Valencia-Hernandez v. Gilbert

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION by Judge Benjamin H. Settle re 14 Objections to Report and Recommendation filed by Jose Valencia-Hernandez. **3 PAGE(S), PRINT ALL**(Jose Valencia-Hernandez, Prisoner ID: 301220)(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JOSE VALENCIA-HERNANDEZ,
Petitioner,

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v.

CASE NO. C17-5353 BHS
ORDER ADOPTING REPORT
AND RECOMMENDATION

MARGARET GILBERT,

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Respondent.

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This matter comes before the Court on the Report and Recommendation (“R&R”)

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of the Honorable David W. Christel, United States Magistrate Judge (Dkt. 13), and

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Petitioner’s objections to the R&R (Dkt. 14). The factual and procedural background of

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this case are set forth in the R&R. On December 7, 2017, the R&R was filed. Dkt. 13. On

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December 22, 2017, Petitioner filed his objections. Dkt. 14.

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The district judge must determine de novo any part of the magistrate judge’s

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disposition that has been properly objected to. The district judge may accept, reject, or

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modify the recommended disposition; receive further evidence; or return the matter to the

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magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).

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ORDER - 1

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Petitioner raises two objections to the R&R. First, Petitioner restates his position

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that his sentence for unlawful possession of a firearm violated the double jeopardy clause

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when it was “stacked” with a sentence for possession of a controlled substance with

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intent to deliver that included a firearm enhancement. Dkt. 14 at 1–4. However, as

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recently as 2013, the Ninth Circuit has held that it is “not clearly establish[ed] whether

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sentencing enhancements must be considered as an element of an offense for purposes of

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the Double Jeopardy Clause.” Smith v. Hedgpeth, 706 F.3d 1099, 1106 (9th Cir. 2013).

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The Supreme Court has subsequently determined that “[a]ny fact that, by law, increases

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the penalty for a crime is an ‘element’ that must be submitted to the jury and found

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beyond a reasonable doubt.” Alleyne v. United States, 570 U.S. 99, 103 (2013). However,

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despite this language, Alleyne was decided specifically in the context of the Sixth

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Amendment right to a jury for enhancement charges that increase a mandatory minimum.

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Therefore, the Ninth Circuit’s conclusion in Hedgpeth persists: it is not clearly

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established law that a sentencing enhancement is considered an element of an offense for

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the purposes of the Double Jeopardy Clause. Moreover, the Court is convinced by the

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R&R’s reasoning that the Washington legislature plainly intended to allow the imposition

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of a firearm enhancement for one crime and prosecution for the separate crime of

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unlawful possession of a firearm. Accordingly, the state court’s decision was not

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“contrary to, or an unreasonable application of, clearly established Federal law.”

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Second, Defendant restates his position that the positioning of armed guards

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nearby during his trial violated his right to due process. Dkt. 14 at 4–6. The Court

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disagrees. Review of the video and photographs of Petitioner’s trial show that the State

ORDER - 2

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Court was not clearly erroneous in determining that there is no evidence that guards

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“loomed over” or surrounded Petitioner during the proceedings. The Court cannot

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conclude that the scene presented to the jurors was so inherently prejudicial as to pose an

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unacceptable threat to Petitioner’s right to a fair trial. Williams v. Woodford, 384 F.3d

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567, 588 (9th Cir. 2004). Further, Petitioner has failed to show actual prejudice. Id.

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Finally, the Court declines to issue a certificate of appealability. “A certificate of

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appealability may issue . . . only if the [petitioner] has made a substantial showing of the

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denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Court does not believe that

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jurists of reason could disagree with the Court’s evaluation of Petitioner’s claims. Miller-

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El v. Cockrell, 537 U.S. 322, 327 (2003). The claims do not present any particularly close

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question. Accordingly, the claims do not merit encouragement to proceed any further.

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The Court having considered the R&R, Plaintiff’s objections, and the remaining
record, does hereby find and order as follows:

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(1)

The R&R is ADOPTED; and

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(2)

The petition is DISMISSED.

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The Clerk shall enter a JUDGMENT and close the case.

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Dated this 7th day of February, 2018.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 3