United States District Court

For the Northern District of California

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No. C 08-1886 RS (PR)

ORDER DENYING PETITION

United States District Court

For the Northern District of California

*E-Filed 4/22/10*

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

DAVID LOUIS MAIRS,

Petitioner,

v.

ROBERT AYERS, Warden,

Respondent. /

No. C 08-1886 RS (PR)

ORDER DENYING PETITION FOR

WRIT OF HABEAS CORPUS

INTRODUCTION

This is a federal habeas corpus action filed by a state prisoner pursuant to 28 U.S.C. 

§ 2254. For the reasons set forth below, the petition is DENIED. 

BACKGROUND

In 2004, a Marin County Superior Court jury found petitioner guilty of commercial

burglary and giving false information to a peace officer. (Ans., Ex. F. at 1.) Evidence

presented at trial showed that in 2003 petitioner entered a hardware store with the intent to

steal. (Id. at 2.) The trial court sentenced Petitioner to a total term of seven years. The trial

court arrived at this sentence by imposing the aggravated term of three years for the burglary

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1

 California’s Three Strikes law, which appears in California Penal Code section

667(b)–(i), was enacted by the Legislature and became effective March 7, 1994. The heart of

the Three Strikes law is subdivision (e) of section 667, which prescribes increased terms of

imprisonment for defendants who have previously been convicted of certain “violent” or

“serious” felonies, see Cal. Penal Code § 667(d).

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conviction, then doubling it pursuant to Three Strikes,1 and adding a one year enhancement 

because petitioner had served a prior prison term for committing a felony. (Id., Ex. B at

337.) Petitioner was also sentenced to a concurrent term of six months for the giving of false

information conviction. (Id., Ex. F at 1.) After conviction, petitioner sought, and was

denied, relief on direct and collateral state review.

As grounds for federal habeas relief, petitioner alleges that (1) his sentence violates

his Sixth Amendment jury trial rights as they are articulated in Cunningham v. California,

549 U.S. 270 (2007); and (2) the superior court abused its discretion and violated his

constitutional rights when it denied his Cunningham motion on the basis that Cunningham

was not retroactive. 

STANDARD OF REVIEW

This court may entertain a petition for writ of habeas corpus “in behalf of a person in

custody pursuant to the judgment of a State court only on the ground that he is in custody in

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 

The petition may not be granted with respect to any claim that was adjudicated on the merits

in state court unless the state court’s 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.” 28 U.S.C. § 2254(d).

“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state

court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of

law or if the state court decides a case differently than [the] Court has on a set of materially

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2

 Petitioner claims only that the trial court should not have imposed the aggravated term

of three years. Petitioner does not challenge the trial court’s use of Three Strikes to double the

sentence, or the imposition of the one-year enhancement. 

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indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412–13 (2000).

“Under the ‘unreasonable application’ clause, a federal habeas court may grant the

writ if the state court identifies the correct governing legal principle from [the] Court’s

decision but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at

413. “[A] federal habeas court may not issue the writ simply because that court concludes in

its independent judgment that the relevant state-court decision applied clearly established

federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” 

Id. at 411. A federal habeas court making the “unreasonable application” inquiry should ask

whether the state court’s application of clearly established federal law was “objectively

unreasonable.” Id. at 409. 

DISCUSSION

1. Imposition of an Aggravated Term

Petitioner claims that the imposition of the aggravated, or upper, term sentence on the

burglary conviction violated his Sixth Amendment rights.2

 (Pet. at 5.) The state appellate

court disposed of this claim on state law grounds. (Ans., Ex. F at 4.) 

In California, sentencing courts are to consider various aggravating and mitigating

factors in determining whether to impose an upper term. See Cal. Rules of Court 4.421 &

4.423. A single aggravating factor is sufficient to authorize a California trial court to impose

the upper term. People v. Osband, 13 Cal. 4th 622, 728 (Cal. 1996). 

At sentencing, the trial court, not the jury, weighed various aggravating and mitigating

circumstances in deciding whether to impose the upper term. The trial court found as an

aggravating factor under Cal. Rule of Court (“CRC”) 4.421(b)(1) that petitioner had two

prior convictions for crimes involving force, namely, an armed bank robbery, and a petty

theft during which he used a knife to effectuate an escape. (Ans., Ex. B at 335.) Another

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aggravating factor was that petitioner had served a prior prison term, a circumstance listed

under CRC 4.421(b)(3). (Id.) Petitioner having been on parole when he committed the

instant offenses was also a factor in aggravation, which is listed under CRC 4.421(b)(4). 

(Id.) The trial court found that there were no circumstances in mitigation. (Id. at 335–37.) 

The Sixth Amendment requires that “[o]ther 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.” Apprendi v. New Jersey, 530

U.S. 466, 490 (2000). The “statutory maximum” discussed in Apprendi is the maximum

sentence a judge could impose based solely on the facts reflected in the jury verdict or

admitted by the defendant; in other words, the relevant “statutory maximum” is not the

sentence the judge could impose after finding additional facts, but rather the maximum he

could impose without any additional findings. Blakely v. Washington, 542 U. S. 296, 303–04

(2004). In California, the middle term is deemed the statutory maximum, and thus the

imposition of the upper term, such as in the instant case, can implicate a criminal defendant’s

Apprendi rights. See Cunningham v. California, 549 U.S. 270, 293 (2007). 

Petitioner’s upper term sentence is self-evidently erroneous under Cunningham. 

Specifically, the factors used by the trial court was not based on facts admitted by petitioner

or reflected in the jury’s verdict, but on the trial court’s independent findings. Therefore, the

imposition of the upper term, thereby increasing petitioner’s sentence beyond the statutory

maximum, based on the factor cited by the trial court, is unconstitutional under Cunningham. 

However, Blakely and Apprendi sentencing errors are subject to a harmless error

analysis. Washington v. Recuenco, 548 U.S. 212, 221 (2006). Applying Brecht v.

Abrahamson, 507 U.S. 619 (1993), the Court must determine whether “the error had a

substantial and injurious effect” on petitioner’s sentence. Hoffman v. Arave, 236 F.3d 523,

540 (9th Cir.2001) (internal quotation marks omitted). Under that standard, the Court must

grant relief if it is in “grave doubt” as to whether a jury would have found the relevant

aggravating factors beyond a reasonable doubt. O’Neal v. McAninch, 513 U.S. 432, 436

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(1995). Grave doubt exists when, “in the judge’s mind, the matter is so evenly balanced that

he feels himself in virtual equipoise as to the harmlessness of the error.” Id. at 435.

Applying these legal principles to the instant matter, the Court concludes that the error 

was harmless. In sum, sufficient evidence exists in the record to support the trial court’s

imposition of the upper term based on the aggravating circumstances listed above. Petitioner

has never disputed the veracity of the aggravating circumstances given at sentencing. On

such evidence, and in light of the highly deferential AEDPA standard, the Court does not

have “grave doubts” as to whether a jury would have found the relevant aggravating factors

beyond a reasonable doubt, and, accordingly, the Court must deny petitioner habeas relief on

his sentencing claim. Accordingly, petitioner’s claim is DENIED.

2. Superior Court’s Denial of Cunningham Motion

Petitioner claims that the superior court’s denial of petitioner’s Cunningham motion

on the grounds that such case was not retroactive was improper and violated his

constitutional rights. (Pet. at 5.)

Having determined that any Cunningham error was harmless, petitioner’s claim

regarding the superior court is denied on the same grounds. Accordingly, petitioner’s claim

is DENIED. 

CONCLUSION

The state court’s adjudication of the claim did not result in a decision that was

contrary to, or involved an unreasonable application of, clearly established federal law, nor

did it result in a decision that was based on an unreasonable determination of the facts in

light of the evidence presented in the state court proceeding. Accordingly, the petition is

DENIED. 

A certificate of appealability will not issue. Reasonable jurists would not “find the

district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Petitioner may seek a certificate of appealability from

the Court of Appeals. 

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The Clerk shall enter judgment in favor of respondent and close the file. 

IT IS SO ORDERED.

DATED: April 21, 2010 

 RICHARD SEEBORG

United States District Judge

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No. C 08-1886 RS (PR)

7 ORDER DENYING PETITION

THIS IS TO CERTIFY THAT A HARD COPY OF THIS ORDER WAS MAILED TO:

David Louis Mairs 

378 Via La Cumbre 

Greenbrae, CA 94904 

DATED: 04/22/2010 

 

 

s/ Chambers Staff 

Chambers of Judge Richard Seeborg

* Counsel are responsible for distributing copies of this document to any co-counsel who

have not registered with the Court's electronic filing system.

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