NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BENNY WILLIAMS,

 Petitioner - Appellant,

v.

J. WALKER; JERRY BROWN; JAY

WALKER,

Respondents - Appellees.

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No. 09-57060

D.C. No. 3:07-cv-00959-BTM-AJB

MEMORANDUM*

Appeal from the United States District Court 

for the Southern District of California

Barry Ted Moskowitz, U.S. District Judge, Presiding

Argued and Submitted September 1, 2011

Pasadena, California

Before: SCHROEDER and GOULD, Circuit Judges, and NAVARRO,** U.S.

District Judge, Presiding.

Petitioner-Appellant Benny Williams challenges the district court’s denial of

his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm. 

Williams’ petition was timely under the AEDPA. Although the California

FILED

DEC 08 2011

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
1 There was one 64-day period that elapsed between the denial by the court of

appeal on May 24, 2006 and Williams’ filing in the California Supreme Court on

June 27, 2006. However, the additional 4 days is not a significant delay to warrant

a determination of untimeliness.

Supreme Court denied his petition with a citation to In re Clark, 5 Cal.4th 750

(1993), this alone is not a sufficient indication that the court’s citation to Clark was

meant to infer that the petition was found to be untimely because there was no

specific pinpoint citation. The Clark opinion is lengthy and also addresses

procedural bars against piecemeal presentation of claims, “abuse of the writ,” as

well as representation of claims that were previously resolved on direct appeal. In

re Clark, 5 Cal. 4th at 764–82. Accordingly, it is unclear why the state court

denied the petition and the federal court must conduct an independent inquiry to

determine if the state habeas petition was filed within a “reasonable time.” Evans v.

Chavis, 546 U.S. 189, 198 (2006). Finding that all but one time period between

the date Williams’ conviction became final and each subsequent round of habeas

review fit within the 60-day period considered timely by the Supreme Court, the

district court held that Williams’ petition was timely. We agree and affirm. 

1

However, Williams does appear to have procedurally defaulted on his fourth

through eighth claims. Absent showings of “cause” and “prejudice,” federal

habeas relief is unavailable when “a state court [has] declined to address a

prisoner’s federal claims because the prisoner had failed to meet a state procedural

requirement,” and “the state judgment rests on independent and adequate state

procedural grounds.” Coleman v. Thompson, 501 U.S. 722, 729–30 (1991). The

California Supreme Court denied Williams’ claims four through eight with

citations to In re Clark, 5 Cal.4th 750 (1993) and In re Robbins, 18 Cal.4th 770

(1998). “A summary denial citing Clark and Robbins means that the petition is
rejected as untimely.” Walker v. Martin, 131 S.Ct. 1120, 1126 (2011). The denial

of habeas relief by the California Supreme Court on the ground that the application

for relief was filed untimely is an independent and adequate state procedural

ground requiring denial of subsequent habeas petitions in federal court. Id.

Williams has not demonstrated “cause” and “prejudice” as a result of the alleged

violation of federal law or demonstrated that failure to consider the claims will

result in a fundamental miscarriage of justice. 

Turning to the merits of Williams’ claims, Williams first argues that

allowing evidence of each charged robbery and one prior robbery to be crossadmissible to prove identity under California Evidence Code § 1101 was a

violation of due process. The state court gave a limiting instruction, directing the

jury not to draw improper inferences from the evidence. We must presume that the

jury followed the instructions and drew only a permissible inference. Boyde v.

Brown, 404 F.3d 1159, 1172 (9th Cir. 2005). We find that the state court’s

determination that the § 1101 instruction did not violate due process was not

contrary to or an unreasonable application of clearly established Supreme Court

precedent. See Alberni v. McDaniel, 458 F.3d 860, 866–67 (9th Cir. 2006). 

Williams next argues that he was not afforded due process because he was

not given adequate notice of the facts that would be used to prove his prior

conviction. Due process requires that a defendant be given adequate notice of what

he or she has to defend against. Gray v. Netherland, 518 U.S. 152, 167 (1996); In

re Ruffalo, 390 U.S. 544 (1968). Williams was properly notified that the

prosecution would use his prior 1978 conviction of a violation of California Penal

Code § 245(a) as a strike prior under California law. See James v. Borg, 24 F.3d
20, 24 (9th Cir. 1994). Williams has no right to be notified of what evidence the

prosecution will use to prove a prior conviction. Gray, 518 U.S. at 167–168.

Finally, Williams argues that there was a violation of the contract clause of

the United States Constitution because he entered into plea agreements that

dismissed the counts of firearm use. The legal obligations of the 1974 and 1978

plea agreements appear to be fulfilled. There were no promises in either plea

agreement regarding the use of the convictions for purposes of enhanced

sentencing in the future. The trial court properly applied the law in existence at the

time of the new offense to sentence the defendant, including the determination of

the effect of the prior offense on his sentence for the new crime, without violating

the contract clause. People v. Gipson, 117 Cal.App.4th 1065, 1070 (2004).

Even if Williams has not procedurally defaulted on claims four through

eight, these claims also lack merit. 

Williams’ fourth claim for relief alleges that dual use of the prior

convictions by the trial court to impose three consecutive five-year enhancements

for each of his three prior convictions and then to impose an indeterminate

sentence under California’s Three Strikes law was improper. California law has

specifically upheld the propriety of such a sentencing scheme. People v. Purata, 42

Cal.App.4th 489, 498 (1996). Consequently, Williams fails to cite a basis for

federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 67–68 (1991).

Williams’ claim for ineffective assistance of counsel fails because every

issue that Williams argues his appellate counsel should have raised lacks merit. 

Therefore, Williams has not shown that his counsel was not functioning as the

‘counsel’ guaranteed

by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Williams argues in his sixth claim for relief that the 1996 Oregon felony

conviction cannot be used as a strike under California law because the elements of

the Oregon crime do not contain all the elements of a similar offense under

California law. If the conduct of the prior crime satisfies the elements of a “serious

felony” then it is properly classified as a strike. See People v. Myers, 5 Cal.4th

1193, 1200–01 (1993). The facts from the Oregon conviction could lead any

rational trier of fact to conclude that all the elements of a serious felony under

California law were satisfied beyond a reasonable doubt. See Jackson v. Virginia,

443 U.S. 307, 317–20 (1979). Accordingly, the 1996 Oregon felony conviction for

attempted robbery in the second degree qualifies as a “strike” under California’s

Three Strikes law.

Williams’ seventh claim is substantially similar to his second claim. The

prosecution provided sufficient evidence to demonstrate that the 1978 prior

conviction was a serious felony that involved either a deadly weapon or caused

great bodily injury. Contrary to his assertion, Williams was put on notice that the

prosecution was going to provide evidence to establish that the 1978 prior

conviction qualified as a strike under California law. See James, 24 F.3d at 24. 

Williams’ final contention is that use of the 1974 and 1978 prior convictions

as strikes was a violation of double jeopardy because the firearm use allegations

were dismissed in both cases as a result of plea bargains. This argument lacks

merit because “the enhanced punishment imposed for the later offense is not to be

viewed as either a new jeopardy or additional penalty for the earlier crimes but

instead as a stiffened penalty for the latest crime, which is considered to be an

aggravated offense because a repetitive one.” See United States v. Kaluna, 192

F.3d 1188, 1198 (9th Cir.1999) (en banc) (quoting Witte v. United States, 515 U.S.
389, 399 (1995) for the proposition that recidivist sentencing schemes do not

violate double jeopardy clause). 

Williams filed a supplemental brief presenting the uncertified issue that the

sentencing judge found additional facts in each of the prior convictions that

increased his sentence in violation of Apprendi v. New Jersey, 530 U.S. 466, 490

(2000). We decline to expand the Certificate of Appealability in order to reach

Williams’ Apprendi issue. Therefore, Appellant’s motion is denied.

AFFIRMED