Robin Schreiber v. Mike Obenland ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 9 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBIN TAYLOR SCHREIBER, No. 17-35886
Petitioner-Appellant, D.C. No. 3:17-cv-05357-RJB
v.
MEMORANDUM*
MIKE OBENLAND,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Submitted November 7, 2018**
Seattle, Washington
Before: McKEOWN and FRIEDLAND, Circuit Judges, and BOLTON,*** District
Judge.
Robin Schreiber appeals the district court’s denial of his 28 U.S.C. § 2254
habeas corpus petition challenging his sentence for second degree murder.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
Schreiber argues that his sentence violates the Ex Post Facto Clause because it was
based on Wash. Rev. Code § 9.94A.535(3)(v), a statutory provision that went into
effect after Schreiber committed his crime. We affirm the district court’s denial of
his habeas corpus petition.
At the time of Schreiber’s crime, Wash. Rev. Code § 9.94A.535 contained a
list of aggravating factors that were “illustrative only, and . . . not an exclusive or
exhaustive collection of all possible ‘substantial and compelling reasons’ which
may support an exceptional sentence.” State v. Batista, 808 P.2d 1141, 1145
(Wash. 1991) (quoting Wash. Rev. Code § 9.94A.535). The statute also allowed
the application of common law aggravating factors. The Washington state courts
had recognized a law enforcement aggravating factor. See, e.g., State v. Anderson,
864 P.2d 1001, 1009 (Wash. Ct. App. 1994) (“[A] defendant’s assault on a victim
he knows is a police officer justifies an exceptional sentence.”). The bill that
amended Wash. Rev. Code § 9.94A.535 and added the “law enforcement”
aggravator under which Schreiber was sentenced to those codified by statute made
clear that “[t]he legislature intends . . . to codify existing common law aggravating
factors, without expanding or restricting existing statutory or common law
aggravating circumstances.” S.B. 5477, 59th Leg., Reg. Sess. (Wash. 2005).
Thus, although the Washington state legislature did not codify the “law
enforcement” aggravating factor until after Schreiber committed his crime, the
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“law enforcement” aggravating factor already existed as a matter of common law
at the time of his crime.
Schreiber argues that, even if the aggravating factor existed at common law,
the State nevertheless violated the Ex Post Facto Clause when it amended
Schreiber’s charging document to include a reference to the statutory factor after it
was codified. But, under 28 U.S.C. § 2254(d), relief is only warranted if the state
court adjudication of the claim 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.” Waddington v. Sarausad,
555 U.S. 179, 190 (2009) (quoting 28 U.S.C. § 2254(d)(1)). Schreiber has not
identified any Supreme Court precedent forbidding a charge to be amended to
include a reference to a statutory sentencing aggravator when the same aggravating
factor already existed at common law at the time of the crime. He has therefore
failed to show that the state court’s decision rejecting his Ex Post Facto Clause
challenge was contrary to or an unreasonable application of clearly established
law.
Schreiber’s claim that application of the aggravating factor in his sentencing
violated Apprendi v. New Jersey, 530 U.S. 466 (2000), is meritless. Apprendi only
requires 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
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a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. The jury
received proper instructions on the law enforcement aggravating factor and
convicted Schreiber of the elements required for its application.
Finally, Schreiber suggests in his reply brief that his conviction violates
Almendarez-Torres v. United States, 523 U.S. 224 (1998), because his charging
document did not list all the elements of the crime for which he was ultimately
convicted. But because he failed to raise this argument below or in his opening
brief, we treat it as forfeited and need not consider its merit. See Orr v. Plumb, 884
F.3d 923, 932 (9th Cir. 2018) (“The usual rule is that arguments raised for the first
time on appeal or omitted from the opening brief are deemed forfeited.”).
AFFIRMED.
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