Lomack v. Scribner

Filing 25

ORDER ADOPTING 23 REPORT AND RECOMMENDATION and Denying Petition: The Report and Recommendation is ADOPTED, Petitioners objections are OVERRULED, and the Petition is DENIED. Signed by Judge M. James Lorenz on 1/5/2009. (All non-registered users served via U.S. Mail Service).(mjj)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 KEVIN LOMACK, Petitioner, v. L.E. SCRIBNER, Warden, Respondent. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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Civil No. 07cv17-L(WMc) ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITION

Petitioner Kevin Lomack, a state prisoner proceeding pro se, filed a Petition for Writ of

17 Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition"). Petitioner claimed his constitutional 18 rights were violated by a jury instruction regarding eyewitness identification, ineffective 19 assistance of counsel, trial court's failure to sua sponte counter the defense counsel's defective 20 performance, and sentencing based on fact findings made by the judge rather than the jury. The 21 case was referred to United States Magistrate Judge William McCurine, Jr. for a report and 22 recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(d). 23 The Magistrate Judge issued an initial Report and Recommendation, recommending the

24 Petition be denied with respect to the first three claims and the action stayed with respect to 25 claim four, pending exhaustion of state court remedies. The court adopted the Report and 26 Recommendation as to the first three claims, which were denied. The fourth claim was 27 remanded to the Magistrate Judge for further briefing and consideration in light of new legal 28 authority. (See order filed Feb. 21, 2008.) Upon supplemental briefing of the fourth claim, the
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1 Magistrate Judge issued a Report and Recommendation recommending the claim be denied. 2 Petitioner objected. Respondent did not respond. For the reasons which follow, the Report and 3 Recommendation is ADOPTED. The Petition is DENIED. 4 In reviewing a magistrate judge's report and recommendation, the district court "shall

5 make a de novo determination of those portions of the report . . . to which objection is made," 6 and "may accept, reject, or modify, in whole or in part, the findings or recommendations made 7 by the magistrate judge." 28 U.S.C. § 636(b)(1). Under this statute, "the district judge must 8 review the magistrate judge's findings and recommendations de novo if objection is made, but 9 not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en banc) 10 (emphasis in original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 11 2003) (applying Reyna-Tapia to habeas review). Petitioner objects to the recommendation to 12 deny his last remaining claim. Upon performing the requisite de novo review, the court adopts 13 the Report and Recommendation. 14 On September 10, 2004, Petitioner was found guilty after a jury trial of twelve counts of

15 robbery arising from eight separate incidents. The jury also found Petitioner used a gun during 16 the robberies. Based on three prior felony convictions and enhancement for the firearm, 17 Petitioner was sentenced to 335 years to life in state prison. Petitioner argues that the upper term 18 sentences, some of which ran consecutively, were based on facts not found by the jury beyond a 19 reasonable doubt, but on other aggravating factors found by the trial judge by a preponderance of 20 the evidence, and were therefore imposed in violation of his Sixth Amendment rights under 21 Blakely v. Washington, 542 U.S. 296 (2004). 22 Based on Blakely, United States v. Booker, 543 U.S. 220 (2005) and People v. Black, 35

23 Cal.4th 1238 (2005) ("Black I"), the state court concluded that Petitioner's right to a jury trial 24 was not violated because the choice of an upper term under the California sentencing scheme, 25 which provides the choice of a lower, middle and upper term, did not implicate the Sixth 26 Amendment. (Lodgment Ex. 5 at 25-28.) The court also noted that the upper term was imposed 27 based in part on his prior criminal record, a factor which did not require a jury finding under 28 Blakely. (Id.)
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After the state court decision in this case, the defendant in Black I filed a petition for a

2 writ of certiorari in the United States Supreme Court. On January 22, 2007, the United States 3 Supreme Court decided Cunningham v. California, 549 U.S. 270 (2007), which held that 4 because the California sentencing scheme authorized the judge, not the jury, to find the facts 5 permitting the imposition of the upper term, the system ran afoul of the Sixth Amendment. This 6 decision was contrary to the California Supreme Court's decision in Black I. On February 20, 7 2007, the United States Supreme Court granted a writ of certiorari in Black I, and remanded the 8 case to the California Supreme Court for reconsideration in light of Cunningham. Black v. 9 California, 127 S. Ct. 1210 (2007). This was the state of the law when the Magistrate Judge 10 issued the initial Report and Recommendation in this case. 11 The initial Report and Recommendation found, based on the intervening decision in

12 Cunningham, that Petitioner's sentencing claim was rendered unexhausted because Cunningham 13 cast Petitioner's claim in a fundamentally different light. The initial Report and 14 Recommendation recommended staying this action while Petitioner exhausted his remaining 15 claim in state courts. 16 Subsequently, the California Supreme Court reconsidered Black I on remand from the

17 United States Supreme Court. People v. Black, 41 Cal. 4th 799 (2007), cert. den. 128 S. Ct.1063 18 (2008) (Black II). Black II held that "imposition of the upper term does not infringe upon the 19 defendant's constitutional right to jury trial so long as one legally sufficient aggravating 20 circumstance has been found to exist by the jury, has been admitted by the defendant, or is 21 justified based upon the defendant's record of prior convictions." Id. at 816; see also id. at 806, 22 812-16, 816-820. Because it appeared that the rationale initially relied upon by the Magistrate 23 Judge for finding the claim unexhausted was foreclosed by Black II, the fourth claim was 24 remanded for further briefing and consideration of exhaustion and, if appropriate, the merits. 25 Upon consideration of supplemental briefing, the Magistrate Judge found the claim

26 exhausted. (R&R at 2 n.3, citing Butler v. Curry, 528 F.3d 624, 639 (9th Cir. 2008)). Petitioner 27 does not object to this finding. 28 / / / / /
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The Magistrate Judge next found that the trial judge's reliance on Petitioner's criminal

2 history to impose the upper terms did not violate Blakely and that the reliance on other 3 aggravating factors was harmless error. (R&R at 5-10.) Petitioner objects to these 4 recommendations. (Objections at 4-6.) 5 Under the Sixth Amendment, "[o]ther than the fact of a prior conviction, any fact that

6 increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to 7 a jury, and proved beyond a reasonable doubt." Blakely, 542 U.S. at 301, quoting Apprendi v. 8 New Jersey, 530 U.S. 466, 490 (2000). A fact of a prior conviction need not be proved to a jury 9 beyond a reasonable doubt. Almendarez-Torres v. United States, 523 U.S. 224, 244, 247 (1998). 10 The exception for prior convictions was recognized in Blakely and Cunningham. Blakely, 542 11 U.S. at 301; Cunningham, 549 U.S. at 288. In California, the existence of a single aggravating 12 circumstance, including a prior conviction, is sufficient to impose an upper term sentence. Black 13 II, 41 Cal. 4th at 813. Because the trial judge relied on Petitioner's prior convictions as an 14 aggravating factor, Petitioner's Sixth Amendment rights were not implicated to the extent the 15 sentence was based on his criminal record. (See R&R at 5-9.) 16 Petitioner objects on the ground that the prior criminal record exception established in

17 Almendarez-Torres is "flawed and questionable." (Objections at 4-6.) Although some Supreme 18 Court justices have indicated in dissenting opinions their disagreement with the applicability of 19 Almerndarez-Torres after Blakely, it has not been overruled and this court is bound to follow it. 20 See Butler, 528 F.3d at 643-44. Accordingly, Petitioner's objections in this regard are overruled. 21 The trial judge did not rely solely on Petitioner's prior convictions to set the upper terms

22 but also on the viciousness of the attacks, great threat of bodily harm and danger to society. (See 23 Lodgment No. 5 at 24-25.) Because these facts were not found by the jury beyond reasonable 24 doubt, reliance on them was a Blakely error. The Magistrate Judge found the error was harmless 25 because the upper terms could be imposed based on Petitioner's prior convictions alone, see 26 Butler, 528 F.3d at 642-43, and because, based on the record presented, a conscientious judge 27 was not left in "grave doubt" about the likely effect of the error, see Padilla v. Terhune, 309 F.3d 28 614, 621-22 99th Cir. 2002). (R&R at 8-10.)
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Petitioner objects to the harmless error finding because it is ultimately based on the

2 continued validity of the Almerndarez-Torres exception. (Objections at 6.) This objection is 3 rejected for the reasons stated above. 4 Last, the Magistrate Judge concluded that the Sixth Amendment was not implicated in the

5 imposition of consecutive terms. (R&R at 11-12.) Petitioner objects arguing that "even with 6 petitioner's prior convictions being considered by the trial judge, he would have not received 7 consecutive sentences had the trial judge not improperly considered the three additional 8 aggravating factors." (Objections at 7.) 9 Even if Petitioner's factual assertion is accurate, he does not cite any authority for the

10 proposition that the Sixth Amendment is implicated by the imposition of consecutive terms. The 11 court is aware of none. The Supreme Court has granted certiorari on the issue "[w]hether the 12 Sixth Amendment, as construed in [Apprendi and Blakely] requires that facts (other than prior 13 convictions) necessary to imposing consecutive sentences be found by the jury or admitted by 14 the defendant." Oregon v. Ice, 128 S. Ct. 1657. A decision has not yet issued. A finding that 15 the State court adjudication of Petitioner's claim "resulted in a decision that was contrary to, or 16 involved an unreasonable application of, clearly established Federal law, as determined by the 17 Supreme Court of the United States," see 28 U.S.C. § 2254(d)(1), is required to grant habeas 18 relief in this case. There was no "clearly established Federal law, as determined by the Supreme 19 Court of the United States" on the consecutive terms issue when it was decided by the State 20 court. Accordingly, habeas relief can not be granted on this claim. 21 For the foregoing reasons, the Report and Recommendation is ADOPTED, Petitioner's

22 objections are OVERRULED, and the Petition is DENIED. 23 24 25 DATED: January 5, 2009 26 27 28
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IT IS SO ORDERED.

M. James Lorenz United States District Court Judge

1 COPY TO: 2 HON. WILLIAM McCURINE, Jr. UNITED STATES MAGISTRATE JUDGE 3 ALL PARTIES/COUNSEL 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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