Bohannan v. Muniz

Filing 46

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 04/05/2023 RECOMMENDING that the Petition for Writ of Habeas Corpus be DENIED and that the Court DECLINE to Issue a Certificate of Appealability. Referred to District Judge Daniel J. Calabretta. Objections due within 21 days after being served with these Findings and Recommendations. (Rodriguez, E)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KELLY LEE BOHANNAN,

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Petitioner,

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No. 2:16-cv-1342 DJC AC

v.

FINDINGS AND RECOMMENDATIONS

WILLIAM L. MUNIZ, Warden,

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Respondent.

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Petitioner is a California state prisoner proceeding pro se with an application for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. The petition, ECF No. 1, challenges the

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consolidated disposition of three Shasta County felony cases in 2011. Respondent has answered,

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ECF No. 20, and petitioner filed a traverse, ECF No. 33.
BACKGROUND

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I.

Proceedings In the Trial Court
The initial trial court proceedings were recounted by the Third District California Court of

Appeal, on direct review in 2013, as follows:
In Case No. 10F2176 defendant was charged in March 2010 with
possession of methamphetamine. (Health & Saf. Code, § 11377,
subd. (a).) It was further alleged he had a prior strike conviction in
1987 (Pen. Code, § 1170.12) and had served five prior prison terms
(id., § 667.5, subd. (b)).
A few days later, defendant was charged in a separate complaint –
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Case No. 10F2330 – with felony vandalism (Pen. Code, § 594,
subd. (b)(1)), attempted auto theft (Veh. Code, § 10851, subd.
(a)/Pen. Code, § 664), and misdemeanor counts of driving under the
influence (Veh. Code, § 23152, subd. (a)), being under the
influence of a controlled substance (Health & Saf. Code, § 11550,
subd. (a)), hit-and-run (Veh. Code, § 20002, subd. (a)) and
obstructing a peace officer (Pen. Code, § 148, subd. (a)(1)). As to
the felony charges, it was also alleged defendant had committed
these offenses while he was released on bail in Case No. 10F2176.
It was further alleged defendant suffered a prior strike conviction
(Pen. Code, § 1170.12) and had served five prior prison terms (id.,
§ 667.5, subd. (b)).
In July 2010, in Case No. 10F2176, defendant pleaded no contest
to possessing methamphetamine and admitted the prior strike
allegation. In Case No. 10F2330, he pleaded no contest to felony
vandalism, felony attempted vehicle theft and misdemeanor driving
under the influence. He also admitted the prior strike conviction
and five prior prison term allegations. The plea agreement
indicated defendant would also admit the on-bail enhancement
allegation. However, defendant did not actually enter that
admission. Pursuant to the plea agreement, the remaining charges
were dismissed. Defendant was provisionally granted probation if
he completed the Teen Challenge treatment program. If he failed
the program, he would be sentenced to a term of 15 years four
months in state prison.
Approximately three weeks later, defendant moved to withdraw his
admission of the prior strike, based on his claim that the 1987
conviction was a misdemeanor conviction, not a felony. The
People acknowledged defendant had established a sufficient basis
for withdrawing the admission and the trial court granted the
motion.
At the hearing on the motion, the People noted defendant was now
entitled to a jury trial on the strike allegation and indicated their
willingness to proceed immediately to a court trial if defendant
waived his right to a jury trial. Defense counsel and defendant
indicated they were prepared to waive jury trial and proceed to a
court trial. The court and counsel then set forth the issues to be
addressed: first, the validity of the underlying felony conviction;
second, whether the prior strike allegation was true; and, third, was
ineffective assistance of counsel rendered in the 1987 proceedings?
The People offered into evidence the 1987 change of plea form and
copy of the information. The trial court took judicial notice of the
entire 1987 file (Case No. 87–1772), including the copy of the plea
form, the information and preliminary hearing transcript. The 1987
file reveals that defendant was charged with, among other things,
felony dissuading a witness. (§ 136.1, subd. (c).) Following the
preliminary hearing, defendant was held to answer for a “violation
of [section] 136.1, a misdemeanor, of attempting to persuade a
witness.” Six weeks after the preliminary hearing, defendant
pleaded guilty to two drug possession counts and “preventing and
dissuading a witness from testifying, a felony, in violation of
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Section 136.1 [subdivision] (c) of the California Penal Code, as
charged in count 3 of the Information on file....” (Some
capitalization omitted.) In accepting the plea, the court found a
factual basis for the felony plea. The record of judgment and
sentencing and the report of sentence both indicate defendant was
found guilty of a felony count of dissuading a witness. There was
no reporter’s transcript of the plea hearing in the court file.

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At the conclusion of the September 2010 hearing, the court (an
assigned judge) took the matter under submission commenting,
“This seems to be [a] complicated issue.”
After various
continuances, and some confusion as to the current status of the
case, in April 2011, the People explained the procedural posture of
the case to the court:
That defendant had been allowed to
withdraw his strike admission and there had been “a trial on the
priors in which the People presented the certified copy of
conviction, requested judicial notice of the court’s file concerning
that, defense counsel presented evidence during the trial that
consisted of the preliminary hearing from the – in the underlying
strike prior, [and] both parties argued.” The People advised the
court the parties were waiting for a ruling as to whether the strike
prior had been proven: “We submitted the documents, requested
judicial notice and had the court trial, but the Court never made any
findings as to whether or not the People have met their burden of
proof with respect to the strike allegation.... [W]e were on I believe
... for the Court to issue the findings on whether or not the People
had proven the strike allegation.” The People also clarified that
defendant’s motion was not a motion to strike the prior, because the
argument was not “that the punishment should be stricken, but that
the strike itself was not a valid strike.”

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After reviewing the 1987 court records, the assigned trial judge
ruled, “I don’t see anything invalid about the strike, because it was
charged as a felony, he pled to a felony. The change of plea form
clearly indicates that, so I don’t see anything invalid about the
strike itself.... But if it’s simply here to determine the validity, and
I’m – of the strike itself, it – the ruling of the Court is that it is
valid.”

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Meanwhile, between the time of the original plea agreement in
Case Nos. 10F2176 and 10F2330 (July 2010) and the trial on the
prior strike allegation (April 2011), another complaint alleging
additional drug possession charges was filed against defendant in
Case No. 11F2362. After the court’s finding that the 1987
conviction was a valid strike, the parties entered into a global
disposition of all three cases. Under this disposition, in addition to
his earlier pleas, defendant also pleaded guilty to transporting
methamphetamine in Case No. 11F2362. In exchange, he was to
be sentenced to the previously agreed upon term of 15 years four
months on Case Nos. 10F2176 and 10F2330, and an additional
consecutive one year on Case No. 11F2362.

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Lodged Doc. 8 at 2-5 (emphases added).

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II.

State Court Post-Conviction Proceedings

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A. Initial Appeal (California Court of Appeal Case No. C068482)

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Petitioner timely appealed. On February 8, 2013, the Third District Court of Appeal

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affirmed the trial court’s judgment as to petitioner’s substantive offenses and found, in pertinent

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part, that the trial court had properly determined, based on a review of the entire 1987 court file,

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that petitioner had been both “charged with, and pleaded guilty to, a felony conviction of section

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136.1, subdivision (c).” Lodged Doc. 8 at 8 (emphasis added). Therefore, the conviction

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qualified as a strike under Section 1170.12. However, due to petitioner’s withdrawal of his

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admission to the conviction and a trial on the matter prior to the parties reaching a global

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disposition as to all of petitioner’s cases, the Court of Appeal remanded the case to the trial court

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“for defendant personally to admit the prior serious felony conviction allegation, or submit to a

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court trial on the issue of identity – whether he is the person who has suffered the prior

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conviction.” Id. at 11.

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Petitioner filed a petition for review in the California Supreme Court, which was denied

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on April 17, 2013. Lodged Docs. 9 & 10.

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B. Proceedings on Remand

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In September 2013, the superior court conducted a trial on the issue of petitioner’s identity

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and found that he was the Kelly Lee Bohannan who had suffered the 1987 prior serious felony

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conviction.

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C. Second Appeal (California Court of Appeal Case No. C075236)

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Petitioner appealed. Appointed counsel submitted a brief pursuant to People v. Wende, 25

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Cal.3d 436 (1979),1 and petitioner filed a supplemental brief challenging his 1987 conviction.

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The Court of Appeal ordered two minor corrections to the abstract of judgment, but otherwise

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affirmed the judgment on March 16, 2015. Lodged Doc. 17 at 4.

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A “Wende brief” seeks independently review of the entire record by the appellate court “to
determine for itself whether there were any arguable issues.” Wende, 25 Cal.3d at 440.
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Petitioner filed a petition for review in the California Supreme Court which was denied on
June 10, 2015. Lodged Doc. No. 19.

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D. Applications for State Habeas Relief

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Petitioner filed a petition for writ of habeas corpus in the superior court on August 19,

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2015, which was denied on February 19, 2016. Lodged Docs. 21, 23. Petitioner next filed a

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habeas petition in the California Court of Appeal, which was denied on April 21, 2016. Lodged

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Docs. 24, 25. Petitioner then filed a petition for review in the California Supreme Court, which

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was denied on June 8, 2016. Lodged Docs. 26, 27.

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III.

Proceedings in this Court
The federal habeas petition was timely filed in the Northern District of California and

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subsequently transferred to this court on June 16, 2016. ECF No. 8. Respondent filed an answer

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on November 9, 2017, ECF No. 20, and the court thereafter granted extended time for petitioner’s

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reply. On February 2, 2018, petitioner filed a motion to stay the federal action pending further

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exhaustion, ECF No. 31, and he filed a traverse on March 2, 2018, ECF No. 33. Further briefing

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of the stay issue ensued. The California Supreme Court denied petitioner’s 2018 exhaustion

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petition on May 9, 2018, ECF No. 36, mooting the pending motion for a stay. The undersigned

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then directed petitioner to file a motion to amend his petition to include the newly exhausted

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claim; briefing of the motion to amend followed. On February 1, 2019, the undersigned

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recommended that the motion to amend be denied and that the original petition be decided on the

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merits. ECF No. 42. U.S. District Judge Troy L. Nunley adopted the findings and

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recommendations in full. ECF No. 44.

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STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA
28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), provides in relevant part as follows:
(d) 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
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determined by the Supreme Court of the United States; or

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(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.

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The statute applies whenever the state court has denied a federal claim on its merits,

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whether or not the state court explained its reasons. Harrington v. Richter, 562 U.S. 86, 99

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(2011). State court rejection of a federal claim will be presumed to have been on the merits

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absent any indication or state-law procedural principles to the contrary. Id. (citing Harris v. Reed,

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489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a

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decision appearing to rest on federal grounds was decided on another basis)). “The presumption

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may be overcome when there is reason to think some other explanation for the state court's

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decision is more likely.” Id. at 99-100.
The phrase “clearly established Federal law” in § 2254(d)(1) refers to the “governing legal

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principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade, 538

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U.S. 63, 71-72 (2003). Only Supreme Court precedent may constitute “clearly established

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Federal law,” but courts may look to circuit law “to ascertain whether…the particular point in

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issue is clearly established by Supreme Court precedent.” Marshall v. Rodgers, 569 U.S. 58, 64

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(2013).

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A state court decision is “contrary to” clearly established federal law if the decision

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“contradicts the governing law set forth in [the Supreme Court’s] cases.” Williams v. Taylor, 529

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U.S. 362, 405 (2000). A state court decision “unreasonably applies” federal law “if the state

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court identifies the correct rule from [the Supreme Court’s] cases but unreasonably applies it to

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the facts of the particular state prisoner’s case.” Id. at 407-08. It is not enough that the state court

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was incorrect in the view of the federal habeas court; the state court decision must be objectively

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unreasonable. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003).

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Review under § 2254(d) is limited to the record that was before the state court. Cullen v.

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Pinholster, 563 U.S. 170, 180-181 (2011). The question at this stage is whether the state court

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reasonably applied clearly established federal law to the facts before it. Id. at 181-182. In other

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words, the focus of the § 2254(d) inquiry is “on what a state court knew and did.” Id. at 182.
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Where the state court’s adjudication is set forth in a reasoned opinion, §2254(d)(1) review is

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confined to “the state court’s actual reasoning” and “actual analysis.” Frantz v. Hazey, 533 F.3d

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724, 738 (9th Cir. 2008) (en banc). A different rule applies where the state court rejects claims

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summarily, without a reasoned opinion. In Richter, supra, the Supreme Court held that when a

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state court denies a claim on the merits but without a reasoned opinion, the federal habeas court

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must determine what arguments or theories may have supported the state court’s decision, and

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subject those arguments or theories to § 2254(d) scrutiny. Richter, 563 U.S. at 102.

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DISCUSSION
I.

Claims One and Two: Strike Based on Invalid 1987 Conviction
A. Petitioner’s Allegations and Pertinent State Court Record
Claims One and Two overlap in substance, alleging that petitioner’s 1987 prior conviction

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was invalid and that its consideration as a strike at sentencing in 2013 therefore violates due

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process. ECF No. 1 at 5, 7-15. Petitioner’s theories as to the invalidity of the conviction rest

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primarily on the contention that the offense charged in case No. 87F1772 was found at the

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preliminary hearing to be a misdemeanor. On that basis petitioner argues variously that it

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violated due process for the case thereafter to have been prosecuted as a felony; that petitioner’s

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plea in that case must be construed as a misdemeanor plea, which does not support a strike; and

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that the court lacked jurisdiction to accept a felony plea in the prior case. Id.

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The factual and procedural background to this claim is set forth in detail above. In sum,

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the record reflects as to the 1987 prior conviction that the offense had been initially charged as

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felony dissuading a witness, and that petitioner pled guilty to felony dissuading a witness and was

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sentenced for that offense, but that the order following the preliminary hearing mistakenly

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referred to the charge as a misdemeanor. On initial appeal, the Court of Appeal upheld the trial

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court’s 2011 finding, which had been based on the record of the 1987 case as a whole, that the

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conviction was in fact a felony conviction that qualified as a strike; remand was for the limited

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purpose of either obtaining petitioner’s admission of the conviction or, alternatively, conducting a

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hearing to determine whether he was the person convicted in the prior case. Lodged Doc. 8 at 8-9

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(finding the evidence sufficient to prove 1987 conviction was a felony), 9-11 (finding procedural
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error in absence of a “true finding” after withdrawal of petitioner’s admission of the strike). The

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superior court on remand took evidence and found that petitioner was the same person convicted

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in the 1987 case, which supported application of the strike.

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B. The Clearly Established Federal Law
Sentencing is generally governed by state law, and errors related to the application of state

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law do not support federal habeas relief. Lewis v. Jeffers, 497 U.S. 764, 780 (1990). A state law

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sentencing error provides a cognizable basis for habeas relief only where the error was “so

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arbitrary or capricious as to constitute an independent due process violation.” Richmond v.

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Lewis, 506 U.S. 40, 50 (1992).

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C. The State Court’s Ruling
This issue was presented to the California Court of Appeal in the pro se supplemental

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brief that petitioner filed in his second appeal, Case No. C075236. The California Supreme Court

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denied review. Accordingly, the opinion of the California Court of Appeal constitutes the last

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reasoned decision on the merits and is the subject of habeas review in this court. See Ylst v.

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Nunnemaker, 501 U.S. 797 (1991); Ortiz v. Yates, 704 F.3d 1026, 1034 (9th Cir. 2012).

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The appellate court found the challenge to the prior conviction determination to be barred

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on appeal, because petitioner had not obtained a certificate of probable cause pursuant to Penal

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Code § 1237.5. Lodged Doc. 17 at 3-4.

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D. Federal Habeas Relief is Unavailable
Respondent contends that Claims One and Two are procedurally defaulted, fail to state a

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federal constitutional claim, and are barred by Lackawanna County District Attorney v. Coss, 532

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U.S. 394 (2001). ECF No. 20 at 14-17. Because the court agrees with the latter two propositions,

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the issue of procedural default need not be addressed. See Lambrix v. Singletary, 520 U.S. 518,

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525 (1997) (when the merits are “easily resolvable against the habeas petitioner,” procedural

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default issues may be bypassed); Batchelor v. Cupp, 693 F.2d 859, 864 (9th Cir. 1982) (court may

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exercise discretion to reach merits when doing so would be more efficient than adjudicating the

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question of procedural default).

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The Supreme Court has clearly held that a federal habeas petitioner may not challenge his
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present custody on grounds that a prior conviction used to enhance the sentence was invalid.

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Lackawanna, 532 U.S. at 402. “[O]nce a state conviction is no longer open to direct or collateral

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attack in its own right because the defendant failed to pursue those remedies while they were

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available (or because the defendant did so unsuccessfully), the conviction may be regarded as

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conclusively valid.” Id. at 403. The Supreme Court has recognized only one exception to this

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rule: when “the prior conviction used to enhance the sentence was obtained where there was a

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failure to appoint counsel in violation of the Sixth Amendment, as set forth in Gideon v.

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Wainwright, 372 U.S. 335 (1963).” Id. at 404. This exception does not apply here.2

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Moreover, sentencing under California’s three strikes regime—including determinations

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of what prior convictions count as “strikes”—is purely a matter of state law. Errors related to the

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application of state law do not support federal habeas relief. See Lewis, 497 U.S. at 780;

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Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) (“a state court’s misapplication of its own

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sentencing laws does not justify federal habeas relief.”). The state appellate court’s conclusion

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that petitioner’s 1987 conviction was properly counted as a strike is a state law determination that

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is binding on this court. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005). Petitioner’s invocation

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of “due process” in conjunction with his state law argument does not create a viable due process

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claim. See Park v. California, 202 F.3d 1146, 1154 (9th Cir. 2000) (merely placing a “due

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process” label on a state law claim does not transform it into a federal claim).

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Under AEDPA, habeas relief is unavailable where the U.S. Supreme Court has not

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expressly announced the constitutional principle upon which petitioner’s claim relies. Wright v.

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Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam). The Supreme Court has never announced

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Nor do the circumstances of this case support the narrow exception recognized by the Ninth
Circuit in Durbin v. People of California, 720 F.3d 1095, 1099 (9th Cir. 2013), viz., that “when a
defendant cannot be faulted for failing to obtain timely review of a constitutional challenge to an
expired prior conviction, and that conviction is used to enhance his sentence for a later offense, he
may challenge the enhanced sentence under § 2254 on the ground that the prior conviction was
unconstitutionally obtained.” In Durbin, the Ninth Circuit found that petitioner could not be
faulted for his failure to obtain timely review of his claims because the state court had refused,
without justification, to review his claims based on the incorrect determination that he was not in
custody. In contrast, there has been no showing that petitioner was prevented from filing an
appeal of his 1987 conviction or that he attempted to submit an appeal that was denied without
justification.
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any constitutional limitation on the prior convictions that may be considered under recidivist

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sentencing statutes like the three strikes law. This dooms petitioner’s claims. Id.; see also, e.g.,

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John-Charles v. California, 646 F.3d 1243, 1253 (9th Cir.) (denying relief because no clearly

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established Supreme Court precedent precludes the use of a juvenile adjudication to enhance a

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sentence), cert. denied, 565 U.S. 1097 (2011). And both before and after passage of the AEDPA,

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the Ninth Circuit has held that habeas review is unavailable to California prisoners challenging

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the application of strikes or the validity or adequacy of the convictions used to enhance a

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sentence. See Brown v. Mayle, 283 F.3d 1019, 1040 (9th Cir. 2002) (claim under People v.

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Superior Court (Romero), 13 Cal.4th 497 (1996), not cognizable in federal habeas), overruled on

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other grounds, 538 U.S. 901 (2003); Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989)

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(whether a prior conviction supports a sentence enhancement under California law not cognizable

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in federal habeas).

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For all these reasons, petitioner’s challenge to his enhanced sentence may not be
entertained.

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II.

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Claim Three: Impermissible Judicial Fact-Finding
A. Petitioner’s Allegations and Pertinent State Court Record

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Petitioner identifies his third claim for relief as follows, “Does the prior conviction violate

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petitioner’s 6th and 14th Amendments in accordance with the rulings in Apprendi, Blakely and

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Cunningham[?]”3 ECF No. 1 at 16. Petitioner first recites the proposition announced in

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Apprendi v. New Jersey, 530 U.S. 466 (2000), that the Constitution precludes a trial court from

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imposing a sentence above the statutory maximum based on a fact, other than a prior conviction,

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not found true by a jury. Petitioner then alleges that in his 1987 case the judge made a finding

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that he had not used an express or implied threat of force when attempting to dissuade a witness

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from testifying, and therefore held him over for a misdemeanor. The prosecutor then charged

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petitioner with the felony in violation of due process. The additional element increased

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petitioner’s sentence. Id.

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See Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296
(2004); Cunningham v. California, 549 U.S. 270 (2007).
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B. The Clearly Established Federal Law

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The Sixth Amendment right to a jury trial extends to any fact used to increase a felony

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sentence beyond the otherwise applicable statutory maximum. Apprendi, 530 U.S. at 490.

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Accordingly, “[a]ny fact (other than a prior conviction) which is necessary to support a sentence

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exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict

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must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” United States

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v. Booker, 543 U.S. 220, 244 (2005). The “statutory maximum” for Apprendi purposes is the

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maximum sentence a judge could impose based solely on the facts reflected in the jury verdict or

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admitted by the defendant; that is, the relevant “statutory maximum” is not the sentence the judge

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could impose after finding additional facts, but rather is the maximum he or she could impose

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without any additional findings. Blakely v. Washington, 542 U.S. 296, 303-04 (2004). In 2007,

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the U.S. Supreme Court applied these principles to hold California’s determinate sentencing

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system unconstitutional to the extent it permitted judges to impose an upper term sentence, rather

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than the otherwise mandatory middle term, based on aggravating facts related to the offense

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conduct that it found by a preponderance of the evidence. Cunningham v. California, 549 U.S.

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270 (2007).

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C. The State Court’s Ruling
It is difficult to determine which state court, if any, ruled on this claim4 because it is

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difficult to discern the precise nature of the claim from the face of the federal petition. Petitioner

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does not explain how the facts he recites demonstrate a violation of the legal principle on which

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he relies; they appear to be inapposite. See ECF No. 1 at 16 (summarized above). Respondent

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points out that petitioner had presented an Apprendi-related issue on appeal that he may be

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attempting to reassert here: that the Apprendi line of cases culminating in Shepard v. United

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States, 544 U.S. 13, 24 (2005), required reversal of the strike based on the 1987 conviction. ECF

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No. 20 (answer) at 17 (citing Lodged Doc. 5 at 25-28). In sum, petitioner had challenged the

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The first step in the federal habeas analysis under AEDPA is the determination which statecourt decision serves as the basis for review. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir.
2005).
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superior court’s 2011 finding that the 1987 conviction involved a felony, on grounds that the

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court considered evidence that did not satisfy Shepard, supra, and the strike therefore was not

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proven.

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The California Court of Appeal ruled as follows on that issue:
Defendant relies on Shepard to support his claim that the prior
strike was not proven to be a felony conviction rather than a
misdemeanor because the prosecution offered documents beyond
those allowed under Shepard. In Shepard, the United States
Supreme Court held that the determination under the Armed Career
Criminals Act (ACCA) of “whether a plea of guilty to burglary
defined by a nongeneric statute necessarily admitted elements of the
generic offense is limited to the terms of the charging document,
the terms of a plea agreement or transcript of colloquy between
judge and defendant in which the factual basis for the plea was
confirmed by the defendant, or to some comparable judicial record
of this information.” (Shepard, supra, 544 U.S. at p. 26 [161
L.Ed.2d at p. 218].) Defendant contends the materials relied upon in
this case by the prosecution to prove the prior conviction did not
meet this standard. Defendant also argues that People v. Guerrero
(1988) 44 Cal.3d 343, 355 (Guerrero), which allows consideration
of the entire record of conviction, is erroneous under Shepard. He
contends the documents which can now be considered are much
more limited and “include only documents from the prior case that
show that the plea of guilty itself ‘“necessarily” rested’ on a fact
that identifies the crime as one falling within the statute.” (Quoting
Shepard, supra, 544 U.S. at pp. 20-21 [161 L.Ed.2d at p. 214].)
Initially, the court’s plurality conclusion in Shepard, limiting the
evidence to be considered, was based on the interpretation of a
federal statute, the ACCA, fundamentally distinct from California
law. That federal statute did not have the procedural protections for
defendants that California law does; it did not afford the defendant
a jury trial or findings beyond a reasonable doubt on the prior
convictions. Thus, the Shepard court’s concern that permitting a
sentencing court to use a wide array of evidence to establish a
qualifying prior conviction would infringe upon a defendant’s right
to a jury trial is not applicable here. (Shepard, supra, 544 U.S. at p.
24-26 [161 L.Ed.2d at pp. 216-217]; see also People v. Gonzales
(2005) 131 Cal.App.4th 767, 775.)
Moreover, we disagree with defendant that Guerrero, supra, 44
Cal.3d 343 is no longer good law. The argument ignores the express
language of Shepard which states that among the records which
may be considered, in addition to “the charging document, the
terms of a plea agreement or transcript of colloquy between judge
and defendant in which the factual basis for the plea was
confirmed” is “some comparable judicial record of this
information.” (Shepard, supra, 544 U.S. at p. 26 [161 L.Ed.2d at p.
218].) This is not inconsistent with the current standard in
California, that “[i]n determining the substance of a prior
conviction, the trier of fact may look to the entire record of
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conviction. [Citation.] The ‘record of conviction’ includes the
charging document and court records reflecting defendant’s
admission, no contest plea, or guilty plea.” (People v. Gonzales,
supra, 131 Cal.App.4th at p. 773.) The record of conviction also
includes transcripts of the preliminary hearing and the sentencing
hearing. (Ibid.; People v. Thoma (2007) 150 Cal.App.4th 1096,
1101.)
Here, the trial court took judicial notice of the entire 1987 court file.
This file included the charging documents, defendant’s change of
plea declaration, the change of plea minutes, the probation report,
disposition of arrest and court action, the preliminary hearing
transcript, the judgment and sentencing order, and the report of
sentence. These are judicial records containing information
comparable to that required in Shepard. The records demonstrate
unambiguously that defendant was charged with, and pleaded guilty
to, a felony violation of section 136.1, subdivision (c). The court
found a factual basis for that plea, accepted the plea and found
defendant guilty of a felony violation of section 136.1, subdivision
(c). Each of these documents not only specifically states the offense
is a felony, but also specifies the violation is of subdivision (c), the
subdivision which described a felony offense. This is sufficient
evidence to establish that defendant’s prior conviction was a felony
offense, not a misdemeanor.
Defendant also contends the documents in the 1987 court file, of
which the trial court took judicial notice, are not substantial
evidence of a felony conviction.
“Evidence Code sections 452 and 453 permit the trial court to ‘take
judicial notice of the existence of judicial opinions and court
documents, along with the truth of the results reached—in the
documents such as orders, statements of decision, and judgments—
but cannot take judicial notice of the truth of hearsay statements in
decisions or court files, including pleadings, affidavits, testimony,
or statements of fact.’” (People v. Harbolt (1997) 61 Cal.App.4th
123, 126-127, second italics added.) This is so because “another
court’s findings of fact and conclusions of law in support of a
judgment ... are conclusive and uncontrovertible in character and
not reasonably subject to dispute.” (People v. Tolbert (1986) 176
Cal.App.3d 685, 690.) Here, the no contest plea recorded in the
court minutes and the judgment the court pronounced based on that
plea are just as “conclusive and uncontrovertible” as any findings of
fact and conclusions of law. Accordingly, the court minutes were
sufficient to prove that the prior conviction was for a felony offense
of dissuading a witness.
Lodged Doc. 8 at 6-9.
D. Federal Habeas Relief is Unavailable
The California Court of Appeal reasonably found that Shepard, a case about the validity of
the federal Armed Career Criminals Act, does not invalidate the materially distinct sentencing
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regime that applied to petitioner. The state court also reasonably concluded that the evidence of

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petitioner’s prior felony conviction would have satisfied the Shepard standard. Shepard limited

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the determination of a prior conviction’s character to examination of “the statutory definition,

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charging document, written plea agreement, transcript of plea colloquy, and any explicit factual

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finding by the trial judge to which the defendant assented.” Shepard, 544 U.S. at 16. In this case,

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the 1987 charging document showed that petitioner was charged with a felony, the plea

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declaration specified a felony offense, and the cited Penal Code section expressly identifies a

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felony offense. Accordingly, it cannot have been objectively unreasonable under Shepard to

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reject petitioner’s claim.

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No clearly established federal law has applied Apprendi and progeny to limit the evidence

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that a state court can consider in determining whether a prior conviction was sustained and/or

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qualifies as a strike under a recidivist sentencing scheme. Apprendi itself excludes proof of prior

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convictions from the universe of aggravating facts that must be found by a jury. Apprendi, 530

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U.S. at 476; see also Booker, 543 U.S. at 244. Cunningham, supra, does not help petitioner,

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because it involved an aspect of California sentencing law that did not apply to him. Because the

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U.S. Supreme Court has never recognized the constitutional principle on which petitioner’s claim

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depends, federal habeas relief is unavailable. See Wright, S552 U.S. at 125-26; see also, e.g.,

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Kessee v. Mendoza-Powers, 574 F.3d 675 (9th Cir. 2009) (habeas relief unavailable for claim

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under Apprendi and Shepard that California trial court improperly found a prior conviction,

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because U.S. Supreme Court has not announced the specific principle upon which claim

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depended).5 Accordingly, to the extent that the instant Apprendi claim is directed to the fact

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This case is unlike Wilson v. Knowles, 638 F.3d 1213 (9th Cir. 2011), in which the Ninth
Circuit found Apprendi error and granted habeas relief when a California sentencing judge made
findings based on the record of a prior case that the prior offense had involved the infliction of
great bodily injury on a non-accomplice. Those facts had not been found by the jury in the
previous case and were not necessarily encompassed by its verdict. The Ninth Circuit
emphasized that those facts were not “historical, judicially notice-able facts.” Id. at 1215. Here,
the only fact found by the superior court was that the 1987 conviction was a felony and not a
misdemeanor, which is a judicially notice-able fact. Unlike the facts at issue in Wilson, this case
involves only the historical fact of a prior felony conviction, to which Apprendi by its terms does
not apply.
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finding conducted by the superior court in 2011, 28 U.S.C. § 2254(d) bars relief.

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Alternatively, to the extent this claim is intended to challenge the factual findings made in

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the 1987 criminal case, see ECF No. 1 at 16 (referencing fact finding related to charge of

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dissuading a witness), the claim is barred by Lackawanna, supra, and non-cognizable in federal

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habeas for the reasons explained above in relation to Claims One and Two.

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III.

Claims Four and Five: Reduction of Certain Convictions to Misdemeanors
Attached to the federal petition is briefing previously filed in the Shasta County superior

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court in support of a 2015 “petition for reduction/resentencing.” ECF No. 1 at 22-28; see also

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Lodged Doc. 20. Respondent construes these attachments as presenting claims he identifies as

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Claim Four and Claim Five. ECF No. 20 at 15-17, 21-22. Petitioner contends that various

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convictions used to enhance his current sentence (see ECF No. 1 at 22-23), and various of his

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current commitment offenses (id. at 23-28), should be reduced to misdemeanors under various

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provisions of California law. In response to the 2015 petition, the superior court did reduce the

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drug possession conviction in Case No. 10F2176 to a misdemeanor. Lodged Doc. 20. The

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petition was otherwise denied. Id. Petitioner did not pursue these claims in the California

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Supreme Court.

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The undersigned need not address the question whether petitioner has exhausted his state

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court remedies as to these issues, because they do not and can not provide any basis for federal

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habeas relief. See § 2254(b)(2) (an unexhausted claim may be denied on the merits). As

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explained above, alleged errors in the application of state sentencing laws do not support federal

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habeas relief or state cognizable federal habeas claims. Whether petitioner’s felony convictions

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can and should be reduced to misdemeanors is a matter of California law that is not subject to

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review in this court.

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CONCLUSION
For all the reasons explained above, to the extent that the state courts denied petitioner’s

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federal claims, that denial was not objectively unreasonable within the meaning of 28 U.S.C. §

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2254(d). Even without reference to AEDPA standards, petitioner has not established any

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violation of his constitutional rights. Accordingly, IT IS HEREBY RECOMMENDED that the
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petition for writ of habeas corpus be denied and that the court decline to issue a certificate of

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appealability. See 28 U.S.C. § 2253(c)(2).

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. §636(b)(l). Within twenty-one days

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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).

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DATED: April 5, 2023

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