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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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 JOSE VALENCIA-HERNANDEZ, Petitioner, 9 10 v. CASE NO. C17-5353 BHS ORDER ADOPTING REPORT AND RECOMMENDATION MARGARET GILBERT, 11 Respondent. 12 13 This matter comes before the Court on the Report and Recommendation (“R&R”) 14 of the Honorable David W. Christel, United States Magistrate Judge (Dkt. 13), and 15 Petitioner’s objections to the R&R (Dkt. 14). The factual and procedural background of 16 this case are set forth in the R&R. On December 7, 2017, the R&R was filed. Dkt. 13. On 17 December 22, 2017, Petitioner filed his objections. Dkt. 14. 18 The district judge must determine de novo any part of the magistrate judge’s 19 disposition that has been properly objected to. The district judge may accept, reject, or 20 modify the recommended disposition; receive further evidence; or return the matter to the 21 magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). 22 ORDER - 1 1 Petitioner raises two objections to the R&R. First, Petitioner restates his position 2 that his sentence for unlawful possession of a firearm violated the double jeopardy clause 3 when it was “stacked” with a sentence for possession of a controlled substance with 4 intent to deliver that included a firearm enhancement. Dkt. 14 at 1–4. However, as 5 recently as 2013, the Ninth Circuit has held that it is “not clearly establish[ed] whether 6 sentencing enhancements must be considered as an element of an offense for purposes of 7 the Double Jeopardy Clause.” Smith v. Hedgpeth, 706 F.3d 1099, 1106 (9th Cir. 2013). 8 The Supreme Court has subsequently determined that “[a]ny fact that, by law, increases 9 the penalty for a crime is an ‘element’ that must be submitted to the jury and found 10 beyond a reasonable doubt.” Alleyne v. United States, 570 U.S. 99, 103 (2013). However, 11 despite this language, Alleyne was decided specifically in the context of the Sixth 12 Amendment right to a jury for enhancement charges that increase a mandatory minimum. 13 Therefore, the Ninth Circuit’s conclusion in Hedgpeth persists: it is not clearly 14 established law that a sentencing enhancement is considered an element of an offense for 15 the purposes of the Double Jeopardy Clause. Moreover, the Court is convinced by the 16 R&R’s reasoning that the Washington legislature plainly intended to allow the imposition 17 of a firearm enhancement for one crime and prosecution for the separate crime of 18 unlawful possession of a firearm. Accordingly, the state court’s decision was not 19 “contrary to, or an unreasonable application of, clearly established Federal law.” 20 Second, Defendant restates his position that the positioning of armed guards 21 nearby during his trial violated his right to due process. Dkt. 14 at 4–6. The Court 22 disagrees. Review of the video and photographs of Petitioner’s trial show that the State ORDER - 2 1 Court was not clearly erroneous in determining that there is no evidence that guards 2 “loomed over” or surrounded Petitioner during the proceedings. The Court cannot 3 conclude that the scene presented to the jurors was so inherently prejudicial as to pose an 4 unacceptable threat to Petitioner’s right to a fair trial. Williams v. Woodford, 384 F.3d 5 567, 588 (9th Cir. 2004). Further, Petitioner has failed to show actual prejudice. Id. 6 Finally, the Court declines to issue a certificate of appealability. “A certificate of 7 appealability may issue . . . only if the [petitioner] has made a substantial showing of the 8 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Court does not believe that 9 jurists of reason could disagree with the Court’s evaluation of Petitioner’s claims. Miller- 10 El v. Cockrell, 537 U.S. 322, 327 (2003). The claims do not present any particularly close 11 question. Accordingly, the claims do not merit encouragement to proceed any further. 12 13 The Court having considered the R&R, Plaintiff’s objections, and the remaining record, does hereby find and order as follows: 14 (1) The R&R is ADOPTED; and 15 (2) The petition is DISMISSED. 16 The Clerk shall enter a JUDGMENT and close the case. 17 Dated this 7th day of February, 2018. A 18 19 BENJAMIN H. SETTLE United States District Judge 20 21 22 ORDER - 3

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