Clarence Roberts v. Mike McDonald

FILED
NOT FOR PUBLICATION AUG 08 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLARENCE ROBERTS, No. 12-55886
Petitioner - Appellant, D.C. No. 5:10-cv-01360-AHM-SP
v.
MEMORANDUM*
MIKE MCDONALD,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Submitted August 6, 2013**
Pasadena, California
Before: TALLMAN, CLIFTON, and CALLAHAN, Circuit Judges.
Clarence Roberts appeals the district court’s denial of his petition for a writ
of habeas corpus, arguing that he had a constitutional right to be present at his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
resentencing hearing and that his counsel provided ineffective assistance. We have
jurisdiction under 28 U.S.C. § 2253 and 28 U.S.C. § 1291, and we affirm.1
1. Under the Antiterrorism and Effective Death Penalty Act of 1996, 28
U.S.C. § 2254, the California courts reasonably concluded that Roberts did not
have a constitutional right to be present at his resentencing hearing. A defendant
has the 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 of the procedure,”
Kentucky v. Stincer, 482 U.S. 730, 745 (1987), but not where the “benefit” of his
presence would be “but a shadow,” Snyder v. Massachusetts, 291 U.S. 97, 106–07
(1934). The California Court of Appeal concluded that, under state law, Roberts
had no right to renew, and the trial court had no discretion to consider, a second
motion requesting that the court strike a prior conviction for purposes of
sentencing (known as a “Romero” motion). See People v. Roberts, 2008 WL
4918216, at *3–4 (Cal. Ct. App. Nov. 18, 2008). This court is bound by those
conclusions. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005).
Even if the trial court may have retained extremely limited discretion to
dismiss his prior strikes sua sponte, it would not have done so because Roberts was
1
Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our decision.
2
clearly not a defendant who was outside the spirit of the Three Strikes Law.
People v. Williams, 17 Cal. 4th 148, 161 (1998); Cal. Penal Code §§ 667(b)–(i),
1170.12(a)–(d). Accordingly, the trial court could only impose a mandatory
sentence and any benefit from Robert’s presence at his resentencing hearing would
have been “but a shadow.”
Even if Roberts had a right to be present at his resentencing hearing, his
absence was harmless because he failed to show that the sentencing court likely
would have granted a second Romero motion. Specifically, Roberts does not
present any information materially different from what the sentencing judge
originally considered in rejecting Roberts’s first Romero motion.
2. Roberts is not entitled to habeas relief for his ineffective assistance of
counsel claim because the California courts reasonably applied Strickland v.
Washington, 466 U.S. 668 (1984). Under the Court of Appeal’s interpretation of
state law, counsel’s performance was not deficient because any effort to pursue
additional Romero-related arguments would have been fruitless. Roberts cannot
show that counsel’s performance prejudiced him because he failed to show that the
sentencing court likely would have granted a second Romero motion.
AFFIRMED.
3