Bulmario Gutierrez Torres v. Stu Sherman

Filing 22

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Manuel L. Real. The Court accepts and adopts the Magistrate Judge's Report and Recommendation. It is Ordered that Judgment shall be entered denying and dismissing the Petition with prejudice. (Attachments: # 1 Report and Recommendation) (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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BULMARIO GUTIERREZ TORRES,

) NO. CV 17-2745-R(E)
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Petitioner,
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v.
) REPORT AND RECOMMENDATION OF
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STU SHERMAN (Warden),
) UNITED STATES MAGISTRATE JUDGE
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Respondent.
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)
______________________________)

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This Report and Recommendation is submitted to the Honorable

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Manuel L. Real, United States District Judge, pursuant to 28 U.S.C.

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section 636 and General Order 05-07 of the United States District

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Court for the Central District of California.

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PROCEEDINGS

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Petitioner filed a “Petition for Writ of Habeas Corpus By a

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Person in State Custody” on April 11, 2017.

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Answer on June 30, 2017, and a Supplemental Answer on August 17, 2017.

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Petitioner filed a Reply on July 13, 2017, and a Supplemental Reply on

Respondent filed an

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August 28, 2017.

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BACKGROUND

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In 2001, a Superior Court jury found Petitioner guilty of one

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count of attempted murder, one count of second degree robbery and two

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counts of attempted second degree robbery (Reporter’s Transcript

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(“R.T.”) 722-76).

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Petitioner personally used a firearm, personally inflicted great

The jury also found to be true allegations that

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bodily injury, and personally and intentionally discharged a firearm

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proximately causing great bodily injury (R.T. 773-75).

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In 2001, the Superior Court sentenced Petitioner to a prison term

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of over 39 years (R.T. 780-82).

The sentencing judge selected the

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“high term” based on the judge’s findings that Petitioner had “engaged

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in violent conduct that indicates a serious danger to society” and

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that Petitioner’s “prior convictions . . . are . . . of increasing

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seriousness” (id.; see Cal. Ct. R. 4.421(b)(1) and (2)).1

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Although difficult to decipher, the present Petition appears to

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claim that the sentencing judge violated the principles established in

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Apprendi v. New Jersey, 530 U.S. 466 (2000) (“Apprendi”) and

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Cunningham v. California, 549 U.S. 270 (2007) (“Cunningham”).

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Petitioner previously presented this claim in a habeas corpus petition

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In 2016, the Superior Court revised Petitioner’s
sentence for reasons unrelated to the merits of the present
Petition (see Lodged Document 2 at pp. 2-3; Lodged Document 5 at
pp. 26-27).
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filed in the California Supreme Court (Lodged Document 18).

On

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December 14, 2016, the California Supreme Court denied the petition in

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an unreasoned decision (Lodged Document 19).

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STANDARD OF REVIEW

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Under the “Antiterrorism and Effective Death Penalty Act of 1996”

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(“AEDPA”), a federal court may not grant an application for writ of

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habeas corpus on behalf of a person in state custody with respect to

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any claim that was adjudicated on the merits in state court

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proceedings unless the adjudication of the claim:

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decision that was contrary to, or involved an unreasonable application

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of, clearly established Federal law, as determined by the Supreme

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Court of the United States”; or (2) “resulted in a decision that was

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based on an unreasonable determination of the facts in light of the

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evidence presented in the State court proceeding.”

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2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v.

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Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09

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(2000).

(1) “resulted in a

28 U.S.C. §

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“Clearly established Federal law” refers to the governing legal

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principle or principles set forth by the Supreme Court at the time the

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state court renders its decision on the merits.

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U.S. 34, 38 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).

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state court’s decision is “contrary to” clearly established Federal

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law if:

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Court law; or (2) it “confronts a set of facts . . . materially

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indistinguishable” from a decision of the Supreme Court but reaches a

Greene v. Fisher, 565
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(1) it applies a rule that contradicts governing Supreme

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different result.

See Early v. Packer, 537 U.S. at 8 (citation

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omitted); Williams v. Taylor, 529 U.S. at 405-06.

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Under the “unreasonable application” prong of section 2254(d)(1),

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a federal court may grant habeas relief “based on the application of a

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governing legal principle to a set of facts different from those of

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the case in which the principle was announced.”

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538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537

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U.S. at 24-26 (state court decision “involves an unreasonable

Lockyer v. Andrade,

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application” of clearly established federal law if it identifies the

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correct governing Supreme Court law but unreasonably applies the law

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to the facts).

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“In order for a federal court to find a state court’s application

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of [Supreme Court] precedent ‘unreasonable,’ the state court’s

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decision must have been more than incorrect or erroneous.”

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Smith, 539 U.S. 510, 520 (2003) (citation omitted).

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court’s application must have been ‘objectively unreasonable.’”

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at 520-21 (citation omitted); see also Waddington v. Sarausad, 555

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U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th

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Cir. 2004), cert. dism’d, 545 U.S. 1165 (2005).

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habeas court must determine what arguments or theories supported,

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. . . or could have supported, the state court’s decision; and then it

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must ask whether it is possible fairminded jurists could disagree that

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those arguments or theories are inconsistent with the holding in a

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prior decision of this Court.”

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101 (2011).

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2254(d)(1).”

Wiggins v.

“The state
Id.

“Under § 2254(d), a

Harrington v. Richter, 562 U.S. 86,

This is “the only question that matters under §
Id. at 102 (citation and internal quotations omitted).
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Habeas relief may not issue unless “there is no possibility fairminded

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jurists could disagree that the state court’s decision conflicts with

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[the United States Supreme Court’s] precedents.”

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for obtaining habeas corpus from a federal court, a state prisoner

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must show that the state court’s ruling on the claim being presented

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in federal court was so lacking in justification that there was an

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error well understood and comprehended in existing law beyond any

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possibility for fairminded disagreement.”

Id.

“As a condition

Id. at 103.

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In applying these standards, the Court ordinarily looks to the

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last reasoned state court decision.

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F.3d 919, 925 (9th Cir. 2008).

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the petitioner’s claim in an unreasoned decision, “[a] habeas court

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must determine what arguments or theories . . . could have supported

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the state court’s decision; and then it must ask whether it is

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possible fairminded jurists could disagree that those arguments or

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theories are inconsistent with the holding in a prior decision of this

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Court.”

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Pinholster, 563 U.S. 170, 188 (2011).

See Delgadillo v. Woodford, 527

Where, as here, the state court denied

Harrington v. Richter, 562 U.S. at 102; see also Cullen v.

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Additionally, federal habeas corpus relief may be granted “only

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on the ground that [Petitioner] is in custody in violation of the

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Constitution or laws or treaties of the United States.”

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2254(a).

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of whether the petition satisfies section 2254(a) prior to, or in lieu

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of, applying the standard of review set forth in section 2254(d).

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Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).

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28 U.S.C. §

In conducting habeas review, a court may determine the issue

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LAW GOVERNING APPRENDI/CUNNINGHAM CLAIMS

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In Apprendi, the United States Supreme Court held that,

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regardless of its label as a “sentencing factor,” any fact other than

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the fact of a prior conviction that increases the penalty for a crime

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beyond the prescribed statutory maximum, among other things, must be

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“proved beyond a reasonable doubt.”

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Blakely v. Washington, 542 U.S. 296 (2004) (“Blakely”), the Supreme

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Court held that the “statutory maximum” for Apprendi purposes “is the

Apprendi, 530 U.S. at 490.

In

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maximum sentence a judge may impose solely on the basis of the facts

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reflected in the jury verdict or admitted by the defendant . . . .”

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Blakely, 542 U.S. at 303 (original emphasis).

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Supreme Court held that a California judge’s imposition of a high term

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or upper term based on facts found by the judge rather than the jury

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(other than the fact of a prior conviction) violated the Constitution.

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Cunningham, 549 U.S. at 293.

In Cunningham, the

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In endorsing the “prior conviction exception” to these

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principles, the Apprendi Court cited the Supreme Court’s earlier

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decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998)

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(“Almendarez-Torres”).

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Torres, the Court ruled that an indictment was not defective for

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failure to charge the fact of a prior conviction used as a sentence

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enhancement, on the ground that the prior conviction was not an

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element of the offense.

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Cunningham and Blakely reaffirmed the holding in Apprendi that

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“[o]ther than the fact of a prior conviction,” a jury must decide any

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fact that increases punishment beyond the statutory maximum using a

Apprendi, 530 U.S. at 487-90.

In Almendarez-

Almendarez-Torres, 523 U.S. at 238-47.

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Both

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beyond a reasonable doubt standard.

See Cunningham, 549 U.S. at 288-

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89; Blakely, 542 U.S. at 301; see also Butler v. Curry, 528 F.3d 624,

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643-44 (9th Cir.), cert. denied, 555 U.S. 1089 (2008) (“we have

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repeatedly recognized our obligation to apply the Almendarez-Torres

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exception”).

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Accordingly, Apprendi and its progeny do not prohibit a

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sentencing court’s application of a preponderance of the evidence

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standard in imposing sentence based on prior convictions.

See United

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States v. Keesee, 358 F.3d 1217, 1220 (9th Cir. 2004) (“the

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Constitution does not require prior convictions that increase a

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statutory penalty to be charged in the indictment and proved before a

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jury beyond a reasonable doubt”) (internal quotations and footnote

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omitted); United States v. Delaney, 427 F.3d 1224, 1226 (9th Cir.

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2005) (“The Supreme Court has made clear that the fact of a prior

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conviction need not be proved to a jury beyond a reasonable doubt or

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admitted by the defendant to satisfy the Sixth Amendment.”) (citation

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omitted); United States v. Martin, 278 F.3d 988, 1006 (9th Cir. 2002)

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(“Apprendi expressly excludes recidivism from its scope.

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criminal history need not be proved to a jury beyond a reasonable

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doubt. [citations].”).

Defendant’s

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Alleged errors under Apprendi and its progeny may be harmless.

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See Washington v. Recuento, 548 U.S. 212, 222 (2006) (Apprendi error

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is non-structural and therefore is subject to harmless error

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analysis); Butler v. Curry, 528 F.3d at 648 (Cunningham error is

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subject to harmless error analysis).

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standard applicable to non-structural errors in federal habeas cases,
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Under the harmless error

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the federal court analyzes whether the alleged Apprendi/Cunningham

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error had a “substantial and injurious effect” on the petitioner’s

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sentence.

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Butler v. Curry, 528 F.3d at 648.

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have had such an effect if the court is “in ‘grave doubt’ as to

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whether a jury would have found the relevant aggravating factors

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beyond a reasonable doubt.”

See Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993);
The court will deem the error to

Butler v. Curry, 528 F.3d at 648.

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DISCUSSION

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For the reasons discussed below, the Petition should be denied

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and dismissed with prejudice.

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material violation of clearly established United States Supreme Court

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law.

Petitioner has failed to demonstrate a

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As of the time of the California Supreme Court’s decision in the

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present case, no clearly established United States Supreme Court law

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prevented a state court judge from basing a sentence on the judge’s

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findings concerning the nature of prior convictions, such as the prior

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convictions’ increasing seriousness.

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exists a “prior conviction exception” to the principles of Apprendi

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and Cunningham.

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determined “the precise contours of that exception.”

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Mendoza-Powers, 574 F.3d 675, 677 (9th Cir. 2009).

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are in conflict regarding the proper scope of the exception.

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Wilson v. Knowles, 638 F.3d 1213, 1215 (9th Cir. 2011) (“it isn’t

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clearly established whether a judge may find that a defendant was on

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probation at the time of an earlier conviction . . . [but] it would be

As previously indicated, there

The United States Supreme Court has not yet

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Kessee v.
Circuit decisions
Compare

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unreasonable to read Apprendi as allowing a sentencing judge to find

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. . . the extent of the victim’s injuries and how the accident

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occurred”) and Butler, 528 F.3d at 644 (“We have been hesitant to

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broaden the scope of the prior conviction exception”) with United

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States v. Santiago, 268 F.3d 151, 156 (2d Cir. 2001), cert. denied,

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535 U.S. 1070 (2002) (“We read Apprendi as leaving to the judge,

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consistent with due process, the task of finding not only the mere

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fact of previous convictions but other related issues as well . . .

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[including] the who, what, when and where of a prior conviction”)

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(quotations omitted); United States v. Kempis Bonola, 287 F.3d 699,

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703 (8th Cir.), cert. denied, 537 U.S. 914 (2002) (“the sentencing-

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related circumstances of recidivism are facts that may be found by the

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sentencing judge and are not within the scope of Apprendi’s holding”).

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Given the lack of clearly established United States Supreme Court law

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regarding the scope of the prior conviction exception, courts within

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the Ninth Circuit have denied habeas relief in cases legally

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indistinguishable from the present case.

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434 Fed. App’x 642, 643-44 (9th Cir.), cert. denied, 565 U.S. 909

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(2011) (habeas relief denied where the state sentencing court imposed

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the high term in reliance on the “increasing seriousness” of the prior

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convictions); Pena-Silva v. Prosper, 397 Fed. App’x 394 (9th Cir.

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2010) (same); Sanford v. Scribner, 2011 WL 4020831, at *8 (C.D. Cal.

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Aug. 4, 2011), adopted, 2011 WL 4020815 (C.D. Cal. Sept. 9, 2011)

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(same); Blackwell v. Felker, 2011 WL 6000884, at *25 (C.D. Cal.

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June 3, 2011), adopted, 2011 WL 6000877 (C.D. Cal. Nov. 30, 2011)

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See, e.g. Johnson v. Ayers,

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(same).2

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In California, “the existence of a single aggravating

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circumstance is legally sufficient to make the defendant eligible for

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the upper term.”

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Rptr. 3d 569, 161 P.3d 1130 (2007), cert. denied, 552 U.S. 1144

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(2008); People v. Osband, 13 Cal. 4th 622, 728, 55 Cal. Rptr. 2d 26,

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919 P.2d 640 (1996), cert. denied, 519 U.S. 1061 (1997); see also

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Rosenblum v. Yates, 489 Fed. App’x 165, 166 (9th Cir. 2012); Butler v.

See People v. Black, 41 Cal. 4th 799, 813, 62 Cal.

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Curry, 528 F.3d at 642-43.

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state law.

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least one of the aggravating factors on which the judge relied in

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sentencing [Petitioner] was established in a manner consistent with

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the Sixth Amendment, [Petitioner]’s sentence does not violate the

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Constitution.”

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United States Supreme Court law did not forbid the sentencing court

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from imposing the high term based in part on Petitioner’s prior

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convictions, Petitioner’s Apprendi/Cunningham claim must be rejected.

This Court must defer to this principle of

See Butler v. Curry, 528 F.3d at 642.

See id. at 643.

Therefore, “if at

Here, because clearly established

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Petitioner’s Apprendi/Cunningham claim also fails because any

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such error was harmless.

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Petitioner intentionally shot one of the victims at point blank range,

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the jury found beyond a reasonable doubt, inter alia, that Petitioner

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committed attempted murder with a firearm, thereby personally

From more than ample trial evidence that

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Petitioner’s Apprendi/Cunningham claim does not impugn
the accuracy of the sentencing judge’s finding of “increasing
seriousness,” only the judge’s constitutional authority to make
such a finding in the absence of jury involvement.
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inflicting great bodily injury on the victim.

The same jury also

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undoubtedly would have found beyond a reasonable doubt that Petitioner

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“engaged in violent conduct that indicates a serious danger to

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society.”

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See Baker v. Cate, 2010 WL 4579293, at *5 (C.D. Cal. July 20, 2010),

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adopted, 2010 WL 4578674 (C.D. Cal. Nov. 2, 2010) (“clear” that

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attempted murder with a firearm which resulted in great bodily injury

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indicated that the petitioner was a “serious danger to society”;

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Apprendi/Cunningham error deemed harmless); Randell v. Carey, 2013 WL

Accordingly, any Apprendi/Cunningham error was harmless.

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450280, at *11 (N.D. Cal. Feb. 5, 2013), aff’d, 585 Fed. App’x 456

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(9th Cir. 2014), cert. denied, 135 S. Ct. 1707 (2015) (defendant’s

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participation in a shooting in public which caused the death of an

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innocent victim “would have led the jury to find beyond a reasonable

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doubt that he engaged in violent conduct posing a serious danger to

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society”; Apprendi/Cunningham error deemed harmless); Zelaya v.

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Jacquez, 2012 WL 4107847, at *15-16 (C.D. Cal. Aug. 9, 2012), adopted,

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2012 WL 4107832 (C.D. Cal. Sept. 17, 2012) (trial evidence of multiple

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armed robberies and vehicle thefts, including the infliction of

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gunshot wounds on a victim, rendered it “clear that the jury would

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have at least found the aggravating fact that petitioner posed a

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danger to the community by proof beyond a reasonable doubt”;

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Apprendi/Cunningham error deemed harmless).

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To the extent Petitioner also claims that the Superior Court

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committed errors of California state law, such claims do not merit

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federal habeas relief.

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the ground that [Petitioner] is in custody in violation of the

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Constitution or laws or treaties of the United States.”

Federal habeas relief may be granted “only on

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28 U.S.C. §

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2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also

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Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (“it is only

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noncompliance with federal law that renders a State’s criminal

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judgment susceptible to collateral attack in the federal courts”)

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(original emphasis); Hendricks v. Vasquez, 974 F.2d 1099, 1105 (9th

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Cir. 1992) (“Federal habeas will not lie for errors of state law”).

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Thus, any alleged errors in the interpretation and application of

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California state sentencing law cannot justify habeas relief.

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The federal habeas court may not properly question the correctness of

See id.

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state courts’ rulings on issues of state law.

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Sarausad, 555 U.S. 179, 192 n.5 (2009); Bradshaw v. Richey, 546 U.S.

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74, 76 (2005); see also Mullaney v. Wilbur, 421 U.S. 684, 691 (1975)

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(“state courts are the ultimate expositors of state law”).

See Waddington v.

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Although the Petition is unclear, Petitioner also may challenge

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the persuasiveness of some of the prosecution’s trial evidence.

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the trial record (which this Court has reviewed), any challenge to the

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constitutional sufficiency of the trial evidence necessarily would

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fail (R.T. 322-702).

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(1979) (evidence is constitutionally sufficient unless, after

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resolving all conflicts in the evidence in favor of the prosecution,

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no rational trier of fact so viewing the evidence could have found

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guilt beyond a reasonable doubt); accord United States v. Nevils, 598

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F.3d 1158, 1164 (9th Cir. 2010).

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Given

See Jackson v. Virginia, 443 U.S. 307, 317

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RECOMMENDATION

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For the reasons discussed above,3 IT IS RECOMMENDED that the

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Court issue an Order:

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Recommendation; and (2) denying and dismissing the Petition with

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prejudice.4

(1) accepting and adopting this Report and

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DATED: September 5, 2017.

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/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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The Court need not and does not address the timeliness
of the claim(s) in the Petition because all of the claims in the
Petition fail on the merits. See Van Buskirk v. Baldwin, 265
F.3d 1080, 1083 (9th Cir. 2001), cert. denied, 535 U.S. 950
(2002) (court may deny on the merits an untimely claim that fails
as a matter of law).
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Petitioner’s request for the appointment of counsel is
denied. See Knaubert v. Goldsmith, 791 F.2d 722, 728-30 (9th
Cir.), cert. denied, 479 U.S. 867 (1986).
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NOTICE
Reports and Recommendations are not appealable to the Court of

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Appeals, but may be subject to the right of any party to file

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objections as provided in the Local Rules Governing the Duties of

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Magistrate Judges and review by the District Judge whose initials

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appear in the docket number.

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Federal Rules of Appellate Procedure should be filed until entry of

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the judgment of the District Court.

No notice of appeal pursuant to the

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If the District Judge enters judgment adverse to Petitioner, the

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District Judge will, at the same time, issue or deny a certificate of

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appealability.

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and Recommendation, the parties may file written arguments regarding

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whether a certificate of appealability should issue.

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Within twenty (20) days of the filing of this Report