Nunes v. Ramirez-Palmer ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONEY R. NUNES, 
Petitioner-Appellant,
No. 06-16100
v.
ANA RAMIREZ-PALMER, ATTORNEY  D.C. No.
CV-98-1333-DFL
GENERAL OF THE STATE OF
OPINION
CALIFORNIA,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of California
David F. Levi, District Judge, Presiding
Submitted February 15, 2007*
San Francisco, California
Filed April 27, 2007
Before: Ronald M. Gould and Milan D. Smith, Jr., Circuit
Judges, and Alfred V. Covello,** District Judge.
Opinion by Judge Covello
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Alfred V. Covello, Senior United States District
Judge for the District of Connecticut, sitting by designation.
4633
NUNES v. RAMIREZ-PALMER 4637
COUNSEL
Suzanne A. Luban, Oakland, California, for the petitioner-
appellant.
Bill Lockyer, Attorney General for the State of California,
Mary Jo Graves, Chief Assistant Attorney General, Gerald A.
Engler, Senior Assistant Attorney General, Juliet B. Haley,
Deputy Attorney General, and Glenn R. Pruden, Deputy
Attorney General, Sacramento, California, for the respondent-
appellee.
OPINION
COVELLO, District Judge:
This is an appeal from the district court’s order denying a
petition for a writ of habeas corpus. The appeal is brought
pursuant to 28 U.S.C. § 2253.1 The petitioner-appellant,
Roney Nunes, contends that the district court erred when it
rejected Nunes’s assertions that he was charged and sentenced
under California’s recidivist statute in violation of the Fifth,
Eighth, and Fourteenth Amendments to the United States
Constitution.
1
“In a habeas corpus proceeding . . . , the final order shall be subject to
review, on appeal, by the court of appeals for the circuit in which the pro-
ceeding is held.” 28 U.S.C. § 2253(a).
4638 NUNES v. RAMIREZ-PALMER
The issues presented are: 1) whether the state appellate
court’s ruling upholding the constitutionality of Nunes’s sen-
tence was the result of an unreasonable application of clearly
established federal law; 2) whether the state appellate court’s
ruling upholding the constitutionality of Nunes’s sentence
was based on an unreasonable determination of the facts; 3)
whether it was objectively reasonable for the state appellate
court to reject Nunes’s claim of prosecutorial vindictiveness;
and 4) whether it was objectively reasonable for the state
appellate court to reject Nunes’s claim that the state trial court
violated the Fourteenth Amendment when it denied his
motion to strike his prior convictions at sentencing.
For the reasons set forth hereinafter, we affirm the decision
of the district court.
I. FACTS
A review of the record reveals the following undisputed
material facts.
A California state court jury found Nunes, the petitioner-
appellant, guilty of petty theft with a prior conviction.2 At
trial, the jury heard testimony from numerous witnesses indi-
cating that Nunes shoplifted $114.40 worth of tools from a
Home Depot store. In particular, one Home Depot employee
testified that he saw Nunes remove security tags from a tool
set by unwrapping and hiding the tool set’s packaging materi-
als. Nunes then hid the unwrapped tools in his sweater and
walked out of the store without triggering the security alarms.
2
“Every person who, having been convicted of petty theft, grand theft,
auto theft . . . , burglary, carjacking, [or] robbery, . . . and having served
a term therefor in any penal institution or having been imprisoned therein
as a condition of probation for that offense, is subsequently convicted of
petty theft, then the person convicted of that subsequent offense is punish-
able by imprisonment in the county jail not exceeding one year, or in the
state prison.” Cal. Pen. Code § 666.
NUNES v. RAMIREZ-PALMER 4639
After the jury found Nunes guilty, the trial court sentenced
him to a term of imprisonment of twenty-five years to life,
under California’s recidivist statute.3 During sentencing,
Nunes moved to strike several of his prior convictions pursu-
ant to People v. Sumstine, 36 Cal. 3d 909, 918-19 (1984)
(affording defendants in some circumstances the opportunity
to collaterally attack a prior conviction that may be used to
enhance a sentence imposed for a subsequent conviction). The
trial court denied the motion.
Nunes brought a direct appeal to the Court of Appeal of the
State of California. Nunes argued, inter alia, that his sentence
amounted to cruel and unusual punishment in violation of the
Eighth Amendment.
In assessing this claim, the state appellate court first noted
that a “punishment may violate the constitution[ ] . . . if it is
grossly disproportionate to the offense for which it is
imposed.” The court then proceeded to consider the constitu-
tionality of the sentence in light of “the nature of the offense
and/or the offender.” The court remarked that the manner in
which Nunes carried out his crime “suggests a degree of
sophistication.” Moreover, the court noted that Nunes “has
repeatedly committed serious criminal conduct and numerous
thefts, and, notwithstanding numerous stays in jail and prison
over five decades, [the] defendant has never reformed his con-
duct.” The court made this assessment after describing his
criminal record as follows:
[His] history includes prior misdemeanor theft con-
victions in 1967, 1976 and 1983. Defendant’s exten-
3
“If a defendant has two or more prior felony convictions . . . that have
been pled and proved, the term for the current felony conviction shall be
an indeterminate term of life imprisonment with a minimum term of . . .
[i]mprisonment in the state prison for 25 years.” Cal. Pen. Code § 667.
There is no dispute on appeal as to the applicability of the recidivist stat-
ute.
4640 NUNES v. RAMIREZ-PALMER
sive history also includes not only a host of other
misdemeanor convictions and felony theft convic-
tions but numerous serious and violent felony con-
victions. In 1945, when defendant was 20 years old,
he was convicted of rape. Less than two years later,
he was convicted of burglary and theft. In 1965,
defendant was convicted of first degree burglary.
Defendant was convicted of robbery, first degree
burglary and felony theft in 1968 and committed to
state prison. He was paroled in 1971 and discharged
from parole in 1974. However, apparently during his
parole period, defendant was convicted of a misde-
meanor count of receiving stolen property in 1972
and served time in county jail. In 1980, he was con-
victed of felony theft and granted probation. A 1982
offense led to a rape conviction for which defendant
served a state prison commitment. He was released
from prison without parole in 1992. In 1993, he was
convicted of failing to register as a sex offender and
sent to jail. It appears that he was released from jail
in early 1994.
Additionally, the court clarified that “[w]hile it might appear
that defendant was relatively law-abiding in the 1950’s, his
lawfulness was apparently due to his incarceration from 1954
to 1964 in Illinois for a conviction which was subsequently
reversed.”
In this recitation of Nunes’s criminal history, the state
appellate court included Nunes’s convictions for rape in 1945,
and burglary and theft in 1947, despite the fact that these con-
victions were documented in the pre-sentencing report in pen,
rather than being typed like the rest of his prior offenses. Fur-
ther, the pre-sentencing report indicated that Nunes only
received a suspended sentence for his rape conviction in 1945.
Additionally, with respect to the rape in 1982, Nunes only
served approximately ten years, because after the case was
NUNES v. RAMIREZ-PALMER 4641
overturned on appeal, Nunes pleaded no contest on remand,
and in 1992, was sentenced to time served.
Nevertheless, in light of Nunes’s criminal history, the state
appellate court ultimately concluded that it did “not believe
that the life term imposed on [the] defendant was unconstitu-
tionally disproportionate.”
Nunes then filed a petition for review with the California
Supreme Court, which the court denied. He subsequently filed
a habeas petition, again with the California Supreme Court, in
which he asserted two claims that he had not argued on direct
review.
Specifically, Nunes first contended that the decision of the
district attorney’s office to charge him under the recidivist
statute was a result of prosecutorial vindictiveness, and there-
fore was in violation of his right to due process.
The Santa Clara County district attorney’s office prose-
cuted Nunes. In that office, “a strike committee” decides
whether to charge an eligible defendant under the recidivist
statute. Historically, the committee has charged a recidivist
count against nearly half of all defendants eligible under the
statute.
In making his claim that the strike committee decided to
charge him out of vindictiveness, Nunes relied on several fac-
tors. The prosecutor in his case, one Thomas Hanford, was on
the strike committee, and had previously been involved in
several prosecutions of Nunes. In one such case, Hanford suc-
cessfully prosecuted Nunes for raping a girl in 1982. Nunes
appealed, and alleged that Hanford had engaged in prosecu-
torial misconduct. Nunes eventually won the appeal, although
not on the basis of misconduct on the part of Hanford. Years
after that rape prosecution, Hanford was able to remember the
facts of the crime in great detail. Additionally, at one pont,
Nunes brought a civil suit against both the rape victim and
4642 NUNES v. RAMIREZ-PALMER
Hanford. Further, when Hanford initially commenced the
prosecution of the case resulting in the conviction that Nunes
now seeks to have set aside, Hanford included on the charging
documents several prior offenses that were not applicable
under the recidivist statute. Finally, over the years, Hanford
made several comments connoting animosity toward Nunes,
including an expression of satisfaction in a newspaper article
regarding the sentence that Nunes received in the present
case.
Nunes’s second claim in his state habeas petition was that
when the state trial court denied his motion to strike his prior
convictions at sentencing, it denied him a state-created liberty
interest guaranteed by the Fourteenth Amendment. The Cali-
fornia Supreme Court summarily denied his petition, without
specifically discussing either claim in its order.
Nunes then filed a habeas petition with the United States
District Court for the Eastern District of California. Inter alia,
Nunes again argued: 1) that his sentence violated the Eighth
Amendment; 2) that he was charged out of prosecutorial vin-
dictiveness; and 3) that he was denied a state-created liberty
interest guaranteed by the Fourteenth Amendment. The dis-
trict court thereinafter adopted the recommendations of a
magistrate judge and denied Nunes’s petition. Nunes filed a
timely notice of appeal.
II. STANDARD OF REVIEW
“A district court’s decision to grant or to deny a petition for
habeas corpus is reviewed de novo.” Clark v. Murphy, 331
F.3d 1062, 1067 (9th Cir. 2003). With respect to “any claim
that was adjudicated on the merits in State court proceedings,”
courts shall not grant a habeas application unless the adjudica-
tion of the claim:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
NUNES v. RAMIREZ-PALMER 4643
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). “In order for a federal court to find a
state court’s application of [the Supreme Court’s] precedent
‘unreasonable,’ the state court’s decision must have been
more than incorrect or erroneous.” Wiggins v. Smith, 539 U.S.
510, 520 (2003). “The state court’s application must have
been ‘objectively unreasonable.’ ” Id. at 520-21.
“[A] determination of a factual issue made by a State court
shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). It is
the petitioner’s “burden of rebutting the presumption of cor-
rectness by clear and convincing evidence.” Id.
Where a state court decision provides no reasoned analysis
of an issue, federal courts reviewing a habeas petition must
perform an independent review of the record to ascertain
whether the state court decision was objectively unreasonable
in light of pertinent federal law. Himes v. Thompson, 336 F.3d
848, 853 (9th Cir. 2003).
III. DISCUSSION
A. The Eighth Amendment
Nunes first argues that his sentence of a term of imprison-
ment of twenty-five years to life violates the Eighth Amend-
ment. Specifically, he contends that the state appellate court’s
ruling upholding his sentence was the result of “an unreason-
able application of clearly established federal law.” He argues
that although the state appellate court generally considered
whether his sentence was grossly disproportionate, it did not
properly compare his sentence to: 1) the sentences that result
4644 NUNES v. RAMIREZ-PALMER
from convictions for different crimes in California; or 2) the
sentences that result from convictions for the same crime in
different jurisdictions.
With respect to Eighth Amendment jurisprudence, Nunes is
correct that the Supreme Court has noted that proportionality
analysis under the Eighth Amendment should be guided by
objective criteria, including: “(i) the gravity of the offense and
the harshness of the penalty; (ii) the sentences imposed on
other criminals in the same jurisdiction; and (iii) the sentences
imposed for commission of the same crime in other jurisdic-
tions.” Solem v. Helm, 463 U.S. 277, 292 (1983). Despite this,
the Supreme Court has not uniformly applied this three step
analysis. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 1005
(1991); Rummel v. Estelle, 445 U.S. 263, 285 (1980).
[1] In an attempt to resolve this inconsistency, the Supreme
Court has explicitly identified that which constitutes “clearly
established federal law” in its Eighth Amendment jurispru-
dence for the purpose of habeas review. Specifically, in Lock-
yer v. Andrade, 538 U.S. 63, 72 (2003), after conceding that
its “precedents in this area have not been a model of clarity,”
the Court held that “one governing legal principle emerges as
‘clearly established’ under § 2254(d)(1): A gross dispropor-
tionality principle is applicable to sentences for terms of
years.” Lockyer, 538 U.S. at 72. In so holding, the Court made
no mention of any constitutional imperative requiring that
courts make the various intra- and inter-jurisdictional compar-
isons recommended by the Solem court. See id. Instead, the
Supreme Court held that “the only relevant clearly established
law amenable to the ‘contrary to’ or ‘unreasonable application
of’ framework is the gross disproportionality principle, the
precise contours of which are unclear, applicable only in the
‘exceedingly rare’ and ‘extreme’ case.” Id. at 73.
[2] In so holding, the Supreme Court was considering a
state court ruling that was decided within months of the last
state court decision that considered Nunes’s Eighth Amend-
NUNES v. RAMIREZ-PALMER 4645
ment claim in the present case. See id. at 68. As such, at the
time the state appellate court upheld Nunes’s sentence, the
one governing principle of federal law that was clearly estab-
lished is that a sentence cannot be grossly disproportional to
the defendant’s circumstances. See id. at 72.
We conclude that in rejecting Nunes’s appeal, the state
appellate court reasonably applied this principle. This conclu-
sion is evident when one compares the facts of this case with
the facts of other cases in which courts have applied this prin-
ciple. For example, in Lockyer v. Andrade, a petitioner for a
writ of habeas corpus had a criminal history that included
convictions for misdemeanor theft, first degree residential
burglary, transportation of marijuana, petty theft, and escape.
Id. at 66-67. He was charged with two counts of petty theft
with a prior conviction. See id. at 68. The trial court sentenced
him to two consecutive terms of imprisonment of twenty-five
years to life, under the same recidivist statute at issue in the
present case. Id. at 66. Assessing whether the California Court
of Appeal unreasonably applied clearly established law in
affirming the petitioner’s sentence, the Supreme Court con-
cluded simply that “the governing legal principle gives legis-
latures broad discretion to fashion a sentence that fits within
the scope of the proportionality principle-the ‘precise con-
tours’ of which ‘are unclear.’ ” Id. at 76 (quoting Harmelin,
501 U.S. at 998 (Kennedy, J., concurring)). As such, “it was
not objectively unreasonable for the California Court of
Appeal to conclude that these ‘contours’ permitted an affir-
mance of [the petitioner’s] sentence.” Lockyer, 538 U.S. at 76.
[3] By way of comparison, Nunes’s career as a criminal has
been longer, more prolific, and more violent, than the peti-
tioner’s in Lockyer. Further, Nunes was charged in this case
with one count of the same underlying offense as the peti-
tioner in Lockyer, petty theft with a prior conviction. See id.
at 68. And yet, Nunes’s sentence, twenty-five years to life,
was less harsh than the sentence of the petitioner in Lockyer,
who received two consecutive sentences of twenty-five years
4646 NUNES v. RAMIREZ-PALMER
to life. See id. at 66. In light of this comparison, we conclude
that the California Court of Appeal was not objectively unrea-
sonable when it determined that Nunes’s sentence did not
offend the Constitution.
Nunes next argues that he is entitled to habeas relief
because when assessing his criminal history, the state appel-
late court relied on an unreasonable determination of the facts.
Specifically, he contends that his conviction should be set
aside because when the state appellate court upheld his sen-
tence, “it failed to recognize that the majority of the convic-
tions it considered were invalid or their seriousness was
overstated.”
[4] We disagree. When reviewing a petition for a writ of
habeas corpus, “a determination of a factual issue made by a
State court shall be presumed to be correct.” 28 U.S.C.
§ 2254(e)(1). Moreover, it is the petitioner’s “burden of rebut-
ting the presumption of correctness by clear and convincing
evidence.” Id.
[5] Nunes does little to overcome this burden. He does not
contend that he was not convicted of the crimes that the state
appellate court attributed to him in its opinion. Nor does he
argue that he is actually innocent of any of the underlying
crimes. Rather, he suggests that his convictions for rape in
1945, and burglary and theft in 1947, should be ignored
because they were documented in the pre-sentencing report in
pen, rather than typeface. Likewise, he speculates that his rape
conviction in 1945 must not have been for forcible rape,
because the court imposed a light sentence. Further, he con-
tends that his convictions in 1968 for robbery, burglary, and
theft cannot all be considered as separate convictions because
under California law a defendant cannot be punished for mul-
tiple convictions that result from the same underlying conduct.4
4
“An act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that provides for
the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” Cal. Pen. Code
§ 654(a).
NUNES v. RAMIREZ-PALMER 4647
Finally, he attributes his pleading no contest to the 1982 rape
charge to his desire to avoid putting the victim through the
trauma of a trial. Notably, he makes no attempt to undermine
his convictions for burglary in 1965, robbery in 1968, theft in
1967, 1972, 1976, and 1983, grand theft in 1980, or failure to
register as a sex offender in 1993.
To the extent that any of Nunes’s assertions can be consid-
ered evidence, collectively they do not rise to the heightened
level of the “clear and convincing evidence” necessary to
overcome the presumption that the state appellate court’s rul-
ing was correct. See 28 U.S.C. § 2254(e)(1).
[6] Further, even if we credit Nunes’s attempts to minimize
his criminal history, he is still left with an extensive felony
record. As such, assuming arguendo that Nunes met his bur-
den to show that the state appellate court overstated his crimi-
nal record, that court’s general assessment of Nunes’s claim
still holds true. Specifically, Nunes “has repeatedly commit-
ted serious criminal conduct and numerous thefts, and, not-
withstanding numerous stays in jail and prison over five
decades, [the] defendant has never reformed his conduct, . . .
[, and o]n this basis we do not believe that the life term
imposed on [the] defendant was unconstitutionally dispropor-
tionate.” As such, Nunes is not entitled to habeas relief on the
ground that the state appellate court’s ruling was based on an
unreasonable determination of the facts.
B. Prosecutorial Vindictiveness
Nunes next argues that his “due process rights were vio-
lated by [the] denial of his motion to recuse Prosecutor Han-
ford, and by vindictive prosecution.” Specifically, he contends
that he can establish that Hanford prosecuted him out of vin-
dictiveness, or that the court can presume vindictiveness, in
light of the following: 1) Hanford has been involved in sev-
eral prosecutions against Nunes; 2) Hanford’s reputation was
damaged when Nunes prevailed in the appeal of the 1982 rape
4648 NUNES v. RAMIREZ-PALMER
conviction; 3) Hanford could recall the facts of the 1982 rape
and the accompanying trial in great detail; 4) Nunes alleged
prosecutorial misconduct against Hanford in his appeal of the
rape conviction; 5) Hanford has made several comments con-
noting animosity toward Nunes; and 6) Hanford overcharged
Nunes in the prosecution of the conviction that Nunes seeks
to have set aside. Nunes argues that this animosity caused the
district attorney’s office to charge him under the recidivist
statute, which lead to a longer sentence, thereby prejudicing
Nunes.
“In our system, so long as the prosecutor has probable
cause to believe that the accused committed an offense
defined by statute, the decision whether or not to prosecute,
and what charge to file . . . generally rests entirely in his dis-
cretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).
“ ‘[T]he conscious exercise of some selectivity in enforce-
ment is not in itself a federal constitutional violation’ so long
as ‘the selection was not deliberately based upon an unjustifi-
able standard such as race, religion, or other arbitrary classifi-
cation.’ ” Id. (quoting Oyler v. Boles, 368 U.S. 448, 456
(1962)) (alteration in the original).
A prosecutor’s discretion is not without limitations, how-
ever. While the Supreme Court demands “exceptionally clear
proof” before inferring an abuse of prosecutorial discretion,
McCleskey v. Kemp, 481 U.S. 279, 297 (1987), the Court does
prohibit punishing “a person because he has done what the
law plainly allows him to do.” United States v. Goodwin, 457
U.S. 368, 372 (1982) (internal quotation marks and citation
omitted). For example, a “prosecutor violates due process
when he seeks additional charges solely to punish a defendant
for exercising a constitutional or statutory right.” United
States v. Hernandez-Herrera, 273 F.3d 1213, 1217 (9th Cir.
2001) (citation omitted).5
5
Although lower federal court and state court precedent is not control-
ling in habeas actions, see 28 U.S.C. § 2254(d)(1), it “may be relevant
NUNES v. RAMIREZ-PALMER 4649
Nevertheless, “[o]rdinarily, [courts] presume that public
officials have properly discharged their official duties.” Banks
v. Dretke, 540 U.S. 668, 696 (2004) (citations omitted). As
such, where a defendant contends that a prosecutor made a
charging decision in violation of the Constitution, the defen-
dant’s “standard [of proof] is a demanding one.” United States
v. Armstrong, 517 U.S. 456, 463 (1996).
[7] “To establish a prima facie case of prosecutorial vindic-
tiveness, a defendant must show either direct evidence of
actual vindictiveness or facts that warrant an appearance of
such.” United States v. Montoya, 45 F.3d 1286, 1299 (9th Cir.
1995) (internal quotation marks and citation omitted); see
Goodwin, 457 U.S. at 380 n.12 (suggesting that “a defendant
might prove through objective evidence an improper prosecu-
torial motive” in order to establish a prosecutorial vindictive-
ness claim); Blackledge v. Perry, 417 U.S. 21, 27-29 (1974)
(holding that vindictiveness could be presumed where prose-
cutors brought additional charges after a defendant appealed
his conviction). If the defendant provides “[e]vidence indicat-
ing a realistic or reasonable likelihood of vindictiveness” this
“give[s] rise to a presumption of vindictiveness on the gov-
ernment’s part.” United States v. Garza-Juarez, 992 F.2d 896,
906 (9th Cir. 1993) (citation omitted); see Blackledge, 417
U.S. at 27.
The burden then shifts to the prosecution to show that “ ‘in-
dependent reasons or intervening circumstances dispel the
appearance of vindictiveness and justify its decisions.’ ” Mon-
toya, 45 F.3d at 1299 (quoting United States v. Hooton, 662
F.2d 628, 633 (9th Cir. 1981)); see Goodwin, 457 U.S. at 374
(suggesting that a presumption of vindictiveness “may be
when that precedent illuminates the application of clearly established fed-
eral law as determined by the United States Supreme Court.” Casey v.
Moore, 386 F.3d 896, 907 (9th Cir. 2004). We believe that this circuit’s
precedent is particularly illuminating with respect to the Supreme Court’s
prosecutorial vindictiveness jurisprudence.
4650 NUNES v. RAMIREZ-PALMER
overcome only by objective information in the record justify-
ing” an official’s conduct).
In rejecting Nunes’s state habeas petition, the California
Supreme Court’s decision provided no reasoned analysis of
Nunes’s prosecutorial vindictiveness claim. As such, we must
perform an independent review of the record to ascertain
whether that decision was objectively unreasonable in light of
relevant federal law. Himes, 336 F.3d at 853.
[8] We conclude that it was not objectively unreasonable
for the California Supreme Court to reject Nunes’s claim.
Arguably, there is some evidence that Hanford bore genuine
animus toward Nunes, most notably the newspaper article in
which Hanford expresses his satisfaction in succeeding in the
prosecution that Nunes now attacks. Further, the fact that
Hanford was part of the committee that decided to charge
Nunes under the recidivist statute suggests that the charging
decision could have been borne of Hanford’s alleged animus.
But given that the Supreme Court has repeatedly noted that
charging decisions generally rest entirely within the prosecu-
tor’s discretion, e.g. Bordenkircher, 434 U.S. at 364, that the
exercise of that discretion is presumed to be lawful, Banks,
540 U.S. at 696, and that this presumption can only be over-
come with exceptionally clear proof, McCleskey, 481 U.S. at
297, it was not objectively unreasonable for the California
Supreme Court to conclude that Nunes failed to meet his bur-
den to establish actual animus on the part of prosecutors.
[9] Nunes’s invitation to presume vindictiveness is also
unavailing. As the district court noted, Nunes cites no author-
ity for the proposition that a court can presume vindictiveness
in a pretrial charging decision based on events that occurred
in a previous and distinct proceeding. To the contrary, the
Supreme Court has noted that courts should rarely apply a
presumption of vindictiveness to a prosecutor’s pretrial deci-
sions because a “prosecutor should remain free before trial to
exercise [that] broad discretion entrusted to him to determine
NUNES v. RAMIREZ-PALMER 4651
the extent of the societal interest in prosecution.” Goodwin,
457 U.S. at 382. Because Nunes’s novel argument is not
“clearly established Federal law, as determined by the
Supreme Court of the United States,” 28 U.S.C. § 2254(d), it
is not a proper basis for granting habeas relief, and accord-
ingly we cannot conclude that it was objectively unreasonable
for the California Supreme Court to reject this argument.
[10] Moreover, assuming arguendo that a court could rea-
sonably presume vindictiveness in this case, Nunes would still
not be entitled to relief, because it would be objectively rea-
sonable for a court to also conclude that the government met
its counter-burden of justifying the charging decision. First, as
previously discussed, Nunes has an extensive and violent
criminal history. Second, prosecutors seek a recidivist sen-
tence in nearly half of all cases involving defendants that
qualified under the recidivist statute. In light of Nunes’s crim-
inal history and prosecutors’ routine use of the recidivist stat-
ute, if the California Supreme Court presumed that this case
was borne of prosecutorial vindictiveness, the court could
have still reasonably concluded that the government met its
counter-burden to justify the charging decision. As such,
Nunes is not entitled to habeas relief on this basis.
C. California’s Sumstine Doctrine
Finally, Nunes argues that when the trial court denied his
motion to strike his prior convictions, it violated the Four-
teenth Amendment because “California law clearly forbids
the use of a prior conviction obtained in violation of a defen-
dant’s . . . rights . . . to enhance a sentence.” In support of this
proposition, Nunes cites People v. Sumstine, 36 Cal. 3d 909,
918-19 (1984) (affording defendants in some circumstances
the opportunity to collaterally attack a prior conviction that
may be used to enhance a sentence imposed for a subsequent
conviction). Nunes contends that this right to attack his prior
convictions is “a state-created liberty interest which is guaran-
teed under the Fourteenth Amendment,” and as such, he
4652 NUNES v. RAMIREZ-PALMER
claims that he is entitled to habeas relief because the state trial
judge violated his constitutional rights.
[11] We disagree. First, the United States Supreme Court
has never recognized California’s Sumstine doctrine as creat-
ing a liberty interest that is protected by the Fourteenth
Amendment. As such, the California Supreme Court’s sum-
mary rejection of this notion cannot be “contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1).
[12] Second, independent of the Sumstine doctrine, there is
no federal constitutional right to attack a prior state convic-
tion, “once a conviction is no longer open to direct or collat-
eral attack in its own right.” Lackawanna County Dist. Atty.
v. Coss, 532 U.S. 394, 403 (2001). “If that conviction is later
used to enhance a criminal sentence, the defendant generally
may not challenge the enhanced sentence through a petition
under § 2254 on the ground that the prior conviction was
unconstitutionally obtained.” Id. at 403-04.
[13] Third, in federal court, there is no right to bring a
habeas petition on the basis of a violation of state law. See 28
U.S.C. § 2554(a). To the contrary, federal courts may enter-
tain an individual’s habeas petition “only on the ground that
he is in custody in violation of the Constitution or laws or
treaties of the United States.” Id.
[14] Accordingly, the state trial court’s denial of Nunes’s
motion to strike his prior convictions is not a proper basis
upon which to grant Nunes habeas relief.
AFFIRMED.