Rogers v. Knowles, No. 5:2006cv07232 - Document 32 (N.D. Cal. 2009)
Court Description: ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS. Signed by Judge Jeremy Fogel on 6/16/09. (dlm, COURT STAFF) (Filed on 6/18/2009)
Download PDF
<![CDATA[
Rogers v. Knowles Doc. 32 1 2 3 4 5 6 8 NOT FOR CITATION 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 For the Northern District of California United States District Court 7 12 ERIC ROGERS, 13 14 Petitioner, vs. 15 K. MENDOZA-POWERS, Warden, 16 Respondent. 17 ) ) ) ) ) ) ) ) ) ) ) ) No. C 06-07232 JF (PR) ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS 18 19 20 INTRODUCTION Petitioner is a pro se prisoner seeking a writ of habeas corpus pursuant to 28 21 U.S.C. § 2254. In an order to show cause issued May 22, 2007, this Court found 22 that Petitioner had raised four cognizable claims: (1) the prosecutor committed 23 misconduct when he used his peremptory challenges to remove two African- 24 American women as prospective jurors; (2) Petitioner was denied due process and 25 the right to confront witnesses by the trial court’s refusal to permit discovery that 26 could have impeached the credibility of police witnesses; (3) the trial court failed to 27 instruct the jury sua sponte on the meaning of the technical term “material part” that 28 Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JF\HC.06\Rogers232_denyHC.wpd Dockets.Justia.com 1 was included in CALJIC no. 2.21.2; and (4) Petitioner was denied his federal 2 constitutional right to a jury trial, and the court acted in excess of its jurisdiction, 3 when appellant was sentenced to an upper term based on facts beyond those found 4 true by the jury. (Pet. at 6-7.) Respondent filed an answer addressing the merits of 5 the petition, and Petitioner filed a traverse. Having reviewed the papers and the 6 underlying record, the Court concludes that Petitioner is not entitled to federal 7 habeas corpus relief and will deny the petition. FACTUAL BACKGROUND1 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 [Petitioner and two codefendants, White and Bailey] were arrested June 12, 2003 during an Oakland Police Department “buybust operation.” Between 5:30 and 11:00 p.m., Officer Richard Vierra and Sergeant Sharon Williams attempted about 15 undercover drug purchases. When they made a successful purchase, they called in teams of uniformed officers to arrest the suspects. Vierra made two to four successful buys and Williams, six or seven. At about 9:45 p.m., Vierra saw [Petitioner], White and Todd Bailey [original footnote omitted] standing on the sidewalk at the corner of 88th Avenue and Plymouth Street. Vierra pulled over and approached the three men. Before Vierra said anything, Bailey stepped forward and asked what he wanted. Vierra said he wanted “a solid,” which is slang for $25 worth of cocaine. Bailey looked him over and asked, “Who do you know around here?” Vierra responded, “I know a guy named Jay who lives down on Holly Street,” which was not true. During this conversation, Bailey was speaking loud enough that [Petitioner] and White, who were standing no more than five feet away, could hear him. [Petitioner] and White were looking at Vierra during the conversation and appeared to be listening. Bailey told Vierra to hold on a second, and he and White walked about 18 feet away to a parking area in front of 1711 88th Avenue and huddled together. A chain link fence with wooden slats separated Vierra from Bailey and White and partially obstructed his view. [Petitioner], who stayed behind, told Vierra, “You can give me the money.” Vierra gave him a $20 and a $5 bill in controlled currency. Vierra moved about three feet to a position where he could see Bailey and White. He saw Bailey hand White two small white rocks. White they walked over to Vierra and handed him the rocks of suspected cocaine. As Vierra walked back to his car, Williams called in arrest teams, giving them the location and a description of the suspects. Within seconds, an arrest team pulled up in an unmarked van and three uniformed officers got out of the van. Bailey ran into the backyard of 26 27 28 1 Relevant facts are taken from the unpublished opinion of the California Ct. of Appeal. See People v. Rogers, A104559, slip op. at 2-4 (Feb. 27, 2006) (Resp’t Ex. C). Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JF\HC.06\Rogers232_denyHC.wpd 2 1711 18th Avenue. The evidence was disputed whether [Petitioner] stayed where he was or whether he walked northbound up 88th Avenue. White walked southbound. All of the suspects were apprehended and searched. No controlled currency, no cash or weapons, and no narcotics or drug paraphernalia were found on the suspects. Although police never searched the area south of 1711 88th Avenue, where [Petitioner] had received the money from Vierra, no stash of narcotics was located in the area where they were arrested. While chasing Bailey, one of the officers saw Bailey move his right hand as if to throw something over a fence. After the arrest, the police searched unsuccessfully on both sides of the fence for narcotics or controlled currency. At 11:00 p.m., Vierra returned to the police station to complete the paperwork for the two to four drug purchases he made that evening. The drug lab tested one of the rocks Vierra received from White and determined it was cocaine base. [Petitioner], White, and Bailey were charged in an information with selling, giving away or offering to sell or give away cocaine base in violation of Health and Safety Code section 11352, subdivision (a). (footnote omitted.) It was alleged that [Petitioner] had a prior conviction within the meaning of Penal Code sections 1170.12, subdivision (c)(1) and 667, subdivision (e)(1); a prior conviction within the meaning of Penal Code section 667.5, subdivision (b); and a third prior conviction... The jury found [Petitioner] and White guilty of violating section 11352, subdivision (a), as charged. The court sentenced [Petitioner] to the upper term of five years for the sale offenses, doubled pursuant to Penal Code section 667, subdivision (e)(1). The court stayed the enhancements for the two other prior convictions... 1 2 3 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 DISCUSSION 17 A. Standard of Review 18 Because the instant petition was filed after April 24, 1996, it is governed by 19 the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), which 20 imposes significant restrictions on the scope of federal habeas corpus proceedings. 21 Under AEDPA, a federal court cannot grant habeas relief with respect to a state 22 court proceeding unless the state court’s ruling was “contrary to, or an involved an 23 unreasonable application of, clearly established federal law, as determined by the 24 Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an 25 unreasonable determination of the facts in light of the evidence presented in the 26 State court proceeding.” 28 U.S.C. § 2254(d)(2). 27 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if 28 Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JF\HC.06\Rogers232_denyHC.wpd 3 1 the state court arrives at a conclusion opposite to that reached by [the Supreme] 2 Court on a question of law or if the state court decides a case differently than [the] 3 Court has on a set of materially indistinguishable facts.” Williams (Terry) v. Taylor, 4 529 U.S. 362, 412-13 (2000). “Under the ‘unreasonable application clause,’ a 5 federal habeas court may grant the writ if the state court identifies the correct 6 governing legal principle from [the] Court’s decisions but unreasonably applies that 7 principle to the facts of the prisoner’s case.” Id. “[A] federal habeas court may not 8 issue the writ simply because the court concludes in its independent judgment that 9 the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. 11 For the Northern District of California United States District Court 10 A federal habeas court making the “unreasonable application” inquiry should 12 ask whether the state court’s application of clearly established federal law was 13 “objectively unreasonable.” Id. at 409. The “objectively unreasonable” standard 14 does not equate to “clear error” because “[t]hese two standards . . . are not the same. 15 The gloss of clear error fails to give proper deference to state courts by conflating 16 error (even clear error) with unreasonableness.” Lockyer v. Andrade, 538 U.S. 63, 17 75 (2003). 18 A federal habeas court may grant the writ it if concludes that the state court’s 19 adjudication of the claim “resulted in a decision that was based on an unreasonable 20 determination of the facts in light of the evidence presented in the state court 21 proceeding.” 28 U.S.C. § 2254(d)(2). The court must presume correct any 22 determination of a factual issue made by a state court unless petitioner rebuts the 23 presumption of correctness by clear and convincing evidence. 28 U.S.C. § 24 2254(e)(1). 25 B. Analysis of Legal Claims 26 1. 27 Petitioner first claims that the prosecutor “committed misconduct when he Improper Use of Peremptory Challenges 28 Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JF\HC.06\Rogers232_denyHC.wpd 4 1 used his peremptory challenges to remove two African women [sic] jurors. The trial 2 court erred when it found that the prosecutor had not discriminated on the basis of 3 race in jury selection.” (Pet. at 6.) At trial, Petitioner argued that the prosecution’s 4 use of the peremptory challenges constituted a prima facie case of discrimination 5 because both of the jurors in question said that they could be fair and impartial. 6 (Resp’t Ex. C. at 6.) On appeal, Petitioner further attempted to establish a prima 7 facie case of discrimination by alleging that the prosecutor, in using his peremptory 8 challenges to remove two of the three prospective African-American jurors, 9 challenged a disproportionate number of African-Americans. (Id. at 7.) For the Northern District of California United States District Court 10 Under the Equal Protection Clause, race may not be the sole basis for a 11 peremptory challenge. Batson v. Kentucky, 476 U.S. 79, 89 (1986). In Batson, the 12 Court promulgated a three-part test for evaluating the propriety of an allegedly 13 discriminatory peremptory challenge: “First, the defendant must make out a prima 14 facie case ‘by showing that the totality of the relevant facts gives rise to an inference 15 of discriminatory purpose.’ 476 U.S. at 93-94 (citing Washington v. Davis, 426 16 U.S. 229, 239-242 (1976). Second, once the defendant has made out a prima facie 17 case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by 18 offering permissible race-neutral justifications for the strikes. 476 U.S. at 94…Third, 19 ‘[i]f a race-neutral explanation is tendered, the trial court must then decide ... 20 whether the opponent of the strike has proved purposeful racial discrimination.’ 21 Purkett v. Elem, 514 U.S. 765 (1995) (per curiam).” Johnson, 545 U.S. at 168 22 (2005). 23 A pattern of striking minority venirepersons may sufficiently establish an 24 inference of discrimination even if the prosecutor has not attempted to exclude all 25 members of that minority group and even if some members of the minority remain 26 empaneled on the jury. Paulino v. Castro, 371 F.3d 1083, 1090-91 (9th Cir. 2004). 27 However, “[a]lthough a statistical disparity could be sufficient to make a prima facie 28 Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JF\HC.06\Rogers232_denyHC.wpd 5 1 inference of bias, such a presumption could be dispelled by other relevant 2 circumstances.” Williams v. Runnels, 432 F.3d 1102, 1107 (9th Cir. 2006). 3 4 conducting habeas corpus review to presume the correctness of factual findings by 5 state trial and appellate courts. See Purkett 514 U.S. at 769; Mitleider v. Hall, 391 6 F.3d 1039, 1050 (9th Cir. 2004). A federal court will defer to a state court’s finding 7 of a lack of discriminatory intent unless the petitioner can show by clear and 8 convincing evidence that “it was unreasonable to credit the prosecutor’s race-neutral 9 explanations for the Batson challenge.” See Miller-El v. Dretke, 545 U.S. 231, 240 For the Northern District of California 10 United States District Court On the issue of discriminatory intent, the AEDPA compels federal courts (2005); Rice v. Collins, 546 U.S. 333, 338 (2006). 11 The state appellate court relied on the Supreme Court’s decisions in Johnson 12 v. California, 545 U.S. 162 (2005), and Batson, 476 U.S. 79, in denying Petitioner’s 13 claim that the prosecution’s use of its peremptory challenges constituted racial 14 discrimination. The state appellate court found that Petitioner had failed to establish 15 a prima facie case of discrimination. Citing the California Supreme Court’s holding 16 in People v. Box, 23 Cal.4th 1153, 1188-89 (2000), the appellate court observed that 17 “[a] challenged juror’s membership in a cognizable racial group is insufficient alone 18 to raise an inference of discrimination.” (Resp’t Ex. C at 6.) The state court further 19 held that the prosecution’s challenges of two African-American jurors despite these 20 jurors’ claims of impartiality did not give rise to an inference of racial discrimination 21 because all of the venirepersons who were not removed for cause also claimed to be 22 impartial. (Id.) 23 Moreover, the state appellate court found credible the prosecution’s claim 24 that the challenged jurors may have had reasons to be sympathetic to the defense, 25 finding that certain statements made by the stricken jurors “dispel[led] any 26 inference of discrimination” by the prosecution. (Id. at 7-8.) In particular, the court 27 held that because juror Number Four, “whose sister had been murdered, said that 28 Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JF\HC.06\Rogers232_denyHC.wpd 6 1 murderers received too short a sentence, shorter than the sentences given to drug 2 dealers,” it was reasonable to conclude that she might be reluctant to convict a 3 defendant on trial for drug charges out of her concern that conviction would result in 4 a sentence disproportionately long compared to the sentence given to her sister’s 5 murderers. (Id. at 8.) The state court also considered it justifiable for the 6 prosecution to strike juror Number Forty-two, who “said she believed that defense 7 attorneys do not work hard enough for their clients.” (Id.) The state court found 8 that this belief reasonably could lead the prosecution to believe that juror Number 9 Forty-two “would advocate for the defendants on the jury to compensate for their For the Northern District of California United States District Court 10 perceived lack of zealous representation.” (Id.) 11 Petitioner has failed to produce facts that show by clear and convincing 12 evidence that it was objectively unreasonable for the state appellate court to find that 13 the defendant “failed to raise an inference of discrimination” and to consequently 14 accept the prosecution’s proffered reasons for the strikes. (Id. at 9.) This Court 15 therefore is compelled to presume that those factual findings were correct. See 16 Purkett 514 U.S. at 769. The state appellate court’s decision rejecting this claim was 17 not contrary to, or an unreasonable application of federal law, nor was it based on an 18 unreasonable determination of the facts in light of the evidence presented. See 28 19 U.S.C. § 2254(d). 20 2. 21 Petitioner next claims he “was denied due process and the right to confront Denial of Discovery of Police Report 22 witness [sic] by the trial court’s denial of discovery of [a] police report which could 23 impeach the credibility of police witnesses.” (Pet. at 6.) Petitioner claims that he 24 was entitled to this evidence under the Supreme Court’s decision in Brady v. 25 Maryland, 373 U.S. 83 (1963). 26 27 Brady is the established federal standard for reviewing the propriety of suppression of evidence. See Mueller v. Anemone, 181 F.3d 557, 576-78. (4th Cir. 28 Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JF\HC.06\Rogers232_denyHC.wpd 7 For the Northern District of California United States District Court 1 1999). In Brady, the Court held that “the suppression by the prosecution of evidence 2 favorable to an accused upon request violates due process where the evidence is 3 material either to guilt or punishment, irrespective of the good faith or bad faith of 4 the prosecution.” 373 U.S. at 87. In Stickler v. Greene, 527 U.S. 263, 281-82 5 (1999), the Supreme Court identified the “three components of a true Brady 6 violation: the evidence at issue must be favorable to the accused, either because it is 7 exculpatory, or because it is impeaching; that evidence must have been suppressed 8 by the State, either willfully or inadvertently; and prejudice must have ensued.” The 9 party asserting a Brady error claim has the burden of identifying the undisclosed 10 evidence and indicating that it is of an exculpatory nature. See Phillips v. 11 Woodford, 267 F.3d 966, 987 (9th Cir. 2001); United States v. Dierling, 131 F.3d 12 722, 726 (8th Cir. 1997). 13 At trial, Petitioner informally requested discovery from the prosecutor of “(1) 14 a copy of the CAD printout and tape purge regarding the incident, and (2) the three 15 police reports written by Officer Vierra before the incident and the three reports he 16 wrote following the incident.” (Resp’t Ex. C at 11.) The trial court denied 17 Petitioner’s request both as untimely and because it was unlikely to lead to the 18 discovery of relevant evidence. The state appellate court pointed out that under Cal. 19 Pen. Code §1054.5 (subd. (b)), a party from whom discovery is requested has fifteen 20 days to provide the material requested before the requesting party may seek a court 21 order. (Id.) Petitioner made his request three days into the jury selection. (Id.) The 22 trial court also noted that Petitioner retained the opportunity to request discovery of 23 this information during trial, provided that he could lay a foundation for admitting 24 the reports as evidence, but Petitioner neither renewed his request nor asked any 25 questions that might have established the relevance of the materials. 26 27 Reviewing the trial court proceedings under Brady, the state appellate court found no Brady violation because there was no evidence of suppression by the 28 Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JF\HC.06\Rogers232_denyHC.wpd 8 1 prosecution. (Id. at 10.) Suppression occurs only when the “defendants are unaware 2 of [the evidence] and could not have discovered it through the exercise of reasonable 3 diligence.” People v. Salazar, 35 Cal.4th 1032, 1042 (2005). The state appellate 4 court held that Petitioner could have discovered the evidence through the exercise of 5 reasonable diligence in accordance with the California discovery statutes. (Resp’t 6 Ex. C at 10.) For the Northern District of California United States District Court 7 Petitioner’s claim is without merit. Petitioner merely speculates on the 8 relevance of the requested material, and does not explain how it was either 9 exculpatory or impeaching. Petitioner has also failed to show that the state, either 10 wilfully or inadvertently, suppressed the evidence. Petitioner has failed to meet his 11 burden. See Phillips 267 F.3d at 987. Accordingly, the state court’s rejection of this 12 claim was not contrary to, or an unreasonable application of federal law, nor was it 13 based on an unreasonable determination of the facts in light of the evidence 14 presented. See 28 U.S.C. § 2254(d). 15 3. 16 Petitioner next claims that the trial court failed to instruct the jury sua sponte Failure to Give Proper Jury Instructions 17 on the meaning of the technical term “material part” in CALJIC no. 2.21.2. 18 Petitioner brought this claim in the state appellate court, but he omitted it in his 19 appeal to the state supreme court.2 Petitioner alleged in his appeal that, had the jury 20 been properly instructed, the jury would have distrusted the credibility of police 21 officers whose testimony on other matters contained inconsistencies and would have 22 cast doubt on their testimony implicating Petitioner in the sale of cocaine. (Resp’t 23 Ex. C at 12.) 24 25 26 27 2 As Respondent points out, Petitioner did not properly exhaust this claim by presenting the highest state court available with a fair opportunity to rule on the merits of this claim. See 28 U.S.C. § 2254(b), (c). The court may deny a petition on the merits even if it is unexhausted, and since Responded has answered on the substantive merits of the claim, this Court will review the claim on the merits. See 28 U.S.C. § 2254(b)(2). 28 Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JF\HC.06\Rogers232_denyHC.wpd 9 For the Northern District of California United States District Court 1 Federal habeas relief will not be granted for failure to give an instruction 2 unless the ailing instruction, viewed in conjunction with all other instructions given 3 and the trial record, “so infected the entire trial that the resulting conviction violates 4 due process.” See Estelle v. McGuire, 502 U.S. 62, 72 (1991); Cupp v. Naughten, 5 414 U.S. 141, 147 (1973). The instructional error must have “had a substantial and 6 injurious effect or influence in determining the jury’s verdict.” Brecht v. Abramson, 7 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776. 8 (1946)). 9 The omission of an instruction is less likely to be prejudicial than a 10 misstatement of the law. See Walker v. Endell, 850 F.2d at 475-76 (citing 11 Henderson v. Kibbe, 431 U.S. at 155). Thus, a habeas petitioner whose claim 12 involves a failure to give a particular instruction bears an “‘especially heavy 13 burden.’” Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (quoting 14 Henderson v. Kibbe, 431 U.S. 145, 155 (1977)). The significance of the omission of 15 such an instruction may be evaluated by comparison with the instructions that were 16 given. Murtishaw v. Woodford, 255 F.3d 926, 971 (9th Cir. 2001) 17 CALJIC No. 2.21.2 states: “A witness, who is willfully false in one material 18 part of his or her testimony, is to be distrusted in others. You may reject the whole 19 testimony of a witness who willfully has testified falsely as to a material point, 20 unless, from all the evidence, you believe the probability of trust favors his or her 21 testimony in other particulars.” In judging the merits of this claim, the state 22 appellate court applied the California Supreme Court’s holding in People v. Watson, 23 46 Cal.2d 818, 836 (1956), which states that reversible error occurs only when “it is 24 reasonably probable that a result more favorable to the appealing party would have 25 been reached in the absence of the error.” The state appellate court found that this 26 standard had not been met. It rejected the notion that the jury was misled by the trial 27 court’s failure to define the term “material part,” finding that “[i]t defies common 28 Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JF\HC.06\Rogers232_denyHC.wpd 10 1 sense that the jury would believe that, if it concluded a witness lied about an 2 important issue at trial, it was not free to disbelieve the witness regarding other 3 issues determinative of the outcome.” (Resp’t Ex. C at 13.) For the Northern District of California United States District Court 4 The state court also found that any practical effect of defining “material part” 5 as used in CALJIC No.2.21.2 was achieved by other parts of the instructions, the 6 language of which indicated to the jurors that they retained the freedom to believe or 7 disbelieve a witness based on the jurors’ perceptions of the truth or falsity of a 8 particular statement. In particular, the state court cited the instruction that: “In 9 determining the believability of a witness, you may consider anything that has a 10 tendency to prove or disprove the truthfulness of the testimony…You should give 11 the testimony of a single witness whatever weight you think it deserves.” (Resp’t 12 Ex. C. at 13.) Given that the disputed term was placed in a context that made clear 13 to the jurors that it was entirely up to them whether to believe any witness’ 14 testimony, the state appellate court found no indication that a different outcome 15 would have resulted if the trial court had defined the term “material part” to the jury. 16 (Id.) 17 The state appellate court’s dismissal of Petitioner’s claim was wholly 18 consistent with Estelle. 502 U.S. at 72. The challenged instruction, taken as a 19 whole, plainly indicated that the jurors could weigh the credibility of witnesses on 20 each particular claim. Petitioner has not established that the instruction had a 21 substantial or injurious effect or influence on the jury’s finding that he was a party to 22 the sale of cocaine. See Brecht, 507 U.S. at 657. Accordingly, the state court’s 23 rejection of this claim was not contrary to, or an unreasonable application of, clearly 24 established federal law. See 28 U.S.C. § 2254(d). 25 4. 26 Petitioner’s final claim is that he was denied his “federal constitution [sic] 27 Upper-Term Sentence right to a jury trial and the court acted in excess of it’s [sic] jurisdiction when 28 Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JF\HC.06\Rogers232_denyHC.wpd 11 1 appellant was sentenced to an upper term based on facts beyond those found true by 2 the jury.” (Pet. At 8.) Petitioner brings his claim pursuant to Cunningham v. 3 California, 549 U.S. 270 (2007), which requires that the imposition of the upper 4 term comply with the Sixth Amendment. For the Northern District of California United States District Court 5 Cunningham is one of a number of Supreme Court decisions limiting judicial 6 discretion in sentencing. In Apprendi v. New Jersey, 530 U.S. 466 (2000), the 7 Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that 8 increases the penalty for a crime beyond the prescribed statutory maximum must be 9 submitted to a jury, and proved beyond a reasonable doubt.” Id. at 488-90. The 10 “statutory maximum” for Apprendi purposes is the maximum sentence a judge could 11 impose based solely on the facts reflected in the jury verdict or admitted by the 12 defendant; that is, the relevant “statutory maximum” is not the sentence the judge 13 could impose after finding additional facts, but rather is the maximum he or she 14 could impose without any additional findings. Blakely v. Washington, 542 U.S. 15 296, 303-04 (2004). In United States v. Booker, 543 U.S. 220, 288-290 (2005), the 16 Supreme Court held that a sentence based on facts determined by the court that 17 exceeded that which could have been imposed based solely on facts found by the 18 jury or admitted by the defendant violated the Sixth Amendment. The Supreme 19 Court then held in Cunningham that the middle term specified in California’s 20 sentencing statutes, rather than the upper term, constituted the relevant statutory 21 maximum. 549 U.S. at 294. The Court held that California’s determinate 22 sentencing law violated the Sixth Amendment because it authorized the judge, not 23 the jury, to find the facts permitting an upper term sentence. Id. 24 After a jury convicted him of violating Health and Safety Code 11352, 25 Petitioner was sentenced to ten years in state prison. (Resp’t Ex. C. at 3-4.) Having 26 the discretion to sentence Petitioner to three, four, or five years before doubling the 27 sentence pursuant to Penal Code 667, the trial court decided to impose the upper 28 Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JF\HC.06\Rogers232_denyHC.wpd 12 For the Northern District of California United States District Court 1 term. (Id. at 3.) Before the U.S. Supreme Court decided Cunningham, the state 2 court of appeal rejected Petitioner’s claim that imposition of the upper term violated 3 his Sixth Amendment rights. (Resp’t Ex. C at 15.) After Cunningham was decided, 4 Petitioner filed a habeas petition raising the Cunningham claim in the Alameda 5 Superior Court, which ultimately denied the petition on May 1, 2007, finding no 6 Cunningham error. According to the Reporter’s Transcript, the Alameda Superior 7 Court based its sentencing decision on several aggravating factors, including 8 Petitioner’s prior convictions as an adult, which were “numerous and [of] increasing 9 seriousness.” (Resp’t Ex. B. at 13.) The state superior court denied this claim, 10 finding that its sentencing decision was within the Apprendi exception allowing 11 upper term sentences to be imposed based on the fact of prior convictions. (Resp’t 12 Ex. I. at 4.) 13 Respondent argues that applying Cunningham to Petitioner’s case violates the 14 Supreme Court’s holding in Teague v. Lane, 489 U.S. 288 (1989). The Supreme 15 Court found in Teague that a new rule of constitutional law cannot be applied 16 retroactively on federal collateral review. Id. at 316. The Ninth Circuit has held that 17 Cunningham did not announce a new rule and thus applies retroactively on collateral 18 review, but only to convictions that became final on direct review after the decision 19 in Blakely on June 24, 2004. Butler v. Curry, 528 F.3d 624, 639 (9th Cir. 2008); cf. 20 In re Gomez, 45 Cal. 4th 650, 660 (Cal. 2009) (Cunningham applies to any 21 California case in which the judgment was not final at the time the Blakely decision 22 was issued). 23 Under Butler, Cunningham may be applied to the present case because 24 Petitioner’s conviction did not become final until after Blakely was decided in 2004. 25 (Pet. at 3). Nonetheless, Cunningham does not invalidate Petitioner’s sentence as 26 the sentencing decision at issue fits within the Apprendi exception, which allows 27 judges to use the fact of a prior conviction to enhance a sentence without that fact 28 Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JF\HC.06\Rogers232_denyHC.wpd 13 1 having been submitted to a jury or proved beyond a reasonable doubt. See 2 Apprendi, 530 U.S. at 480; accord Cunningham, 549 U.S. at 288. Accordingly, the 3 state court’s decision denying this claim was not contrary to, or an unreasonable 4 application of federal law, nor was it based on an unreasonable determination of the 5 facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. 6 § 2254(d). 7 CONCLUSION 8 For the Northern District of California United States District Court 9 The Court concludes that Petitioner has not shown any violation of his federal 10 constitutional rights in the underlying state criminal proceedings. Accordingly, the 11 petition for a writ of habeas corpus is denied. The Clerk shall enter judgment and 12 close the file. 13 14 IT IS SO ORDERED. 6/16/09 DATED: _________________ 15 _________________________ JEREMY FOGEL United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 Order Denying Petition for a Writ of Habeas Corpus P:\PRO-SE\SJ.JF\HC.06\Rogers232_denyHC.wpd 14 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ERIC ROGERS, Case Number: CV06-07232 JF Petitioner, CERTIFICATE OF SERVICE v. K. MENDOZA-POWERS, Warden, Respondent. / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on , I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Eric Rogers P74107 Avenal State Prison P.O. Box 9 Avenal, CA 93204 Dated: Richard W. Wieking, Clerk
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
