Opinion
No. C 00-2375 MMC (PR)
October 30, 2002
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Gregory C. Campbell ("petitioner"), a California prisoner, brought this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. Magistrate Judge James Larson, to whom the petition was originally assigned, conducted an initial review and found that the petition stated seven claims. Judge Larson dismissed four of these claims for failing to state a cognizable basis for relief and ordered respondent to show cause why the petition should not be granted on the basis of the three cognizable claims. After Judge Larson denied respondent's motion to dismiss the petition as untimely, respondent, who had not previously consented to the jurisdiction of a magistrate judge, requested reassignment to a district court judge. Thereafter, the case was reassigned to the undersigned, and respondent was again ordered to show cause why the petition should not be granted. After respondent filed another motion to dismiss, the Court found petitioner's claim that his sentence violated the Eighth Amendment prohibition of cruel and unusual punishment had not been exhausted under 28 U.S.C. § 2254(b)-(c). The Court dismissed the petition with leave to amend, and petitioner filed an amended petition with the unexhausted claim deleted. Respondent was again ordered to show cause why the petition should not be granted, and respondent filed an answer accompanied by a memorandum and exhibits, contending that the petition should be denied. Petitioner has filed a traverse.
BACKGROUND
On several different occasions between March and June 1995, petitioner, along with Mary Campbell and Michael Stevens ("Stevens"), drove a rented truck into a public storage facility in Sunnyvale, California, shortly before closing. Petitioner and Stevens would remain in the facility after closing; Mary Campbell would leave and stay at a nearby hotel. Petitioner and Stevens would then break into various storage units, taking property, which they would then load into the rented truck when Mary Campbell returned the next morning. On June 28, at about 9:30 p.m., police received a report of a burglary progress at the storage facility. Police found petitioner and Stevens rummaging through some of the storage units. Much of the property in the units had been removed. Petitioner and Stevens were arrested, and petitioner was found to have a loaded gun and two lines of methamphetamine on his person.
On November 14, 1995, petitioner was found guilty on his pleas of no contest to nine counts of second degree burglary, one count of possession of methamphetamine, three counts of possession of stolen property, one count each of possession of a firearm and possession of ammunition by a felon, and two enhancements for being armed with a firearm. The trial court also found that petitioner had a prior serious felony conviction under California Penal Code §§ 667(e)(1) and 1170.12(c)(1) (California's "three strikes" law). The California Court of Appeal and the Supreme Court of California denied petitioner's direct appeals and habeas petitions.
DISCUSSION
A. Standard of Review
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975).
A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's 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); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). In evaluating whether there has been a violation of § 2254(d)(1), the court should first review the state court decision for error de novo and then determine whether the decision was contrary to or an unreasonable application of controlling law. See Van Tran v. Lindsey, 212 F.3d 1143, 1155, 1159 (9th Cir. 2000). In addition, habeas relief is warranted only if the constitutional error at issue had a "`substantial and injurious effect or influence in determining the jury's verdict.'"Penry v. Johnson, 121 S.Ct. 1910, 1920 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)).
A determination of state law by a state appellate court is binding in a federal habeas action. See Hicks v. Feiock, 485 U.S. 624, 629 (1988). The state's highest court is the final authority on the law of that state.See Sandstrom v. Montana, 442 U.S. 510, 516-17 (1979). Even a determination of state law made by an intermediate appellate court must be followed and may not be "`disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise,'" Hicks, 485 U.S. at 630 n. 3 (quoting West v. American Telephone Telegraph Co., 311 U.S. 223, 237-38 (1940)), or if that interpretation appears to be an obvious subterfuge to evade consideration of a federal issue. See Mullaney v. Wilbur, 421 U.S. 684, 691 n. 11 (1975).
B. Legal Claims
1. Enhancement of Sentence
Petitioner claims that the use of a pre-1994 conviction to enhance his sentence under the "three strikes" law violates a state-created liberty interest protected by due process. According to petitioner, he has a liberty interest in receiving a sentence of no more than five years for his 1971 conviction. Petitioner argues that using the 1971 conviction to enhance his current sentence violated this liberty interest because it effectively increased his sentence beyond five years for the 1971 conviction. Petitioner's argument is premised on an incorrect assumption. The United States Supreme Court has held that an enhancement for a prior offense is not a penalty for the prior offense, but rather for the current offense. See Nichols v. United States, 511 U.S. 738, 747 (1994); McDonald v. Massachusetts, 180 U.S. 311, 312-13 (1901). Specifically, it is the repetitive nature of the current offense that the enhancement punishes. See id. In sum, the use of a prior conviction to enhance a sentence is not an "`additional penalty for the earlier crimes'" but "a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one." Monge v. California, 524 U.S. 721, 728 (1998) (quoting Gryger v. Burke, 334 U.S. 728, 732 (1948)). Consequently, the enhancement of petitioner's sentence is not punishment for his having committed the offense for which he was convicted in 1971, but rather for his commission of new offenses thereafter, in other words, recidivism. . . . Because petitioner is not being punished for his prior conviction, his sentence does not violate any protected liberty interest with respect to that conviction.
In his discussion of his first claim, petitioner also refers to the Ex Post Facto Clause. To the extent petitioner claims that the use of a pre-1994 conviction violates the Ex Post Facto Clause, such claim is without merit. The application of an enhancement based on a conviction that predates the passage of the enhancement statute is not a violation of the Ex Post Facto Clause. See McDonald v. Massachusetts, 180 U.S. 311, 312-13 (1901); Russell v. Gregoire, 124 F.3d 1079, 1088-89 (9th Cir. 1997); Fong v. United States, 287 F.2d 525, 526 (9th Cir. 1961); see also United States v. Kaluna, 192 F.3d 1188, 1193 (9th Cir. 1999) (en banc) (agreeing with other circuits that federal "three-strikes" statute does not violate Ex Post Facto Clause).
2. Breach of Plea Agreement
Petitioner claims that the use of his 1971 conviction to enhance his current sentence violates his right to due process because it breaches the plea agreement underlying that conviction. When a plea agreement rests to any significant extent on a promise or agreement of the prosecutor, so that it can be said to be a part of the inducement or consideration, such promise must be fulfilled. See Santobello v. New York, 404 U.S. 257, 262 (1971); Mabry v. Johnson, 467 U.S. 504, 509 (1984). Fundamental fairness of due process requires that promises made during plea bargaining and analogous contexts be respected. See Johnson v. Lumpkin, 769 F.2d 630, 633 (9th Cir. 1985). Petitioner argues that the prosecutor promised not to seek a sentence greater than that in the plea agreement and that the use of the 1971 conviction to enhance his sentence broke that promise. As discussed above, the enhancement does not alter or increase petitioner's punishment for 1971 conviction because such enhancement is not punishment for his prior offense but rather for his current one. Consequently, the enhancement of petitioner's current sentence does not beak any promises pertaining to the sentence on his prior conviction.
Petitioner also states that he had no knowledge at the time of his 1971 plea that it could later be used to enhance a sentence on a subsequent conviction. To the extent petitioner is asserting such circumstances rendered his earlier plea unconstitutional, he is wrong. While due process requires that a defendant be informed of all the direct consequences of a guilty plea, see Brady v. United States, 397 U.S. 742, 749 (1970); United States v. Neely, 38 F.3d 458, 461 (9th Cir. 1994), there is no violation of due process where a trial court fails to inform him or her of collateral consequences. See Torrey v. Estelle, 842 F.2d 234, 235 (9th Cir. 1988). Because the potential for enhancement in the future is a collateral consequence of the plea, due process did not require that petitioner be advised of the possibility that a future sentence for a future conviction could be enhanced. United States v. Garrett, 680 F.2d 64, 65-66 (9th Cir. 1982). Accordingly, the fact that petitioner pled guilty in 1971 without knowing that such conviction could later be used to enhance his sentence on a future conviction does not violate due process.
3. Eighth Amendment Claim
As set forth above, because the initial petition contained an unexhausted claim that petitioner's sentence violated the Eighth Amendment, that petition was dismissed as a "mixed" petition with leave to file an amended petition removing the unexhausted claim. The Ninth Circuit has since decided that it is error for a district court to dismiss a mixed petition without informing a pro se petitioner that he may request a stay of the petition while he exhausts his unexhausted claims. Ford v. Hubbard, No. 98-56455, slip op. 13341, 13359 (9th Cir. Sept. 6, 2002). Petitioner was not informed of the option of requesting a stay in this case. Because the Court concludes petitioner's Eighth Amendment claim has no merit, however, there is no need to stay the petition while he exhausts that claim. See 28 U.S.C. § 2254(b)(2) (providing district court may deny unexhausted petition on its merits).
Petitioner claims that the length of his sentence violates the Eighth Amendment guarantee against cruel and unusual punishment. A criminal sentence that is not proportionate to the crime for which the defendant was convicted violates the Eighth Amendment. See Solem v. Helm, 463 U.S. 277, 303 (1983). Outside of death penalty cases, the Eighth Amendment's proportionality principle is narrow, however; it forbids only extreme sentences that are "grossly disproportionate" to the crime.Harmelin v. Michigan, 501 U.S. 957, 997-1001 (1991); United States v. Andrade, 270 F.3d 743, 754 (9th Cir. 2001), cert. granted, 122 S.Ct. 1434 (2002). A challenge to the proportionality of a sentence should be analyzed using objective criteria, which include: (1) the gravity of the offense and harshness of the penalty; (2) a comparison of sentences imposed on other criminals in the same jurisdiction; and (3) a comparison of sentences imposed for the same crime in other jurisdictions. See id. at 290-92. A federal court first makes the threshold determination of whether a comparison of the severity of the penalty and the gravity of the offense creates an inference of gross disproportionality. Andrade, 270 F.3d at 758. If there is no such inference, the analysis ends with a conclusion that the Eighth Amendment has not been violated. See id. If however, there is an inference of gross disproportionality, the court proceeds to compare the sentence to sentences imposed for other crimes within and without the jurisdiction. See id.
Because no majority opinion emerged in Harmelin on the question of proportionality, Justice Kennedy's view — the Eighth Amendment forbids only extreme sentences that are grossly disproportionate to the crime — is considered the holding of the Court. See United States v. Bland, 961 F.2d 123, 128-29 (9th Cir.), cert. denied, 506 U.S. 858 (1992); see also United States v. Dubose, 146 F.3d 1141, 1146-47 (9th Cir. 1998) (stating that after Harmelin, Eighth Amendment forbids "at most" only sentences that are "grossly disproportionate").
Although petitioner' sentence of twenty-one years and eight months cannot be described as short, it is shorter than the sentences that have been found to be grossly disproportionate. Moreover, unlike those sentences, it is a determinate sentence under which there is no possibility of serving life in prison. Cf. Brown v. Mayle, 283 F.3d 1019 1037 (9th Cir. 2002) (finding sentences of 25-years-to-life for shoplifting with priors grossly disproportionate); Andrade, 270 F.3d at 761, 765-66 (finding sentence of 50-years-to-life for shoplifting with priors grossly disproportionate). More importantly, petitioner's convictions for nine burglary offenses, two firearms offenses and one drug offense are clearly more serious and more numerous than the offenses committed by petitioners whose sentences have been found to violate the Eighth Amendment. See Brown, 283 F.3d at 1037; Andrade, 270 F.3d at 765-66. In short, this is not one of the "exceedingly rare" noncapital sentences that is so disproportionate to the offense as to implicate the Eighth Amendment. See Solem, 463 U.S. at 289-90 ("[O]utside the context of capital punishment, successful challenges to the proportionality of particular sentences will be exceedingly rare.") (emphasis in original) (internal quotation and citation omitted); see, e.g., Rummel v. Estelle, 445 U.S. 263, 276 (1980) (upholding as constitutional life sentence for felony conviction of receiving $121 by false pretenses, with priors for credit card fraud in amount of $80 and forgery of $28 check). Accordingly, petitioner is not entitled to habeas relief on this claim.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. All pending motions are terminated. The clerk shall close the file.
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGE the petition for a writ of habeas corpus is DENIED. All pending motions are TERMINATED.