528 F.3d 624 (9th Cir. 2008), 07-56204, Butler v. Curry

Docket Nº:07-56204.
Citation:528 F.3d 624
Party Name:Frank BUTLER, Petitioner-Appellee, v. Ben CURRY, Respondent-Appellant.
Case Date:June 09, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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528 F.3d 624 (9th Cir. 2008)

Frank BUTLER, Petitioner-Appellee,


Ben CURRY, Respondent-Appellant.

No. 07-56204.

United States Court of Appeals, Ninth Circuit.

June 9, 2008

Argued and Submitted Feb. 4, 2008.

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Davina T. Chen , Deputy Federal Public Defender, Los Angeles, CA, for the petitioner.

William H. Shin , Deputy Attorney General, Los Angeles, CA, for the respondent.

Appeal from the United States District Court for the Central District of California; Honorable James V. Selna , District Judge, Presiding. D.C. No. CV-06-07576-JVS(RNB).


BERZON , Circuit Judge:

Frank Butler alleged in his petition for writ of habeas corpus that his Sixth Amendment rights were violated when the California state trial court imposed an “upper term" sentence based on two aggravating factors not proved to a jury beyond a reasonable doubt. The district court, relying on Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) , agreed, and granted the writ. The State contends that Cunningham, which struck down California's determinate sentencing law (“DSL" ), announced a “new rule" that cannot be applied on collateral review. In the alternative, the State maintains that the requirements for habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA" ) have not been met, and that, even if they were, there was no constitutional violation.

We conclude that the result in Cunningham was clearly dictated by the Supreme Court's Sixth Amendment case law, in particular by Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) , decided before Butler's conviction became final. The state court decision in Butler's case was contrary to this clearly established law. Further, Butler's constitutional rights were violated when the statutory maximum for his crime was increased

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on the basis of facts found by a judge by a preponderance of the evidence, rather than admitted or found by a jury beyond a reasonable doubt. We cannot, however, determine whether this violation was harmless in the absence of further factfinding about what evidence was presented to the state trial court judge in support of the allegation that Butler was on probation at the time of his crime. For that reason, we remand to the district court for an evidentiary hearing.

I. Background.

A. Trial.

Frank Butler was tried in California state court for an assault on his former wife, Daria Butler. At trial, the Butlers provided conflicting accounts of the assault. The judge's finding with regard to one of the aggravating factors turned, to some degree, on whose story was believed.


Daria testified:

She and Butler married in 1989 and had two children together, Barbara and Laquan, prior to their divorce in 1993. Her fights with Butler had been physical in the past, and she had hit him on more than one occasion. Daria had obtained at least three restraining orders against Butler, and she and Butler had repeatedly ended their relationship. In the summer of 2000, they reconciled once again, and Daria drove to St. Louis to pick up Butler and bring him back to California. Several months after Butler's return to California, Daria and Butler separated once more, and Daria obtained a restraining order against Butler, still in place at the time of the June 28, 2001 incident. The Butlers reconciled yet again in January or February of 2001 and were living together, with their two children, at the time of the assault.

In 1977, Daria was in an abusive relationship with a different boyfriend. She obtained a gun and asked her boyfriend to meet her in an alley, where she shot and seriously injured him. At that time, she “didn't have any knowledge of shelters or restraining orders or anything."

On the evening of June 28, 2001, Daria and Butler had a dispute about a letter she had received from another ex-husband asking for help. Butler left the room; Daria “could tell that he was kind of getting upset." Later in the evening, Daria tried to talk with Butler in their bedroom, but he left the room, slamming the door behind him. Daria decided to sleep in the downstairs office, but soon after she had gotten into bed downstairs, Butler entered the office and began yelling at her about her ex-husband. He then turned and left the room.

Soon thereafter, Daria decided to return to the bedroom, and Butler followed her there, “cursing and screaming" at her. Daria retrieved Butler's suitcase from the bedroom closet; as she turned and placed it on the bed, she felt a blow to the back of her head and “the blows kept coming." At some point during the attack, Daria realized that she was being hit with an iron. The attack left “blood spattered all across the room for several feet on the walls, the door," and the fan.

Daria began screaming for her children. Laquan testified that when he responded to his mother's screams, he found his mother on the floor of the bedroom crying and “bleeding in the back of her head." The police arrived shortly thereafter, and Daria was taken to the hospital, where she received six to eight staples in the back of her head. Deputy Calvo, the sheriff's deputy assigned to investigate the case, confirmed that when he arrived at the scene he found a shattered iron.


Butler testified:

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Daria was the one who had instigated physical confrontations in their relationship, attacking and slapping him during marriage counseling sessions, and throwing things at him during arguments. At one point several months before the incident in question, Daria bit him on the chest after an argument.

After Daria told him about the letter from her ex-husband, he responded that she should tell her ex-husband that she could not help him because she was with Butler now. Daria became visibly angry. Butler attempted several times throughout the evening to speak with her, but she refused to have a conversation with him. After his final attempt to speak with her in the downstairs office, he concluded that it was better if he simply left, so he went upstairs to pack. Daria followed him upstairs to the bedroom, and he saw that she had a knife in her left hand. She came at him with the knife, and he grabbed the iron from his closet and hit her with it until she dropped the knife. Laquan, Barbara, and Deputy Calvo all testified that they did not see a knife in the bedroom after the attack.


The jury found Butler guilty of corporal injury to a spouse (Cal.Penal Code § 273.5 (a) (2001)) 1 and assault with a deadly weapon or by means of force likely to produce great bodily injury (Cal.Penal Code § 245 (a)(1) (2000)).2 The jury also found as “enhancements" that Butler used a deadly and dangerous weapon and that he inflicted great bodily injury during the commission of the crime. See Cal.Penal Code §§ 12022 (b)(1) (2003),3 12022.7 (a) (2003).4

B. Sentencing.

Under California's DSL as it existed at the time Butler was sentenced, “[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime." 5 Cal.Penal Code § 1170 (b)

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(2005). The California Rules of Court (“Rules" ) effective at the time of Butler's sentencing 6 also provided that “[t]he middle term must be selected unless imposition of the upper or lower term is justified by circumstances in aggravation or mitigation." Cal. R. Ct. 4.420(a) (1977) . Under the Rules, “[c]ircumstances in aggravation and mitigation must be established by a preponderance of the evidence," and “[s]election of the upper term is justified only if, after a consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation." Rule 4.420(b) . The Rules also specify a non-exhaustive list of aggravating and mitigating factors, including factors relating to the crime and factors relating to the defendant. See Cal. R. Ct. 4.421 , 4.423 . Both the crimes of which Butler was convicted specify three possible terms, so his sentencing was governed by section 1170 (b). See Cal.Penal Code §§ 273.5 (a), 245 (a)(1).

At Butler's sentencing, the court indicated that it had “read and considered the probation report in this case." The court then found that although Butler had one prior misdemeanor offense, his lack of a significant prior record was a factor in mitigation. The court noted that “on the other side of the coin are factors in aggravation" : “the vulnerability of the victim with her back turned to the defendant when she was attacked from behind" and “the fact that [Butler] was on probation at the time the crime was committed."

Butler's counsel objected to the use of Butler's probationary status as an aggravating factor, arguing that “there is no indication that he was noncompliant except for this." The court rejected this argument, and went on to conclude that the aggravating factors “outweigh the factor in mitigation." Based on these findings, the court imposed the upper term of four years in state prison for corporal injury to a spouse. The court then also imposed sentences of one year and three years, respectively, for the use of a deadly weapon and the infliction of serious bodily injury enhancements, for a total of eight years in state prison. On count two, assault with a deadly weapon, the court imposed the middle term of three...

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