Petition for Writ of Certiorari — Frankie Karen Washington, Petitioner v. Deborah Johnson, Warden

No.

IN THE

SUPREME COURT OF THE UNITED STATES

FRANKIE WASHINGTON,

Petitioner,

v.

DEBORAH JOHNSON, Warden,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

G. MICHAEL TANAKA

Attorney at Law

Counsel of Record

12400 Wilshire Blvd., Suite 400

Los Angeles, CA 90025

(323) 825-9746

Michael@mtanakalaw.com

Attorney for Petitioner

QUESTION PRESENTED

Under Apprendi v. New Jersey 530 U.S. 466 (2000), it violates the

Sixth Amendment to sentence a defendant to a higher statutory

maximum term based on facts found by the sentencing court that were

neither alleged in the indictment nor found by a jury beyond a reasonable doubt. The circuits are split on the standard for reviewing the

harmlessness of Apprendi error at sentencing. The question presented

is whether review is for whether the sentence was greater than

authorized absent the error or whether review is of the entire record, as

permitted for trial error, to determine whether the result would have

been the same absent the error.

i

TABLE OF CONTENTS

QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

PETITION FOR A WRIT OF CERTIORARI. . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED . . 2

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A.

State court proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B.

Federal court proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

REASONS FOR GRANTING THE WRIT . . . . . . . . . . . . . . . . . . . . . . . . 8

A.

Apprendi sentencing error . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

B.

The circuit split . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

1.

Review of the record evidence for harmless error . . . 10

2.

Review for whether error contributed to sentence . . 12

C.

The Court should grant the petition and resolve the conflict

in favor of review of the sentence . . . . . . . . . . . . . . . . . . . . 15

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

APPENDIX

Court of appeals decision (Feb. 11, 2019) . . . . . . . . . . . . . . . . . . 1a

California court of appeal opinion (Oct. 17, 2005) . . . . . . . . . . . 3a

Second report and recommendation of magistrate . . . . . . . . . . 25a

Order accepting findings, conclusions and recommendation of

magistrate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37a

Judgment of district court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40a

ii

TABLE OF AUTHORITIES

FEDERAL CASES

Alleyne v. United States, 570 U.S. 99 (2013) . . . . . . . . . . . . . . . . . . 11, 15

Apprendi v. New Jersey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Blakely v. Washington, 542 U.S. 296 (2004) . . . . . . . . . . . . . . . . . . . . . . 5

Chapman v. California, 386 U.S. 18 (1967) . . . . . . . . . . . . . . . . . . . . . . 9

Cunningham v. California, 549 U.S. 270 (2007). . . . . . . . . . . . . . . . . 6, 8

Neder v. United States, 527 U.S. 1 (1999) . . . . . . . . . . . . . . . . . 10, 12, 13

Panetti v. Quarterman, 551 U.S. 930 (2007) . . . . . . . . . . . . . . . . . . . . . . 7

Parker v. Dugger, 498 U.S. 308 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . 12

Sochor v. Florida, 504 U.S. 527 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

United States v. Dyess, 730 F.3d 354 (4th Cir. 2013) . . . . . . . . . . . . . . 11

United States v. Guerrero-Jasso, 752 F.3d 1186 (9th Cir. 2014) . . . . . 15

United States v. Harakaly, 734 F.3d 88 (1st Cir. 2013) . . . . . . . . . . . . 11

United States v. Johnson, 899 F.3d 191 (3d Cir. 2018). . . . . . . . . . . . . . 9

United States v. Jordan, 291 F.3d 1091 (9th Cir. 2002) . . . . . . . . . . . . 14

United States v. Lewis, 802 F.3d 449 (3d Cir. 2015) . . . . . . . 9, 12, 14, 15

United States v. Mackins, 315 F.3d 399 (4th Cir. 2003) . . . . . . . . . . . . 12

United States v. Maynie, 257 F.3d 908 (8th Cir. 2001) . . . . . . . . . . 13, 14

United States v. McIvery, 806 F.3d 645 (1st Cir. 2015) . . . . . . . . . . . . 11

iii

United States v. Minore, 292 F.3d 1109 (9th Cir. 2002) . . . . . . . . . . . . 14

United States v. Stewart, 306 F.3d 295 (6th Cir. 2002) . . . . . . . . . . . . 10

United States v. Zepeda-Martinez, 470 F.3d 909 (9th Cir. 2006) . . . . . 15

Washington v. Recuenco, 548 U.S. 212 (2006). . . . . . . . . . . . . . . . . . . . . 9

STATE CASES

People v. Black, 35 Cal. 4th 1238 (Cal. 2005) . . . . . . . . . . . . . . . . . . . . . 5

FEDERAL STATUTES

21 U.S.C. § 841(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

21 U.S.C. § 846. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 2254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

28 U.S.C. § 2254(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 2254(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Fed. R. Civ. P. 60(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

STATE STATUTES

Cal. Penal Code § 207 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Cal. Penal Code § 245(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

iv

Cal. Penal Code § 247 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Cal. Penal Code § 422 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Cal. Penal Code § 459 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Cal. Penal Code § 1170(b) (West 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Cal. Penal Code § 12022(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Cal. Penal Code § 664 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Cal. Rules of Court 4.420(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

v

In the Supreme Court of the United States

FRANKIE WASHINGTON

V.

DEBORAH JOHNSON

ON PETITION FOR A WRIT OF CERTORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Frankie Washington respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of Appeals for the

Ninth Circuit in this case.

OPINIONS BELOW

The memorandum disposition of the court of appeals in not

reported in the Federal Reporter, but is available online at 751

Fed.Appx. 1032 (9th Cir. 2019). App., infra, 1a-2a.

1

JURISDICTION

The Ninth Circuit entered its memorandum decision and judgment on February 11, 2019. This petition is timely filed pursuant to

Sup. Ct. R. 13. Jurisdiction of this Court is invoked under 28 U.S.C. §

1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Sixth Amendment of the United States Constitution reads:

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be

confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his

defence.

28 U.S.C. § 2254(d) reads:

An application for a writ of habeas corpus on behalf of

a person in custody pursuant to the judgment of a

State court shall not be granted with respect to any

2

claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim— (1)

resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly 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.

STATEMENT

Petitioner was convicted of, inter alia, six counts of attempted

murder in the Los Angeles County Superior Court, Los Angeles,

California. At the time of petitioner’s February 21, 2003 sentencing, the

punishment for attempted murder under California law was five, seven

or nine years. California law mandated the middle term, seven years,

as the presumptive term and allowed a lower or higher sentence upon a

finding of factors in mitigation or aggravation. The sentencing court

sentenced petitioner to the high term of nine years and imposed consecutive sentences on the other counts for a total prison term of twentynine years. The court found the offense was aggravated “due to the

3

degree of danger and the use of high-powered weapons.”

A.

State court proceedings

Petitioner was convicted, following a jury trial, in Los Angeles

County Superior Court of six counts of attempted murder (counts 8-13;

Cal. Penal Code § 664/187), three counts of assault with a firearm

(counts 1-3; Cal. Penal Code § 245(a)(2), making a terrorist threat

(count 4; Cal. Penal Code § 422), first degree burglary (count 5; Cal.

Penal Code § 459), kidnapping (count 6; Cal. Penal Code § 207), and

shooting into an inhabited dwelling house (count 7; Cal. Penal Code §

247). In seven of those counts (4-6, 8-13), the jury found true the

enhancement that a principal was armed with a firearm. (Cal. Penal

Code § 12022(a)(1)).

At the February 21, 2003 sentencing, the Superior Court sentenced petitioner to state prison for a term of twenty-nine years. The

court selected the attempted murder in count eight as the principal

term. On that count, the court imposed the upper term of nine years as

the base term and an additional one year for the firearm enhancement.

The court ran the other counts and enhancements consecutive to count

4

eight (with the exception of count seven which the court stayed) for a

total term of 29 years. The court selected the upper term on count

eight “due to the degree of danger and the use of high-powered weapons.” App., infra, 23a.

Petitioner appealed to the California Court of Appeal, challenging

her conviction and sentence. She argued the sentencing court’s selection of the “upper term of nine years without factual findings by a jury

or admission by appellant to justify aggravating the term constituted

Blakely1 error.”

The California Court of Appeal rejected the claim, citing the

California Supreme Court’s decision in People v. Black, 35 Cal. 4th 1238

(Cal. 2005). Black held that the judge’s selection of the upper term did

not implicate the defendant’s right to a jury trial and was merely an

exercise of the court’s sentencing discretion. App., infra, 23a.

Petitioner filed a petition for review in the California Supreme

Court that included the claim that the court’s selection of the upper

term violated the Sixth Amendment. The California Supreme Court

denied the petition without comment on January 25, 2006.

1

Blakely v. Washington, 542 U.S. 296 (2004).

5

B.

Federal court proceedings

Petitioner timely filed a petition for a writ of habeas corpus under

28 U.S.C. § 2254 alleging that her custody under the California judgment violated the United States Constitution. Later, petitioner attempted to amend the petition to add a claim that her state-court

sentence violated the Sixth Amendment under Cunningham v. California, 549 U.S. 270 (2007), but the court denied the amendment without

prejudice, finding the claim unexhausted. The district court eventually

dismissed the petition with prejudice on December 22, 2008. CR 125,

126.

In 2016, the district court—prompted by petitioner’s filing of a

subsequent federal habeas corpus petition, alleging a Cunningham

violation and noting that the district court had failed to reach the

merits of her claim in the instant case—appointed counsel to address

whether petitioner should be allowed to pursue that claim. Petitioner

moved under Fed. R. Civ. P. 60(b) to reopen the instant case, and the

court granted the motion.

The court referred the case to the magistrate judge for a determination of the merits of the claim. Following supplemental briefing, the

6

magistrate judge issued a report and recommendation, recommending

denial of the claim. App., infra, 25a-35a. The district court accepted the

report and recommendation and issued judgment denying the petition

with prejudice. App., infra, 37a40a.

Petitioner appealed to the Ninth Circuit Court of Appeals. The

appeal argued that the state court’s rejection of the Sixth Amendment

claim was contrary to Apprendi v. New Jersey, 530 U.S. 466 (2000)

within the meaning of 28 U.S.C. § 2254(d)(1), and consequently, the

California court’s rejection of the claim was not entitled to deference.

Panetti v. Quarterman, 551 U.S. 930, 948 (2007).

Under de novo review, the sentence violated the Sixth Amendment. At the time of Ms. Washington’s offense and sentencing, California law required a finding of circumstances in aggravation before an

upper-term sentence could be imposed. Cal. Penal Code § 1170(b) (West

2001); Cal. Rules of Court 4.420(a). The sentencing court found that

the degree of danger and use of high-powered weapons as circumstances in aggravation and reasons for imposing the upper term. These

reasons were not found true by the jury, were not admitted by

petitioner, and were not within the exception for prior convictions.

7

Accordingly, the trial court’s imposition of the upper term based on

facts not found by a jury violated the Sixth Amendment. Cunningham,

549 U.S. at 293.

The appeal further argued that the Sixth Amendment error was

not harmless. The factors found by the trial court to increase the

statutory maximum, degree of danger and use of high-powered, weapons, did not necessarily make the offense more aggravated than the

“ordinary” attempted murder.

The Ninth Circuit affirmed the denial of the writ. It held the

admitted Sixth Amendment error was harmless given the “overwhelming evidence of dangerousness.” The memorandum opinion found that

there was no reasonable probability that a jury would not have found

the offense was aggravated by the manner of its commission. App.,

infra, 2a.

REASONS FOR GRANTING THE WRIT

In Apprendi, this Court held that the Sixth Amendment requires

any fact, other than a prior conviction, that increases the statutory

maximum sentence be submitted to a jury and proved beyond a reasonable doubt. Because the error is constitutional, reversal is required

8

unless the government proves the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967); Washington

v. Recuenco, 548 U.S. 212, 218-19 (2006). This Court has, however,

never resolved the standard for determining whether Apprendi error at

sentencing can be harmless, and the circuits have applied starkly

different and conflicting standards in resolving that issue.

A.

Apprendi sentencing error

This case involves preserved Apprendi error at sentencing to be

distinguished from Apprendi error at trial. Sentencing error occurs

when a defendant is sentenced for a crime for which she was neither

indicted or tried. Trial error occurs when a defendant is properly

charged and convicted but one of the elements of the offense was not

submitted to the jury. United States v. Lewis, 802 F.3d 449, 455 n.6 (3d

Cir. 2015) (en banc) (plurality opinion); United States v. Johnson, 899

F.3d 191, 198 (3d Cir. 2018).

This case involves sentencing error. Petitioner was charged and

convicted of six counts of attempted murder. She was, however, sentenced to the aggravated term based on facts that were neither alleged

in the charging document nor found by the jury. As in Lewis, no error

9

occurred in petitioner’s charge or trial; the charging document did not

omit any element of the attempted murder offense, and the jury was

properly instructed. Petitioner was properly convicted of attempted

murder, but sentenced for a different, aggravated offense. The

Apprendi error occurred at sentencing.

B.

The circuit split

1.

Review of the record evidence for harmless error

Some circuits make no distinction between Apprendi trial error

and Apprendi sentencing error. They simply apply the harmless-error

standard from Neder v. United States, 527 U.S. 1 (1999). In Neder, this

Court held that the Sixth Amendment error in omitting an element of

the offense from the jury charge and verdict was subject to harmlesserror analysis. The Court found the error harmless beyond a reasonable

doubt because the “omitted element was uncontested and supported by

overwhelming evidence, such that the jury verdict would have been the

same absent the error.” Id. at 17.

The Sixth Circuit has adopted this approach. In United States v.

Stewart, 306 F.3d 295 (6th Cir. 2002), Apprendi error occurred when

the defendants were sentenced based on drug quantities that were not

10

found by the jury. The Sixth Circuit reviewed for harmless error and

examined the entire record to determine where the omitted element—

drug quantity— was supported by uncontroverted evidence or whether

there was record evidence that could lead to a contrary finding. Id. at

232.

The First Circuit engages in a similar analysis. In United States

v. Harakaly, 734 F.3d 88 (1st Cir. 2013), the defendant was sentenced

to a mandatory minimum based on the sentencing court’s finding that

he was responsible for more than fifty grams of methamphetamine in

violation of Apprendi and Alleyne v. United States, 570 U.S. 99 (2013).

The First Circuit conducted harmless-error review and found the error

harmless because the “evidence Harakaly was responsible for more

than fifty grams of methamphetamine was overwhelming.” 734 F.3d at

96. See also United States v. McIvery, 806 F.3d 645, 651 (1st Cir. 2015)

(Alleyne error harmless where overwhelming, unchallenged evidence

established requisite drug quantity to support mandatory minimum

sentence). The Fourth Circuit also reviews for harmless error by looking to the record, finding Apprendi error harmless where there is

overwhelming or uncontroverted evidence establishing the omitted jury

11

finding. See, e.g., United States v. Dyess, 730 F.3d 354, 361 (4th Cir.

2013) (Apprendi error not subject to correction because record reveals

indisputable evidence establishing sufficient drug quantity to support

sentence); United States v. Mackins, 315 F.3d 399, 408 (4th Cir. 2003)

(same).

2.

Review for whether error contributed to sentence

Other circuits apply a different, more tailored, approach to

harmless-error review for sentencing error. The Third Circuit explained

the difference. The question for Apprendi sentencing error is whether

“the error did or did not ‘contribute to the sentence obtained.’” Lewis,

802 F.3d at 456 (quoting Sochor v. Florida, 504 U.S. 527, 539). Lewis

elaborated:

In other words, harmless-error review for a sentencing

error requires a determination of whether the error

“would have made no difference to the sentence.”

Parker v. Dugger, 498 U.S. 308, 319 (1991). This analysis contrasts with the analysis appropriate for trial

errors, which turns on whether it is “clear beyond a

reasonable doubt that a rational jury would have found

the defendant guilty absent the error.” Neder v. United

States, 527 U.S. 1, 18 (1999). Because we are

12

confronted here with a sentencing error, we do not

conduct the analysis reserved for trial errors.

Id. The focus is specifically on the sentence, not the trial record.

The Eighth Circuit also follows this approach. In United States v.

Maynie, 257 F.3d 908 (8th Cir. 2001), the defendants were convicted of

conspiracy to distribute cocaine base in violation of 21 U.S.C. §§ 841(a),

846 (1984) and each was sentenced to mandatory life imprisonment

based on the trial court’s finding that they were responsible for 50

grams or more of cocaine base and had two or more prior convictions for

a felony drug offense. The issue of drug quantity, however, was not

submitted to the jury in violation of Apprendi.

On appeal, the government argued the Apprendi error was harmless because there was overwhelming evidence that the defendants

were responsible for 50 grams or more of crack cocaine. The Eighth

Circuit rejected that argument, finding that type of harmless-error

review inappropriate where the error involved the government’s failure

to charge an element of the offense in the indictment, and “the district

court’s imposition of a sentence which both exceeds the crime charged

by the government and exceeds the punishment authorized for the

13

offense of conviction.” Maynie, 257 F.3d at 920. Because the offense of

conviction permitted a sentence no greater than thirty years, the error

was not harmless.

In United States v. Jordan, 291 F.3d 1091 (9th Cir. 2002), the

Ninth Circuit described the two approaches for determining whether

Apprenedi error was harmless. It could follow the first course and

canvass the record to determine whether, had the defendant been

properly indicted and the jury properly instructed, the appellate court

could say “beyond any reasonable doubt that the defendant would have

been found guilty of the more severely punishable crime.” Id. at 1095.

Or it could, like Lewis and Maynie, “look only at the sentence received

to see if it is greater than the maximum sentence the defendant should

have faced.” Id.

The Ninth Circuit chose the latter approach. When the missing

element was neither alleged nor proved to the jury beyond a reasonable

doubt, there are simply too many unknowns to say that the error was

harmless where the defendant received a sentence that was greater

than the maximum authorized by the facts found by the jury. Id. at

1096-97; See also United States v. Minore, 292 F.3d 1109, 1122 n.12

14

(9th Cir. 2002) (review for whether the defendant received a sentence

greater than authorized absent the error).2

C.

The Court should grant the petition and resolve the conflict in favor of review of the sentence

Review for harmless Apprendi error that permits examination of

the trial record to determine whether there is sufficient evidence to

support the uncharged offense and punishment subverts the principles

of Apprendi. “The motivating principle behind Apprendi and Alleyne is

that judges must not decide facts that change the mandatory maximum

or minimum; juries must do so.” Lewis, 802 F.3d at 456. To permit an

affirmance “because the evidence is overwhelming” runs counter to this

principle by allowing judges to decide the facts that change the maximum sentence. Id.

That was the case here. Ms. Washington received a sentence

greater than that authorized by the offense of conviction based on facts

2

The Ninth Circuit has subsequently backed off this approach and

now sanctions a harmless-error finding where the evidence is “overwhelming and uncontroverted.” United States v. Zepeda-Martinez, 470

F.3d 909, 913 (9th Cir. 2006). The Ninth Circuit’s shift has been criticized as unsupported and unnecessary. United States v. Guerrero-Jasso,

752 F.3d 1186, 1196-1204 (9th Cir. 2014) (Berzon, J., concurring

opnion).

15

that were neither charged nor found by a jury beyond a reasonable

doubt. Had the Ninth Circuit applied the mode of harmless-error

analysis true to the principles of Apprendi, the undisputed Apprendi

error would have been remedied. This Court should grant the petition

resolve the circuit split and hold that Apprendi sentencing error cannot

be harmless where the defendant receives a greater sentence than the

sentence authorized for the offense charged and the conviction found by

the jury beyond a reasonable doubt.

CONCLUSION

For all the foregoing reasons, petitioner submits that the petition

for a writ of certiorari should be granted.

Respectfully submitted,

DATED: May 13, 2019

s/G. Michael Tanaka

G. MICHAEL TANAKA

Attorney at Law

Counsel of Record

Attorney for Petitioner

16