United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

JEFFREY MICHAEL CROMMELIN,

Petitioner, 

 v.

MIKE MARTEL, Warden,

Respondent. /

No. C 08-2455 WHA (PR) 

ORDER DENYING PETITION FOR

WRIT OF HABEAS CORPUS

INTRODUCTION

This is a habeas case filed pro se by a state prisoner pursuant to 28 U.S.C. 2254. Two of

the three claims in the petition were dismissed because they did not set forth a cognizable basis

for federal habeas relief. Respondent was ordered to show cause why the writ should not be

granted based on the sole cognizable claim. Respondent has filed an answer and a

memorandum of points and authorities in support of it. Petitioner has responded with a

traverse. For the reasons set forth below, the petition is DENIED.

STATEMENT

On May 4, 2006, petitioner pled no contest in Alameda County Superior Court to

charges of stealing a car and receiving stolen property pursuant to California Vehicle Code §

108 and California Penal Code § 496(a), and he admitted to having nine prior convictions (Exh.

Case 3:08-cv-02455-WHA Document 19 Filed 01/27/10 Page 1 of 3
United States District Court

For the Northern District of California

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Unless otherwise specified, citations to “Exh.” are to the exhibits lodged with

respondent’s answer.

2

Petitioner does not assert any improper factual determinations by the state courts,

and therefore Sections 2254(d)(2) and 2254(e) do not apply to his claim. See Miller-El v.

Cockrell, 537 U.S. 322, 340 (2003) (Sections 2254(d)(2) and 2254(e) apply to state court

factual determinations).

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1).1

 On September 26, 2007, the trial court sentenced petitioner to a term of 11 years and eight

months in state prison, but suspended the sentence and placed petitioner on probation (Exh. 3 at

4). On March 15, 2007, petitioner admitted violating his probation (Exh. 4 at 4). The trial court

terminated probation and sentenced petitioner to a term of 11 years in state prison, consisting of

three years for stealing a car and, pursuant to California Penal Code § 667.5, one year for each

of eight of his prior convictions (Exh. 4 at 4-5; Exh. 5). 

Petitioner exhausted the claim raised herein in unsuccessful habeas petitions filed in all

three levels of the state courts. On May 13, 2008, petitioner filed the instant federal habeas

petition. 

ANALYSIS

As grounds for federal habeas relief, petitioner claims that he received ineffective

assistance of counsel at sentencing. Specifically, he complains that counsel failed to challenge

the imposition of an upper term on the charge of stealing a car, and failed to challenge the

imposition of one-year enhancements on both the sixth and seventh prior convictions. 

Petitioner is not entitled to federal habeas relief on this claim unless the state court’s

denial of his claim was contrary to or 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).2

 

The Supreme Court has not decided what standard should apply to counsel's performance in

non-capital sentencing proceedings. Cooper-Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir.

2005). In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set the standard

for ineffective assistance of counsel at trial but declined to "'consider the role of counsel in an

ordinary sentencing, which . . . may require a different approach to the definition of

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For the Northern District of California

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constitutionally effective assistance,'" and no later Supreme Court decision has done so either. 

Cooper-Smith, 397 F.3d at 1244 (quoting Strickland, 466 U.S. at 686). Consequently, there is

no “clearly established” Supreme Court precedent governing claims that counsel was ineffective

at a sentencing proceeding in a noncapital case. Davis v. Grigas, 443 F.3d 1155, 1158-59 (9th

Cir. 2006); Cooper-Smith, 397 F.3d at 1244-45. In the absence of such precedent, Section

2254(d)(1) precludes federal habeas relief on the basis of petitioner’s claim that counsel was

ineffective at his sentencing proceeding. Accordingly, his petition for a writ of habeas corpus

must be denied. 

CONCLUSION

The petition for a writ of habeas corpus is DENIED. 

Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district court to

rule on whether a petitioner is entitled to a certificate of appealability in the same order in

which the petition is denied. Petitioner has failed to make a substantial showing that his claims

amounted to a denial of his constitutional rights or demonstrate that a reasonable jurist would

find this court's denial of his claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484

(2000). Consequently, no certificate of appealability is warranted in this case. 

The clerk shall close the file.

IT IS SO ORDERED.

Dated: January 27, 2010 

WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

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