NOT FOR PUBLICATION MAY 24 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSEPH JOHNSON, JR., No. 10-15786
Petitioner-Appellant, D.C. No. 3:08-cv-05148-SI
ROBERT L. AYERS, JR., Warden,
Appeal from The United States District Court for the Northern District of California
Susan Illston, District Judge, Presiding
Submitted May 10, 2011 **
San Francisco, California
Before: D.W. NELSON and W. FLETCHER, Circuit Judges, and DUFFY, District
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).
The Honorable Kevin Thomas Duffy, District Judge for the U.S. District Court for
Southern New York, New York, sitting by designation.
Appellant Joseph Everett Johnson, Jr. ("Johnson") appeals the denial of his
pro-se petition for writ of habeas corpus by the United States District Court for the
Northern District of California. Johnson contends that the California state court
violated the Sixth Amendment by imposing an upper-term sentence based on the
aggravating factors of the increasing seriousness of his prior convictions and
unsatisfactory performance on parole. We have jurisdiction under 28 U.S.C. §
1292(b) and § 2253 and we AFFIRM.
On July 22, 2005, a jury in California Superior Court, San Mateo County,
found Johnson guilty of unlawful vehicle taking, possession of a firearm by a felon,
possession of ammunition by a felon, possession of drug paraphernalia, and
receiving stolen property. Before the trial, Johnson stipulated to having been
previously convicted of a felony for robbery in 1998. On September 30, 2005,
Johnson was sentenced to the upper-term of three years for the possession of a
firearm by a felon, which was then enhanced to six years because the judge found
that he had violated parole numerous times and that his prior convictions were of
This Court reviews de novo the district court's denial of a petition for writ of
habeas corpus. Lopez v. Thompson, 202 F.3d 1110
, 1116 (9th Cir. 2000) (en banc).
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
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"[f]ederal habeas relief may not be granted for claims subject to § 2254(d) unless it
is shown that the earlier state court's decision â€˜was contrary to' federal law then
clearly established in the holdings of [the Supreme] Court; or that it â€˜involved an
unreasonable application of' such law; or that it â€˜was based on an unreasonable
determination of the facts' in light of the record before the state court." Harrington
v. Richter, 131 S. Ct. 770
, 785 (2011) (quoting 28 U.S.C. § 2254) (citations
omitted). "We review the state court's last reasoned decision." Maxwell v. Roe,
628 F.3d 486
, 495 (9th Cir. 2010). In denying Johnson's appeal, the California
Court of Appeal relied on the reasoning of the California Supreme Court in Black v.
People, 161 P.3d 1130 (Cal. 2007) ("Black II"). Thus, we "look to the reasoning of
[Black II] to determine whether the AEDPA requirements have been met." Butler
v. Curry, 528 F.3d 624
, 640 (9th Cir. 2008).
In Apprendi v. New Jersey, 530 U.S. 466
(2000), the Supreme Court held
that "[o]ther than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt." Id. at 490. In Blakely v. Washington, 542 U.S. 296
(2004), the Supreme Court expanded Apprendi, holding that "the
â€˜statutory maximum' for Apprendi purposes is the maximum sentence a judge may
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impose solely on the basis of the facts reflected in the jury verdict or admitted by
the defendant." Id. at 303 (emphasis in original) (citations omitted).
In Cunningham v. California, 549 U.S. 270
(2007), the Supreme Court
struck down California's determinate sentencing law, which prescribed that a
middle-term sentence should be imposed, unless in the judge's sole discretion, there
were mitigation or aggravation factors to warrant a lower-term or upper-term
sentence, which could be established by a preponderance of the evidence. Id. at
278. The Court held this law violated Apprendi, stating that "[i]f the jury's verdict
alone does not authorize the sentence, if, instead, the judge must find an additional
fact to impose the longer term, the Sixth Amendment requirement is not satisfied."
Id. at 290. In Black II, the California Supreme Court considered a defendant's
challenge to his sentence in the wake of Cunningham. The court broadly applied
the "prior conviction" exception outlined in Apprendi, holding that it includes "not
only the fact that a prior conviction occurred, but also other related issues that may
be determined by examining the records of the prior convictions." 161 P.3d at
It cannot be said that there is clearly established Supreme Court precedent that
is contrary to the holding in Black II. The scope of the "prior conviction" exception
has not been defined by the Supreme Court, and the state court's decision is a
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reasonable interpretation of that exception. We therefore deny relief. See Kessee v.
Mendoza-Powers, 574 F.3d 675
, 676-77 (9th Cir. 2009).
Further, even assuming there was a constitutional error, any such error is
harmless, as it is clear that a jury would have found beyond a reasonable doubt that
Johnson violated parole numerous times and that his prior convictions were of
increasing seriousness. Butler, 528 F.3d at 648 ("[Our court] must grant relief if we
are in â€˜grave doubt' as to whether a jury would have found the relevant aggravating
factors beyond a reasonable doubt.") (citations omitted).1
"[U]nder California law, only one aggravating factor is necessary to
authorize an upper term sentence." Butler, 538 F. 3d at 641.
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