Opinion
22-1504-FMO(E)
05-25-2022
DESMOND ROMELL PRYER, Petitioner, v. THERESA CISNEROS, Warden, Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Fernando M. Olguin, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
On March 3, 2022, Petitioner filed a “Petition for Writ of Habeas Corpus By a Person in State Custody” (“Pet.”), accompanied by “Petitioner's Opening Brief” and Exhibits. The sole claim in the Petition is a claim that the state sentencing court's use of Petitioner's prior juvenile adjudication as a “strike” within the meaning of California's Three Strikes Law allegedly violated Petitioner's Sixth Amendment right to a jury trial under Apprendi v. New Jersey, 530 U.S. 466 (2000) (“Apprendi”) (Pet., p. 5 & Ex. 3).
The Three Strikes Law consists of two nearly identical statutory schemes. The earlier provision, enacted by the Legislature, was passed as an urgency measure, and is codified as California Penal Code §§ 667(b) - (i) (eff. Mar. 7, 1994). The later provision, an initiative statute, is embodied in California Penal Code § 1170.12 (eff. Nov. 9, 1994). See generally People v. Superior Court (Romero), 13 Cal.4th 497, 504-05, 53 Cal.Rptr.2d 789, 917 P.2d 628 (1996). The Amended Information charged Petitioner under both statutes (Respondent's Lodgment 1 at 56).
Respondent filed an Answer on March 30, 2022. Petitioner filed a Reply on May 17, 2022.
BACKGROUND
In 2017, a jury found Petitioner guilty of: (1) forcible oral copulation in violation of California Penal Code section 288a(c)(2)(A) (Count 1); (2) assault by means likely to produce great bodily injury in violation of California Penal Code section 245(a)(4) (Count 2); (3) false imprisonment by violence in violation of California Penal Code section 236 (Count 3); (4) attempting to dissuade a witness within the meaning of California Penal Code section 136.1(a)(2) (Count 4); and (5) injuring a spouse, cohabitant, fiancé or girlfriend in violation of California Penal Code section 273.5(a) (Count 5) (Respondent's Lodgment 2, Reporter's Transcript [“2017 R.T.”] 1553-55; Respondent's Lodgment 1, Clerk's Transcript [“2017 C.T.”] 84-88, 111-12). The jury also found true the allegations that, in the commission of the crimes charged in Count 2 and 5, Petitioner personally inflicted great bodily injury on the victim within the meaning of California Penal Code section 12022.7(e) (2017 R.T. 1553-55; 2017 C.T. 85, 99, 112).
Petitioner waived his option to have the jury determine the truth of allegations that Petitioner had suffered: (1) a prior juvenile adjudication for robbery qualifying both as a strike within the meaning of the Three Strikes Law and as a serious felony conviction within the meaning of California Penal Code section 667(a); and (2) a prior conviction for which Petitioner served a prison term within the meaning of California Penal Code section 667.5(b) (see 2017 R.T. 1255-59; 2017 C.T. 79). The court found that these allegations were true (Respondent's Lodgment 9, pp. 2, 6 & n.4; see People v. Pryer, 2018 WL 6039906, at *1 (Cal.App. Nov. 19, 2018).
According to the California Court of Appeal, although the trial court did not make an explicit finding that the prior conviction allegations were true, at sentencing the court “impliedly found the priors to be true by its imposition of the enhancements on the express basis of the alleged priors” (Respondent's Lodgment 9, p. 6 n.4; see People v. Pryer, 2018 WL 6039906, at *2 n.4 (citations omitted); see also 2017 R.T. 2706-09, 2711-13; 2017 C.T. 262-66, 268-69). “The [sentencing] court's subsequent doubling of each term similarly reflects its finding true Pryer's juvenile prior adjudication” (Respondent's Lodgment 9, p. 6 n.4; see People v. Pryer, 2018 WL 6039906, at *2 n.4; see also 2017 R.T. 2711-13; 2017 C.T. 263-66; 269-69). In the present proceeding, neither Petitioner nor Respondent disputes that the trial court found true the allegation that Petitioner had suffered a prior juvenile robbery adjudication qualifying as a strike.
The court imposed the following sentence: (1) on Count 1, six years, doubled pursuant to the “one strike” provision of the Three Strikes Law, plus an additional five years on the section 667(a) enhancement, for a total of seventeen years; (2) on Count 2, one year, doubled to two years under the Three Strikes Law, plus five years on the section 667(a) enhancement, plus twenty months on the great bodily injury enhancement, for a total consecutive term of eight years and eight months; (3) on Count 3, eight months, doubled under the Three Strikes Law, for a total consecutive term of sixteen months; (4) on Count 4, eight months, doubled under the Three Strikes Law, plus five years on the section 667(a) enhancement, for a total consecutive term of six years and four months; and (5) on Count 5, four years, doubled under the Three Strikes Law and stayed (2017 R.T. 2711-13; 2017 C.T. 262-66). The court also stayed the section 667.5(b) prior prison term enhancement (2017 R.T. 2713; 2017 C.T. 264). Thus, Petitioner received a total sentence of thirty-three years and four months.
On direct appeal, the California Court of Appeal rejected Petitioner's Apprendi challenge to the use of his prior juvenile adjudication as a strike, but also ruled that the evidence failed to support Petitioner's conviction for dissuading a witness (Count 4) and that the sentencing court committed various other errors (Respondent's Lodgment 9; see People v. Pryer, 2018 WL 6039906 (Cal.App. Nov. 19, 2018). The Court of Appeal remanded the case for resentencing, directing the Superior Court to: (1) vacate the five-year section 667(a) enhancements; (2) exercise its discretion whether to impose the section 667.5(b) prior prison term enhancement; (3) strike, or impose and stay, the great bodily injury enhancement on Count 5; and (4) modify Petitioner's prejudgment custody credits. Id. The California Supreme Court summarily denied Petitioner's ensuing petition for review on January 23, 2019 (Pet., Ex. 1; Respondent's Lodgment 11).
On remand, the Superior Court imposed the following sentence: (1) on Count 1, eight years, doubled to sixteen years; (2) on Count 2, one year, doubled to two years, plus 20 months on the section 12022.7(e) enhancement, for a total term of three years and eight months; (3) on Count 3, eight months, doubled to sixteen months, for a total term of one year and four months; and (4) on Count 5, a stayed term (Respondent's Lodgment 14, Reporter's Transcript of Proceedings on April 17 and June 5, 2019 [“2019 R.T.”] 302-06; Respondent's Lodgment 13, Clerk's Transcript 50-51). The court struck the section 667.5(b) prior prison term enhancement (2019 R.T. 303, 306). Thus, on resentencing, Petitioner received a total sentence of twenty-one years.
On direct appeal from the resentencing, the California Court of Appeal affirmed (Respondent's Lodgment 18; see People v. Pryer, 2020 WL 6018526 (Cal.App. Oct. 9, 2020)). Based on the doctrine of law of the case, the Court of Appeal again rejected Petitioner's challenge to the use of the prior juvenile adjudication as a strike (id.). The California Supreme Court summarily denied Petitioner's ensuing petition for review on December 16, 2020 (Respondent's Lodgment 20).
STANDARD OF REVIEW
Under the “Antiterrorism and Effective Death Penalty Act of 1996" (“AEDPA”), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
“Clearly established Federal law” refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 565 U.S. 34, 38 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is “contrary to” clearly established federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it “confronts a set of facts . . . materially indistinguishable” from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the “unreasonable application” prong of section 2254(d)(1), a federal court may grant habeas relief “based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced.” Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision “involves an unreasonable application” of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).
“In order for a federal court to find a state court's application of [Supreme Court] precedent ‘unreasonable,' the state court's decision must have been more than incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). “The state court's application must have been ‘objectively unreasonable.'” Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). “Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Harrington v. Richter, 562 U.S. 86, 101 (2011). This is “the only question that matters under § 2254(d)(1).” Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless “there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents.” Id. “As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.
In applying these standards, the Court looks to the last reasoned state court decision, here the decision of the California Court of Appeal. See Wilson v. Sellers, 138 S.Ct. 1188, 1193-97 (2018) (endorsing presumption that unexplained decision of state higher court adopted the reasoning of the last reasoned state court decision); see Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008).
DISCUSSION
In Apprendi, the United States Supreme Court held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490 (emphasis added). Plainly, Apprendi does not affect the use of prior adult convictions in sentencing. See United States v. Delaney, 427 F.3d 1224, 1226 (9th Cir. 2005) (“The Supreme Court has made clear that the fact of a prior conviction need not be proved to a jury beyond a reasonable doubt or admitted by the defendant to satisfy the Sixth Amendment.”) (citation omitted); United States v. Martin, 278 F.3d 988, 1006 (9th Cir. 2002) (“Apprendi expressly excludes recidivism from its scope. Defendant's criminal history need not be proved to a jury beyond a reasonable doubt.”) (citations omitted).
As indicated above, Petitioner claims that the use of his prior juvenile adjudication as a strike violated the Sixth Amendment. The California Court of Appeal rejected this claim on two grounds: (1) Petitioner had waived his right to a jury trial on the prior conviction allegation; and (2) in accordance with state court decisions construing Apprendi, the use of the prior juvenile adjudication as a strike did not violate the Sixth Amendment (Respondent's Lodgment 9, pp. 8-13; see People v. Pryer, 2018 WL 6039906, at *3-5 (citing, inter alia, People v. Nguyen, 46 Cal.4th 1007, 1028, 95 Cal.Rptr.3d 615, 209 P.3d 946 (2009), cert. denied, 559 U.S. 1067 (2010)) (“the absence of a constitutional or statutory right to jury trial under the juvenile law does not, under Apprendi, preclude the use of a prior juvenile adjudication of criminal misconduct to enhance the maximum sentence for a subsequent adult felony offense by the same person.”)).
The Court of Appeal's rejection of Petitioner's claim was not unreasonable. First, to the extent Petitioner contends that the sentencing court improperly engaged in factfinding with respect to the prior juvenile adjudication, Petitioner waived this contention by expressly relinquishing his option of a jury trial on the prior adjudication allegation (see 2017 R.T. 1257-59; 2017 C.T. 79). See Blakely v. Washington, 542 U.S. 296, 310 (2004) (“[N]othing prevents a defendant from waiving his Apprendi rights. When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding.”) (citations omitted); Bird v. Brown, 338 Fed. App'x 573, 575 (9th Cir. 2009) (“Because Bird consented to judicial factfinding as to [his] sentence enhancements, he waived his Apprendi claim.”) (citation, quotations and some brackets omitted).
Second, Petitioner has failed to demonstrate that the Court of Appeal's rejection of Petitioner's claim was contrary to, or an unreasonable application of, any “clearly established” Supreme Court law within the meaning of the AEDPA standard of review. In United States v. Tighe, 266 F.3d 1187, 1194-95 (9th Cir. 2001) (“Tighe”), a federal criminal case, the Ninth Circuit held that the prior conviction exception to Apprendi did not extend to nonjury juvenile adjudications. However, in Boyd v. Newland, 467 F.3d 1139, 1152 (9th Cir. 2006), cert. denied, 550 U.S. 933 (2007) (“Boyd”), the Ninth Circuit held that Tighe “does not represent clearly established federal law ‘as determined by the Supreme Court of the United States'” within the meaning of 28 U.S.C. section 2254(d)(1). The Boyd Court noted that California courts and several other circuits have disagreed with Tighe. Boyd, 467 F.3d at 1152 (citing cases); see also People v. Nguyen, 46 Cal.4th at 1021-28 (observing that the “overwhelming majority of federal decisions and cases from other states” have held that nonjury juvenile adjudications may be used to enhance later adult sentences, and that the United States Supreme Court “has declined numerous opportunities to decide otherwise”) (footnote omitted).
There is simply no “clearly established” Supreme Court law holding that Apprendi (or the Sixth Amendment) prohibits a sentencing court from using a prior nonjury juvenile adjudication to increase a sentence. See John-Charles v. California, 646 F.3d 1243, 1252-53 (9th Cir.), cert. denied, 565 U.S. 1097 (2011) (“we are bound by Boyd, and we therefore conclude that the California court neither contravened nor unreasonably applied clearly established Supreme Court precedent when it upheld the trial court's use of John-Charles's juvenile conviction as a strike that extended his term of imprisonment”); see also Barno v. Neotti, 569 Fed. App'x 543, 544 (9th Cir.), cert. denied, 574 U.S. 867 (2014) (under Boyd and Jean-Charles v. California, “the California Court of Appeal's determination that Barno's Sixth Amendment rights were not violated by the trial court's enhancement of his sentence beyond the statutory maximum based on his juvenile adjudications was not contrary to clearly established federal law”); Solorzano v. Yates, 264 Fed. App'x 576, 577 (9th Cir. 2008) (use of petitioner's prior nonjury juvenile adjudications to enhance his sentence was not contrary to, or an unreasonable application of, clearly established Supreme Court law); Parvin v. Robertson, 2019 WL 2598101, at *7 (E.D. Cal. June 25, 2019), adopted, 2019 WL 4073390 (E.D. Cal. Aug. 29, 2019) (“Because the Supreme Court has never specifically excluded juvenile convictions from the ‘prior conviction' exception to Apprendi, the state courts' determination that juvenile convictions may count as a strike under California's Three Strikes Law does not violate clearly established federal law.”).
Accordingly, under the standard of review set forth in 28 U.S.C. section 2254(d)(1), Petitioner is not entitled to federal habeas relief.
RECOMMENDATION
For the reasons discussed herein, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) directing that judgment be entered denying and dismissing the Petition with prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.
FERNANDO M. OLGUIN UNITED STATES DISTRICT JUDGE
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner and counsel for Respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.
JUDGMENT
Pursuant to the Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge, IT IS ADJUDGED that the Petition is denied and dismissed with prejudice.