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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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BERNARD A. KING,

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For the Northern District of California

United States District Court

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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.
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This is a habeas case filed pro se by a state prisoner. The case was stayed in 2008 and

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administratively closed. Good cause appearing, the stay is LIFTED, and for the reasons

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discussed below, the petition for a writ of habeas corpus is DENIED.

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The only remaining issue in the case is whether the sentencing court violated

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Cunningham v. California, 127 S. Ct. 856, 871 (2007), in imposing an upper term and

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consecutive sentences. In the answer, respondent argues that facts relied upon by the state trial

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court to impose the upper term – namely that petitioner was on parole at the time of the offense

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and had a prior grant of probation revoked – fell within the “prior conviction” exception to the

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Cunningham rule that sentencing facts must be found by a jury rather than the court. Such

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arguments were rejected in Butler v. Curry, 528 F.3d 624 (9th Cir. 2008), and later in Estrella v.

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Ollison, No.10-56203, slip op. 21495, 21500 (9th Cir. Dec. 29, 2011). However, because there

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has been no such holding from the United States Supreme Court, and other courts have held to

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the contrary, the Ninth Circuit has determined that it is not an unreasonable application of

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clearly established Supreme Court authority within the meaning of 28 U.S.C. 2254(d)(1) for a

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state court to find that such facts fall within the “prior conviction” exception to the Cunningham

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rule. Kessee v. Mendoza-Powers, 574 F.3d 675, 678 (9th Cir. 2009). Consequently, federal

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habeas relief is not warranted under 28 U.S.C. 2254(d)(1) based upon petitioner’s claim of

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Cunningham error.

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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.

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212, 221-22 (2006). The error is harmless unless it had a “substantial and injurious effect” on

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the sentence. See Brecht v. Abrahamson, 507 U.S. 619 (1993). The fact that petitioner had

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prior convictions, was on parole at the time of the offense, and had prior probations revoked,

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For the Northern District of California

error, such error was harmless. Failure to submit a sentencing factor to the jury is not structural

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United States District Court

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was demonstrated at sentencing by petitioner’s probation report. These facts were not disputed

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or contradicted by any other evidence at sentencing, nor is there any dispute about the truth of

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these facts here. Under California law, any one of these facts is sufficient on its own to support

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imposing the upper term. See Cal. Rule Ct. 421(a). Under these circumstances it is very likely

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that the jury would have found factors supporting the upper term if they and not the trial judge

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had been charged with that decision. Consequently, even if there was error under Cunningham,

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such error did not have a substantial and injurious effect on the sentence petitioner received, and

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federal habeas relief is not warranted on this claim.

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For these reasons, the petition for a writ of habeas corpus is DENIED. A certificate of

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appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case in which “reasonable

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jurists would find the district court’s assessment of the constitutional claims debatable or wrong.”

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Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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The Clerk shall enter judgment in favor of respondent and close the file.

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IT IS SO ORDERED.

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Dated: February

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, 2012.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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