that petitioner was on 25 parole when he committed this offense. It is well established in California law that it is not a 26 prohibited dual use of facts to enhance a sentence for the fact of a prior conviction and to 27 aggravate the sentence because the crime was committed by a parolee, even where the 28 parole period follows the prison term imposed for the prior conviction. See, e.g., People v. 10 1 Whitten, 22 Cal.App.4th 1761, 1767-68 (1994); People v. Jerome 160 Cal.App. 3d 1087, 2 1098-99 (1984). Thus raising this issue on appeal would have been futile, and counsel’s 3 failure to raise the issue both was not deficient performance and did not prejudice 4 petitioner. Appellate counsel was not ineffective for choosing not to raise the issue. For the Northern District of California United States District Court 5 Because petitioner has not shown that his appellate counsel's actions were below an 6 objective standard of competence and has not shown prejudice, he is not entitled to relief 7 on this claim. 8 C. 9 Petitioner contends that trial counsel was ineffective for failing to object to the Use in Sentencing of Facts Not Determined by a Jury 10 judge's relying on a fact that was not found by a jury to impose the upper term sentence, 11 and that appellate counsel was ineffective in not raising this issue on appeal. 12 In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court held that "[o]ther than the 13 fact of a prior conviction, any fact that increases the penalty for a crime beyond the 14 prescribed statutory maximum must be submitted to a jury, and proved beyond a 15 reasonable doubt.'' Id. at 490. In Blakely v. Washington, 542 U.S. 296 (2004), the Court 16 held that Apprendi’s “statutory maximum” meant the maximum sentence a judge could 17 impose based solely on the facts reflected in the jury verdict or admitted by the defendant; 18 that is, the relevant "statutory maximum" is not the sentence the judge could impose after 19 finding additional facts, but rather is the maximum he or she could impose without any 20 additional findings. Id. at 303-04. In Cunningham v. California, 549 U.S. 270 (2007), the 21 Court held that California's determinate sentencing law violates the Sixth Amendment to the 22 extent it authorizes the judge, not the jury, to find the facts permitting an upper term 23 sentence. Id. at 273. 24 At the time petitioner’s conviction became final upon completion of direct review only 25 Apprendi had been decided. Blakely announced a new constitutional rule of criminal 26 procedure that does not apply retroactively on habeas review, so it does not apply here. 27 Schardt v. Payne, 414 F.3d 1025, 1038 (9th Cir. 2005); see also Teague v. Lane, 489 U.S. 28 288, 310 (1989). Cunningham did not announce a new rule and thus applies retroactively 11 1 on collateral review, but only to convictions that became final on direct review after the 2 decision in Blakely on June 24, 2004 – that is, it also does not apply here. See Butler v. 3 Curry, 528 F.3d 624, 639 (9th Cir. 2008); cf. In re Gomez, 45 Cal. 4th 650, 660 (Cal. 2009) 4 (Cunningham applies to any California case in which the judgment was not final at the time 5 the decision in Blakely was issued). For the Northern District of California United States District Court 6 The sentencing court used the fact that petitioner was on parole when he failed to 7 register as a sex offender as grounds to impose the upper term sentence. Ex. B at 233. In 8 his statement before sentencing petitioner referred to having gone to his parole officer at 9 the time of the offence, a reference which amounts to an admission that he was on parole 10 when he committed it, id. at 230, as are his other references to his parole status in the 11 course of his statements, see id. at 219-21. And to whatever extent petitioner’s claim may 12 be directed to the sentencing court’s enhancements, petitioner also admitted those during 13 his plea. Ex. B at 160. 14 Apprendi is satisfied if the defendant admits a sentencing fact. See Blakely, 542 15 U.S. at 303-04 ("statutory maximum" for Apprendi purposes is the maximum sentence a 16 judge could impose based solely on the facts reflected in the jury verdict or admitted by the 17 defendant). Because of petitioner’s admissions there was no Apprendi violation and, under 18 the principles discussed above regarding counsel’s failure to raise meritless argument, 19 neither trial counsel nor appellate counsel were ineffective. 20 Alternatively, as the Ninth Circuit has recognized, all the courts of appeals that had 21 considered Apprendi before Blakely had concluded that it meant what it said – only 22 sentences that exceeded the statutory maximum on the books for the particular crime of 23 which the defendant was convicted were subject to the Apprendi requirements. See 24 Schardt, 414 F.3d 1015 at 1035. Given the unanimity of professional opinion at the time, 25 trial counsel’s failure to make an Apprendi objection to imposition of the upper term, a 26 sentence that clearly was within the statutory maximum, in the sense of the maximum 27 period of incarceration provided for in the statute, could not have been deficient 28 performance. 12 1 2 Petitioner's trial and appellate counsel were not ineffective for choosing not to raise the issue. 3 CONCLUSION 4 For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. The clerk 5 shall close the file. 6 7 IT IS SO ORDERED. Dated: August 26, 2009. PHYLLIS J. HAMILTON United States District Judge 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 25 26 27 28 G:\PRO-SE\PJH\HC.06\LYONS2860.RUL2.wpd 13
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