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

CEARIACO CABRELLIS,

Petitioner,

 vs.

M.C. KRAMER, Warden,

Respondent. /

No. C 08-1785 JSW (PR)

ORDER DENYING PETITION 

FOR WRIT OF HABEAS

CORPUS AND DENYING

CERTIFICATE OF

APPEALABILITY

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

§ 2254. The court ordered respondent to show cause why the writ should not be granted. 

Respondent has filed an answer and a memorandum of points and authorities in support

of it, and has lodged exhibits with the court. Petitioner has responded with a traverse. 

For the reasons set out below, the petition is denied.

BACKGROUND

An Alameda County jury found Petitioner and codefendant Ricky Sanders guilty

of one count of second degree commercial burglary, see Cal. Penal Code § 459; two

counts of second degree robbery, see id. § 211; two counts of false imprisonment, see id.

§ 236; two counts of attempting to dissuade a witness, see id. § 136.1(b)(2); and one

count of cutting a utility line, see id. § 591. The jury also found several facts alleged to

support enhancements to be true. He was sentenced to prison for fourteen years and four

months. Petitioner and Sanders appealed to the California Court of Appeal, which

affirmed the convictions and parts of the sentences, but found errors in some aspects of 

the sentences. People v. Sanders, 2006 WL 1892853, *11 (Cal. App. July 11, 2006). 

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28 1 Citations to “Ex.” are to the record lodged with the court by the Attorney General.

2

The court did not remand for re-sentencing, but instead modified the judgment to reflect

its holding as to the sentences. Id. The California Supreme Court denied Petitioner's

petition for review “without prejudice to any relief to which defendant might be entitled

after the United States Supreme Court determines in Cunningham v. California, 05-6551,

the effect of Blakely v. Washington, (2004) 542 U.S. 296 and United States v. Booker

(2005) 543 U.S. 220 on California law.” (Ex. D2.)1

Petitioner filed a petition for certiorari with the United States Supreme Court. 

The Court remanded the case for reconsideration in light of the Cunningham decision. See

Cunningham v. California, 127 S. Ct. 856, 871 (2007. The California Court of Appeal

recalled the remittitur, reconsidered the issues affected by Cunningham, and affirmed the

sentence. People v. Cabrellis, 2007 WL 2718401, *1-2 (Cal. App. Sept. 19, 2007). The

Supreme Court of California denied review. 

Because all of Petitioner’s issues are sentencing issues, the facts of the offense – 

a robbery at gunpoint of an electronics store in Berkeley – have only limited relevance. 

To the extent they are relevant, they are set out in context in the discussion below. 

STANDARD OF REVIEW

A district court may not grant a petition challenging a state conviction or sentence

on the basis of a claim that was reviewed 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). The first prong applies both to questions

of law and to mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362,

407-09 (2000), while the second prong applies to decisions based on factual

determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

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A state court decision is “contrary to” Supreme Court authority, that is, falls

under the first clause of § 2254(d)(1), only 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 Supreme] Court has on a set of materially

indistinguishable facts.” Williams (Terry), 529 U.S. at 412-13. A state court decision is

an “unreasonable application of” Supreme Court authority, falling under the second

clause of § 2254(d)(1), if it correctly identifies the governing legal principle from the

Supreme Court’s decisions but “unreasonably applies that principle to the facts of the

prisoner’s case.” Id. at 413. The federal court on habeas review may not issue the writ

“simply because that court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly.” Id. at

411. Rather, the application must be “objectively unreasonable” to support granting the

writ. Id. at 409. 

Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual

determination will not be overturned on factual grounds unless objectively unreasonable

in light of the evidence presented in the state-court proceeding.” Miller-El, 537 U.S. 322

at 340; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000).

When there is no reasoned opinion from the highest state court to consider the

petitioner’s claims, the court looks to the last reasoned opinion. See Ylst v. Nunnemaker,

501 U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079, n. 2 (9th

Cir.2000). 

DISCUSSION

As grounds for habeas relief Petitioner asserts that: (1) his sentence violated his

right to a jury trial because the trial court imposed an upper term without a jury

determination as to whether there were aggravating factors; (2) the sentencing error was

not harmless; (3) his rights under the Ex Post Facto Clause were violating following

remand; and (4) the imposition of consecutive terms violated his right to a jury. The

second issue is not, of course, a ground for relief standing alone, so it will not be

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separately addressed. 

I. Cunningham Claim 

In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that

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. Id. at 466. In

Blakely v. Washington, 542 U.S. 296 (2004), the Supreme Court explained that “the

statutory maximum for Apprendi purposes is the maximum sentence a judge may impose

solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 

Id. at 303. This means that the “the middle term prescribed in California’s statutes, not

the upper term, is the relevant statutory maximum.” Cunningham v. California, 127 S.

Ct. 856, 868 (2007). In Cunningham, the Supreme Court, citing Apprendi and Blakely,

held that California’s Determinate Sentencing Law violates a defendant’s right to a jury

trial to the extent that it contravenes “Apprendi’s bright-line rule: Except for a prior

conviction, ‘any fact that increases the penalty for a crime beyond the statutory

maximum must be submitted to a jury, and proven beyond a reasonable doubt.’” Id.

(quoting Apprendi, 530 U.S. at 490).

Petitioner’s sentence included an upper term sentence on the robbery conviction

and consecutive sentences on the other counts. Cabrellis, 2007 WL 2718401 at *1. In

selecting the upper term the court relied upon these factors: “(1) defendant's prior

convictions as an adult are numerous; (2) defendant has served prior prison terms or a

prior prison term, and (3) defendant's prior performance on probation and parole was

unsatisfactory.” Id. at *2. 

Apprendi and its progeny contain an exception for prior convictions: the fact of a

prior conviction need not be pleaded in an indictment or proved to a jury beyond a

reasonable doubt. Butler v. Curry, 538 F.3d 624, 643 (9th Cir. 2008) (citing Apprendi,

530 U.S at 490, and Almendarez-Torres v. United States, 523 U.S. 224, 244 (1998)). 

The Ninth Circuit has recognized that “the Supreme Court has not overruled the

Almendarez-Torres exception for prior convictions” and therefore the “obligation to

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apply the Almendarez-Torres exception [remains] unless and until it is rejected by the

Supreme Court.” Id. at 643-44. Here, Petitioner was sentenced to the upper term based

on several aggravating factors – one of which is that he had prior convictions. Cabrellis,

2007 WL 2718401 at *2. Petitioner’s prior convictions clearly fall into the “prior

conviction” exception from Almendarez-Torres and Apprendi. One of the three

aggravating circumstances thus was properly found by the sentencing court, rather than a

jury. 

That the trial court also found additional aggravating circumstances – that

Petitioner had served prior prison terms or a prior prison term, and that his performance

on probation and parole had been unsatisfactory – does not entitle him to habeas relief.

“[U]nder California law, only one aggravating factor is necessary to set the upper term as

the maximum sentence.” Butler, 528 F.3d at 641. “[I]f at least one of the aggravating

factors on which the judge relied in sentencing [petitioner] was established in a manner

consistent with the Sixth Amendment, [petitioner’s] sentence does not violate the

Constitution.” Id. at 643. Therefore, as it was within the trial court’s discretion to

sentence Petitioner to the upper term based solely upon his prior convictions, Petitioner’s

sentence is constitutional irrespective of “[a]ny additional factfinding” with respect to

additional aggravating circumstances. Id. Because the trial court relied upon at least one

factor “established in a manner consistent with the Sixth Amendment,” the sentence

Petitioner received did not violate his Sixth Amendment rights.

II. Ex Post Facto Claim

Petitioner points out that after Cunningham, the California legislature amended

California’s sentencing system to make the sentencing court’s choice of the lower,

middle, or upper term a matter of discretion. He also contends that the California

Supreme Court has held that application of the amended statute to cases remanded for resentencing after Cunningham does not violate the Ex Post Facto Clause of the

Constitution, identifying the case that he believes so held as “Black II;” the cases usually

so identified is People v. Black, 41 Cal. 4th 799, 815 (2007). It is unnecessary to

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consider whether Black II so held. In this case the United States Supreme Court

remanded to the appellate courts for reconsideration in light of Cunningham, and the

court of appeal reconsidered its decision and concluded that the sentence imposed in

superior court did not violate Cunningham. That is, it left the sentence as it was. There

was no remand to the sentencing court and no re-sentencing, and the court of appeal

clearly did not apply the amended statute. There thus is no factual basis for Petitioner’s

claim. It is without merit. 

III. Consecutive Sentences

Petitioner’s final claim is that the imposition of consecutive sentences violated the

Apprendi/Blakely rule because it was based on facts not tried to a jury and found beyond

a reasonable doubt. Petitioner's argument was recently rejected by the United States

Supreme Court in Oregon v. Ice, 129 S.Ct. 711 (2009). The Supreme Court held: " [I]n

light of historical practice and the authority of States over administration of their

criminal justice systems, [] the Sixth Amendment does not exclude Oregon's choice [to

have judges rather than juries decide facts leading to imposition of consecutive rather

than concurrent sentences]." Id. at 714-15. Because the California courts' results on this

issue are entirely consistent with Supreme Court law on the matter, the decisions of the

California appellate courts were not contrary to, or an unreasonable application of,

clearly-established United States Supreme Court authority. 

IV. Denial of Certificate of Appealability

The federal rules governing habeas cases brought by state prisoners require a

district court that denies a habeas petition to grant or deny a certificate of appealability in

the ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. 

A petitioner may not appeal a final order in a federal habeas corpus proceeding

without first obtaining a certificate of appealability (formerly known as a certificate of

probable cause to appeal). See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A judge

shall grant a certificate of appealability "only if the applicant has made a substantial

showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The certificate

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must indicate which issues satisfy this standard. See id. § 2253(c)(3). "Where a district

court has rejected the constitutional claims on the merits, the showing required to satisfy

§ 2253(c) is straightforward: the petitioner must demonstrate that reasonable jurists

would find the district court's assessment of the constitutional claims debatable or

wrong." Slack v. McDaniel, 120 S.Ct. 1595, 1604 (2000). 

This was not a close case. For the reasons set out above, jurists of reason would

not find the result debatable or wrong. A certificate of appealability will be denied. 

Petitioner is advised that he may not appeal the denial of a COA, but he may ask the

court of appeals to issue a COA under Rule 22 of the Federal Rules of Appellate

Procedure. See Rule 11(a), Rules Governing § 2254 Cases. 

CONCLUSION

The petition for a writ of habeas corpus is DENIED. A certificate of appealability

is DENIED. The Clerk shall close the file. 

IT IS SO ORDERED.

DATED: June 22, 2010 

 JEFFREY S. WHITE

UNITED STATES DISTRICT JUDGE

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G:\PRO-SE\JSW\HC.08\Cabrellis1785.RUL.wpd

UNITED STATES DISTRICT COURT

FOR THE 

NORTHERN DISTRICT OF CALIFORNIA

CEARIACO CABRELLIS,

Plaintiff,

 v.

M.C. KRAMER et al,

Defendant. /

Case Number: CV08-01785 JSW 

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.

District Court, Northern District of California.

That on June 22, 2010, I SERVED a true and correct copy(ies) of the attached, by placing

said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by

depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office

delivery receptacle located in the Clerk's office.

Ceariaco Cabrellis V-63705

FOLSOM STATE PRISON (950)

PO Box 950

Represa, CA 95671

Dated: June 22, 2010

Richard W. Wieking, Clerk

By: Jennifer Ottolini, Deputy Clerk

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