Sullivan v. Evans
| Decision Date | 24 November 2010 |
| Docket Number | No. CIV S-09-1326 DAD P,CIV S-09-1326 DAD P |
| Parties | EDWARD P. SULLIVAN, Petitioner, v. EVANS, Respondent. |
| Court | U.S. District Court — Eastern District of California |
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2006 judgment of conviction and sentence entered in the Butte County Superior Court on six counts of second degree robbery. Petitioner is serving a state prison sentence of ten years. He seeks relief on the ground that the trial court violated his Sixth Amendment right to a jury trial by sentencing him to an aggravated consecutive term of imprisonment based on facts that he neither admitted in entering his no contest pleas pursuant to a plea bargain nor were found to be true by a jury. Upon careful consideration of the record and the applicable law, the undersigned concludes that petitioner's application for habeas corpus relief must be denied.
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction, the California Court of Appeal for the Third Appellate District provided the following factual summary which is supported by the record before this court1:
Following an apparent crime spree he claims to have undertaken to pay a drug debt, defendant Edward Paul Sullivan entered a negotiated no contest plea to six counts of second degree robbery. (Pen. Code, § 211.) According to the probation report, defendant used an air pistol to threaten the victims into giving up cash.
Defendant was sentenced to a state prison term of 10 years, comprised of the upper term of five years on count 1, plus consecutive one-year terms (one-third the midterm) for each of the remaining five counts.
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When pleading no contest, defendant made three stipulations which resolve the issues raised in this appeal. First, defendant stipulated: "[T]here is a factual basis for my plea(s) [and admission(s)] and I further stipulate the court may take facts from probation reports, police reports or other sources as deemed necessary to establish the factual basis." Second, he stipulated that "the matter of probation and sentence is to be determined solely by the superior court judge" and, finally, he stipulated by Harvey waiver that "the sentencing judge may consider my prior criminal history and the entire factual background of the case, including any unfiled, dismissed or stricken charges or allegations or cases when granting probation, ordering restitution or imposing sentence." Defendant also acknowledged on the plea form that the court could sentence him to a maximum aggravated term of 10 years, and could impose consecutive sentences.
The probation report summarized the facts of the case. On August 10, 2005, defendant robbed a check cashing store of $844. [FN1]
FN1. All figures are approximate.
He brandished a firearm before demanding money and he tied one of the two female employees to a chair. The women suspected the gun could have been a "fake" but were not sure.
Three months later, defendant robbed a Safeway gas station after grabbing a pistol concealed in his waistband and exposing the weapon to the clerk. The clerk believed the gun was authentic and gave defendant $400.
On November 12, defendant robbed the Safeway gas station again: he brandished a handgun at the checkout counter and demanded that the clerk give him all the money from the cash till and from under the register drawer. Both the clerk and two boys who hid in the store during the robbery believed the gun was authentic and described it to police.
On November 17, defendant robbed a credit union of between $3,900 and $5,000 after he pointed a gun at a teller and demanded money. Defendant ordered one of the other employees to lie on the ground. All of the employees believed the gun was real.
On December 23, defendant robbed a second credit union of $140 from a deposit envelope after he pointed a handgun at a female employee working at a desk and demanded money. She was " 'scared to look at the handgun' " and, afterward, he ordered her to lie on the floor.
Finally, on December 29, defendant robbed the Safeway gas station a third time. The clerk told police a man (later identified as defendant) pointed a handgun at him, demanded all the money in the cash register and, when the clerk failed to hand him the money fast enough, started removing bills from the drawer himself.
Although he initially told police an acquaintance committed the robberies, after his arrest defendant admitted that he had committed all the robberies, and the weapon he used proved to be a black air pistol. In a statement contained in the probation report, defendant said he used a "BB gun" in the robberies, and was under the influence of Oxycontin during each crime. He wore a stocking mask and in each of the robberies he waited until there were no customers in the business before entering. He committed the robberies because he owed over $9,700 to the supplier of the Oxycontin pills defendant sold. He committed the last robbery because he "was '$300 short' " on his drug debt, and stopped when the debt had been fully paid.
At sentencing, the trial court ruled that the upper term was justified because the crime Defendant has no prior felony convictions and hiscriminal history played no part in the court's stated sentencing choices.
(Resp't's Lod. Doc. 3 (hereinafter, "Opinon") at 1-5.)
As noted by the state appellate court, in the plea form filed with the trial court petitioner entered into the following notable stipulations:
4. I stipulate there is a factual basis for my plea(s) [and admissions] and I further stipulate the court may take facts from probation reports, police reports or other sources as deemed necessary to establish the factual basis.
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I understand that I have the following constitutional rights, which I now give up in order to plead guilty or no contest:... 12. the right to be tried by a jury in a speedy public trial.
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17. I understand that I may serve this maximum sentence as a result of my plea: 10 yrs in state prison[.]
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19. My attorney has explained to me that other possible consequences of my plea(s)... may be...: (a) consecutive sentences[.]
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28. I do understand that the matter of probation and sentence is to be determined solely by the superior court judge.
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29. (Harvey Waiver2) I stipulate that the sentencing judge may consider my prior criminal history and the entire factual background of the case, including any unfiled, dismissed or stricken charges or allegations or cases when granting probation, ordering restitution or imposing sentence.
(CT at 24-27.) At the time of his entry of plea on April 20, 2006, petitioner again affirmed in open court that he understood that he had a right to a jury trial and that he was waiving that right, as well as all the other rights described in the plea form he had executed. (Reporter's Transcript on Appeal (hereinafter, "RT") at 1-2.)
At petitioner's sentencing hearing on June 14, 2006, the trial judge explained the court's basis for imposing a sentence of the five-year upper term plus five consecutive one-year terms as follows:
As to the principal term the Court is imposing the upper term. The Court finds that to be the appropriate term because circumstances in aggravation outweigh those in mitigation as indicated by the following circumstances which the Court finds to have been proven by a preponderance of the evidence under California Rule of Court 4.421.
The crime involved the threat of great bodily injury. The defendant was armed with a weapon, the crime was premeditated and the crime involved violence indicating the defendant is dangerous. No circumstances in mitigation are noted.
Therefore, with respect to the principal term, count one, defendant is sentenced to the [D]epartment of [C]orrections for the upper term of five years. For each of the additional counts,... 2, 3, 4, 5, and 6, the defendant on each one of those counts is sentenced to a consecutive and subordinate term of one year which is one third the middle term on each of those counts.
The consecutive order is due to the following circumstances. The crimes and their objectives were predominately independent of each other. They involved separate acts of violence or threats of violence and they were committed different times or places rather than being committed so closely in time and or place as to indicate a single period of aberrant behavior. Therefore, the defendant is sentenced to the [D]epartment of [C]orrections for the total term of ten years.
(RT at 11-12.)
On October, 24, 2007, the California Court of Appeal affirmed petitioner's judgment of conviction in a reasoned opinion. (Id. at 5-8.) On September 18, 2008, petitioner filed a petition for writ of habeas corpus with the California Supreme Court. (Resp't's Lod. Doc. 1.) That court denied the petition on March 11, 2009. (Resp't's Lod. Doc. 2.)
On May 13, 2009, petitioner filed the instant federal habeas petition. (Doc. No. 1.) Respondent filed a motion to dismiss the petition for failure to exhaust state remedies (Doc. 10), which was denied on March 19, 2010. (Doc. No. 16.) On July 14, 2010, respondent filed an answer to the petition. (Doc. No. 23.) No traverse was filed. Both parties have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c).3 (Doc. Nos. 4, 9.)
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is...
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