McCowan v. Marshall

Filing 11

ORDER denying 1 Petition for Writ of Habeas Corpus filed by Nathaniel McCowan.. Signed by Judge Charles R. Breyer on 4/20/2011. (Attachments: # 1 Certificate of Service)(be, COURT STAFF) (Filed on 4/25/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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NATHANIEL McCOWAN, G-39572, )
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Petitioner,
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vs.
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JOHN MARSHALL, Warden,
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Respondent.
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No. C 10-0473 CRB (PR)
ORDER DENYING PETITION
FOR A WRIT OF HABEAS
CORPUS

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Petitioner, a state prisoner incarcerated at the California Men’s Colony in

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San Luis Obispo, filed a petition for a writ of habeas corpus pursuant to 28

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U.S.C. § 2254. Per order filed on May 5, 2010, the court found that the petition,

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liberally construed, stated a cognizable claim under § 2254 and ordered

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respondent to show cause why a writ of habeas corpus should not be granted.

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Respondent has filed an answer to the order to show cause and petitioner has

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filed a traverse. Having reviewed the papers and the underlying record, the court

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concludes that petitioner is not entitled to habeas corpus relief.

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BACKGROUND
Petitioner pleaded no contest to felony hit and run resulting in injury in

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Santa Clara County Superior Court after the court found that he had suffered two

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prior strikes and two prior prison terms. On October 24, 2008, the court struck

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one of the prior strikes and sentenced petitioner to eight years in state prison.

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The prison term was based on the upper term of three years, doubled

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under the Three Strikes Law, plus one year for each of the two prior prison terms.

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Petitioner unsuccessfully appealed his conviction to the California Court

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of Appeal and sought habeas relief from the Supreme Court of California. The

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state high court denied his final state habeas petition on December 23, 2009.
DISCUSSION

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A.

Standard of Review
This court may entertain a petition for a writ of habeas corpus “in behalf

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of a person in custody pursuant to the judgment of a State court only on the

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ground that he is in custody in violation of the Constitution or laws or treaties of

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the United States.” 28 U.S.C. § 2254(a).

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The writ may not be granted with respect to any claim that was

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adjudicated on the merits in state court 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

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unreasonable application of, clearly established Federal law, as determined by the

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

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on an unreasonable determination of the facts in light of the evidence presented

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in the State court proceeding.” Id. § 2254(d).

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“Under the ‘contrary to’ clause, a federal habeas court may grant the writ

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if the state court arrives at a conclusion opposite to that reached by [the Supreme]

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Court on a question of law or if the state court decides a case differently than [the

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Supreme] Court has on a set of materially indistinguishable facts.” Williams v.

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Taylor, 529 U.S. 362, 412-13 (2000). “Under the ‘reasonable application’ clause,

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a federal habeas court may grant the writ if the state court identifies the correct

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governing legal principle from [the Supreme] Court’s decisions but unreasonably

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applies that principle to the facts of the prisoner’s case.” Id. at 413.

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“[A] federal habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision

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applied clearly established federal law erroneously or incorrectly. Rather, that

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application must also be unreasonable.” Id. at 411. “[A] federal habeas court

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making the ‘unreasonable application’ inquiry should ask whether the state

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court’s application of clearly established federal law was objectively

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unreasonable.” Id. at 409.

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The only definitive source of clearly established federal law under 28

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U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme

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Court as of the time of the state court decision. Id. at 412; Clark v. Murphy, 331

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F.3d 1062, 1069 (9th Cir. 2003). While circuit law may be “persuasive

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authority” for purposes of determining whether a state court decision is an

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unreasonable application of Supreme Court precedent, only the Supreme Court’s

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holdings are binding on the state courts, and only those holdings need be

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“reasonably” applied. Id.

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B.

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Claim & Analysis
Petitioner claims the trial court violated his Sixth Amendment right to a

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trial by jury as set forth in Cunningham v. California, 549 U.S. 270 (2007),

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Blakely v. Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530

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U.S. 466 (2000), by imposing the upper term for his offense on the basis of facts

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found by a judge and not a jury. The claim is without merit.

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The Sixth Amendment guarantees a criminal defendant the right to a trial

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by jury. U.S. Const. amend. VI. The Supreme Court’s Sixth Amendment

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jurisprudence was significantly expanded by Apprendi and its progeny, which

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extended a defendant’s right to trial by jury to the fact finding used to make

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enhanced sentencing determinations in addition to the fact finding on the actual

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elements of the crime. “Other than the fact of a prior conviction, any fact that

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increases the penalty for a crime beyond the prescribed statutory maximum must

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be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530

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U.S. at 490. In Blakely, the Supreme Court held “the ‘statutory maximum’ for

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Apprendi purposes is the maximum sentence a judge may impose solely on the

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basis of the facts reflected in the jury verdict or admitted by the defendant.” 542

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U.S. at 303 (emphasis in original). In Cunningham, the Court held that

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California’s determinate sentencing law (“DSL”) violated the Sixth Amendment

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because it allowed the sentencing judge to impose an elevated sentence based on

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aggravating facts that he or she found to exist by a preponderance of the

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evidence. 549 U.S. at 292-93.

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At the time Cunningham was decided, California’s DSL, pursuant to

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former California Penal Code section 1170, provided a determinate sentencing

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scheme comprised of a lower, middle and upper term, with a required imposition

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of the middle term unless the court found aggravating or mitigating factors.

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Cunningham deemed the middle term the “statutory maximum” term, and it

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proscribed a sentencing scheme permitting a court to impose a higher sentence

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based upon a fact, other than a prior conviction, not admitted by the defendant

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nor found true by the jury. Cunningham, 549 U.S. at 288. Cunningham

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essentially applied Blakely to strike down California’s DSL.

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On March 30, 2007, in response to the Supreme Court’s suggestion in

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Cunningham that California could cure any constitutional defect in section

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1170(b) by leaving the selection of an appropriate sentence to the judge’s

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discretion, Cunningham, 549 U.S. at 293-94, the California Legislature enacted

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Senate Bill 40, which amended section 1170(b). See Cal. Stats. 2007, ch. 3 (S.B.

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40), § 3, eff. Mar. 30, 2007; Butler v. Curry, 528 F.3d 624, 630 n.5 (9th Cir.

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2008) (acknowledging amendment). Under amended section 1170(b), a trial

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court still exercises its discretion in selecting among the upper, middle or lower

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terms, but no additional fact finding is required to impose an upper or lower term.

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See Butler, 528 F.3d at 652 n.20 (“imposition of the lower, middle, or upper term

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is now discretionary and does not depend on the finding of any aggravating

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factors”); accord People v. Sandoval, 41 Cal. 4th 825, 843-45 (2007).

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Here, the trial court sentenced petitioner on October 24, 2008, more than a

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year after the effective date of the amendment to section 1170(b). The applicable

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law at sentencing therefore was California’s amended sentencing scheme, which

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the court finds complies with Cunningham as applied to petitioner. Specifically,

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under the new section 1170(b), the trial court was not required to find an

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additional fact in order to impose the upper term sentence. In fact, because the

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upper term at the time of petitioner’s sentencing was the “statutory maximum”

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within the meaning of Cunningham, the trial court was permitted to rely on facts

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in addition to those found by the jury in the exercise of its discretion. See United

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States v. Booker, 543 U.S. 220, 233 (2005) (“[W]hen a trial judge exercises his

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discretion to select a specific sentence within a defined range, the defendant has

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no right to a jury determination of the facts that the judge deems relevant.”).

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Habeas relief is further precluded by § 2254(d). In Cunningham, the

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Supreme Court acknowledged that several states had modified their sentencing

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schemes in the wake of Apprendi and Blakely to permit judges broad discretion

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within a statutory range, “which ‘everyone agrees’ encounters no Sixth

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Amendment shoal.” Cunningham, 549 U.S. at 294 (quoting Booker, 543 U.S. at

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233). Cunningham left “the ball . . . in California’s court” to revise its system

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accordingly. Id. at 293-94. The California Legislature did exactly that by

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amending section 1170(b). Specifically, it adopted “Cunningham’s suggestion

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that California could comply with the federal-trial constitutional guarantee while

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still retaining determinate sentencing, by allowing trial judges broad discretion in

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selecting a term within a statutory range, thereby eliminating the requirement of a

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judge-found factual finding to impose an upper term.” People v. Wilson, 164

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Cal. App. 4th 988, 992 (2008).

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In view of California’s decision to follow Cunningham’s suggested

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sentencing scheme in order to avoid a Sixth Amendment shoal, the state supreme

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court’s rejection of petitioner’s Sixth Amendment claim under such sentencing

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scheme cannot be said to be contrary to, or an unreasonable application of,

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clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d); accord

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Espinoza Bermudez v. Clark, No. 09-cv-275-OWW-SMS, 2010 WL 2089670, at

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*7 (E.D. Cal. May 21, 2010) (upholding upper term sentence imposed after

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effective date of DSL amendment). Put simply, petitioner has not shown that

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there was “no reasonable basis for the state court to deny relief.” Harrington v.

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Richter, 131 S. Ct. 770, 784 (2011).

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CONCLUSION

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For the foregoing reasons, the petition for a writ of habeas corpus is

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DENIED.

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Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, a

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certificate of appealability (COA) under 28 U.S.C. § 2253(c) is DENIED because

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petitioner has not demonstrated that “reasonable jurists would find the district

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court’s assessment of the constitutional claims debatable or wrong.” Slack v.

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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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SO ORDERED.

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DATED: April 20, 2011
CHARLES R. BREYER
United States District Judge

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