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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

MARIO KEOLA,

Petitioner, No. CIV S-04-1935 FCD GGH P

vs.

M. KNOWLES, et al., 

Respondent. FINDINGS AND RECOMMENDATIONS

 /

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2000 conviction for murder (Cal.

Penal Code § 187; count one), vehicular manslaughter with gross negligence while intoxicated

(Cal. Penal Code § 191.5(a); count two), driving while under the influence causing injury (Cal.

Veh. Code § 23153(a); count three), evading a peace officer causing death (Cal. Veh. Code §

2800.3; count four), evading a peace officer while driving with willful and wanton disregard

(Cal. Veh. Code § 2800.2(a); count five), vehicle theft (Cal. Veh. Code § 10851(a); count six),

and receiving stolen property (Cal. Penal Code § 496(a); count seven). On counts three and five,

the jury found that petitioner inflicted great bodily injury on four victims. (Cal. Penal Code §

12022.7(a)). Petitioner admitted having suffered three prior auto theft convictions (Cal. Penal

Code § 666.5; Cal. Veh. Code § 10851(e)), and having served five prior prison terms (Cal. Penal

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Code § 667.5(b)). Petitioner is serving a determinate term of 18 years, which includes a one-year

consecutive term for count six auto theft, plus a consecutive indeterminate term of 15 years to

life.

Petitioner challenges his conviction on the following grounds. First, he alleges

that the consecutive term for auto theft violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.

Ct. 2348 (2000) as well as state law. Second, he alleges that he is entitled to additional days of

presentence credit.

After carefully reviewing the record, the court recommends that the petition be

denied.

II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)

The AEDPA applies to this petition for habeas corpus which was filed after the

AEDPA became effective. Neelley v. Nagle, 138 F.3d 917 (11th Cir.), citing Lindh v. Murphy,

117 S. Ct. 2059 (1997). The AEDPA “worked substantial changes to the law of habeas corpus,”

establishing more deferential standards of review to be used by a federal habeas court in

assessing a state court’s adjudication of a criminal defendant’s claims of constitutional error. 

Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997). 

In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000), the Supreme

Court defined the operative review standard set forth in § 2254(d). Justice O’Connor’s opinion

for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy

between “contrary to” clearly established law as enunciated by the Supreme Court, and an

“unreasonable application of” that law. Id. at 1519. “Contrary to” clearly established law applies

to two situations: (1) where the state court legal conclusion is opposite that of the Supreme

Court on a point of law, or (2) if the state court case is materially indistinguishable from a

Supreme Court case, i.e., on point factually, yet the legal result is opposite.

“Unreasonable application” of established law, on the other hand, applies to

mixed questions of law and fact, that is, the application of law to fact where there are no factually

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on point Supreme Court cases which mandate the result for the precise factual scenario at issue. 

Williams (Terry), 529 U.S. at 407-08, 120 S. Ct. at 1520-1521 (2000). It is this prong of the

AEDPA standard of review which directs deference to be paid to state court decisions. While the

deference is not blindly automatic, “the most important point is that an unreasonable application

of federal law is different from an incorrect application of law....[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.” Williams (Terry), 529 U.S. at 410-11, 120 S. Ct. at

1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the

objectively unreasonable nature of the state court decision in light of controlling Supreme Court

authority. Woodford v. Viscotti, 537 U.S. 19, 123 S. Ct. 357 (2002).

The state courts need not have cited to federal authority, or even have indicated

awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.

Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is

contrary to, or an unreasonable application of, established Supreme Court authority. Id. An

unreasonable error is one in excess of even a reviewing court’s perception that “clear error” has

occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S. Ct. 1166, 1175 (2003). Moreover, the

established Supreme Court authority reviewed must be a pronouncement on constitutional

principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules

binding only on federal courts. Early v. Packer, 123 S. Ct. at 366.

However, where the state courts have not addressed the constitutional issue in

dispute in any reasoned opinion, the federal court will independently review the record in

adjudication of that issue. “Independent review of the record is not de novo review of the

constitutional issue, but rather, the only method by which we can determine whether a silent state

court decision is objectively unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.

2003).

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III. Factual Background

A factual summary is contained in the opinion of the California Court of Appeal. 

After independently reviewing the record, the court finds this summary to be accurate and adopts

it below.

Shortly after noon on September 25, 1998, a California Highway

Patrol officer responded to a dispatch call related to a possible

drunk driver on westbound Interstate 80 in the Truckee area. The

officer attempted to stop the car, driven by defendant, but it sped

away. Shortly thereafter, the officer located the car traveling north

on State Route 89 and saw it pass the two cars over double solid

lines. Defendant’s car almost struck a logging truck head on. 

Defendant then passed another car in a no-pass zone, causing two

other cars to pull to the side of the road.

Defendant continued driving recklessly down the middle of the

road and passed more vehicles in an unsafe manner. The officer

estimated that defendant was traveling 90 miles per hour. After

evading the officer for nearly 12.2 miles, defendant’s car struck a

blue Pontiac that had slowed and pulled over to avoid being struck

by him. 

Janice Fulton, a passenger in the Pontiac, died on October 5, 1998,

as a result of massive internal injuries suffered in the collision. 

The driver and two other passengers suffered broken bones and

lacerations both externally and internally. The car defendant was

driving had been stolen from a parking lot in Reno. Its owner had

last seen it four days previously.

See Exhibits to Petition, Opinion of Court of Appeal, pp. 2-3.

IV. Discussion

A. Procedural Default

Respondent argues that petitioner’s claims are procedurally defaulted. Based on

concerns of comity and federalism, federal courts will not review a habeas petitioner’s claims if

the state court decision denying relief rests on a state law ground that is independent of federal

law and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 111 S. Ct.

2546, 2554 (1991); Harris v. Reed, 489 U.S. 255, 260-62, 109 S. Ct. 1038 (1989). Generally, the

only state law grounds meeting these requirements are state procedural rules. However, the

procedural basis of the ruling must be clear. Ambiguous reference to procedural rules is

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insufficient for invocation of procedural bar. Calderon v. United States District Court (Bean), 96

F.3d 1126, 1131 (9th Cir. 1996). Similarly, where the procedural and merits analysis are

intermixed, it cannot be said that the procedural bar is independent of federal law, i.e., there is no

plain statement of reliance on procedural bar. Harris v. Reed, supra.

If there is an independent and adequate state ground for the decision, the federal

court may still consider the claim if the petitioner demonstrates: (1) cause for the default and

actual prejudice resulting from the alleged violation of federal law, or (2) a fundamental

miscarriage of justice. Harris, 489 U.S. at 262, 109 S. Ct. at 1043. The existence of cause for a

procedural default must ordinarily turn on whether the prisoner can show that some objective

factor external to the defense impeded counsel’s efforts to comply with the State’s procedural

rule. McCleskey v. Zant, 499 U.S. 467, 493-94, 111 S. Ct. 1454, 1476 (1991). Examples of

cause include showings “that the factual or legal basis for a claim was not reasonably available to

counsel,” “that some interference by officials made compliance impracticable,” or “of ineffective

assistance of counsel.” Murray, 477 U.S. at 488, 106 S. Ct. at 2645. Prejudice is difficult to

demonstrate:

The showing of prejudice required under Wainwright v. Sykes is

significantly greater than that necessary under “the more vague

inquiry suggested by the words ‘plain error.’” Engle, 456 U.S., at

135, 102 S.Ct., at 1575; Frady, supra, 456 U.S., at 166, 102 S.Ct.,

at 1593. See also Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct.

1730, 1736, 52 L.Ed.2d 203 (1977). The habeas petitioner must

show “not merely that the errors at ... trial created a possibility of

prejudice, but that they worked to his actual and substantial

disadvantage, infecting his entire trial with error of constitutional

dimensions.” Frady, supra, at 170, 102 S.Ct., at 1596.

Murray v Carrier, 477 U.S. at 493-494, 106 S. Ct. at 2648 (1986). 

Although different phraseology is used in the default context from that used in the ineffective

assistance of counsel prejudice inquiry, as stated above, the ultimate application of the two

prejudice inquiries is essentially similar—that is, whether the prejudice is sufficient to have

undermined the reviewer’s confidence in the result of the trial.

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Petitioner raised the claims brought in the instant petition in his direct appeal filed

in the California Court of Appeal. On January 22, 2002, the California Court of Appeal denied

petitioner’s appeal. See Respondent’s January 28, 2005, lodged documents, doc. 5. Petitioner

did not file a petition for review in the California Supreme Court. On February 6, 2003,

petitioner filed a habeas corpus petition in the California Supreme Court. Id., doc. 6. On

September 17, 2003, the California Supreme Court denied the petition citing In re Waltreus, 62

Cal.2d 218 (1965).

In Ylst v. Nunnemaker, 501 U.S. 797, 805, 111 S. Ct. 2590, 2595 (1991), the

Supreme Court concluded that a Waltreus citation is neither a ruling on the merits nor a denial on

procedural grounds. It held that since petitioners in California are not required to go to state

habeas for exhaustion purposes, a Waltreus denial on state habeas has no bearing on their ability

to raise a claim in federal court. 501 U.S. at 805, 111 S. Ct. at 2595. Thus, federal courts “look

through” a denial based on Waltreus to previous state court decisions. Id. at 805-806, 111 S. Ct.

at 2595-96.

In Forrest v. Vasquez, 75 F.3d 562 (9th Cir. 1996) the Ninth Circuit found that,

under the circumstances of that case, the citation to Waltreus showed that the basis of the

decision by the California Supreme Court was procedural default. In Forrest, the petitioner

appealed his conviction to the California Court of Appeal arguing, in part, that he had been

denied access to the law library. 75 F.3d at 563. The California Court of Appeal affirmed his

conviction. Id. Under Rule 28(b) of the California Rules of Court, a petition for review to the

California Supreme Court must be filed within ten days after the Court of Appeal decision

becomes final. Id. The Forrest petitioner failed to file a timely petition for review, and the

California Supreme Court denied his application for relief from default. Id. The Forrest

petitioner later filed a petition for habeas corpus in the California Supreme Court, again alleging

that his rights had been violated by denial of law library access. Id. The California Supreme

Court denied the petition citing Waltreus. Id.

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The Ninth Circuit found that the petitioner’s failure to raise his claim in a petition

for review cost him his only chance to present properly his claim to the California Supreme Court

because Waltreus prohibits that court from reviewing on habeas any claim raised during the

direct appeal process. Id. at 564. “The effect of the Waltreus rule is that a California prisoner

wishing to exhaust remedies in state court should generally present his claim to the California

Supreme Court in a petition for direct review, rather than a habeas petition.” Id. The failure of

the Forrest petitioner to file a timely petition for review deprived the California Supreme Court

of an opportunity to address his claim in the first instance, and resulted in the procedural default

of this claim. Id.

The Ninth Circuit distinguished Forrest from Ylst in that in Ylst, the Supreme

Court looked through a Waltreus citation, and then various unexplained orders, to the last

explained state judgment. In Forrest, the Ninth Circuit stated that it would not look past the

California Supreme Court’s unexplained order denying his application for relief from default. Id.

“The ‘nature’ and ‘surrounding circumstances’ of the unexplained order clearly show that the

basis of the decision was procedural default.” Id.

The instant case is distinguishable from Forrest in that here, there is no order

finding these claims defaulted on direct appeal. This court is able to look through the order by

the California Supreme Court denying petitioner’s habeas petition to the reasoned opinion of the

California Court of Appeal denying these claims on the merits. Accordingly, Waltreus does not

bar these claims.

B. Sentence for Auto Theft

Petitioner first argues that his sentence for count six, auto theft, violates Apprendi,

supra. The California Court of Appeal rejected this claim for the following reasons:

Defendant contends his count six auto theft sentence cannot stand

because the United States Supreme Court has held in Apprendi v.

New Jersey (2000) 530 U.S. 466 that, “Other 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

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jury, and proved beyond a reasonable doubt.” (Id. at p. 490). We

disagree.

Apprendi is not on point because the disputed fact, that the auto

theft and subsequent driving were separate, does not increase

defendant’s punishment beyond the statutory maximum but merely

bars a reduction in punishment pursuant to section 654. (People v.

Cleveland (2001) 87 Cal.App.4th 263, 270; followed in People v.

Solis (2001) 90 Cal.App.4th 1002, 1022).

Exhibits to Petition, Opinion of Court of Appeal, pp. 3-4.

For the reasons stated by the state appellate court, this court finds that Apprendi is

not on point to petitioner’s claim. Apprendi does not go so far as to hold that where mitigation is

possible by application of a procedural sentencing statute, all facts related to that possible

mitigation must be tried to a jury. Because the denial of this claim by the California Court of

Appeal was not an unreasonable application of clearly established Supreme Court authority, this

claim should be denied.

Petitioner next argues that his sentence for count six, auto theft, violated Cal.

Penal Code § 654(a). Petitioner is claiming a violation of state sentencing law. “Absent a

showing of fundamental unfairness, a state court’s misapplication of its own sentencing laws

does not justify federal habeas relief.’” Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994). 

Accordingly, the court must determine whether petitioner’s sentence violated fundamental

fairness.

The California Court of Appeal denied this claim on the following grounds:

Defendant contends section 654 requires that his sentence for auto

theft be stayed. He claims his auto theft activity in count six was

merely incidental to the reckless driving activity that led to his

convictions on counts one through five. We do not agree.

‘The proscription against double punishment in section 654 is

applicable where there is a course of conduct which...comprises an

indivisible transaction punishable under more than one

statute...The divisibility of a course of conduct depends upon the

intent and objective of the actor, and if all the offenses are incident

to one objective, the defendant may be punished for any one of

them but not for more than one.’ [Citation.] ‘The defendant’s

intent and objective are factual questions for the trial court; [to

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permit multiple punishments,] there must be evidence to support a

finding the defendant formed a separate intent and objective for

each offense for which he was sentenced.’ [Citation.]” (People v.

Coleman (1989) 48 Cal.3d 112, 162; see People v. Latimer (1999)

5 Cal.4th 1203, 1208; People v. Cleveland, supra, 87 Cal.App.4th

at p. 268.)

In imposing a consecutive term on count six, the trial court stated

that the “crimes were committed at different times and at different

places. That is the auto theft took place in Reno, the crash and

subsequent death took place in Sierra County. Remote in time and

place. [¶].. [] We have a vehicle theft. The question is, is that the

same activity as the reckless driving under the influence causing

death and/or the death itself. And it is the Court’s finding that

there is a discontinuity of the two. He could very well have stolen

the vehicle and stayed in Reno. He chose to steal a vehicle, then he

proceeded on a drive which ultimately ended up with attempting to

evade the Highway Patrol and crash in Sierra County. I find those

are two separate events, and therefore it is appropriate that the

sentence run consecutively rather than concurrently.”

The trial court’s express finding of “separate events,” and its

implied finding of separate intents and objectives, are supported by

substantial evidence.

The evidence showed that the stolen car was last seen by its owner

on September 21, 1998, and was involved in the high speed pursuit

and crash four days later on September 25, 1998. The steering

column near the ignition switch was broken away and parts of the

ignition switch were exposed. There were no keys in the ignition

or anywhere else in the car. The trial court could deduce that

defendant’s erratic, reckless driving while intoxicated was

inconsistent with the knowledge and skill required to pierce the

steering column, disable the wheel lock and start the engine. Thus,

the court could conclude that defendant stole the car a significant

period of time before he became intoxicated and drove under the

influence. (People v. Coleman, supra, 48 Cal.3d at p. 162.)

This case is unlike In re Asean D. (1993) 14 Cal.App.4th 467, on

which defendant relies. In In re Asean D., the minor robbed two

occupants of a van “for the purpose of taking the vehicle [in] a

single transaction.” Section 654 prohibited separate sentences for

robbery and vehicle theft because “there was no separate criminal

objective in the brutalizing of the victims beyond compelling them

to give up their [van].” (Id. at p. 475.) Here, in contrast, the trial

court could find that defendant had the separate objective of

leaving Reno long before he found reason to take flight from

California law enforcement.

Exhibits to Petition, Opinion of Court of Appeal, pp. 4-6. 

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For the reasons stated by the California Court of Appeal, this court finds no

misapplication of state sentencing laws. More importantly, the court can find no violation of

fundamental fairness by correct application of state law. Because the denial of this claim the

California Court of Appeal was not an unreasonable application of clearly established Supreme

Court authority, this claim should be denied.

C. Presentence Credit

Petitioner argues that he is entitled to additional days of presentence credit. The

California Court of Appeal granted petitioner relief as to this claim and awarded him the

presentence credit requested. Exhibits to Petition, Opinion of Court of Appeal, pp. 6-7. 

Accordingly, this claim should be denied as moot.

Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for

a writ of habeas corpus be denied.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

shall be served and filed within ten days after service of the objections. The parties are advised

that failure to file objections within the specified time may waive the right to appeal the District

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: 6/20/05

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

ggh:kj

keola.157

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