Michael Montes v. Jeffrey Beard , 695 F. App'x 305 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 15 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL JAMES MONTES, No. 16-56061
Petitioner-Appellant, D.C. No.
5:15-cv-00330-FMO-KES
v.
JEFFREY A. BEARD, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Fernando M. Olguin, District Judge, Presiding
Submitted August 7, 2017**
Pasadena, California
Before: CALLAHAN and OWENS, Circuit Judges, and FABER,*** District
Judge.
Petitioner Michael Montes (“Petitioner”) appeals from the district court’s
denial of his petition for a writ of habeas corpus. As the parties are familiar with
*
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 David A. Faber, United States District Judge for the
Southern District of West Virginia, sitting by designation.
the facts, we do not recount them here. We have jurisdiction under 28 U.S.C.
§ 2253, and we affirm.
1. The district court did not err in denying the petition because the
Apprendi1 error is harmless.2 Petitioner argues that the California Superior Court
imposed an unconstitutional sentence under counts three and four when it applied
California Penal Code section 186.22(b)(4)(C)’s sentencing enhancement based on
facts not found by the jury beyond a reasonable doubt—namely, that Petitioner
attempted to dissuade Michael Pedroza and Dylan Valencia from reporting a
robbery and that the attempt was “accompanied by an express or implied threat of
force.” See People v. Lopez, 146 Cal. Rptr. 3d 113, 123 (Ct. App. 2012). Here, the
jury was not asked to find whether Petitioner made such threats against Pedroza or
Valencia. Accordingly, the California Superior Court’s imposition of section
186.22(b)(4)(C)’s sentencing enhancement constituted Apprendi error. See
Apprendi, 530 U.S. at 490 (“Other 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 a jury, and proved beyond a reasonable doubt.”).
1
Apprendi v. New Jersey, 530 U.S. 466 (2000).
2
We review Petitioner’s Apprendi claim de novo because the California Superior
Court’s April 9, 2014 opinion, the state’s last reasoned opinion, did not address the
claim on the merits. See Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir.
2005).
2
However, the error is harmless. “A properly preserved Apprendi error is
reviewed for harmless error.” United States v. Guerrero-Jasso, 752 F.3d 1186,
1193 (9th Cir. 2014). On direct appeal, “an error is harmless if the court finds
beyond a reasonable doubt that the result would have been the same absent the
error.” United States v. Zepeda-Martinez, 470 F.3d 909, 913 (9th Cir. 2006)
(internal quotation marks omitted). On collateral review, an error is harmless
unless “the federal court has grave doubt about whether a trial error of federal law
had substantial and injurious effect or influence in determining the jury’s verdict.”
Davis v. Ayala, 135 S. Ct. 2187, 2197-98 (2015) (internal quotation marks and
citation omitted).
Here, Pedroza unambiguously testified that after Petitioner robbed him,
Petitioner threatened to kill him if he told the police. Additionally, the record
clearly shows that the threat of force was, at a minimum, implied to Valencia.
After Petitioner “jacked” his phone, Valencia did not attempt to take it back
because he was afraid that he would be “jumped.” Furthermore, as Petitioner was
threatening Pedroza and punching him in the face multiple times, all of which
occurred in front of and within ear shot of Valencia, Valencia did not attempt to
assist Pedroza because one of Petitioner’s associates told Valencia not to help
while reaching under his shirt as if he had a gun. Under these circumstances, we
have no doubt, much less grave doubt, that the jury would have found that
3
Petitioner attempted to dissuade Valencia from reporting the robbery to law
enforcement and that the attempt was accompanied by an implied or express threat
of force.
2. Petitioner has not made “a substantial showing of the denial of a
constitutional right” so as to expand the certificate of appealability to include his
ineffective assistance of counsel claim. See 28 U.S.C. § 2253(c)(2); Ninth Circuit
Rule 22-1(e). Petitioner argues that his appellate counsel provided ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), by
failing to raise the Apprendi error on direct appeal. As explained above, the
Apprendi error is harmless, even under a direct-appeal standard. It therefore
follows that Petitioner was not prejudiced by his appellate counsel’s failure to raise
it on direct appeal.
This conclusion is not altered by the two state-court cases cited by
Petitioner. The Supreme Court has declared that “Apprendi errors are reviewed
under the harmless error standard in Neder v. United States, 572 U.S. 1, 119 S. Ct.
1827, 144 L.Ed.2d 35 (1999).” Zepeda-Martinez, 470 F.3d at 913. The fact that
two state-court cases have deviated from this rule and remanded for resentencing
in light of Apprendi error without engaging in harmless error review is of no
consequence, as we presume that any state court that would have heard Petitioner’s
Apprendi challenge on direct appeal would “know and follow the law.” Reyes v.
4
Lewis, 833 F.3d 1001, 1010 (9th Cir. 2016) (citation omitted).
AFFIRMED.
5