Stoner v. Hartley

Filing 8

ORDER OF DISMISSAL, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 4/16/10. (Attachments: # 1 Certificate of Service)(nah, COURT STAFF) (Filed on 4/16/2010)

1 2 3 4 5 6 7 8 9 10 vs. J. HARTLEY, Warden, Respondent. / DARCEL STONER, Petitioner, No. C 07-6385 PJH (PR) ORDER OF DISMISSAL UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

United United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

This is a habeas case filed pro se by a state prisoner. Petitioner claimed in the original petition that his sentence violated his Sixth Amendment rights as established in Cunningham v. California, 127 S. Ct. 856 (2007), Blakely v. Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000), but because he did not provide any facts about what happened at sentencing, the petition was dismissed with leave to amend. Petitioner has amended. In his amendment, petitioner says that on April 4, 2000, he pled guilty, pursuant to a plea bargain, to attempted murder with a gun enhancement. He says that he was sentenced to the upper term on the attempted murder charge. In Cunningham, the Supreme Court held that California's Determinate Sentencing Law violates a defendant's right to a jury trial to the extent that it contravenes "Apprendi's bright-line rule: Except for a prior conviction, `any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proven beyond a reasonable doubt.'" Id. (quoting Apprendi, 530 U.S. at 490). When a case involves a plea bargain, as here, ordinarily there would be an issue whether there was a waiver, but in this case the sole claim in the petition is barred on another ground.

1 2 3 4 5 6 7 8 9 10

Cunningham applies retroactively on collateral review only to convictions that became final on direct review after the decision in Blakely, which was on June 24, 2004. Butler v. Curry, 528 F.3d 624, 639 (9th Cir. 2008). The conviction in this case was in 2000, and petitioner says that he did not appeal. Pet. at 3. That is confirmed by a review of the California appellate courts' website. Petitioner's conviction thus became final in 2000, well before the 2004 decision in Blakely, and the Apprendi/Blakely/Cunningham line of cases does not apply to him. The petition will be dismissed. See Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102, 1108 (9th Cir. 1996) ("Habeas petitions which appear on their face to be legally insufficient are subject to summary dismissal.") (Schroeder, J., concurring). CONCLUSION The petition is DISMISSED. The clerk shall close the file. IT IS SO ORDERED. Dated: April 16, 2010. PHYLLIS J. HAMILTON United States District Judge

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

P:\PRO-SE\PJH\HC.07\STONER6385.DSM.wpd

2