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Courtney Crosby v. T. Schwartz

May 4, 2012

COURTNEY CROSBY,
PETITIONER-APPELLANT,
v.
T. SCHWARTZ, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, District Judge, Presiding D.C. No. 2:05-cv-00047-GEB-KJN

The opinion of the court was delivered by: M. Smith, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted March 13, 2012-San Francisco, California

Before: John T. Noonan, Jr., M. Margaret McKeown, and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.; Partial Concurrence and Partial Dissent by Judge Noonan

OPINION

Courtney Crosby appeals the district court's denial of his federal petition for a writ of habeas corpus. He raises three claims on appeal. First, Crosby challenges the California Court of Appeal's conclusion that his waiver of his Sixth Amendment right to a jury trial was valid. Second, he claims that the California court erred in finding that the trial court acted within its discretion to deny his subsequent attempt to withdraw the jury trial waiver. Finally, Crosby contends that the California court erred in finding that his sentence of 26 years to life under California's Three Strikes Law did not constitute cruel and unusual punishment under the Eighth Amendment. Because we conclude that these holdings of the California Court of Appeal were neither contrary to, nor involved an unreasonable application of, clearly established Federal law, we affirm the district court's denial of Crosby's habeas petition.

FACTUAL AND PROCEDURAL BACKGROUND

On July 5, 1999, Sacramento police responded to a call for disturbing the peace at the Ethan Terrace Apartments in Sacramento County. Police found petitioner Crosby and another man named Rivers upon arrival at the scene. Crosby initially told the officer his name was Sirleaf Flomo, and when asked for identification, produced a falsified driver's license and a stolen Social Security card. He was finally identified by Rivers as Courtney Crosby. When the officer ran a check on Crosby's real name, he discovered that Crosby had an outstanding felony no bail warrant for violation of California Penal Code Section 290, California's sex offender registration statute. The officer arrested Crosby. The officer found several other stolen identification and insurance cards in Crosby's wallet.

Crosby was charged with three counts of failing to register under Section 290. Section 290, as it read when Crosby was arrested, stated that every person who qualifies, "for the rest of his or her life while residing in, or, if he or she has no residence, while located within California, shall be required to register with the chief of police of the city in which he or she is residing, or if he or she has no residence, is located, or the sheriff of the county if he or she is residing, or if he or she has no residence, is located, in an unincorporated area or city that has no police department." Cal. Penal Code § 290(a)(1)(A) (1998) (emphasis added). Section 290(g)(2) provides that anyone who is required to register under this section because of a prior felony conviction, but fails to do so, is guilty of a felony. Id. § 290(g)(2). One of Crosby's failure to register counts was dismissed before Crosby proceeded to trial. Thus, at trial, Crosby faced two charges. He faced one count for failing to register within five working days after moving from his residence, in violation of Section 290(f). Crosby faced another court for failing to register within five working days of his birthday, in violation of Section 290(a)(1)(c). Crosby was further alleged to have three prior felony convictions for 1) rape, Cal. Penal Code § 261a(2), 2) forced copulation, Cal. Penal Code § 288(c), and 3) robbery, Cal. Penal Code § 667(b)-(i).

Prior to trial, Crosby's counsel and the prosecutor discussed whether to proceed to trial on the Section 290 registration charges first or the separate charges for receiving stolen property. Crosby's counsel informed the court that Crosby would waive his right to a jury trial for the Section 290 charges, and the court engaged in a colloquy with Crosby in which Crosby waived his right to a jury trial.

At Crosby's bench trial, the assistant manager at Crosby's last registered address, Ethan Terrace Apartments, testified that Crosby lived at the apartment with his mother and moved out on February 14, 1999. A friend of Crosby, April Lowe, testified that Crosby told her around March 30, 1999 that he had been living in West Sacramento for about two weeks, and that he may have told her that he had stayed at the Dodge City Inn prior to that.

Crosby was initially registered as a sex offender on February 27, 1989. Records indicated that he executed three annual updates and nine change of address updates after his initial registration. Testimony from Sacramento Deputy David Anderson established that Crosby last executed an annual registration form on July 15, 1998, reporting his address as 1822 Ethan Way, Apartment 23 in Sacramento. Crosby did not file any more registration updates through the date of his arrest on July 15, 1999.

The trial judge found Crosby guilty of failing to annually register and failing to register within five days of his birthday. The trial court also found as true Crosby's prior felony convictions and prior prison term. Crosby was sentenced under California's Three Strikes Law to an indeterminate sentence of 25 years to life, plus a one-year enhancement for his prior prison term. The California Court of Appeal affirmed the conviction on appeal.

JURISDICTION AND STANDARDS OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court's denial of a 28 U.S.C. § 2254 petition for writ of habeas corpus de novo. Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002). We review findings of law made by the district court for clear error. Id.

We apply the deferential standard of review of the Anterrorism and Effective Death Penalty Act (AEDPA) to Crosby's petition. Brown v. Horell, 644 F.3d 969, 978 (9th Cir. 2011). Under AEDPA, we are barred from granting habeas relief on any claim that has been adjudicated on the merits in California state courts unless the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. 770, 783-84 (2011). We review the last reasoned state court decision-here, the California Court of Appeal's decision. Horell, 644 F.3d at 978.

"Clearly established" federal law refers to the "holdings, as opposed to the dicta, of the [Supreme Court's] decisions as of the time of the relevant state-court decision." Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (internal citation and quotation omitted). A "state-court decision can be 'contrary to' th[e] Court's clearly established precedent . . . if the state court arrives at a conclusion opposite to that reached by th[e] Court on a question of law." Williams v. Taylor, 529 U.S. 362, 405 (2000). A state-court decision would also be contrary to the "Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from [that] precedent." Id. A state court decision is an "unreasonable application" of clearly established federal law if the state court "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. at 407-08. In evaluating what is an unreasonable application, the fact that a state court decision is incorrect or erroneous is not enough; rather, it must be "objectively unreasonable." Lockyer, 538 U.S. at 75.

The Supreme Court recently emphasized the extremely deferential nature of this review. Explaining that while Section 2254(d) "stops short of imposing a complete bar on federal court relitigation of claims already rejected in state court proceedings," the Court emphasized that AEDPA only permits the court to grant a writ of habeas corpus "where there is no possibility that fairminded jurists could disagree that the state court's decision conflicts with th[e Supreme] Court's precedents." Harrington, 131 S. Ct. at 786. Our review of Crosby's appeal is thus limited by the constraints of AEDPA.

DISCUSSION

I. Jury Waiver

[1] Crosby first contends that he should be granted habeas relief because his jury waiver was ineffective. The right to a jury trial, conferred by the Constitution, is waivable, as long as the waiver includes the consent of the government counsel, the sanction of the court, and the "express and intelligent consent of the defendant." Patton v. United States, 281 U.S. 276, 312 (1930), overruled on other grounds by Williams v. Florida, 399 U.S. 78, 92 (1970). We hold that the California Court of Appeal reasonably concluded that Crosby's jury trial waiver was express and intelligent.

The following colloquy occurred at a hearing on February 7, 2002, during which the court discussed scheduling matters for Crosby's charges for Section 290 failures to register and his receipt of stolen property:

THE COURT: Mr. Crosby, you do have on these matters the right to a speedy public jury trial. That is one of the rights that you have. The Court's perfectly willing to go down that road and have jury trials. That's what we do all the time. We've got plenty of seats out in the audience, plenty of places for the jurors here, and we're perfectly willing to proceed in that fashion.

Although you do have the right to waive a jury trial, that is to give up a jury trial, that is one of the rights that you have as long as the District Attorney's Office would consent to that. Mr. Higgins has already indicated to the Court that the D.A.'s office would consent to your waiver of a ...


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