Martin v. Lawson

• Court: District Court, D. Nevada
• Decided: May 4, 2023
• Docket: 2:22-cv-00850
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 CHRISTOPHER RYAN MARTIN, Case No.: 2:22-cv-00850-APG-VCF 5 Petitioner, Order Denying (1) Petition for Writ of 6 Habeas Corpus, and (2) Motion to Strike v. 7 (ECF Nos. 1, 26) TOM LAWSON, et al., 8

9 Respondents.

10 11 This action is a petition for writ of habeas corpus by Christopher Ryan Martin, an 12 individual who pleaded guilty to and was convicted of a felony third DUI in a Nevada court. 13 Martin, who is represented by retained counsel, claims that his right to a jury trial under the Sixth 14 and Fourteenth Amendments was violated because two prior misdemeanor DUI convictions, 15 both based on pleas of nolo contendere, were obtained without the safeguard of trial by jury. 16 Martin claims that the Nevada Court of Appeals’ ruling—that his constitutional right to a jury 17 trial was not violated and his conviction and sentence were affirmed—was contrary to precedent 18 of the Supreme Court of the United States. I deny Martin’s petition because there is no clearly 19 established federal law, as determined by the Supreme Court, holding that, to be used to enhance 20 a sentence, prior convictions must have been in cases with the right to trial by jury. And I deny 21 Martin a certificate of appealability because there is no reasonable argument that there is any 22 such clearly established federal law. 23 I. BACKGROUND 24 In 2012, Martin pleaded nolo contendere and was convicted of his first DUI, a 25 misdemeanor under Nev. Rev. Stat. § 484C.400(1)(a). See ECF No. 15-17, pp. 3–12. In 2014, 26 Martin pleaded nolo contendere and was convicted of a second DUI, another misdemeanor under 27 Nev. Rev. Stat. § 484C.400(1)(b). See id. at 14–24. 1 In Blanton v. City of North Las Vegas, 489 U.S. 538 (1989), the Supreme Court of the 2 United States held that that there is no Sixth Amendment right to a jury trial for defendants 3 charged with misdemeanor DUI in Nevada. See Blanton, 489 U.S. at 543–45. So, regarding 4 Martin’s first two DUIs, it is beyond dispute that he had no right to a jury trial and those 5 convictions did not violate his federal constitutional right to trial by jury. 6 In 2018, Martin was again charged with DUI. See ECF No. 15-6. As this was Martin’s 7 third DUI within seven years, it was charged as a felony under Nev. Rev. Stat. § 484C.400(1)(c), 8 and his two prior convictions were listed in the Information. Id. at 3. Martin pleaded guilty to 9 this third DUI charge. See ECF Nos. 15-7, 15-8. When he did so, he admitted to his two prior 10 DUI convictions. See ECF No. 15-7, pp. 6, 8. Additionally, the written guilty plea Martin signed 11 stated: “I understand that by pleading guilty I admit the facts which support all the elements of 12 the offense to which I now plead as set forth in Exhibit ‘1’.” ECF No. 15-8, p. 2. Exhibit 1 was 13 the Information charging Martin with a felony third DUI, alleging that Martin previously 14 committed the offense of DUI within the previous seven years, and listing his two prior DUIs. Id. 15 at 13. 16 The parties agreed that Martin should be allowed to participate in a felony DUI program 17 under Nev. Rev. Stat. § 484C.340. Id. at 5–8. The court transferred Martin into that program and 18 placed him on probation. See ECF No. 15-3, pp. 3–4. The court imposed the condition that 19 Martin have a “BIID (breath ignition interlock device) or CLUB” installed on any vehicle he 20 owned, operated, or maintained at his residence. Ibid. While on probation in 2020, Martin 21 violated this probation condition by failing to maintain a BIID or CLUB on a vehicle. See ECF 22 No. 19-1 (filed under seal). Martin was terminated from the felony DUI program and his case 23 was transferred back to the district court for sentencing. See ECF No. 15-3, pp. 13–16. 24 At sentencing, the prosecution filed certified copies of documents establishing Martin’s 25 two prior DUI convictions. ECF No. 15-17. The court revoked Martin’s probation and sentenced 26 him to a maximum of 48 months in prison, with minimum parole eligibility of 12 months. See 27 ECF Nos. 15-3 at 17; 15-18. 1 Martin appealed. ECF Nos. 15-28, 16-4. The Nevada Court of Appeals affirmed on 2 September 13, 2021. ECF No. 16-22. The Nevada Court of Appeals denied Martin’s motion for 3 rehearing (ECF No. 16-24), the Supreme Court of Nevada denied Martin’s petition for review 4 (ECF No. 17-6), and the Supreme Court of the United States denied Martin’s petition for 5 certiorari (ECF No. 17-13). 6 Martin filed a petition for writ of habeas corpus in this court initiating this action. ECF 7 No. 1. Martin asserts one claim: that the statute under which he was convicted of the felony third 8 DUI, Nev. Rev. Stat. § 484C.400(1)(c), is unconstitutional on its face and as applied, and that his 9 conviction and sentence violate his federal constitutional rights because his third DUI was 10 enhanced from a misdemeanor to a felony “using prior convictions obtained without the 11 safeguard of trial by jury guaranteed by the Sixth Amendment of the United States Constitution.” 12 Id. at 6. 13 The respondents filed an answer, Martin filed a reply, and the respondents filed a 14 response to the reply. ECF Nos. 14, 22, 25. Martin then moved to strike the respondents’ 15 response to his reply. ECF No. 26. 16 II. DISCUSSION 17 A. Motion to Strike 18 In his motion to strike (ECF No. 26), Martin asks the court to strike the respondents’ 19 response because, in his view, the respondents misrepresented a quote from Apprendi v. New 20 Jersey, 530 U.S. 466 (2000). Specifically, Martin points out that the respondents removed text 21 from the quote and used ellipses, presenting the quote as follows:

22 The United States Supreme Court added, “recidivism ‘does not relate to the commission of the offense’ itself” and “there is a vast difference between 23 accepting the validity of a prior judgment of conviction … and the right to require the prosecutor to prove guilt beyond a reasonable doubt . . . .” Apprendi, 530 U.S. 24 at 496. 25 ECF No. 25, p. 5, lines 25–28. In fact, the entire quote, in context, is as follows:

26 New Jersey’s reliance on Almendarez-Torres is also unavailing. The reasons supporting an exception from the general rule for the statute construed in 27 that case do not apply to the New Jersey statute. Whereas recidivism “does not “commission of the offense.” Moreover, there is a vast difference between 1 accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the 2 prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof. 3 4 Apprendi, 530 U.S. at 496. 5 While I agree that the respondents’ alteration of the quote changed its meaning, they used 6 ellipses to indicate that text was removed. Furthermore, the omitted text had already been 7 presented, repeatedly, in Martin’s habeas petition (ECF No. 1, p. 10, lines 21–26, and p. 12, lines 8 11–15) and in his reply to the respondents’ answer (ECF No. 22, p. 4, line 26 – p. 5, line 5, and 9 p. 11, lines 5–12). Therefore, the respondents’ presentation of the quote was not so misleading 10 as to warrant striking the document from the record. I will deny the motion to strike. 11 B. The Merits of Martin’s Claim 12 Martin claims that Nev. Rev. Stat. § 484C.400(1)(c) is unconstitutional on its face and as 13 applied, and that his conviction and sentence violate his federal constitutional rights because he 14 was convicted of a felony third DUI “using prior convictions obtained without the safeguard of 15 trial by jury guaranteed by the Sixth Amendment of the United States Constitution.” ECF No. 1, 16 p. 6. 17 Martin asserted this claim in state court on his direct appeal (see ECF No. 16-4, pp. 23– 18 30), and the Nevada Court of Appeals ruled on the claim as follows:

19 … Martin argues NRS 484C.400(1)(c) is unconstitutional because it permits the State to enhance a DUI charge to a felony offense based upon prior 20 misdemeanor DUI convictions that were not the result of a jury trial. We review the constitutionality of statutes de novo. Silvar v. Eighth Judicial Dist. Court, 122 21 Nev. 289, 292, 129 P.3d 682, 684 (2006). “Statutes are presumed to be valid, and the challenger bears the burden of showing that a statute is unconstitutional.” Tam 22 v. Eighth Judicial Dist. Court, 131 Nev. 792, 796, 358 P.3d 234, 237–38 (2015) (internal quotation marks omitted). “In order to meet that burden, the challenger 23 must make a clear showing of invalidity.” Id. at 796, 358 P.3d at 238 (internal quotation marks omitted). 24 NRS 484C.400(1)(c) permits a current DUI to be charged as a felony 25 offense based upon a defendant’s prior misdemeanor DUI convictions. In this matter, Martin was charged pursuant to NRS 484C.400(1)(c) with felony DUI 26 based upon his prior misdemeanor DUI convictions, and he pleaded guilty to committing felony DUI. Martin contends that only prior convictions obtained 27 through a jury trial can be used to enhance a sentence. In support, Martin relies fact of a prior conviction, any fact that increases the penalty for a crime beyond 1 the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490 (emphasis added); accord 2 Jones, 526 U.S. at 243 n.6. Martin points to excerpts from these cases stating that prior convictions are established by jury trial. See Apprendi, 530 U.S. at 490; 3 Jones, 526 U.S. at 249. The portions of the cases from which the excerpts were taken merely explained one reason why recidivism is treated differently from all 4 other considerations that could enlarge a sentence. See Apprendi, 530 U.S. at 496 (explaining primarily that recidivism “does not relate to the commission of the 5 offense itself” (internal quotation marks omitted)); Jones, 526 U.S. at 249 (describing due process protections that include the right to a jury trial as “one 6 basis” to justify the distinction). Martin thus has not demonstrated that only prior convictions that were subject to a jury trial may be considered when enhancing a 7 sentence due to recidivism and, in turn, that NRS 484C.400(1)(c) is facially unconstitutional. [Footnote: Martin also refers several times to Almendarez- 8 Torres v. United States, 523 U.S. 224 (1998), but he does not offer any citations to the case that support what he claims the case stands for. Rather, like the 9 petitioner in Almendarez-Torres, Martin admitted his recidivism at the time he pleaded guilty. For these reasons, Martin fails to demonstrate that Almendarez- 10 Torres supports his claim.] Therefore, we conclude Martin is not entitled to relief on this claim…. 11 ECF No. 16-22, pp. 3–4 (emphasis in original). 12 The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)) sets forth the 13 standard of review applicable to a claim previously asserted and resolved on its merits in state 14 court: 15 An application for a writ of habeas corpus on behalf of a person in custody 16 pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 17 adjudication of the claim ―

18 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 19 determined by the Supreme Court of the United States; or

20 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence 21 presented in the State court proceeding.

22 23 28 U.S.C. § 2254(d). A state court decision is contrary to clearly established Supreme Court 24 precedent within the meaning of 28 U.S.C. § 2254(d)(1), “if the state court applies a rule that 25 contradicts the governing law set forth in [the Supreme Court’s] cases” or “if the state court 26 confronts a set of facts that are materially indistinguishable from a decision of [the Supreme 27 Court] and nevertheless arrives at a result different from [the Supreme Court’s] precedent.” 1 (2000)). A state court decision is an unreasonable application of clearly established Supreme 2 Court precedent within the meaning of 28 U.S.C. § 2254(d)(1), “if the state court identifies the 3 correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies 4 that principle to the facts of the prisoner’s case.” Lockyer, 538 U.S. at 75 (quoting Williams, 529 5 U.S. at 413). The analysis under section 2254(d) looks to the law that was clearly established by 6 precedent of the Supreme Court of the United States at the time of the state court’s decision. 7 Wiggins v. Smith, 539 U.S. 510, 520 (2003). 8 Martin claims that the Nevada Court of Appeals’ decision in his case was contrary to 9 clearly established federal law, specifically the holdings of Apprendi v. New Jersey, 530 U.S, 10 466 (2000), Jones v. United States, 526 U.S. 227 (1999), and Almendarez-Torres v. United 11 States, 523 U.S. 224 (1998). See ECF No. 1, pp. 2–4, 8–11, 13–14. The crux of this case, 12 therefore, is whether Apprendi, Jones, and Almendarez-Torres clearly establish that the use of 13 prior convictions for enhancement must, under the federal constitution, be limited to prior 14 convictions obtained in proceedings with the safeguard of a jury trial. 15 In Almendarez-Torres v. United States, 523 U.S. 224 (1998), the defendant pleaded guilty 16 to and was convicted of reentering the United States after having been previously deported 17 following his conviction for aggravated felonies. Almendarez-Torres, 523 U.S. at 227. The 18 Supreme Court affirmed. The Court rejected the defendant’s argument that, because the 19 indictment did not allege his aggravated felony convictions, he could not be sentenced for illegal 20 reentry following deportation after conviction of aggravated felonies. The Court held that the 21 fact of a prior conviction was not an element of the crime that had to be pleaded in the charging 22 document, but was rather a sentencing factor. Id. at 247. The Court emphasized the tradition of 23 treating recidivism as a sentencing factor, not an element of the crime. Id. at 230 (“That subject 24 matter—prior commission of a serious crime—is as typical a sentencing factor as one might 25 imagine.”); id. at 243 (“[T]he sentencing factor at issue here—recidivism—is a traditional, if not 26 the most traditional, basis for a sentencing court’s increasing an offender’s sentence.”). 27 1 In Jones v. United States, 526 U.S. 227 (1999), the defendant was charged with 2 carjacking in violation of 18 U.S.C. § 2119, which at the time provided that a person possessing 3 a firearm who 4 takes a motor vehicle ... from the person or presence of another by force and violence or by intimidation ... shall … (1) be ... imprisoned not more than 15 5 years ..., (2) if serious bodily injury ... results, be ... imprisoned not more than 25 years ..., and (3) if death results, be ... imprisoned for any number of years up to 6 life ....

7 The indictment made no reference to the numbered subsections of § 2119 and charged none of 8 the facts that could lead to a greater penalty under subsection (2) or (3). Jones, 526 U.S. at 230– 9 31. At arraignment, the magistrate judge told the defendant that he faced a maximum sentence 10 of 15 years for carjacking. Ibid. The jury instructions at trial defined the offense by reference 11 only to § 2119(1), with no mention of serious bodily injury. Id. at 231. The jury found the 12 defendant guilty. The presentence report recommended that the defendant be sentenced to 25 13 years for the carjacking because one of the victims suffered serious bodily injury. Ibid. The 14 district court rejected the defendant’s objection that serious bodily injury was an element of the 15 offense that had not been pleaded in the indictment or proven to the jury. Ibid. The court 16 sentenced the defendant to 25 years, finding that there was serious bodily injury. Ibid. The Ninth 17 Circuit Court of Appeals, agreeing with the Eleventh Circuit Court of Appeals (see United States 18 v. Williams, 51 F.3d 1004, 1009–10 (1995)), affirmed, ruling that § 2119(2) set forth a 19 sentencing factor, not an element of the crime that had to be found by a jury. Id. at 231–32. 20 The Supreme Court reversed, holding that § 2119 established three separate offenses, 21 each with separate elements that had to be charged and proven beyond a reasonable doubt to a 22 jury. Id. at 232–52. The Court distinguished its holding in Almendarez-Torres: 23

Almendarez–Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 24 350 (1998), decided last Term, stands for the proposition that not every fact expanding a penalty range must be stated in a felony indictment, the precise 25 holding being that recidivism increasing the maximum penalty need not be so charged. But the case is not dispositive of the question here, not merely because 26 we are concerned with the Sixth Amendment right to jury trial and not alone the rights to indictment and notice as claimed by Almendarez–Torres, but because the 27 holding last Term rested in substantial part on the tradition of regarding no question that the Court regarded that fact as potentially distinguishable for 1 constitutional purposes from other facts that might extend the range of possible sentencing. See id., at 230, 118 S.Ct. 1219 (“At the outset, we note that the 2 relevant statutory subject matter is recidivism”); ibid. (“With recidivism as the subject matter in mind, we turn to the statute’s language”); id., at 243, 118 S.Ct. 3 1219 (“First, the sentencing factor at issue here—recidivism—is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s 4 sentence”); id., at 245, 118 S.Ct. 1219 (distinguishing [McMillan v. Pennsylvania, 477 U.S. 79 (1986)] “in light of the particular sentencing factor at issue in this 5 case—recidivism”). One basis for that possible constitutional distinctiveness is not hard to see: unlike virtually any other consideration used to enlarge the 6 possible penalty for an offense, and certainly unlike the factor before us in this case, a prior conviction must itself have been established through procedures 7 satisfying the fair notice, reasonable doubt, and jury trial guarantees. Almendarez–Torres cannot, then, be read to resolve the due process and Sixth 8 Amendment questions implicated by reading the carjacking statute as the Government urges. 9 10 Jones, 526 U.S. at 248–49 (footnote omitted).1 11 The Jones Court drew a distinction between sentence enhancement for causation of 12 serious bodily injury, which the Court held to be an element that had to be proven to a jury, and 13 sentence enhancement based on the fact of prior convictions, which the Court held to be a 14 sentencing factor that could be found by the sentencer, and the Court explained that “[o]ne basis 15 for that possible constitutional distinctiveness” is that “a prior conviction must itself have been 16 established through procedures satisfying the fair notice, reasonable doubt, and jury trial 17 guarantees.” Jones, 526 U.S. at 249 (emphasis added). That comment was in the context of the 18 Court’s discussion of Almendarez–Torres, in which the defendant’s recidivism consisted of prior 19 felony convictions, on which the defendant did happen to have the constitutional right to trial by 20 jury. The Jones Court did not say that the use of prior convictions for enhancement must, under 21 the federal constitution, be limited to prior convictions obtained in proceedings with the 22 safeguard of trial by jury. 23 24

25 1 See also Jones, 526 U.S. at 235 (“[In Almendarez-Torres] we stressed the history of treating recidivism as a sentencing factor, and noted that, with perhaps one exception, Congress had 26 never clearly made prior conviction an offense element where the offense conduct, in the absence of recidivism, was independently unlawful. 523 U.S., at 230, 118 S.Ct. 1219. Here, on 27 the contrary, the search for comparable examples more readily suggests that Congress had 1 In Apprendi v. New Jersey, 530 U.S. 466 (2000), the defendant was charged under New 2 Jersey law with several crimes, including possession of a firearm for an unlawful purpose. The 3 charging document did not refer to New Jersey’s hate crime statue, which provided for an 4 enhanced sentence if the trial judge found by a preponderance of the evidence that the defendant 5 committed the crime with a purpose to intimidate a person or group because of race and did not 6 allege that the defendant acted with a racially biased purpose. Apprendi, 530 U.S. at 469. After 7 the defendant entered into a plea agreement and pleaded guilty to the gun charge, the prosecution 8 sought enhancement of the sentence based on the hate crime statute. Id. at 470. The judge found 9 by a preponderance of the evidence that the shooting was racially motivated and sentenced the 10 defendant to an enhanced penalty under the hate crime statute. Id. at 471. The state appeals court 11 and state supreme court affirmed, rejecting the defendant’s argument that the federal constitution 12 required that the bias necessary for enhancement of the penalty be proven to a jury beyond a 13 reasonable doubt. Id. at 471–72. The Supreme Court of the United States reversed, reaffirming 14 its holding in Jones that, “[o]ther than the fact of a prior conviction, any fact that increases the 15 penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and 16 proved beyond a reasonable doubt,” and extending that rule to state criminal proceedings. Id. at 17 474, 490. 18 The Apprendi Court, like the Jones Court, left in place the exception for recidivism found 19 in Almendarez-Torres:

20 New Jersey’s reliance on Almendarez-Torres is also unavailing. The reasons supporting an exception from the general rule for the statute construed in 21 that case do not apply to the New Jersey statute. Whereas recidivism “does not relate to the commission of the offense” itself, 523 U.S., at 230, 244, 118 S.Ct. 22 1219, New Jersey’s biased purpose inquiry goes precisely to what happened in the “commission of the offense.” Moreover, there is a vast difference between 23 accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the 24 prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof. 25 26 Apprendi, 530 U.S. at 496. But here again, the Court’s mention of the right to a jury trial on 27 prior convictions was in the context of discussion of Almendarez-Torres, in which the prior 1 like the Jones Court, did not hold that the use of prior convictions for enhancement must be 2 limited to prior convictions obtained in proceedings with the safeguard of trial by jury. See also 3 Shepard v. United States, 544 U.S. 13, 38 (2005) (O’Connor, J., dissenting) (characterizing 4 Almendarez-Torres in a manner similar to the Court in Jones and Apprendi). 5 Martin also cites United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001). In that case—a 6 federal criminal case—the Ninth Circuit Court of Appeals addressed the question “[whether] 7 prior juvenile adjudications, which do not afford the right to a jury trial, fall within the ‘prior 8 conviction’ exception to Apprendi’s general rule that a fact used to increase a defendant’s 9 maximum penalty must be submitted to a jury and proved beyond a reasonable doubt?” Tighe, 10 266 F.3d at 1193. Holding that they do not, the court stated:

11 [A]s we read Jones and Apprendi, the “prior conviction” exception to Apprendi’s general rule must be limited to prior convictions that were themselves obtained 12 through proceedings that included the right to a jury trial and proof beyond a reasonable doubt. Juvenile adjudications that do not afford the right to a jury trial 13 and a beyond-a-reasonable-doubt burden of proof, therefore, do not fall within Apprendi’s “prior conviction” exception. 14 * * * 15 In sum, we conclude Apprendi’s narrow “prior conviction” exception is limited to 16 prior convictions resulting from proceedings that afforded the procedural necessities of a jury trial and proof beyond a reasonable doubt. Thus, the “prior 17 conviction” exception does not include nonjury juvenile adjudications. 18 Id. at 1194–95. So Tigue does appear to support Martin’s position, although it is clearly different 19 in that it concerns prior juvenile adjudications rather than prior adult misdemeanor convictions 20 based on pleas of nolo contendere. However, Tigue is a decision of the Ninth Circuit Court of 21 Appeals, not the Supreme Court of the United States, and therefore, because the AEDPA 22 standard codified in 28 U.S.C. § 2254(d) applies in this habeas corpus case, Tighe is not 23 controlling. The Ninth Circuit’s subsequent ruling in Boyd v. Newland, 467 F.3d 1139 (9th Cir. 24 2006), cert. denied, 550 U.S. 933 (2007), a habeas corpus case, is instructive. In Boyd, the Ninth 25 Circuit held that the state court’s use of the petitioner’s prior nonjury juvenile adjudication to 26 enhance his sentence was not contrary to, or an unreasonable application of, clearly established 27 federal law, within the meaning of 28 U.S.C. § 2254(d): Although we are not suggesting that Tighe was incorrectly decided, as some of 1 these varying interpretations of Apprendi suggest, the opinion does not represent clearly established federal law “as determined by the Supreme Court of the United 2 States.” 28 U.S.C. § 2254(d)(1). In general, Ninth Circuit precedent remains persuasive authority in determining what is clearly established federal law. See 3 Duhaime v. Ducharme, 200 F.3d 597, 600–01 (9th Cir. 1999) (stating that Ninth Circuit case law may be used to help determine clearly established federal law). 4 But, in the face of authority that is directly contrary to Tighe, and in the absence of explicit direction from the Supreme Court, we cannot hold that the California 5 courts’ use of Petitioner’s juvenile adjudication as a sentencing enhancement was contrary to, or involved an unreasonable application of, Supreme Court precedent. 6 7 Boyd, 467 F.3d at 1152. The Ninth Circuit ruled in the same manner in 2011 in John-Charles v. 8 California, 646 F.3d 1243 (9th Cir. 2011), cert. denied, 565 U.S. 1097 (2011), another habeas 9 case. See John-Charles, 646 F.3d at 1252–53 (“we are bound by Boyd, and we therefore 10 conclude that the California court neither contravened nor unreasonably applied clearly 11 established Supreme Court precedent when it upheld the trial court’s use of John–Charles’s 12 juvenile conviction as a strike that extended his term of imprisonment”).2 Boyd and the Ninth 13 Circuit cases following it are persuasive authority that, in Apprendi, Jones, and Almendarez- 14 Torres, the Supreme Court did not clearly establish that the Sixth and Fourteenth Amendments 15 preclude use of prior nonjury convictions to enhance a sentence, as Martin appears to contend. 16 In 1989, in a footnote in Blanton (the case in which the Supreme Court of the United 17 States held there is no constitutional right to a jury trial in a Nevada first-DUI prosecution), the 18 Court explicitly reserved judgment on the issue raised by Martin in this case:

19 In light of petitioners’ status as first-time offenders, we do not consider whether a repeat offender facing enhanced penalties may state a constitutional claim because 20 of the absence of a jury trial in a prior DUI prosecution. 21 22 2 See also Johnson v. Montgomery, 899 F.3d 1052, 1059 (9th Cir. 2018) (“But our interpretation 23 of Apprendi [in Tighe] ‘does not represent clearly established federal law “as determined by the Supreme Court of the United States,”’ as required to overturn a state court decision regarding a 24 federal claim under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).”); 25 Barno v. Neotti, 569 Fed. App’x 543, 544 (9th Cir.), cert. denied, 574 U.S. 867 (2014) (“it is not clearly established that the Sixth Amendment prohibits a sentencing court from using a 26 defendant’s prior juvenile adjudication to enhance his sentence beyond the statutory maximum”); Solorzano v. Yates, 264 Fed. App’x 576, 577 (9th Cir. 2008) (“the use of Solorzano’s prior non- 27 jury juvenile adjudications to enhance his sentence was neither contrary to, nor an unreasonable 1 Blanton, 489 U.S. at 545 n.12. Martin has not shown that the Supreme Court has since resolved 2 that question, and the Supreme Court did not do so in Almendarez-Torres, Jones, or Apprendi. 3 Therefore, Martin has not shown that the Nevada Court of Appeals’ ruling in his case was 4 contrary to clearly established federal law as determined by the Supreme Court of the United 5 States. Applying the AEDPA standard, I deny Martin’s habeas petition. 6 C. Certificate of Appealability 7 The issuance of a certificate of appealability requires a “substantial showing of the denial 8 of a constitutional right.” 28 U.S.C. §2253(c). “Where a district court has rejected the 9 constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: 10 The petitioner must demonstrate that reasonable jurists would find the district court’s assessment 11 of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); 12 see also James v. Giles, 221 F.3d 1074, 1077–79 (9th Cir. 2000). 13 A certificate of appealability is unwarranted here. Examining the Supreme Court’s 14 holdings in Apprendi, Jones, and Almendarez-Torres, and taking into consideration the Ninth 15 Circuit’s rulings in Boyd and Boyd’s progeny, reasonable jurists would not find debatable my 16 conclusion that there is no clearly established federal law requiring that the use of prior 17 convictions for enhancement must, under the federal constitution, be limited to prior convictions 18 obtained in proceedings with the safeguard of trial by jury. I will, therefore, deny Martin a 19 certificate of appealability. 20 III. CONCLUSION 21 I THEREFORE ORDER that the Petitioner’s Motion to Strike (ECF No. 26) is 22 DENIED. 23 I FURTHER ORDER that the Petition for Writ of Habeas Corpus (ECF No. 1) is 24 DENIED. 25 I FURTHER ORDER the Clerk of the Court to enter judgment accordingly and close 26 this case. 27 / / / / 1 I FURTHER ORDER that Petitioner is denied a certificate of appealability. 2 Dated: May 4, 2023. 3 l= 4 U.S. District Judge Andrew P. Gordon 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28