(HC) Haynie v. Cates

Opinion

1 2 3 4 5 6 7 10 11 DONELL THOMAS HAYNIE, No. 2:19-cv-01967 KJM AC P 12 Petitioner, 13 v. ORDER 14 BRIAN CATES, Warden, 15 Respondent. 16 17 Donell Thomas Haynie, a California state prisoner proceeding pro se, filed his original 18 petition for a writ of habeas corpus in this case in 2019. See Pet., ECF No. 1; First Am. Pet., ECF 19 No. 18. He asserted a single claim under the Sixth Amendment: he contended he had been 20 wrongfully deprived of a jury trial when the state court, rather than a jury, decided he had 21 previously been convicted of a burglary; that prior conviction increased the length of his sentence. 22 See First Am. Pet. at 6.1 The matter was referred to a United States Magistrate Judge, as provided 23 by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. The Magistrate Judge recommended denying 24 the petition for three reasons: (1) petitioner had affirmatively waived his right to a jury trial on the 25 prior convictions in open court; (2) the trial court did not find any “fact” beyond “the simple fact 26 of a prior conviction,” which the Sixth Amendment allows a court to do; and (3) the Supreme 27

28 1 Pages cited here are those applied at the top right by the CM/ECF system. 1 Court decisions petitioner cited did not support his position. Prev. F&Rs at 6–7, ECF No. 50 2 (emphasis omitted) (citing Apprendi v. New Jersey, 530 U.S. 466 (2000); Descamps v. United 3 States, 570 U.S. 254 (2013) and Mathis v. United States, 579 U.S. 500 (2016)). 4 After the Magistrate Judge issued these findings and recommendations, but before this 5 court decided whether to adopt them, the United States Supreme Court issued its opinion in 6 Counterman v. Colorado, 600 U.S. 66 (2023). Petitioner applied to the Ninth Circuit for 7 permission to file a second or successive habeas petition based on Counterman. See Order, 8 Hayne v. Cisneros, No. 23-3940 (9th Cir. June 6, 2024). He also moved to amend this petition in 9 this case. See generally Mot. Leave Am., ECF No. 51. The Circuit transferred his application to 10 this court, and the Magistrate Judge vacated her findings and recommendations and set a deadline 11 for any opposition to the motion for leave to amend. See Min. Order, ECF No. 53. Respondent 12 did not file an opposition. 13 The magistrate judge has filed revised findings and recommendations, which are now 14 pending. See generally F&Rs, ECF No. 56. She recommends denying the claim seeking relief 15 under the Sixth Amendment for the reasons in the previous findings and recommendations. Id. 16 at 7–9. She also recommends granting petitioner’s motion to amend his petition to assert a claim 17 based Counterman, and she recommends denying that new claim as well. See id. at 4, 9. 18 Petitioner objects to the findings and recommendations, but only “relating to [his] new amended 19 claim.” Objs. at 1, ECF No. 57. Respondent filed neither objections nor a response to 20 petitioner’s objections. The court has reviewed the findings and recommendations de novo and 21 finds they are supported by the record and the proper analysis. The Magistrate Judge correctly 22 explained why the state courts were reasonable to reject petitioner’s Sixth Amendment claim: he 23 expressly waived his right to a jury trial on his previous convictions, see Reporter’s Tr. at 636–39, 24 ECF No. 26-5, and the Sixth Amendment does not prohibit the limited finding at issue here, i.e., 25 “the simple fact of a prior conviction,” Mathis, 579 U.S. at 511. The court writes separately now 26 only to explain briefly why petitioner’s objections do not reveal any errors in the findings and 27 recommendations. 28 1 First, the Magistrate Judge did not err by addressing “the merits of the new claim for relief 2 rather than determining whether it is timely filed or barred by retroactivity.” F&Rs at 4 n.6. The 3 new claim could not succeed on its merits no matter whether it related back to the original 4 petition, was otherwise timely, or whether or how the rules of retroactivity might have applied. 5 See Van Buskirk v. Baldwin, 265 F.3d 1080, 1083 (9th Cir. 2001) (declining to “reach the 6 complex questions lurking in the time bar of the AEDPA [Antiterrorism and Effective Death 7 Penalty Act of 1996]” because “[t]he trial court decided the case on the merits, and on the merits 8 it was right as a matter of law”). Nor did the Magistrate Judge err by issuing findings and 9 recommendations without first requiring a responsive pleading. This court “must” deny any 10 petition “[i]f it plainly appears from the petition and any attached exhibits that the petition is not 11 entitled to relief in the district court.” Rule 4 of the Rules Governing 2254 Cases and Section 12 2255 Proceedings. 13 Second, the Magistrate Judge did not err by consulting two recent unpublished decisions 14 by the California Court of Appeal. See F&Rs at 9 (citing People v. Eaves, No. B324674, 15 2024 WL 1399647 (Cal. Ct. App. April 2, 2024) and People v. Hupp, No. E078421, 2023 WL 16 7013441 (Cal. Ct. App. Oct. 25, 2023). Federal courts “are not precluded from considering 17 unpublished state court opinions” but “are not bound by them either.” Nunez by Nunez v. City of 18 San Diego, 114 F.3d 935, 942 n.4 (9th Cir. 1997). 19 Third, the Magistrate Judge correctly concluded that petitioner is not entitled to relief 20 based on the Supreme Court’s decision in Counterman. See F&Rs at 9. In Counterman, the 21 Supreme Court reaffirmed that “[t]rue threats of violence are outside the bounds of First 22 Amendment protection and punishable as crimes.” 600 U.S. at 69. It held, however, that “the 23 First Amendment still requires proof that the defendant had some subjective understanding of the 24 threatening nature of his statements.” Id. To obtain a conviction without running afoul of the 25 First Amendment, “[t]he State must show that the defendant consciously disregarded a substantial 26 risk that his communications would be viewed as threatening violence.” Id. The California law 27 underlying petitioner’s own conviction requires more—proof of a “specific intent that the 28 statement . . . is to be taken as a threat.” Cal. Pen. Code § 422(a). The state court reached the 1 || same conclusion in the last reasoned decision in the post-conviction proceedings here. See Mot. 2 || Leave Am. at 26-27, ECF No. 51. Petitioner is not entitled to relief under § 2254. 3 Petitioner’s motion for a certificate appealability, ECF No. 58, is also denied. Petitioner 4 || has not made the necessary “substantial showing of the denial of a constitutional right.” 5 || 28 U.S.C. § 2253(c)(2). 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. The findings and recommendations (ECF No. 56) are adopted in full. 8 2. Petitioner’s motion to amend (ECF No. 51) is granted. 9 3. The first amended petition for writ of habeas corpus (ECF No. 18) is denied on the 10 | merits including the new claim for relief presented in petitioner’s motion to amend. 11 4. The motion for a certificate of appealability (ECF No. 58) is denied. 12 5. The clerk of court is directed to close this case. 13 | DATED: October 4, 2024.

15 ae . STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28