Moore v. McDonald
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 07/27/12 ORDERING petitioner's request for an evidentiary hearing is denied. Also, RECOMMENDING that the petition for writ of habeas corpus be denied. Referred to Judge Kimberly J. Mueller. Objections due within 21 days. (Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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STEPHEN ARNOLD MOORE,
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Petitioner,
No. 2: 10-cv-1314 KJM CKD P
vs.
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M. McDONALD, Warden,
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Respondent.
ORDER, FINDINGS AND
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RECOMMENDATIONS
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I. INTRODUCTION
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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
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corpus pursuant to 28 U.S.C. § 2254. Petitioner pleaded guilty to hit and run causing injury and
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driving under the influence causing injury. Petitioner also admitted he had previously been
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convicted of two prior “strike” convictions within the meaning of California’s “Three Strikes”
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law. See CAL. PENAL CODE § 1170.12. Petitioner received a sentence of twenty-seven years to
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life imprisonment. Petitioner raises two claims in this federal habeas petition; specifically: (1)
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the trial court should have dismissed one or both of his prior strikes (“Claim I”); and (2) his
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sentence of twenty-seven years to life imprisonment constitutes cruel and unusual punishment
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under the Eighth Amendment to the Constitution (“Claim II”). For the following reasons, the
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habeas petition should be denied.
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II. FACTUAL BACKGROUND1
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After consuming four beers and two drinks containing vodka, and
without a valid driver’s license, defendant agreed to drive his
girlfriend’s son to a friend’s house off of Lake Boulevard in
Redding. As they reached the downtown area, defendant
accelerated the vehicle to a high rate of speed, ignoring his
passenger’s requests to slow down. Defendant ran a red light at the
intersection of Pine Street and Shasta Street and smashed into a
vehicle that was legally entering the intersection. The driver of the
impacted vehicle was David Doty. Doty suffered two broken
fingers on his left hand, numerous deep-tissue bruises on the left
side of his body, and a bone spur was broke loose from his spinal
column near his neck. Doty’s sons, Daniel and Joel, were
passengers during the collision. Daniel suffered numerous facial
fractures and severe bruising to the left side of his body and face.
Joel was not seriously injured.
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Following the accident, defendant left the vehicle and ran
northbound on Pine Street. Defendant’s passenger, Randall Long,
remained at the scene of the accident until police arrived. Long
told officers of the Redding Police Department the accident
occurred because defendant ran a red light, he had been drinking,
and he took off on foot immediately following the accident. While
officers were at the scene, defendant’s girlfriend called police
dispatch to report the vehicle stolen. She said she last saw
defendant chasing after the vehicle on foot as the unidentified car
thief drove off. Roughly two hours later, police made contact with
defendant, who also said the vehicle was stolen. Defendant denied
involvement in the accident even after being informed Long
positively identified him as the driver. Defendant was arrested. A
blood-alcohol test, administered roughly three and a half hours
after the accident, established defendant’s blood-alcohol level was
.11 percent.
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(Resp’t’s Am. Answer Ex. A at p. 2-3.)
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III. PROCEDURAL HISTORY
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Petitioner appealed the judgment to the California Court of Appeal. In that
appeal, he asserted that the trial court abused its discretion when it refused to dismiss one or both
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The factual background is taken from the Court of Appeal of the State of California,
Third Appellate District opinion dated April 13, 2009 and filed by Respondent in this court as
Exhibit A to his amended answer.
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of the strikes against petitioner. On April 13, 2009, the Court of Appeal affirmed the judgment.
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Thereafter, petitioner filed a petition for review in the California Supreme Court. Petitioner
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raised the issue he previously raised in the Court of Appeal as well as argued that his sentence
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constituted cruel and unusual punishment. The California Supreme Court issued a summary
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denial of the petition for review on June 24, 2009.
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In May 2010, petitioner filed his federal habeas petition in this court. Respondent
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filed an answer on November 3, 2010 and later that day filed an amended answer. (See Dkt. Nos.
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14 & 15.) Petitioner filed a traverse in January 2011.
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IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of
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a state court can only be granted for violations of the Constitution or laws of the United States.
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See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1994); Middleton
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v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)).
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Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism
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and Effective Death Penalty Act of 1996 (“AEDPA”) applies. See Lindh v. Murphy, 521 U.S.
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320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim
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decided on the merits in the state court proceedings unless the state court’s adjudication of the
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claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of,
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clearly established federal law, as determined by the Supreme Court of the United States; or (2)
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resulted in a decision that was based on an unreasonable determination of the facts in light of the
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evidence presented in state court. See 28 U.S.C. 2254(d).
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As a threshold matter, a court must “first decide what constitutes ‘clearly
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established Federal law, as determined by the Supreme Court of the United States.’” Lockyer v.
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Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). “‘[C]learly established
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federal law’ under § 2254(d)(1) is the governing legal principle or principles set forth by the
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Supreme Court at the time the state court renders its decision.’” Id. (citations omitted). Under
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the unreasonable application clause, a federal habeas court making the unreasonable application
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inquiry should ask whether the state court’s application of clearly established federal law was
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“objectively unreasonable.” See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, “a federal
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court may not issue the writ simply because the court concludes in its independent judgment that
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the relevant state court decision applied clearly established federal law erroneously or incorrectly.
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Rather, that application must also be unreasonable.” Id. at 411. Although only Supreme Court
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law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in
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determining whether a state court decision is an objectively unreasonable application of clearly
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established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) (“While only
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the Supreme Court’s precedents are binding . . . and only those precedents need be reasonably
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applied, we may look for guidance to circuit precedents.”).
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V. ANALYSIS OF PETITIONER’S CLAIMS
A. Claim I
In Claim I, petitioner asserts that “the trial court committed an abuse of discretion
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when it refused to dismiss one or both of petitioner’s strikes[.]” (Pet’r’s Pet. at p. 4.) The
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California Court of Appeal denied this Claim as follows:
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Defendant contends the trial court abused its discretion by refusing
to strike one or both of his prior strike convictions. We disagree.
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Under section 1385, subdivision (a), a “judge or magistrate may,
either of his or her own motion or upon the application of the
prosecuting attorney, and in furtherance of justice, order an action
to be dismissed. . . .” (§ 1385, subd. (a).) In Romero, our Supreme
Court held a trial court may utilize section 1385, subdivision (a) to
strike or vacate a prior strike conviction for purposes of sentencing
under the Three Strikes law, “subject, however, to strict
compliance with the provisions of section 1385 and to review for
abuse of discretion.” (Romero, supra, 13 Cal.4th at p. 504.)
Similarly, a trial court’s “failure to dismiss or strike a prior
conviction allegation is subject to review under the deferential
abuse of discretion standard.” (People v. Carmony (2004) 33
Cal.4th 367, 374 (Carmony).)
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In Carmony, our Supreme Court explained: “In reviewing for
abuse of discretion, we are guided by two fundamental precepts.
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First, “‘[t]he burden is on the party attacking the sentence to clearly
show that the sentencing decision was irrational or
arbitrary. [Citation.] In the absence of such a showing, the trial
court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a
particular sentence will not be set aside on
review.’” [Citations.] Second, a “‘decision will not be reversed
merely because reasonable people might disagree. ‘An appellate
tribunal is neither authorized nor warranted in substituting its
judgment for the judgment of the trial judge.’”’ [Citations.] Taken
together, these precepts establish that a trial court does not abuse
its discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it.” (Carmony, supra, 33
Cal.4th at pp. 376-377.)
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The court went on to explain that “‘the Three Strikes law does not
offer a discretionary sentencing choice, as do other sentencing
laws, but establishes a sentencing requirement to be applied in
every case where the defendant has at least one qualifying strike,
unless the sentencing court “conlud[es] that an exception to the
scheme should be made because, for articulable reasons which can
withstand scrutiny for abuse, this defendant should be treated as
though he actually fell outside the Three Strikes
scheme.’” [Citation.]” (Carmony, supra, 33 Cal.4th at p. 377.)
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The court then cited People v. Williams (1998) 17 Cal.4th 148, 161
(Williams), for the proper standard for reviewing a decision to
strike a prior conviction “in furtherance of justice” pursuant to
section 1385: “[T]he court in question must consider whether, in
light of the nature and circumstances of his present felonies and
prior serious and/or violent felony convictions, and the particulars
of his background, character, and prospects, the defendant may be
deemed outside the scheme’s spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted
of one or more serious and/or violent felonies.” (Williams, supra,
17 Cal.4th at p. 161; Carmony, supra, 33 Cal.4th at p. 377.)
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The Three Strikes law “creates a strong presumption that any
sentence that conforms to these sentencing norms is both rational
and proper.” (Carmony, supra, 33 Cal.4th at p. 378, emphasis
added.) This presumption will only be rebutted in an
“extraordinary case – where the relevant factors described in
Williams, supra, 17 Cal.4th 148, manifestly support the striking of
a prior conviction and no reasonable minds could differ . . .
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In this case, we conclude the trial court did not abuse its discretion
by declining to strike the prior convictions. Defendant’s
protestations notwithstanding, this is far from the “extraordinary
case” described in Carmony.
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Nature and Circumstances of the Present Felony Conviction
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Defendant asserts, while “inexcusable and perhaps even
reprehensible,” his actions of driving while intoxicated, running a
red light, and smashing into another vehicle causing injury to its
passengers is relatively low on the list of “opprobrious acts that can
cause one to incur criminal liability.” This argument is
misconceived. The question is not whether drunk driving causing
injury is as opprobrious as premeditated murder, but whether the
nature of this offense manifestly supports the striking of
defendant’s prior convictions such that no reasonable minds could
differ. (Carmony, supra, 33 Cal.4th at p. 378.) Moreover,
following the collision, rather than make sure his victims were
alive and that an ambulance had been called, defendant fled on foot
in an attempt to escape the consequences of his inexcusable and
reprehensible actions.
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II
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Nature and Circumstances of the Prior Strike Convictions
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In September of 1989, defendant was convicted of involuntary
manslaughter and admitted he personally used a dangerous or
deadly weapon during the commission of the offense. While
involuntary manslaughter is not ordinarily a strike offense, the use
of a dangerous or deadly weapon transforms “any felony” into a
“serious felony” for purpose of the Three Strikes law. (§ 1192.7,
subd. (c)(23); § 1170.12, subd. (b)(1).) A fight broke out at a party
between one of defendant’s friends, Rick Rossler, and two men,
Stanley Choate and Darren Pedigo. Defendant came to Rossler’s
assistance and attempted to break up the fight. When Choate and
Pedigo started to push defendant, he pulled a fixed-blade survival
knife from his back pocket and told the men to leave. As
defendant drew the knife, he accidentally stabbed his girlfriend,
Dynita Thornton, in the arm while she also attempted to break up
the fight. Defendant exclaimed: “Look, you made me stab my old
lady.” Defendant then stabbed Choate in the chest. According to
defendant, he intended to stab him in the leg, but Choate came at
him too fast. Defendant retreated to his apartment next door and
called the police.
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In 1991, defendant was convicted of assault with a deadly weapon.
While the facts of this conviction are not disclosed in the record,
we can surmise from the conviction itself that not long after
defendant discovered first hand that the use of a deadly weapon can
result in the death of a human being, he once again used a deadly
weapon to assault an individual.
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Defendant complains these prior strike convictions were remote in
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time. However, as explained immediately below, defendant’s
criminal conduct did not end with these convictions. Accordingly,
we cannot find remoteness of the strike convictions alone renders
defendant outside the spirit of the Three Strikes law. Defendant
also points out he pleaded to at least one of the priors, was
accepted into a dependency treatment program, and with respect to
the involuntary manslaughter conviction, believed he was acting in
self-defense. However, none of these observations required the
trial court to exercise its discretion in favor of striking one or both
of defendant’s strikes.
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III
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Background, Character, and Prospect for the Future
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Eight years after his conviction for assault with a deadly weapon,
defendant was again convicted of a felony, this time battery on a
police officer causing injury. He was sentenced to three years in
prison. Defendant has a fairly extensive misdemeanor record,
including convictions for theft, battery against a cohabitant, and
driving under the influence of drugs or alcohol. Defendant has
parole violations on seven separate occasions, each time returning
to prison to finish his term. For the past ten years, when not
incarcerated, defendant has been employed as a welder/fabricator.
It is difficult to fathom how these circumstances could render
defendant outside the spirit of the Three Strikes law.
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In sum, the relevant factors described in Williams, supra, 17
Cal.4th 148, manifestly demonstrate defendant is precisely the sort
of career criminal the Legislature had in mind in enacting the Three
Strikes law.
(Resp’t’s Am. Answer Ex. A at p. 3-9.)
Claim I is solely one that the sentencing court abused its discretion under state law
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in failing to strike a prior conviction. No federal claim is presented in Claim I. Therefore, it is
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not cognizable under § 2254 since federal habeas corpus relief is not available to correct alleged
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errors in the state court’s application or interpretation of state law. See Estelle v. McGuire, 502
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U.S. 62, 67-68 (1991); Middleton, 768 F.2d at 1085; see also Miller v. Vasquez, 868 F.2d 1116,
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1118-19 (9th Cir. 1989) (stating that the determination of whether a prior conviction qualifies for
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a sentence enhancement under California law is not a cognizable federal claim). Furthermore,
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even assuming arguendo that petitioner did raise a federal Constitutional argument in Claim I,
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petitioner does not make a showing of fundamental unfairness. See Christian v. Rhode, 41 F.3d
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461, 469 (9th Cir. 1993) (“Absent a showing of fundamental unfairness, a state court’s
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misapplication of its own sentencing laws does not justify federal habeas relief.”). Accordingly,
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Claim I should be denied.
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B. Claim II
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In Claim II, petitioner argues that his sentence of twenty-seven years to life
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imprisonment constitutes cruel and unusual punishment in violation of the Eighth Amendment.
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Respondent asserts that this claim is unexhausted. In support of this argument, respondent states
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that while petitioner presented this claim in his petition for review to the California Supreme
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Court, he did not raise the issue in his briefs before the California Court of Appeal. Thus,
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according to respondent, the claim was not “fairly presented” to the California Supreme Court
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because the petition for review is a discretionary appeal. See Cal. Rules Court, Rule 8.500(b),
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(c).
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A petitioner satisfies the exhaustion requirement by providing the highest state
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court with a full and fair opportunity to consider each claim before presenting it to the federal
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court. See Baldwin v. Reese, 541 U.S. 27, 29 (2004); Fields v. Washington, 401 F.3d 1018,
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1020 (9th Cir. 2005). A review of the record indicates that while petitioner did raise his cruel
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and unusual punishment argument in his petition for review, he did not raise the issue to the
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California Court of Appeal. (Compare Resp’t’s Lodged Doc. 5 with Resp’t’s Lodged Doc. 2.)
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The fact that petitioner raised this issue for the first time in his petition for review does not make
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up for the fact that he failed to raise it in the Court of Appeal in this case. See Casey v. Moore,
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386 F.3d 896, 916 (9th Cir. 2004) (“Even before Baldwin, we held that to exhaust a habeas
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claim, a petitioner must properly raise it on every level of direct review.”). Nevertheless, a claim
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that is not presented to the lower courts on direct review but is expressly addressed by the state’s
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highest court is considered exhausted. See id. at 916 n. 18. However, in this case the California
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Supreme Court summarily denied the petition for review without explanation. Accordingly,
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petitioner did not “fairly present” his cruel and unusual punishment claim to the state’s highest
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court and therefore it is not exhausted. See Casey, 386 F.3d at 918 (“Because we conclude that
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Casey raised his federal constitutional claims for the first and only time to the state’s highest
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court on discretionary review, he did not fairly present them.”) (footnote omitted).
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Additionally, even putting aside the exhaustion issue, Claim II can be denied on
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the merits. A court can dismiss a claim on the merits even if it is unexhausted if it is determined
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that the claim is not “colorable.” See Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). For
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the following reasons, Claim II is not “colorable.”
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A criminal sentence that is not proportionate to the crime of conviction may
violate the Eighth Amendment to the United States Constitution. Outside of the capital
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punishment context, however, the Eighth Amendment “‘forbids only extreme sentences that are
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grossly disproportionate to the crime.’” United States v. Bland, 961 F.2d 123, 129 (9th Cir.
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1992) (quoting Harmelin v. Michigan, 501 U.S. 957, 1010 (1991) (Kennedy, J., concurring)).
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The threshold for an inference of gross disproportionality is high. So long as the sentence does
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not exceed statutory maximums, it will not be considered cruel and unusual punishment under
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the Eighth Amendment. See United States v. Mejia-Mesa, 153 F.3d 925, 930 (9th Cir. 1998);
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United States v. McDougherty, 920 F.2d 569, 576 (9th Cir. 1990). The Supreme Court has noted
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that “[o]utside of the context of capital punishment, successful challenges to the proportionality
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of particular sentences have been exceedingly rare.” Rummel v. Estelle, 445 U.S. 263, 272
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(1980).
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In assessing whether a sentence is “grossly disproportionate” in the non-capital
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context, a reviewing court considers “objective factors” to the extent possible. See Solem v.
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Helm, 463 U.S. 277, 290 (1983). “Foremost among such factors are the severity of the penalty
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imposed and the gravity of the offense.” Taylor v. Lewis, 460 F.3d 1093, 1098 (9th Cir. 2006)
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(footnote omitted). Comparisons among offenses can be made in light of the harm caused or
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threatened to the victim or society, the culpability of the offender and the absolute magnitude of
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the crime. See id. Generally, courts have upheld recidivist prison sentences challenged as cruel
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and unusual similar to or longer than petitioner’s twenty-seven years to life sentence for offenses
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equivalent or offenses with less severity than in this case. See, e.g., Lockyer v. Andrade, 538
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U.S. 63, 77 (2003) (denying habeas relief on Eighth Amendment disproportionality challenge to
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Three Strikes sentence of two consecutive terms of twenty-five years to life imprisonment for
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two counts of petty theft); see also Ewing v. California, 538 U.S. 11, 29-30 (2003) (sentence of
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twenty-five years to life imprisonment on grand theft conviction involving theft of three golf
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clubs was not grossly disproportionate and did not violate the Eighth Amendment); Taylor, 460
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F.3d at 1101-02 (denying habeas relief on Eighth Amendment cruel and unusual punishment
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argument where petitioner with prior offenses was sentenced to twenty-five years to life
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imprisonment for possessing .036 grams of cocaine base); but see Solem, 463 U.S. at 303
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(sentence of life imprisonment without the possibility of parole for seventh non-violent felony is
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grossly disproportionate).
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Petitioner was sentenced to twenty-seven years to life in prison for hit and run
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causing injury and driving under the influence causing injury after a determination that petitioner
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had previously suffered two prior serious felony convictions for involuntary manslaughter using a
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dangerous or deadly weapon during the commission of the offense and assault with a deadly
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weapon. It is worth noting that petitioner’s sentence is less than the defendant received in
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Lockyer and similar to the sentences in Ewing and Taylor. Furthermore, petitioner’s sentence is
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unlike that of Solem in that his sentence allows for the possibility of parole. See Taylor, 460
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F.3d at 1098 (eligibility for parole, albeit after twenty-five years, made the sentence under the
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Three Strikes law “considerably less severe than the one invalidated in Solem”). Additionally,
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petitioner’s sentence of hit and run causing injury as well as driving under the influence causing
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injury had the potential to and in fact did cause harm to other victims. See id. Also, petitioner’s
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triggering offenses of hit and run causing injury and driving under the influence causing injury
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were at a minimum as serious if not more serious than Taylor’s possession of .036 grams of
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cocaine base, as well as the petty thefts in Lockyer and Ewing. Finally, it is worth noting that
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petitioner’s prior convictions which led to him sustaining two strikes were both violent. See
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Taylor, 460 F.3d at 1100 (“[T]he presence of violence on a petitioner’s record seems an
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extremely important focal point for proportionality review.”).
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Based on the foregoing and in light of the applicable case law, petitioner has
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failed to raise a “colorable” claim that his sentence of twenty-seven years to life imprisonment is
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grossly disproprotionate. Therefore, petitioner is not entitled to federal habeas relief on Claim II.
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VI. REQUEST FOR AN EVIDENTIARY HEARING
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Petitioner requests an evidentiary hearing on his petition in his traverse. A court
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presented with a request for an evidentiary hearing must first determine whether a factual basis
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exists in the record to support petitioner’s claims, and if not, whether an evidentiary hearing
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“might be appropriate.” Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999); see also Earp v.
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Ornoski, 431 F.3d 1158, 1166 (9th Cir. 2005). A petitioner requesting an evidentiary hearing
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must also demonstrate that he has presented a “colorable claim for relief.” Earp, 431 F.3d at
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1167 (citations omitted). To show that a claim is “colorable,” a petitioner is “required to allege
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specific facts which, if true, would entitle him to relief.” Ortiz v. Stewart, 149 F.3d 923, 934 (9th
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Cir. 1998) (internal quotation marks and citation omitted). In this case, an evidentiary hearing is
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not warranted for the reasons stated in supra Part V. Petitioner failed to demonstrate that he has
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a “colorable” claim for federal habeas relief. Moreover, it is worth noting that at least with
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respect to the analysis under Claim I, the Supreme Court has held that federal habeas review
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under 28 U.S.C. § 2254(d)(1) “is limited to the record that was before the state court that
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adjudicated the claim on the merits” and “that evidence introduced in federal court has no
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bearing on” such review. Cullen v. Pinholster, – U.S. –, 131 S.Ct. 1388, 1398, 1400 (2011).
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Thus, his request will be denied.
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VII. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that petitioner’s request for an
evidentiary hearing is DENIED.
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For all of the foregoing reasons, IT IS RECOMMENDED that the petition for writ
of habeas corpus be DENIED.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-
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one days after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections
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shall be served and filed within fourteen days after service of the objections. The parties are
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advised that failure to file objections within the specified time may waive the right to appeal the
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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In any objections he
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elects to file, Petitioner may address whether a certificate of appealability should issue in the
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event he elects to file an appeal from the judgment in this case. See Rule 11, Federal Rules
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Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability
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when it enters a final order adverse to the applicant).
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Dated: July 27, 2012
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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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