NOT FOR PUBLICATION OCT 05 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RAY MCKINLEY BOWEN, No. 08-16353
Petitioner - Appellant, D.C. No. 1:07-CV-00366-DLB
DARRELL G. ADAMS,
Respondents - Appellees.
Appeal from the United States District Court for the Eastern District of California
Dennis L. Beck, Magistrate Judge, Presiding
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
California state prisoner Ray McKinley Bowen appeals from the district
court's denial of his 28 U.S.C. § 2254 petition challenging his jury-trial conviction
for kidnapping, making a criminal threat, and inflicting corporal injury on a spouse
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
or cohabitant, for which he was sentenced to 23 years, four months in prison. We
have jurisdiction under 28 U.S.C. § 2253(a), and we affirm.
Bowen contends that the trial court's selection of an upper-term sentence on
the kidnapping count violated his Sixth and Fourteenth Amendment rights as
established in Apprendi v. New Jersey, 530 U.S. 466
(2000) and Blakely v.
Washington, 542 U.S. 296
(2004). See Cunningham v. California, 549 U.S. 270
288-89, 293 (2007) (holding that California's determinate sentencing law,
permitting imposition of an upper-term sentence on the basis of aggravating
circumstances not found by the jury, "violates Apprendi's bright-line rule").
It is unnecessary to decide whether Bowen's kidnapping sentence was
imposed in violation of Apprendi because any error was harmless in light of
Bowen's undisputed history of parole and probation violations, on which the trial
court relied in part in setting Bowen's sentence. See Butler v. Curry, 528 F.3d 624
642, 648 (9th Cir. 2008) ("Any Apprendi error [is] harmless if it is not prejudicial
as to just one of the aggravating factors at issue[,]" as the presence of one such
factor serves to "set the upper term as the statutory maximum."). In determining
harmlessness, the question is not, as Bowen suggests, whether the trial court would
have imposed an upper-term sentence on the basis of just one aggravating factor; it
is rather whether the jury would likely have found one such factor beyond a
[End Page 2 08-16353]
reasonable doubt. See Butler, 528 F.3d at 648-49. Because there can be no
question that the jury would have found Bowen's history of parole and probation
violations established beyond a reasonable doubt, any Apprendi error did not have
a "substantial and injurious effect" on Bowen's sentence. See Brecht v.
Abrahamson, 507 U.S. 619
, 638 (1993).
[End Page 3 08-16353]