Romero v. Roe

101 F. App'x 242

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 15, 2004
• Docket: No. 01-56959
• Status: Published

Opinion

MEMORANDUM

***

Petitioner Raymond Romero argues that the state trial court violated his due process right to be present at a “critical stage of trial” by adjudicating (and rejecting) without a hearing his post-sentencing request to strike a prior conviction under California’s Three Strikes Law,¹ pursuant to the then-recent decision in People v. Superior Court (Romero), 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 (1996). That case recognized the discretion of a California sentencing court to strike a pri- or conviction under the Three Strikes Law. Petitioner’s counsel filed written arguments on his behalf, urging the court to use its discretion favorably, and the court considered the arguments, but without holding a hearing.

Our review is under 28 U.S.C. § 2254(d). It is clearly established that a defendant has a right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness or reliability of the procedure. Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). The California courts did not apply Supreme Court precedent unreasonably, however, in holding that the state sentencing court could, consistent with the requirements of due process, reconsider the sentence under Romero without holding a hearing in Petitioner’s presence.

Neither did the California courts apply Supreme Court precedent unreasonably, or find facts unreasonably, when they engaged in a harmless error analysis and held that no reasonable trial judge would have stricken Petitioner’s prior convictions even if he had appeared at a hearing. See Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) (per curiam) (analyzing for harmlessness an error respecting a judge’s ex parte communication that excluded the defendant). Petitioner has a substantial criminal history pre-dating the present conviction for first-degree residential burglary, including felony convictions and prison terms for receiving stolen property, grand theft automobile, escape, possession of heroin, and the two prior first-degree residential burglaries constituting the prior “strikes.”

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

1 . To the extent that Petitioner raises additional arguments, we do not consider them because they are not contained in a certificate of appealability ("COA”), and we decline to expand the COA as requested for the first time in the reply brief on appeal.