Timothy Franklin v. James Walker , 546 F. App'x 722 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 03 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
TIMOTHY PRINCE FRANKLIN, No. 10-15411
Petitioner - Appellant, D.C. No. 2:08-cv-01276-FCD-
CHS
v.
JAMES WALKER, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Jr., Senior District Judge, Presiding
Argued and Submitted November 8, 2013
San Francisco, California
Before: TASHIMA, W. FLETCHER, and NGUYEN, Circuit Judges.
Timothy Prince Franklin appeals from the district court’s order denying his
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253. “We review de novo the district
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
court’s grant or denial of a 28 U.S.C. § 2254 petition for writ of habeas corpus.”
Yee v. Duncan, 463 F.3d 893, 897 (9th Cir. 2006) (citation omitted). We affirm.
In the last reasoned decision denying Franklin habeas relief, the reviewing
California state court found the “existence of a prior conviction that has not
otherwise been used in sentencing renders a defendant eligible for the upper term”
under California’s Determinate Sentencing Law, citing People v. Black, 41 Cal. 4th
799, 813, 62 Cal. Rptr. 3d 569 (2007). According to the state court, “[s]ince
Petitioner was convicted in 1987 of a narcotics violation and that offense was not
used in sentencing, either as a prior strike or as a sentence enhancement, Petitioner
was eligible for the upper term[s].”
Regardless whether this is correct as a matter of California sentencing law,
the state court’s conclusion did not “result[] in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law” or a
“decision that was based on an unreasonable determination of the facts in light of
the evidence presented.” See 28 U.S.C. § 2254(d). There was no Sixth
Amendment constitutional error in Franklin’s sentence because he was eligible for
the upper term based on his prior convictions. See Cunningham v. California, 549
U.S. 270, 274-75 (2007) (“[T]he Federal Constitution’s jury-trial guarantee
proscribes a sentencing scheme that allows a judge to impose a sentence above the
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statutory maximum based on a fact, other than a prior conviction, not found by a
jury or admitted by the defendant.” (emphasis added)); Black, 41 Cal. 4th at 813(“[I]f one aggravating circumstance has been established in accordance with the
constitutional requirements set forth in Blakely [v. Washington, 542 U.S. 296(2004)], the defendant is not ‘legally entitled’ to the middle term sentence, and the
upper term sentence is the ‘statutory maximum.’”); see also Cal. Ct. R. 4.421(b)(2)
(a sentencing court can impose an upper term sentence if the defendant’s prior
convictions are “numerous or of increasing seriousness”).
AFFIRMED.
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