King v. The People of the State of California

Filing 20

ORDER LIFTING STAY; DENYING PETITION FOR A WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge William Alsup on 2/15/12. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 2/15/2012)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 9 BERNARD A. KING, 11 For the Northern District of California United States District Court 10 12 13 No. C 05-3666 WHA (PR) Petitioner, ORDER LIFTING STAY; DENYING PETITION FOR A WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY v. GEORGE M. GALAZA, Warden, Respondent. / 14 15 This is a habeas case filed pro se by a state prisoner. The case was stayed in 2008 and 16 administratively closed. Good cause appearing, the stay is LIFTED, and for the reasons 17 discussed below, the petition for a writ of habeas corpus is DENIED. 18 The only remaining issue in the case is whether the sentencing court violated 19 Cunningham v. California, 127 S. Ct. 856, 871 (2007), in imposing an upper term and 20 consecutive sentences. In the answer, respondent argues that facts relied upon by the state trial 21 court to impose the upper term – namely that petitioner was on parole at the time of the offense 22 and had a prior grant of probation revoked – fell within the “prior conviction” exception to the 23 Cunningham rule that sentencing facts must be found by a jury rather than the court. Such 24 arguments were rejected in Butler v. Curry, 528 F.3d 624 (9th Cir. 2008), and later in Estrella v. 25 Ollison, No.10-56203, slip op. 21495, 21500 (9th Cir. Dec. 29, 2011). However, because there 26 has been no such holding from the United States Supreme Court, and other courts have held to 27 the contrary, the Ninth Circuit has determined that it is not an unreasonable application of 28 clearly established Supreme Court authority within the meaning of 28 U.S.C. 2254(d)(1) for a 1 state court to find that such facts fall within the “prior conviction” exception to the Cunningham 2 rule. Kessee v. Mendoza-Powers, 574 F.3d 675, 678 (9th Cir. 2009). Consequently, federal 3 habeas relief is not warranted under 28 U.S.C. 2254(d)(1) based upon petitioner’s claim of 4 Cunningham error. 5 Petitioner’s claim also fails for an alternative reason. Even if there were Cunningham error, and therefore is subject to harmless-error analysis. Washington v. Recuenco, 548 U.S. 8 212, 221-22 (2006). The error is harmless unless it had a “substantial and injurious effect” on 9 the sentence. See Brecht v. Abrahamson, 507 U.S. 619 (1993). The fact that petitioner had 10 prior convictions, was on parole at the time of the offense, and had prior probations revoked, 11 For the Northern District of California error, such error was harmless. Failure to submit a sentencing factor to the jury is not structural 7 United States District Court 6 was demonstrated at sentencing by petitioner’s probation report. These facts were not disputed 12 or contradicted by any other evidence at sentencing, nor is there any dispute about the truth of 13 these facts here. Under California law, any one of these facts is sufficient on its own to support 14 imposing the upper term. See Cal. Rule Ct. 421(a). Under these circumstances it is very likely 15 that the jury would have found factors supporting the upper term if they and not the trial judge 16 had been charged with that decision. Consequently, even if there was error under Cunningham, 17 such error did not have a substantial and injurious effect on the sentence petitioner received, and 18 federal habeas relief is not warranted on this claim. 19 For these reasons, the petition for a writ of habeas corpus is DENIED. A certificate of 20 appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case in which “reasonable 21 jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” 22 Slack v. McDaniel, 529 U.S. 473, 484 (2000). 23 The Clerk shall enter judgment in favor of respondent and close the file. 24 IT IS SO ORDERED. 25 Dated: February 15 , 2012. 26 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 27 28 G:\PRO-SE\WHA\HC.05\KING666.RUL.wpd 2

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