Nunes v. Ramirez-Palmer

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONEY R. NUNES, 

Petitioner-Appellant,

No. 06-16100

v.

ANA RAMIREZ-PALMER, ATTORNEY  D.C. No.

CV-98-1333-DFL

GENERAL OF THE STATE OF

OPINION

CALIFORNIA,

Respondent-Appellee.



Appeal from the United States District Court

for the Eastern District of California

David F. Levi, District Judge, Presiding

Submitted February 15, 2007*

San Francisco, California

Filed April 27, 2007

Before: Ronald M. Gould and Milan D. Smith, Jr., Circuit

Judges, and Alfred V. Covello,** District Judge.

Opinion by Judge Covello

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2).

**The Honorable Alfred V. Covello, Senior United States District

Judge for the District of Connecticut, sitting by designation.

4633

NUNES v. RAMIREZ-PALMER 4637

COUNSEL

Suzanne A. Luban, Oakland, California, for the petitioner-

appellant.

Bill Lockyer, Attorney General for the State of California,

Mary Jo Graves, Chief Assistant Attorney General, Gerald A.

Engler, Senior Assistant Attorney General, Juliet B. Haley,

Deputy Attorney General, and Glenn R. Pruden, Deputy

Attorney General, Sacramento, California, for the respondent-

appellee.

OPINION

COVELLO, District Judge:

This is an appeal from the district court’s order denying a

petition for a writ of habeas corpus. The appeal is brought

pursuant to 28 U.S.C. § 2253.1 The petitioner-appellant,

Roney Nunes, contends that the district court erred when it

rejected Nunes’s assertions that he was charged and sentenced

under California’s recidivist statute in violation of the Fifth,

Eighth, and Fourteenth Amendments to the United States

Constitution.

1

“In a habeas corpus proceeding . . . , the final order shall be subject to

review, on appeal, by the court of appeals for the circuit in which the pro-

ceeding is held.” 28 U.S.C. § 2253(a).

4638 NUNES v. RAMIREZ-PALMER

The issues presented are: 1) whether the state appellate

court’s ruling upholding the constitutionality of Nunes’s sen-

tence was the result of an unreasonable application of clearly

established federal law; 2) whether the state appellate court’s

ruling upholding the constitutionality of Nunes’s sentence

was based on an unreasonable determination of the facts; 3)

whether it was objectively reasonable for the state appellate

court to reject Nunes’s claim of prosecutorial vindictiveness;

and 4) whether it was objectively reasonable for the state

appellate court to reject Nunes’s claim that the state trial court

violated the Fourteenth Amendment when it denied his

motion to strike his prior convictions at sentencing.

For the reasons set forth hereinafter, we affirm the decision

of the district court.

I. FACTS

A review of the record reveals the following undisputed

material facts.

A California state court jury found Nunes, the petitioner-

appellant, guilty of petty theft with a prior conviction.2 At

trial, the jury heard testimony from numerous witnesses indi-

cating that Nunes shoplifted $114.40 worth of tools from a

Home Depot store. In particular, one Home Depot employee

testified that he saw Nunes remove security tags from a tool

set by unwrapping and hiding the tool set’s packaging materi-

als. Nunes then hid the unwrapped tools in his sweater and

walked out of the store without triggering the security alarms.

2

“Every person who, having been convicted of petty theft, grand theft,

auto theft . . . , burglary, carjacking, [or] robbery, . . . and having served

a term therefor in any penal institution or having been imprisoned therein

as a condition of probation for that offense, is subsequently convicted of

petty theft, then the person convicted of that subsequent offense is punish-

able by imprisonment in the county jail not exceeding one year, or in the

state prison.” Cal. Pen. Code § 666.

NUNES v. RAMIREZ-PALMER 4639

After the jury found Nunes guilty, the trial court sentenced

him to a term of imprisonment of twenty-five years to life,

under California’s recidivist statute.3 During sentencing,

Nunes moved to strike several of his prior convictions pursu-

ant to People v. Sumstine, 36 Cal. 3d 909, 918-19 (1984)

(affording defendants in some circumstances the opportunity

to collaterally attack a prior conviction that may be used to

enhance a sentence imposed for a subsequent conviction). The

trial court denied the motion.

Nunes brought a direct appeal to the Court of Appeal of the

State of California. Nunes argued, inter alia, that his sentence

amounted to cruel and unusual punishment in violation of the

Eighth Amendment.

In assessing this claim, the state appellate court first noted

that a “punishment may violate the constitution[ ] . . . if it is

grossly disproportionate to the offense for which it is

imposed.” The court then proceeded to consider the constitu-

tionality of the sentence in light of “the nature of the offense

and/or the offender.” The court remarked that the manner in

which Nunes carried out his crime “suggests a degree of

sophistication.” Moreover, the court noted that Nunes “has

repeatedly committed serious criminal conduct and numerous

thefts, and, notwithstanding numerous stays in jail and prison

over five decades, [the] defendant has never reformed his con-

duct.” The court made this assessment after describing his

criminal record as follows:

[His] history includes prior misdemeanor theft con-

victions in 1967, 1976 and 1983. Defendant’s exten-

3

“If a defendant has two or more prior felony convictions . . . that have

been pled and proved, the term for the current felony conviction shall be

an indeterminate term of life imprisonment with a minimum term of . . .

[i]mprisonment in the state prison for 25 years.” Cal. Pen. Code § 667.

There is no dispute on appeal as to the applicability of the recidivist stat-

ute.

4640 NUNES v. RAMIREZ-PALMER

sive history also includes not only a host of other

misdemeanor convictions and felony theft convic-

tions but numerous serious and violent felony con-

victions. In 1945, when defendant was 20 years old,

he was convicted of rape. Less than two years later,

he was convicted of burglary and theft. In 1965,

defendant was convicted of first degree burglary.

Defendant was convicted of robbery, first degree

burglary and felony theft in 1968 and committed to

state prison. He was paroled in 1971 and discharged

from parole in 1974. However, apparently during his

parole period, defendant was convicted of a misde-

meanor count of receiving stolen property in 1972

and served time in county jail. In 1980, he was con-

victed of felony theft and granted probation. A 1982

offense led to a rape conviction for which defendant

served a state prison commitment. He was released

from prison without parole in 1992. In 1993, he was

convicted of failing to register as a sex offender and

sent to jail. It appears that he was released from jail

in early 1994.

Additionally, the court clarified that “[w]hile it might appear

that defendant was relatively law-abiding in the 1950’s, his

lawfulness was apparently due to his incarceration from 1954

to 1964 in Illinois for a conviction which was subsequently

reversed.”

In this recitation of Nunes’s criminal history, the state

appellate court included Nunes’s convictions for rape in 1945,

and burglary and theft in 1947, despite the fact that these con-

victions were documented in the pre-sentencing report in pen,

rather than being typed like the rest of his prior offenses. Fur-

ther, the pre-sentencing report indicated that Nunes only

received a suspended sentence for his rape conviction in 1945.

Additionally, with respect to the rape in 1982, Nunes only

served approximately ten years, because after the case was

NUNES v. RAMIREZ-PALMER 4641

overturned on appeal, Nunes pleaded no contest on remand,

and in 1992, was sentenced to time served.

Nevertheless, in light of Nunes’s criminal history, the state

appellate court ultimately concluded that it did “not believe

that the life term imposed on [the] defendant was unconstitu-

tionally disproportionate.”

Nunes then filed a petition for review with the California

Supreme Court, which the court denied. He subsequently filed

a habeas petition, again with the California Supreme Court, in

which he asserted two claims that he had not argued on direct

review.

Specifically, Nunes first contended that the decision of the

district attorney’s office to charge him under the recidivist

statute was a result of prosecutorial vindictiveness, and there-

fore was in violation of his right to due process.

The Santa Clara County district attorney’s office prose-

cuted Nunes. In that office, “a strike committee” decides

whether to charge an eligible defendant under the recidivist

statute. Historically, the committee has charged a recidivist

count against nearly half of all defendants eligible under the

statute.

In making his claim that the strike committee decided to

charge him out of vindictiveness, Nunes relied on several fac-

tors. The prosecutor in his case, one Thomas Hanford, was on

the strike committee, and had previously been involved in

several prosecutions of Nunes. In one such case, Hanford suc-

cessfully prosecuted Nunes for raping a girl in 1982. Nunes

appealed, and alleged that Hanford had engaged in prosecu-

torial misconduct. Nunes eventually won the appeal, although

not on the basis of misconduct on the part of Hanford. Years

after that rape prosecution, Hanford was able to remember the

facts of the crime in great detail. Additionally, at one pont,

Nunes brought a civil suit against both the rape victim and

4642 NUNES v. RAMIREZ-PALMER

Hanford. Further, when Hanford initially commenced the

prosecution of the case resulting in the conviction that Nunes

now seeks to have set aside, Hanford included on the charging

documents several prior offenses that were not applicable

under the recidivist statute. Finally, over the years, Hanford

made several comments connoting animosity toward Nunes,

including an expression of satisfaction in a newspaper article

regarding the sentence that Nunes received in the present

case.

Nunes’s second claim in his state habeas petition was that

when the state trial court denied his motion to strike his prior

convictions at sentencing, it denied him a state-created liberty

interest guaranteed by the Fourteenth Amendment. The Cali-

fornia Supreme Court summarily denied his petition, without

specifically discussing either claim in its order.

Nunes then filed a habeas petition with the United States

District Court for the Eastern District of California. Inter alia,

Nunes again argued: 1) that his sentence violated the Eighth

Amendment; 2) that he was charged out of prosecutorial vin-

dictiveness; and 3) that he was denied a state-created liberty

interest guaranteed by the Fourteenth Amendment. The dis-

trict court thereinafter adopted the recommendations of a

magistrate judge and denied Nunes’s petition. Nunes filed a

timely notice of appeal.

II. STANDARD OF REVIEW

“A district court’s decision to grant or to deny a petition for

habeas corpus is reviewed de novo.” Clark v. Murphy, 331

F.3d 1062, 1067 (9th Cir. 2003). With respect to “any claim

that was adjudicated on the merits in State court proceedings,”

courts shall not grant a habeas application unless the adjudica-

tion of the claim:

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

NUNES v. RAMIREZ-PALMER 4643

established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). “In order for a federal court to find a

state court’s application of [the Supreme Court’s] precedent

‘unreasonable,’ the state court’s decision must have been

more than incorrect or erroneous.” Wiggins v. Smith, 539 U.S.

510, 520 (2003). “The state court’s application must have

been ‘objectively unreasonable.’ ” Id. at 520-21.

“[A] determination of a factual issue made by a State court

shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). It is

the petitioner’s “burden of rebutting the presumption of cor-

rectness by clear and convincing evidence.” Id.

Where a state court decision provides no reasoned analysis

of an issue, federal courts reviewing a habeas petition must

perform an independent review of the record to ascertain

whether the state court decision was objectively unreasonable

in light of pertinent federal law. Himes v. Thompson, 336 F.3d

848, 853 (9th Cir. 2003).

III. DISCUSSION

A. The Eighth Amendment

Nunes first argues that his sentence of a term of imprison-

ment of twenty-five years to life violates the Eighth Amend-

ment. Specifically, he contends that the state appellate court’s

ruling upholding his sentence was the result of “an unreason-

able application of clearly established federal law.” He argues

that although the state appellate court generally considered

whether his sentence was grossly disproportionate, it did not

properly compare his sentence to: 1) the sentences that result

4644 NUNES v. RAMIREZ-PALMER

from convictions for different crimes in California; or 2) the

sentences that result from convictions for the same crime in

different jurisdictions.

With respect to Eighth Amendment jurisprudence, Nunes is

correct that the Supreme Court has noted that proportionality

analysis under the Eighth Amendment should be guided by

objective criteria, including: “(i) the gravity of the offense and

the harshness of the penalty; (ii) the sentences imposed on

other criminals in the same jurisdiction; and (iii) the sentences

imposed for commission of the same crime in other jurisdic-

tions.” Solem v. Helm, 463 U.S. 277, 292 (1983). Despite this,

the Supreme Court has not uniformly applied this three step

analysis. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 1005

(1991); Rummel v. Estelle, 445 U.S. 263, 285 (1980).

[1] In an attempt to resolve this inconsistency, the Supreme

Court has explicitly identified that which constitutes “clearly

established federal law” in its Eighth Amendment jurispru-

dence for the purpose of habeas review. Specifically, in Lock-

yer v. Andrade, 538 U.S. 63, 72 (2003), after conceding that

its “precedents in this area have not been a model of clarity,”

the Court held that “one governing legal principle emerges as

‘clearly established’ under § 2254(d)(1): A gross dispropor-

tionality principle is applicable to sentences for terms of

years.” Lockyer, 538 U.S. at 72. In so holding, the Court made

no mention of any constitutional imperative requiring that

courts make the various intra- and inter-jurisdictional compar-

isons recommended by the Solem court. See id. Instead, the

Supreme Court held that “the only relevant clearly established

law amenable to the ‘contrary to’ or ‘unreasonable application

of’ framework is the gross disproportionality principle, the

precise contours of which are unclear, applicable only in the

‘exceedingly rare’ and ‘extreme’ case.” Id. at 73.

[2] In so holding, the Supreme Court was considering a

state court ruling that was decided within months of the last

state court decision that considered Nunes’s Eighth Amend-

NUNES v. RAMIREZ-PALMER 4645

ment claim in the present case. See id. at 68. As such, at the

time the state appellate court upheld Nunes’s sentence, the

one governing principle of federal law that was clearly estab-

lished is that a sentence cannot be grossly disproportional to

the defendant’s circumstances. See id. at 72.

We conclude that in rejecting Nunes’s appeal, the state

appellate court reasonably applied this principle. This conclu-

sion is evident when one compares the facts of this case with

the facts of other cases in which courts have applied this prin-

ciple. For example, in Lockyer v. Andrade, a petitioner for a

writ of habeas corpus had a criminal history that included

convictions for misdemeanor theft, first degree residential

burglary, transportation of marijuana, petty theft, and escape.

Id. at 66-67. He was charged with two counts of petty theft

with a prior conviction. See id. at 68. The trial court sentenced

him to two consecutive terms of imprisonment of twenty-five

years to life, under the same recidivist statute at issue in the

present case. Id. at 66. Assessing whether the California Court

of Appeal unreasonably applied clearly established law in

affirming the petitioner’s sentence, the Supreme Court con-

cluded simply that “the governing legal principle gives legis-

latures broad discretion to fashion a sentence that fits within

the scope of the proportionality principle-the ‘precise con-

tours’ of which ‘are unclear.’ ” Id. at 76 (quoting Harmelin,

501 U.S. at 998 (Kennedy, J., concurring)). As such, “it was

not objectively unreasonable for the California Court of

Appeal to conclude that these ‘contours’ permitted an affir-

mance of [the petitioner’s] sentence.” Lockyer, 538 U.S. at 76.

[3] By way of comparison, Nunes’s career as a criminal has

been longer, more prolific, and more violent, than the peti-

tioner’s in Lockyer. Further, Nunes was charged in this case

with one count of the same underlying offense as the peti-

tioner in Lockyer, petty theft with a prior conviction. See id.

at 68. And yet, Nunes’s sentence, twenty-five years to life,

was less harsh than the sentence of the petitioner in Lockyer,

who received two consecutive sentences of twenty-five years

4646 NUNES v. RAMIREZ-PALMER

to life. See id. at 66. In light of this comparison, we conclude

that the California Court of Appeal was not objectively unrea-

sonable when it determined that Nunes’s sentence did not

offend the Constitution.

Nunes next argues that he is entitled to habeas relief

because when assessing his criminal history, the state appel-

late court relied on an unreasonable determination of the facts.

Specifically, he contends that his conviction should be set

aside because when the state appellate court upheld his sen-

tence, “it failed to recognize that the majority of the convic-

tions it considered were invalid or their seriousness was

overstated.”

[4] We disagree. When reviewing a petition for a writ of

habeas corpus, “a determination of a factual issue made by a

State court shall be presumed to be correct.” 28 U.S.C.

§ 2254(e)(1). Moreover, it is the petitioner’s “burden of rebut-

ting the presumption of correctness by clear and convincing

evidence.” Id.

[5] Nunes does little to overcome this burden. He does not

contend that he was not convicted of the crimes that the state

appellate court attributed to him in its opinion. Nor does he

argue that he is actually innocent of any of the underlying

crimes. Rather, he suggests that his convictions for rape in

1945, and burglary and theft in 1947, should be ignored

because they were documented in the pre-sentencing report in

pen, rather than typeface. Likewise, he speculates that his rape

conviction in 1945 must not have been for forcible rape,

because the court imposed a light sentence. Further, he con-

tends that his convictions in 1968 for robbery, burglary, and

theft cannot all be considered as separate convictions because

under California law a defendant cannot be punished for mul-

tiple convictions that result from the same underlying conduct.4

4

“An act or omission that is punishable in different ways by different

provisions of law shall be punished under the provision that provides for

the longest potential term of imprisonment, but in no case shall the act or

omission be punished under more than one provision.” Cal. Pen. Code

§ 654(a).

NUNES v. RAMIREZ-PALMER 4647

Finally, he attributes his pleading no contest to the 1982 rape

charge to his desire to avoid putting the victim through the

trauma of a trial. Notably, he makes no attempt to undermine

his convictions for burglary in 1965, robbery in 1968, theft in

1967, 1972, 1976, and 1983, grand theft in 1980, or failure to

register as a sex offender in 1993.

To the extent that any of Nunes’s assertions can be consid-

ered evidence, collectively they do not rise to the heightened

level of the “clear and convincing evidence” necessary to

overcome the presumption that the state appellate court’s rul-

ing was correct. See 28 U.S.C. § 2254(e)(1).

[6] Further, even if we credit Nunes’s attempts to minimize

his criminal history, he is still left with an extensive felony

record. As such, assuming arguendo that Nunes met his bur-

den to show that the state appellate court overstated his crimi-

nal record, that court’s general assessment of Nunes’s claim

still holds true. Specifically, Nunes “has repeatedly commit-

ted serious criminal conduct and numerous thefts, and, not-

withstanding numerous stays in jail and prison over five

decades, [the] defendant has never reformed his conduct, . . .

[, and o]n this basis we do not believe that the life term

imposed on [the] defendant was unconstitutionally dispropor-

tionate.” As such, Nunes is not entitled to habeas relief on the

ground that the state appellate court’s ruling was based on an

unreasonable determination of the facts.

B. Prosecutorial Vindictiveness

Nunes next argues that his “due process rights were vio-

lated by [the] denial of his motion to recuse Prosecutor Han-

ford, and by vindictive prosecution.” Specifically, he contends

that he can establish that Hanford prosecuted him out of vin-

dictiveness, or that the court can presume vindictiveness, in

light of the following: 1) Hanford has been involved in sev-

eral prosecutions against Nunes; 2) Hanford’s reputation was

damaged when Nunes prevailed in the appeal of the 1982 rape

4648 NUNES v. RAMIREZ-PALMER

conviction; 3) Hanford could recall the facts of the 1982 rape

and the accompanying trial in great detail; 4) Nunes alleged

prosecutorial misconduct against Hanford in his appeal of the

rape conviction; 5) Hanford has made several comments con-

noting animosity toward Nunes; and 6) Hanford overcharged

Nunes in the prosecution of the conviction that Nunes seeks

to have set aside. Nunes argues that this animosity caused the

district attorney’s office to charge him under the recidivist

statute, which lead to a longer sentence, thereby prejudicing

Nunes.

“In our system, so long as the prosecutor has probable

cause to believe that the accused committed an offense

defined by statute, the decision whether or not to prosecute,

and what charge to file . . . generally rests entirely in his dis-

cretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).

“ ‘[T]he conscious exercise of some selectivity in enforce-

ment is not in itself a federal constitutional violation’ so long

as ‘the selection was not deliberately based upon an unjustifi-

able standard such as race, religion, or other arbitrary classifi-

cation.’ ” Id. (quoting Oyler v. Boles, 368 U.S. 448, 456

(1962)) (alteration in the original).

A prosecutor’s discretion is not without limitations, how-

ever. While the Supreme Court demands “exceptionally clear

proof” before inferring an abuse of prosecutorial discretion,

McCleskey v. Kemp, 481 U.S. 279, 297 (1987), the Court does

prohibit punishing “a person because he has done what the

law plainly allows him to do.” United States v. Goodwin, 457

U.S. 368, 372 (1982) (internal quotation marks and citation

omitted). For example, a “prosecutor violates due process

when he seeks additional charges solely to punish a defendant

for exercising a constitutional or statutory right.” United

States v. Hernandez-Herrera, 273 F.3d 1213, 1217 (9th Cir.

2001) (citation omitted).5

5

Although lower federal court and state court precedent is not control-

ling in habeas actions, see 28 U.S.C. § 2254(d)(1), it “may be relevant

NUNES v. RAMIREZ-PALMER 4649

Nevertheless, “[o]rdinarily, [courts] presume that public

officials have properly discharged their official duties.” Banks

v. Dretke, 540 U.S. 668, 696 (2004) (citations omitted). As

such, where a defendant contends that a prosecutor made a

charging decision in violation of the Constitution, the defen-

dant’s “standard [of proof] is a demanding one.” United States

v. Armstrong, 517 U.S. 456, 463 (1996).

[7] “To establish a prima facie case of prosecutorial vindic-

tiveness, a defendant must show either direct evidence of

actual vindictiveness or facts that warrant an appearance of

such.” United States v. Montoya, 45 F.3d 1286, 1299 (9th Cir.

1995) (internal quotation marks and citation omitted); see

Goodwin, 457 U.S. at 380 n.12 (suggesting that “a defendant

might prove through objective evidence an improper prosecu-

torial motive” in order to establish a prosecutorial vindictive-

ness claim); Blackledge v. Perry, 417 U.S. 21, 27-29 (1974)

(holding that vindictiveness could be presumed where prose-

cutors brought additional charges after a defendant appealed

his conviction). If the defendant provides “[e]vidence indicat-

ing a realistic or reasonable likelihood of vindictiveness” this

“give[s] rise to a presumption of vindictiveness on the gov-

ernment’s part.” United States v. Garza-Juarez, 992 F.2d 896,

906 (9th Cir. 1993) (citation omitted); see Blackledge, 417

U.S. at 27.

The burden then shifts to the prosecution to show that “ ‘in-

dependent reasons or intervening circumstances dispel the

appearance of vindictiveness and justify its decisions.’ ” Mon-

toya, 45 F.3d at 1299 (quoting United States v. Hooton, 662

F.2d 628, 633 (9th Cir. 1981)); see Goodwin, 457 U.S. at 374

(suggesting that a presumption of vindictiveness “may be

when that precedent illuminates the application of clearly established fed-

eral law as determined by the United States Supreme Court.” Casey v.

Moore, 386 F.3d 896, 907 (9th Cir. 2004). We believe that this circuit’s

precedent is particularly illuminating with respect to the Supreme Court’s

prosecutorial vindictiveness jurisprudence.

4650 NUNES v. RAMIREZ-PALMER

overcome only by objective information in the record justify-

ing” an official’s conduct).

In rejecting Nunes’s state habeas petition, the California

Supreme Court’s decision provided no reasoned analysis of

Nunes’s prosecutorial vindictiveness claim. As such, we must

perform an independent review of the record to ascertain

whether that decision was objectively unreasonable in light of

relevant federal law. Himes, 336 F.3d at 853.

[8] We conclude that it was not objectively unreasonable

for the California Supreme Court to reject Nunes’s claim.

Arguably, there is some evidence that Hanford bore genuine

animus toward Nunes, most notably the newspaper article in

which Hanford expresses his satisfaction in succeeding in the

prosecution that Nunes now attacks. Further, the fact that

Hanford was part of the committee that decided to charge

Nunes under the recidivist statute suggests that the charging

decision could have been borne of Hanford’s alleged animus.

But given that the Supreme Court has repeatedly noted that

charging decisions generally rest entirely within the prosecu-

tor’s discretion, e.g. Bordenkircher, 434 U.S. at 364, that the

exercise of that discretion is presumed to be lawful, Banks,

540 U.S. at 696, and that this presumption can only be over-

come with exceptionally clear proof, McCleskey, 481 U.S. at

297, it was not objectively unreasonable for the California

Supreme Court to conclude that Nunes failed to meet his bur-

den to establish actual animus on the part of prosecutors.

[9] Nunes’s invitation to presume vindictiveness is also

unavailing. As the district court noted, Nunes cites no author-

ity for the proposition that a court can presume vindictiveness

in a pretrial charging decision based on events that occurred

in a previous and distinct proceeding. To the contrary, the

Supreme Court has noted that courts should rarely apply a

presumption of vindictiveness to a prosecutor’s pretrial deci-

sions because a “prosecutor should remain free before trial to

exercise [that] broad discretion entrusted to him to determine

NUNES v. RAMIREZ-PALMER 4651

the extent of the societal interest in prosecution.” Goodwin,

457 U.S. at 382. Because Nunes’s novel argument is not

“clearly established Federal law, as determined by the

Supreme Court of the United States,” 28 U.S.C. § 2254(d), it

is not a proper basis for granting habeas relief, and accord-

ingly we cannot conclude that it was objectively unreasonable

for the California Supreme Court to reject this argument.

[10] Moreover, assuming arguendo that a court could rea-

sonably presume vindictiveness in this case, Nunes would still

not be entitled to relief, because it would be objectively rea-

sonable for a court to also conclude that the government met

its counter-burden of justifying the charging decision. First, as

previously discussed, Nunes has an extensive and violent

criminal history. Second, prosecutors seek a recidivist sen-

tence in nearly half of all cases involving defendants that

qualified under the recidivist statute. In light of Nunes’s crim-

inal history and prosecutors’ routine use of the recidivist stat-

ute, if the California Supreme Court presumed that this case

was borne of prosecutorial vindictiveness, the court could

have still reasonably concluded that the government met its

counter-burden to justify the charging decision. As such,

Nunes is not entitled to habeas relief on this basis.

C. California’s Sumstine Doctrine

Finally, Nunes argues that when the trial court denied his

motion to strike his prior convictions, it violated the Four-

teenth Amendment because “California law clearly forbids

the use of a prior conviction obtained in violation of a defen-

dant’s . . . rights . . . to enhance a sentence.” In support of this

proposition, Nunes cites People v. Sumstine, 36 Cal. 3d 909,

918-19 (1984) (affording defendants in some circumstances

the opportunity to collaterally attack a prior conviction that

may be used to enhance a sentence imposed for a subsequent

conviction). Nunes contends that this right to attack his prior

convictions is “a state-created liberty interest which is guaran-

teed under the Fourteenth Amendment,” and as such, he

4652 NUNES v. RAMIREZ-PALMER

claims that he is entitled to habeas relief because the state trial

judge violated his constitutional rights.

[11] We disagree. First, the United States Supreme Court

has never recognized California’s Sumstine doctrine as creat-

ing a liberty interest that is protected by the Fourteenth

Amendment. As such, the California Supreme Court’s sum-

mary rejection of this notion cannot be “contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1).

[12] Second, independent of the Sumstine doctrine, there is

no federal constitutional right to attack a prior state convic-

tion, “once a conviction is no longer open to direct or collat-

eral attack in its own right.” Lackawanna County Dist. Atty.

v. Coss, 532 U.S. 394, 403 (2001). “If that conviction is later

used to enhance a criminal sentence, the defendant generally

may not challenge the enhanced sentence through a petition

under § 2254 on the ground that the prior conviction was

unconstitutionally obtained.” Id. at 403-04.

[13] Third, in federal court, there is no right to bring a

habeas petition on the basis of a violation of state law. See 28

U.S.C. § 2554(a). To the contrary, federal courts may enter-

tain an individual’s habeas petition “only on the ground that

he is in custody in violation of the Constitution or laws or

treaties of the United States.” Id.

[14] Accordingly, the state trial court’s denial of Nunes’s

motion to strike his prior convictions is not a proper basis

upon which to grant Nunes habeas relief.

AFFIRMED.