Ballard v. Estelle, 90-55901

• Decision Date: 11 January 1991
• Docket Number: No. 90-55901,90-55901
• Parties: Edward Byron BALLARD, Petitioner-Appellant, v. Wayne ESTELLE, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 453

937 F.2d 453

Edward Byron BALLARD, Petitioner-Appellant, v. Wayne ESTELLE, Warden, Respondent-Appellee.

No. 90-55901.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 11, 1991. ^*

Decided June 26, 1991.

Edward Byron Ballard, pro se.

Donald F. Roeschke, Deputy Atty. Gen., Los Angeles, Cal., for respondent-appellee.

Appeal from the United States District Court for the Central District of California.

Before ALARCON, NORRIS and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

Edward Byron Ballard appeals the district court's dismissal of his habeas corpus petition on the merits. He is incarcerated in California for armed robbery and argues that the definition of "use of a firearm" used to enhance his sentence was broader

than the California sentencing laws require, thereby denying him due process. He also argues that even if the state court's definition of firearm use was the correct one, there was sufficient evidence of use, according to the definition, in only two of the 18 robbery counts. This court has jurisdiction under 28 U.S.C. Sec. 2253. We affirm.

BACKGROUND

Mr. Ballard was convicted of 18 counts of robbery, 3 counts of attempted robbery, and 1 count of assault with a deadly weapon. All counts stemmed from two bar robberies conducted with several accomplices on two different days. The jury found that Mr. Ballard had used a firearm in each count. Consequently, the judge enhanced his sentence once for each bar robbery under Cal.Penal Code Sec. 12022.5, ¹ and classified each count as a violent felony for sentencing purposes under Cal. Penal Code Sec. 667.5(c)(8). The judge imposed consecutive prison sentences for each count under Sec. 1170.1(a) for a total sentence of 26 years, 8 months. ²

The judgment was affirmed on appeal and habeas corpus petitions raising the instant arguments to the California Court of appeal and Supreme Court were denied. Mr. Ballard then filed a habeas petition with the U.S. District Court, Central District of California which was dismissed on the merits. Mr. Ballard appeals that dismissal to this court.

DISCUSSION

Denial of a petition for writ of habeas corpus is reviewed de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989).

I. Habeas Corpus Procedure

Contrary to appellant's suggestion, the magistrate and district court judge complied with the governing rules in the procedures they employed in this case. First, although an evidentiary hearing in a habeas corpus proceeding to determine facts is mandatory when certain procedural deficiencies occurred in the state court's fact-finding procedures, Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963); see also Norris, 878 F.2d at 1180; 28 U.S.C. Sec. 2254(d), appellant alleges no such deficiency here. Indeed, all participants in this action agree on the facts. The dispute involves a purely legal question: what is "personal use" of a firearm for sentence enhancement purposes Second, the relevant portions of the state court trial transcripts were lodged with the district court, see Ballard v. Estelle, No. CV 89-6264-RB, Notice of Lodging Documents (C.D.Cal. Feb. 5, 1990). As seen in his reports, the magistrate conducted the necessary review of the transcripts as required. See Lincoln v. Sunn, 807 F.2d 805, 808 (9th Cir.1987). In turn, the district court judge reviewed the findings and recommendations of the magistrate and the appellant's objections in making his determination. ⁴

                under Cal.Penal Code Sec. 12022.5? 3   Therefore, the decision of the magistrate and district court judge to forego an evidentiary hearing makes sense and was within their discretion
                

Finally, it was not improper for the magistrate to review the appellant's objections prior to the judge's review in order to correct any errors he might have made. If the magistrate had made any new findings or recommendations in his final report, the appellant's argument that he should have been given another opportunity to object might have some merit. As that was not the case here, no impropriety existed.

II. Applications of State Law are Cognizable in Habeas Proceedings

State laws may give rise to liberty interests protected by the Fourteenth Amendment. Board of Pardons v. Allen, 482 U.S. 369, 381, 107 S.Ct. 2415, 2422, 96 L.Ed.2d 303 (1987) (statute requiring defendant's release on parole when eligible and when reasonable probability that no harm will result creates a liberty interest); Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983); Hicks v. Oklahoma, 447 U.S. 343, 346, 100 S.Ct. 2227, 2229, 65 L.Ed.2d 175 (1980) (statute that vests sentencing discretion with the trier of fact creates a liberty interest). Misapplication of these laws that lead to deprivations of those liberty interests by state institutions may be reviewed in federal habeas corpus proceedings. See Wasko v. Vasquez, 820 F.2d 1090, 1091 n. 2 (9th Cir.1987) (liberty interest in accurate application of state sentencing laws reviewable in habeas proceedings). Mr. Ballard's claim that his sentence violated California sentencing laws because a different definition of "personal use" of a firearm was used than California has adopted in other cases sets forth a cognizable federal habeas corpus claim based on the due process clause of the Fourteenth Amendment.

III. Definition of "Use"

The appellant misstates California's requirements for finding "personal use" of a firearm for sentence enhancement purposes under Cal.Penal Code Sec. 12022.5. ⁵ The California Supreme Court discussed the difference between being armed and use of a firearm in People v. Chambers:

By employing the term "uses" instead of "while armed" the Legislature requires something more than merely being armed.... Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies. "Use" means 7 Cal.3d 666, 672, 102 Cal.Rptr. 776, 498 P.2d 1024 (1972), quoted in People v. Hays, 147 Cal.App.3d 534, 544, 195 Cal.Rptr. 252, 258 (1983). Further the court stated in People v. Wolcott that "[t]he menacing display of a firearm to intimidate a victim is sufficient to prove use of the firearm under section 12022.5...." 34 Cal.3d 92, 102, 192 Cal.Rptr. 748, 755, 665 P.2d 520 (1983). The generally approved California jury instruction applicable to Sec. 12022.5 provides that "[t]he term 'used a firearm,' as used in this instruction, means to display a firearm in a menacing manner, intentionally to fire it, or intentionally to strike or hit a human being with it." See People v. Cory, 157 Cal.App.3d 1094, 1103, 204 Cal.Rptr. 117, 122 (1984) (quoting CALJIC No. 17.19).

                among other things, "to carry out a purpose or action by means of" to "make instrumental to an end or process" and to "apply to advantage."    (Webster's New Internat.  Dict. (3d ed. 1961).)    The obvious legislative intent to deter the use of firearms in the commission of the specified felonies requires that "uses" be broadly construed
                

The undisputed facts of this case show that Mr. Ballard used his gun in a menacing manner to accomplish his purposes against at least some of the victims during the bar robberies. In Poor Richard's Bar in the course of enforcing his request that the patrons congregate in the women's bathroom, Mr. Ballard reacted to sudden moves by one patron, Mr. Volger, by raising his gun. In the Beaver Pond Bar, Mr. Ballard waved his gun at one of the patrons, Mr. Fox, who was attempting to leave, to prevent him from doing so. Obviously, Mr. Ballard intended his actions to have a forceful effect in accomplishing his felonious purposes. The evidence clearly fits within the definition of personal use used in the California Supreme Court cases discussed above.

The appellant attaches undue importance to the categorizations of California appeals courts applying the personal use standard. In Hays, the Fourth District Court of Appeals reviewed the 18 previous California cases addressing use enhancement and concluded that in all of these cases the defendant either aimed, cocked, fired, or displayed the gun in a menacing manner accompanied by words threatening a more violent use. 147 Cal.App. at 548, 195 Cal.Rptr. at 261. The case does not say that these are the only circumstances in which use can be found. The case merely holds that the fact that Mr. Hays carried a rifle slung across his chest, without more, was insufficient for a use enhancement. Id.

Two appeals court cases following Hays echoed the categories that emerge from the case histories but, again, not in order to fix those categories in stone. People v. Jacobs, 193 Cal.App.3d 375, 381, 238 Cal.Rptr. 278, 280-81, review denied, (1987) (defendant's words "I have a gun and don't want to use it" followed by cocking the gun in his pocket constituted "use"); People v. James, 208 Cal.App.3d 1155, 1163, 256 Cal.Rptr. 661, 664-65, review denied (1989) (lack of evidence that robbery victim knew defendant possessed a knife prohibited use enhancement). Both cases acknowledge a broader definition. In Jacobs, the court cites two cases in which use was found that are at least as mild as our case; in one, the defendant simply held a gun and yelled, "This is it. Everyone to the floor," and in the other, the defendant merely displayed the handle of a gun strapped to his waist and said he did not want to use it. See Jacobs, 193 Cal.App.3d at 381 n. 2, 238 Cal.Rptr. 278. In James, the court cites the broad definition of use in the California model jury instructions. See James, 208 Cal.App.3d at 1163 n. 4, 256 Cal.Rptr. 661. Appellant's argument that the definition of use is limited to the pattern of past cases outlined in Hays contradicts California Supreme Court instructions, misconstrues the appeals court decisions, and is...