Curtis John-Charles v. State of California

Filing

FILED OPINION (SIDNEY R. THOMAS, SANDRA S. IKUTA and JANE A. RESTANI) AFFIRMED. Judge: SSI Authoring, FILED AND ENTERED JUDGMENT. [7829414]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CURTIS M. JOHN-CHARLES,
Petitioner-Appellant,
v.
STATE OF CALIFORNIA,
Respondent-Appellee.





No. 09-16530
D.C. No.
2:05-cv-00175MCE-GGH
OPINION

Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Argued and Submitted
November 3, 2010—Stanford, California
Filed July 22, 2011
Before: Sidney R. Thomas and Sandra S. Ikuta,
Circuit Judges, and Jane A. Restani, Judge.*
Opinion by Judge Ikuta

*The Honorable Jane A. Restani, Judge of the United States Court of
International Trade, sitting by designation.

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COUNSEL
Mark Eibert, Esq., Half Moon Bay, California, for the petitioner.
Barton Bowers, Deputy Attorney General, State of California,
Sacramento, California, for the respondent.

OPINION
IKUTA, Circuit Judge:
Curtis M. John-Charles appeals the district court’s denial of
his federal habeas petition. He raises two claims on appeal.
First, John-Charles challenges the California Court of
Appeal’s rulings that he had no absolute Sixth Amendment
right to the reappointment of counsel after waiving his right
to counsel under Faretta v. California, 422 U.S. 806, 807
(1975), and that the trial court’s abuse of discretion in failing
to reappoint counsel was harmless beyond a reasonable doubt.
Second, John-Charles claims that the California court violated
his rights under Apprendi v. New Jersey, 530 U.S. 466 (2000),
when it used a prior juvenile conviction as a “strike” to
enhance his sentence. Because neither of these decisions “was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States,” we affirm the district court’s

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denial of John-Charles’s
§ 2254(d)(1).

habeas

petition.

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28

U.S.C.

I
In 2001, the State of California charged John-Charles with
robbery, receipt of stolen property, assault with a firearm, acting in concert (with co-defendant Richard Ward) and entering
an inhabited structure, personal use of a firearm in the commission of a robbery, and being a felon in possession of a firearm. The charges stemmed from a home-invasion robbery
allegedly committed by John-Charles, Ward, and two or three
other men, against several individuals living in a duplex in
Sacramento county.
John-Charles was dissatisfied with his defense attorney
during the pretrial stages of his case and accordingly made
three unsuccessful motions to substitute different counsel.1 At
a hearing on November 2, 2001, the trial court once again
denied John-Charles’s motion to substitute different counsel.
John-Charles sought to exercise his rights under Faretta v.
California, which established the constitutional “right to proceed without counsel when [a defendant] voluntarily and
intelligently elects to do so.” 422 U.S. at 807. The trial court
granted John-Charles’s request to represent himself after a
colloquy in which the trial court ensured his counsel waiver
was knowing and intelligent. At the hearing, the trial court
acknowledged that under California’s speedy trial act, Cal.
Penal Code § 1382, John-Charles was entitled to have his trial
commence on November 5, 2001, but determined there was
good cause to extend the speedy trial deadline to November
27, 2001; the court subsequently extended the deadline to
December 26, 2001, and then to January 3, 2002.
1

These motions are dubbed “Marsden motions” in California courts, a
name which derives from People v. Marsden, 465 P.2d 44 (Cal. 1970),
which set forth the governing state-law framework for considering a
defendant’s request to substitute counsel.

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On January 3, 2002, the date set for voir dire and the commencement of trial, John-Charles asked the court to reappoint
trial counsel, because he was bewildered by the jury selection
process and motions arguments. The court denied his request
because John-Charles had waited to raise it “until the last
minute,” the court did not want to continue the case while
John-Charles attempted to find counsel, and the court deemed
it impossible for John-Charles to find an attorney who would
step in to represent him on such short notice. The court likewise declined to grant John-Charles’s request to appoint an
attorney to help him with jury selection. Because JohnCharles was still dressed in prison garb, the court decided to
delay jury selection until John-Charles was dressed appropriately. In light of the speedy trial issue, however, the court
ruled that because it had already devoted substantial time and
resources to the matter (it had spent the entire day addressing
the parties’ motions), and both the court and litigants were
ready to proceed, the trial of John-Charles and Ward “ha[d]
commenced” as of January 3, 2002.
The prosecution filed an amended information on January
4, 2002, adding Count 5 (assault with a firearm), and the trial
was continued to January 8, 2002. On January 8, the prosecution filed a second amended information, charging JohnCharles with a prior “strike” stemming from a juvenile conviction. On the same day, John-Charles again moved for the
appointment of counsel and a continuance. The court again
denied his motion. Jury selection commenced later that day.
The following day, January 9, 2002, John-Charles made
another request for appointment of counsel, which he styled
as a Marsden motion, saying, “I want to fire myself,” and
explaining that he could not adequately represent himself and
intended to seek a continuance. The court again denied his
request for counsel and a continuance, explaining:
We are in the process of picking a jury for this
[joint] trial[;] [i]t would, in my opinion be extremely
disruptive, to — and not in the best interests of the

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administration of justice, certainly, to in effect grant
a severance of these trials with you and [your codefendant] Ward and that’s in effect, what would
happen.
John-Charles thereafter continued to represent himself
throughout the guilt phase of his trial and was convicted on
all charges (as was his represented co-defendant, Ward). At
the penalty phase, the trial court found that John-Charles had
a juvenile adjudication of guilt for an offense that qualified as
a strike under California’s three-strikes law. The court accordingly sentenced John-Charles as a second-strike offender.
On direct appeal, John-Charles argued that the trial court’s
refusal to permit him to withdraw his Faretta waiver violated
his Sixth Amendment right to counsel, and that the trial
court’s use of his prior juvenile adjudication to enhance his
sentence violated his Fourteenth Amendment due process
rights.
The California Court of Appeal denied his claims. As the
court explained, under California Supreme Court precedent, a
self-represented defendant who seeks to withdraw his Faretta
waiver after commencement of trial does not have an absolute
right to reinstatement of counsel. See People v. Gallego, 52
Cal. 3d 115, 163-64 (1990); see also People v. Lawley, 27
Cal. 4th 102, 148-49 (2002). Rather, the trial court must exercise its discretion based on a range of factors set forth in People v. Windham, 19 Cal. 3d 121 (1977). Reviewing the trial
court’s denial of John-Charles’s reappointment request under
this standard, the California Court of Appeal held that the trial
court abused its discretion, because there was no evidence that
“the reappointment of counsel would have caused a significant delay or disruption of the trial proceedings.” The court
then evaluated the effect of this error. It first noted that it was
not clear under California law whether such errors should be
reviewed for harmlessness beyond a reasonable doubt under
the standard set forth in Chapman v. California, 386 U.S. 18

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(1967), or under a less onerous state standard, see People v.
Watson, 46 Cal. 2d 818, 836 (1956) (holding that certain trial
errors are harmless unless there is a reasonable probability
that a different result would have occurred absent the error).
The court did not resolve this issue, because it concluded that
even assuming the Chapman standard applied, the trial court’s
error was harmless beyond a reasonable doubt, given the
overwhelming weight of the evidence against John-Charles on
the robbery, felon-in-possession, and receipt-of-stolenproperty counts,2 and because John-Charles’s co-defendant,
who was represented by counsel, was convicted on the same
charges, in the same trial, before the same jury. The California Supreme Court denied review.
John-Charles petitioned for habeas relief in federal court.
After the district court denied John-Charles’s habeas petition,
he timely filed a notice of appeal.
II
We review John-Charles’s claims through the lens of
AEDPA’s extremely deferential standard of review. “Section
2254(d) is part of the basic structure of federal habeas jurisdiction, designed to confirm that state courts are the principal
forum for asserting constitutional challenges to state convictions.” Harrington v. Richter, 131 S. Ct. 770, 787 (2011).3
2

The California Court of Appeal held that the court’s failure to appoint
counsel was not harmless with respect to the personal use of a firearm
count. The court therefore vacated the firearm-use conviction and
remanded it for retrial. Accordingly, this issue is not before us.
3
Section 2254(d) states:
An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim—
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or

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Under § 2254(d)(1), “[f]ederal habeas relief may not be
granted . . . unless it is shown that the earlier state court’s
decision ‘was contrary to’ federal law then clearly established
in the holdings of th[e Supreme] Court, or that it ‘involved an
unreasonable application of’ such law.”4 Id. at 785 (citations
omitted).
For purposes of § 2254(d)(1), “a state court decision is contrary to [the Supreme Court’s] clearly established precedent if
the state court applies a rule that contradicts the governing
law set forth in [Supreme Court] cases or if the state court
confronts a set of facts that are materially indistinguishable
from a decision of th[e] Court and nevertheless arrives at a
result different from [that] precedent.” Lockyer v. Andrade,
538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S.
362, 405-06 (2000)). A state court decision makes an “unreasonable application” of Supreme Court precedent if it “identifies the correct governing legal rule from [the Supreme]
Court’s cases but unreasonably applies it to the facts of the
particular [petitioner’s] case.” Williams, 529 U.S. at 407. The
state’s application of the Supreme Court precedent “must be
shown to be not only erroneous, but objectively unreasonable.” Waddington v. Sarausad, 129 S. Ct. 823, 831 (2009)
(emphasis added) (quoting Middleton v. McNeil, 541 U.S.
433, 436 (2004) (per curiam)) (internal quotation marks omitted).
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d).
4
While we are also relieved from AEDPA deference with respect to a
state court decision “based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding,”
§ 2254(d)(2), John-Charles has failed to develop any argument on this
front, and thus has waived it. Martinez-Serrano v. INS, 94 F.3d 1256, 1259
(9th Cir. 1996); see Fed. R. App. P. 28(a)(9)(A).

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In Harrington, the Supreme Court stressed the deferential
nature of the § 2254(d)(1) standard: “[a] state court’s determination that a claim lacks merit precludes federal habeas relief
so long as ‘fairminded jurists could disagree’ on the correctness of that decision.” 131 S. Ct. at 786 (quoting Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004)). Moreover, the more
general the rule being considered, “the more leeway courts
have in reaching outcomes in case-by-case determinations.”
Id. (quoting Yarborough, 541 U.S. at 664) (internal quotation
marks omitted); see also Knowles v. Mirzayance, 129 S. Ct.
1411, 1420 (2009).
Finally, for purposes of § 2254(d)(1), the Supreme Court
precedent at issue must be “clearly established.” The phrase
“clearly established” in § 2254(d)(1) “refers to the holdings,
as opposed to the dicta, of [the Supreme Court’s] decisions as
of the time of the relevant state-court decision.” Lockyer, 538
U.S. at 71 (quoting Williams, 529 U.S. at 412) (internal quotation marks omitted). In two recent cases, the Supreme Court
indicated that a state court’s decision is not contrary to or an
unreasonable application of clearly established Supreme
Court precedent unless that precedent is closely on point. See
Wright v. Van Patten, 552 U.S. 120, 125 (2008) (holding that
the state court’s decision was not an unreasonable application
of Supreme Court precedent where no Supreme Court decision “squarely addresses the issue” in the case or gives a
“clear answer to the question presented”); Carey v. Musladin,
549 U.S. 70, 77 (2006). In deriving a rule from these decisions, we explained that “[t]he common thread in all these
cases is that when there is a principled reason for the state
court to distinguish between the case before it and Supreme
Court precedent, the state court’s decision will not be an
unreasonable application of clearly established Supreme
Court law.” Murdoch v. Castro, 609 F.3d 983, 992 (9th Cir.
2010) (en banc).
III
Mindful of these principles, we turn to John-Charles’s challenge to the state court’s ruling on his Sixth Amendment

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claim, specifically, that John-Charles was erroneously forced
to go to trial without an attorney, that his Sixth Amendment
rights were thereby violated, and that such a violation is a
structural error requiring reversal.
A
[1] Supreme Court decisions have long established the
principle that the Sixth Amendment guarantees an indigent
criminal defendant the appointment of counsel for his defense
at all critical stages of his prosecution, Gideon v. Wainwright,
372 U.S. 335, 344 (1963), and that a governmental violation
of this right is “structural error” that demands automatic
reversal of the defendant’s underlying conviction, United
States v. Gonzalez-Lopez, 548 U.S. 140, 148-49 (2006). On
the other hand, the Supreme Court has also recognized that a
defendant has the reciprocal constitutional right to “proceed
without counsel when he voluntarily and intelligently elects to
do so,” Faretta, 422 U.S. at 807, and has acknowledged the
tension between these two reciprocal rights, see id. at 832-35;
see also United States v. Gerritsen, 571 F.3d 1001, 1007 (9th
Cir. 2009) (noting that “[a] defendant therefore has two correlative and mutually exclusive Sixth Amendment rights: the
right to have counsel, on one hand, and the right to refuse
counsel and represent himself, on the other”). Once a defendant has exercised the Sixth Amendment right to proceed pro
se, the defendant necessarily foregoes the reciprocal Sixth
Amendment “right to counsel at all ‘critical stages’ of the
criminal process.” Iowa v. Tovar, 541 U.S. 77, 87 (2004).
Under AEDPA, the question for us is whether Faretta or any
other decision constitutes clearly established Supreme Court
precedent governing a self-represented defendant’s request for
reappointment of counsel after the defendant has made a valid
Faretta waiver of the right to counsel established in Gideon.
[2] A review of the majority and dissenting opinions in
Faretta makes clear that the Court did not directly address
whether and under what conditions a defendant who validly

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waives his right to counsel has a Sixth Amendment right to
reassert it later in the same stage of his criminal trial. The
majority in Faretta did not discuss the question at all, and the
dissent expressly flagged the matter as one unaddressed by
the majority, stating that the Court’s decision “leaves open a
host” of questions, including whether a defendant who has
made an election to proceed by counsel or pro se must “be
allowed to switch in midtrial.” Faretta, 422 U.S. at 852
(Blackmun, J., dissenting). Since Faretta, the Court has
remained silent on this question. Therefore, no “specific legal
rule” on this issue has been “squarely established by th[e]
Court,” Harrington, 131 S. Ct. at 786 (quoting Knowles, 129
S. Ct. at 1413-14) (internal quotation marks omitted); cf. Murdoch, 609 F.3d at 994 (quoting Earp v. Ornoski, 432 F.3d
1158, 1185 (9th Cir. 2005)) (holding that a constitutional
principle is not clearly established where the Supreme Court
has expressly concluded that the issue is an “open question”),
and Faretta thus is not “clearly established” Supreme Court
precedent for purposes of John-Charles’s claim that he is constitutionally entitled to the reappointment of counsel.
Notwithstanding the Supreme Court’s silence on the specific issue at hand, we must also consider whether a state
court’s denial of a request for reappointment of counsel after
a Faretta waiver constitutes an unreasonable application of
the general principles enunciated in Gideon and Faretta. The
Supreme Court has held that even a general standard “may be
applied in an unreasonable manner”; a state court does so
when no “reasonable interpretation of the controlling
[Supreme Court] standard” can “support [the state court’s]
legal ruling.” Panetti v. Quarterman, 551 U.S. 930, 953
(2007). In conducting this inquiry, however, we are mindful
that the more general the rule being considered, “the more
leeway courts have in reaching outcomes in case-by-case
determinations.” Harrington, 131 S. Ct. at 786 (quoting Yarborough, 541 U.S. at 664) (internal quotation marks omitted).
[3] As noted above, the California Court of Appeal here
reasoned that although John-Charles initially had an absolute

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Sixth Amendment right to counsel per Gideon, he did not
have an absolute, constitutional right to the reinstatement of
counsel after his Faretta waiver. In the course of explaining
its decision, the Court of Appeal noted that “it is not the court
which deprived [John-Charles] of the assistance of counsel
but [rather his] own considered decision to exercise his constitutional right under Faretta to represent himself at trial.”
There are several reasons why the conclusion that there is no
absolute right to reinstatement of counsel after a Faretta
waiver is within “the range of reasonable applications” of
Gideon and Faretta. Harrington, 131 S. Ct. at 788. First, as
we have already said, no Supreme Court case provides any
tailored guidance on what a court should do in such a situation, and thus a state court could reasonably conclude that a
defendant has no absolute right to reverse course once the
defendant has knowingly and voluntarily waived the right to
counsel. Indeed, the solemn procedural protections required
by Faretta for a defendant seeking to make such a waiver
suggest the gravity of the defendant’s election. See Faretta,
422 U.S. at 835 (declaring that defendant “should be made
aware of the dangers and disadvantages of self-representation,
so that the record will establish that ‘he knows what he is
doing and his choice is made with eyes open’ ” (quoting
Adams v. United States ex rel. McCann, 317 U.S. 269, 279
(1942)).
More important, it is apparent that a “fairminded” jurist
could agree with the state court’s conclusion that Gideon and
Faretta do not require reappointment of counsel after an initial waiver of the right, Harrington, 131 S. Ct. at 786 (quoting
Yarborough, 541 U.S. at 664) (internal quotation marks omitted), because our own cases have reached the same conclusion
on this issue. See, e.g., Menefield v. Borg, 881 F.2d 696, 700
(9th Cir. 1989) (recognizing that “the right to counsel—once
waived—is no longer absolute”); see also Robinson v. Ignacio, 360 F.3d 1044, 1056 (9th Cir. 2004) (noting that “the
Supreme Court has made it clear that once a defendant has
made such a waiver, he must bear the consequences without

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complaint though he conducted his own defense to his own
detriment”). We recently applied this principle in a case similar to John-Charles’s. See McCormick v. Adams, 621 F.3d
970, 980 (9th Cir. 2010). In McCormick, a defendant who
waived his right to counsel changed his mind halfway through
trial, and asked for a continuance to locate counsel who could
help him. Id. at 973. The trial court denied the defendant’s
request, and he was convicted. Id. at 973-74. On appeal, the
state appellate court held that “even assuming that McCormick had made a mid-trial request for the appointment of
counsel,” the trial court had not abused its discretion in refusing the request. Id. at 974. In denying McCormick’s habeas
petition, we held that the state court’s decision was not “contrary to, or an unreasonable application of, clearly-established
federal law,” id. at 980, and relied on Supreme Court decisions holding that trial courts have broad discretion to deny a
request for a continuance even if the defendant “is compelled
to defend without counsel,” id. (quoting Ungar v. Sarafite,
376 U.S. 575, 589 (1964)) (internal quotation marks omitted).
We also noted our earlier conclusion that “[t]here are times
when the criminal justice system would be poorly served by
allowing the defendant to reverse his course at the last minute
and insist upon representation by counsel.” Id. (alteration in
original) (quoting Menefield, 881 F.2d at 700).
[4] Furthermore, our conclusion that the Sixth Amendment
right to counsel is not absolute once it has been waived is consistent with the decisions of four other circuits. See United
States v. Leveto, 540 F.3d 200, 207 (3d Cir. 2008); United
States v. Merchant, 992 F.2d 1091, 1095 (10th Cir. 1993);
United States v. West, 877 F.2d 281, 286 (4th Cir. 1989);
United States v. Solina, 733 F.2d 1208, 1211-12 (7th Cir.
1984).
[5] Given our rulings in Menefield and McCormick, and
the similar holdings of four other Courts of Appeals, it is clear
that “fairminded jurists” could conclude that there is no absolute, constitutional right to reappointment of counsel after a

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Faretta waiver. Moreover, a state court could make a principled distinction between Gideon’s general standard and the
factual scenario here, where a defendant has waived the right
to counsel established by Gideon. See Murdoch, 609 F.3d at
994. Accordingly, we must reject John-Charles’s argument
that the California Court of Appeal’s conclusion was contrary
to or an unreasonable application of Supreme Court precedent.
B
John-Charles presses the further point that he is entitled to
habeas relief because the California Court of Appeal held that
the trial court’s refusal to reappoint counsel was an abuse of
discretion, and any such error in reappointing counsel is per
se a structural error.
We disagree; in fact, John-Charles’s position lacks even a
toehold in clearly established Supreme Court precedent. As
discussed above, no Supreme Court authority holds that a
defendant has a constitutional right to post-Faretta reappointment of counsel once trial proceedings have commenced.
Given this landscape, bounded only by the requirement to reasonably apply the general principles of Gideon and Faretta,
state courts could reasonably decide to vest the reappointment
decision in the trial judge’s discretion, prescribe a test for
guiding that discretion, and establish a framework for reviewing errors in trial courts’ application of that framework in particular cases. A state court’s decision to do any or all of these
things would not be contrary to, or an unreasonable application of, clearly established Supreme Court precedent.
[6] In short, the Supreme Court has not clearly articulated
a constitutional right to post-Faretta reappointment of counsel
during trial. It has not defined the standard of review that
should apply to trial courts’ handling of such issues. And it
has not spoken on whether a trial court’s error in ruling on a
reappointment request is structural or trial error. This silence

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compels us to defer to the state court’s reasonable attempts to
fill the void. Even if we would have interpreted Sixth Amendment requirements differently than the California courts, we
cannot say the state court’s analysis is objectively unreasonable. See Harrington, 131 S. Ct. at 785. Accordingly, we conclude that the California Court of Appeal’s decision here (i.e.,
that the trial court’s error was harmless beyond a reasonable
doubt) is not contrary to or an unreasonable application of
clearly established Supreme Court precedent.
John-Charles’s reliance on Ninth Circuit precedent, specifically Menefield and Robinson, is unavailing. In Menefield, we
held that a state trial court erred in refusing to reappoint counsel for a self-represented defendant who made a post-trial
request for assistance of counsel, and suggested (without
holding) that the erroneous denial of the right to counsel at a
post-trial hearing required automatic reversal. See 881 F.2d at
701 n.7 (noting that the parties did not dispute that when a
Sixth Amendment violation pervades a post-conviction hearing, that post-conviction decision must be automatically
reversed.). Because Menefield was a pre-AEDPA case, we
analyzed the petitioner’s claim de novo, and did not address
the question whether there is clearly established Supreme
Court precedent detailing the Sixth Amendment rights of a
defendant who seeks to withdraw an earlier, valid Faretta
waiver. Given the material differences in its factual and procedural posture, Menefield cannot control our AEDPA analysis.
In Robinson, a post-AEDPA decision, we concluded that
for purposes of habeas review, “clearly established Federal
law” holds that a defendant has a Sixth Amendment right to
counsel for purposes of a sentencing proceeding, even if the
defendant validly waived his right to counsel at the trial stage
of his criminal prosecution, 360 F.3d at 1059, and that a violation of that right was structural error, such that re-sentencing
was required, id. at 1061. In reaching this conclusion, we
relied on our own precedent, as well as that of four other cir-

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cuits, even though the Supreme Court itself had not (and still
has not) ever spoken to the issue. Id. at 1058-59. Even if this
mode of AEDPA analysis could survive after Musladin, Van
Patten, and our own en banc decision in Murdoch, Robinson
is not on point. Robinson expressly limited its holding to the
situation where a Faretta defendant seeks to reassert a right
to counsel for a separate, subsequent sentencing proceeding.
Id. at 1059 (holding that it is “clearly established Federal law”
that “a defendant who has waived his right to counsel may
nonetheless re-assert that right for the purposes of a sentencing proceeding”). Because Robinson did not purport to
address the question whether a self-represented defendant has
a right to reappointment of counsel once trial proceedings
have begun, rather than during a subsequent proceeding, see
id. at 1058 (“[There is] a substantial practical distinction
between delay on the eve of trial and delay at the time of a
post-trial hearing.” (quoting Menefield, 881 F.2d at 700-01)),
the case does not represent clearly established Supreme Court
precedent governing the “novel factual context” at issue here,
Van Patten, 552 U.S. at 125.
[7] For the reasons outlined above, we conclude that the
California Court of Appeal’s determination was not contrary
to or an unreasonable application of clearly established
Supreme Court precedent, and we therefore affirm the district
court’s denial of John-Charles’s Sixth Amendment claim.
§ 2254(d)(1).
IV
John-Charles also claims that the California Court of
Appeal violated clearly established Federal law when it relied
on his prior juvenile conviction to enhance his sentence
beyond the statutory maximum. He claims that the state
court’s opinion is an unreasonable application of Apprendi
and United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001).
Apprendi held that “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the pre-

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scribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Apprendi v. New Jersey,
530 U.S. 466, 490 (2000); see also Almendarez-Torres v.
United States, 523 U.S. 224, 243-44 (1998) (holding that the
fact of a prior conviction need not be proved to a jury beyond
a reasonable doubt in order to be used as a sentenceenhancing factor). Interpreting Apprendi, Tighe concluded
that, if a prior juvenile conviction did not afford the defendant
the right to a trial by jury, the fact of that juvenile conviction
must be proved to a jury beyond a reasonable doubt if it is to
be used to enhance a defendant’s sentence beyond the statutory maximum. 266 F.3d at 1194-95. It based this conclusion
on the belief that Apprendi’s prior-conviction exception was
“limited to prior convictions resulting from proceedings that
afforded the procedural necessities of a jury trial and proof
beyond a reasonable doubt.” Id. at 1194.
The California Court of Appeal rejected Tighe and concluded that the trial court’s use of John-Charles’s juvenile
conviction was constitutionally sound under Apprendi
because John-Charles received all of the process due him in
that juvenile proceeding (as opposed to in an adult criminal
trial), including “rights to notice, counsel, confrontation and
cross-examination and against self-incrimination,” as well as
the requirement of proof beyond a reasonable doubt.
[8] We have already determined that our holding in Tighe
is not clearly established Federal law for AEDPA purposes.
See Boyd v. Newland, 467 F.3d 1139, 1152 (9th Cir. 2006).
Boyd noted that Tighe had been rejected not only by the California courts, but also by the Third, Eighth, and Eleventh Circuits. See id. We concluded that, “in the face of authority that
is directly contrary to Tighe, and in the absence of explicit
direction from the Supreme Court, we cannot hold that the
California courts’ use of Petitioner’s juvenile adjudication as
a sentencing enhancement was contrary to, or involved an
unreasonable application of,” clearly established Supreme
Court precedent. Id.

Case: 09-16530 07/22/2011 Page: 17 of 17

ID: 7829414 DktEntry: 29-1

JOHN-CHARLES v. CALIFORNIA

9785

[9] As John-Charles himself acknowledges, we are bound
by Boyd, and we therefore conclude that the California court
neither contravened nor unreasonably applied clearly established Supreme Court precedent when it upheld the trial
court’s use of John-Charles’s juvenile conviction as a strike
that extended his term of imprisonment. § 2254(d)(1); Boyd,
467 F.3d at 1152.
V
The Supreme Court has warned us to avoid applying
AEDPA in a manner that displays “a lack of deference to the
state court’s determination and an improper intervention in
state criminal processes.” Harrington, 131 S. Ct. at 787.
Instead, we must consider “arguments that would otherwise
justify the state court’s result.” Id. As the Court noted,
although Ҥ 2254(d) stops short of imposing a complete bar
on federal court relitigation of claims already rejected in state
proceedings,” it goes no further than is essential to “preserve[ ] authority to issue the writ in cases where there is no
possibility fairminded jurists could disagree that the state
court’s decision conflicts with th[e Supreme] Court’s precedents.” Id. Because we cannot say that all fairminded jurists
would be compelled to hold that the California Court of
Appeal’s determinations were contrary to or an unreasonable
application of clearly established Supreme Court precedent,
we must deny John-Charles’s request for relief.
AFFIRMED.