FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID LEON STOKES, II, 

No. 04-16454 Petitioner-Appellant,

D.C. No.

v.  CV-03-01537-NVW

DORA B. SCHRIRO, Director, OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the District of Arizona

Neil V. Wake, District Judge, Presiding

Argued and Submitted

October 18, 2005—San Francisco, California

Filed October 6, 2006

Before: Dorothy W. Nelson, Johnnie B. Rawlinson, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Rawlinson

17433
COUNSEL

Jon M. Sands, Federal Public Defender, and Jennifer Y. Garcia, Assistant Federal Public Defender, Tucson, Arizona, for

appellant David Leon Stokes, II. 

STOKES v. SCHRIRO 17435
Terry Goddard, Arizona Attorney General, Randall M. Howe,

Chief Counsel, Criminal Appeals Section, and Cari

McConeghy-Harris, Assistant Attorney General, Criminal

Appeals Section, Phoenix, Arizona, for appellee Dora B.

Schriro. 

OPINION

RAWLINSON, Circuit Judge: 

A jury found David Leon Stokes, II (Stokes) guilty of

attempted kidnapping and attempted robbery in Arizona state

court. The jury also found the offenses to be “dangerous.” At

sentencing, the trial judge opted to sentence Stokes to twenty

years as a repetitive offender whose previous convictions

were for non-dangerous offenses. The judge then enhanced

the sentence to twenty-five years by finding aggravating circumstances. After Stokes’s habeas petition was denied in district court, we granted a certificate of appealability (COA) on

the issue of whether Stokes “was sentenced in violation of the

Sixth Amendment pursuant to Apprendi v. New Jersey, 530

U.S. 466 (2000), because the trial court disregarded the jury’s

findings of dangerousness and sentenced appellant as a nondangerous repetitive offender.” We conclude that the trial

court’s election of one statutory sentencing option over

another was not contrary to Apprendi. However, the court ran

afoul of Apprendi when it relied on judicial factfinding to

increase Stokes’s sentence beyond the statutory maximum.

Accordingly, we affirm in part, reverse in part, and remand.

I

FACTUAL AND PROCEDURAL BACKGROUND

In May 1999, the Milners pulled their car into a convenience store parking lot. Mr. Milner went into the store while

17436 STOKES v. SCHRIRO
Mrs. Milner remained in the car. Stokes entered the car,

grabbed Mrs. Milner’s neck, threatened her with a “blade,”

and told her he was going to steal the car. Mrs. Milner

grabbed the keys from the ignition and jumped out of the car,

but not before Stokes slashed her neck with the “blade.” Mrs.

Milner survived, and Stokes was eventually apprehended. 

An Arizona state jury subsequently found Stokes guilty of

attempted kidnapping and attempted robbery, both class three

felonies. The jury also found the offenses for which Stokes

was convicted to be “dangerous.” 

Stokes’s sentencing presented the Arizona state judge with

two options. Because this was Stokes’s first conviction for a

dangerous felony, the judge could sentence Stokes as a firsttime dangerous offender under Arizona Revised Statute § 13-

604(I), for a maximum sentence of fifteen years.1 In the alternative, and in view of Stokes’s prior convictions for at least

two non-dangerous felonies, the judge could sentence Stokes

as a repetitive offender whose previous convictions were for

non-dangerous offenses. Under Arizona Revised Statute § 13-

604(D), the maximum sentence under the latter option was

twenty years.2

The judge elected the latter option after finding that Stokes

1Subsection 13-604(I) stated: 

[U]pon a first conviction of a class 2 or 3 felony involving discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or upon conviction of a class 2 or 3 felony

when the intentional or knowing infliction of serious physical

injury upon another has occurred, the defendant shall be sentenced to imprisonment as prescribed in this subsection . . . 

Ariz. Rev. Stat. Ann. § 13-604(I) (1999). 

2Subsection 13-604(D) stated that “a person who . . . stands convicted

of a class 2 or 3 felony, and who has two or more historical prior felony

convictions, shall be sentenced to imprisonment as prescribed in this subsection . . .” Ariz. Rev. Stat. Ann. § 13-604(D) (1999). 

STOKES v. SCHRIRO 17437
had been convicted of driving under the influence, theft, and

possession of a narcotic drug. The judge then enhanced the

twenty-year sentence to twenty-five years under Arizona

Revised Statute § 13-702(C) and § 13-702.01(E) by finding

three aggravating circumstances: (1) “physical and emotional

harm to the victim,” (2) “the defendant was previously convicted of felonies within 10 years immediately preceding the

date of this offense,” and (3) “defendant’s 1981 convictions

for kidnapping and aggravated assault . . . are strikingly similar to the instant offenses.”

3

 The judge ultimately sentenced

Stokes to two “super-aggravated” terms of twenty-five years

to be served concurrently.

Stokes appealed to the Arizona Court of Appeals, asserting,

inter alia, that his sentence was “unlawful” because the jury

found that his offenses were dangerous, yet the judge disregarded the jury’s findings and instead sentenced him as a nondangerous repetitive offender, resulting in a longer sentence.

Relying on State v. Smith, 828 P.2d 778 (Ariz. Ct. App.

1992), the Court of Appeals rejected Stokes’s argument. The

Court of Appeals reasoned that Smith, which addressed an

almost identical scenario, recognized the judge’s discretion to

sentence under either subsection. Stokes’s appeal to the Arizona Supreme Court was denied.4

Stokes requested post-conviction relief on a basis other

than his unlawful sentence claim. His request and petitions for

review were denied. 

3Subsection 13-702(C) listed a number of aggravating circumstances

that “the court shall consider.” Ariz. Rev. Stat. Ann. § 13-702(C) (1999).

Subsection 13-702.01(E) stated: “[I]f a person is convicted of a felony

offense and has two or more historical prior felony convictions and if the

court finds that at least two substantial aggravating factors listed in section

13-702, subsection C apply, the court may increase the maximum term of

imprisonment . . .” Ariz. Rev. Stat. Ann. § 13-702.01(E) (1993). 

4During the course of Stokes’s direct appeal, the United States Supreme

Court decided Apprendi. 

17438 STOKES v. SCHRIRO
Stokes then petitioned for a writ of habeas corpus under 28

U.S.C. § 2254 in federal district court. Citing Apprendi, he

again argued that his sentence was unlawful because the judge

disregarded the jury’s findings of dangerousness and opted to

sentence him as a non-dangerous repetitive offender. 

The magistrate judge recommended that the district court

deny Stokes’s petition. The district court accepted the magistrate judge’s recommendation and concluded that Stokes was

not sentenced in violation of Apprendi under the sentencing

statutes as construed by the Arizona state courts.

The district court denied Stokes’s request for a COA. However, we granted a COA on the issue of “whether appellant

was sentenced in violation of the Sixth Amendment pursuant

to Apprendi v. New Jersey, 530 U.S. 466 (2000), because the

trial court disregarded the jury’s findings of dangerousness

and sentenced appellant as a non-dangerous repetitive offender.”5

5On appeal, Stokes raises two uncertified issues: (1) whether the trial

court violated Apprendi by finding the fact of his prior convictions to

enhance his sentence; and (2) whether the trial court violated Apprendi by

enhancing his sentence based on a judicial finding of aggravating circumstances. We treat Stokes’s opening brief raising these uncertified issues as

a request to expand the COA. See Solis v. Garcia, 219 F.3d 922, 926 (9th

Cir. 2000) (per curiam). 

We deny Stokes’s request to expand the COA to include the prior convictions issue because he has not made a “substantial showing of the

denial of a constitutional right[.]” Id. (citation omitted). In Apprendi, the

Supreme Court expressly held, “[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 . . .” 530 U.S. at 490 (emphasis

added). That is, prior convictions are an exception to the Apprendi rule.

See United States v. Weiland, 420 F.3d 1062, 1079 & n.16 (9th Cir. 2005),

cert. denied, 126 S. Ct. 1911 (2006). Accordingly, the trial court’s findings of prior convictions to enhance Stokes’s sentence did not contravene

Apprendi. 

However, we grant Stokes’s request to expand the COA to include the

issue of whether the trial court violated Apprendi by enhancing his sentence based on a judicial finding of aggravating circumstances. On this

issue, Stokes has made a “substantial showing of the denial of a constitutional right[.]” Solis, 219 F.3d at 926 (citation omitted). 

STOKES v. SCHRIRO 17439
II

DISCUSSION

We review a district court’s decision to deny a habeas petition de novo and its findings of fact for clear error. Fowler v.

Sacramento County Sheriff’s Dep’t, 421 F.3d 1027, 1034 (9th

Cir. 2005). Because Stokes filed his petition after April 24,

1996, it is governed by the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA). Id.

To obtain habeas relief under AEDPA, Stokes must show

that the relevant state court decision “was contrary to, or

involved 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). 

“[A] decision is contrary to clearly established federal law

. . . if the state court applies a rule that contradicts the governing law set forth in the Supreme Court’s cases or if the state

court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless

arrives at a result different from that precedent.” Fowler, 421

F.3d at 1034-35 (citation, alterations, and internal quotation

marks omitted). 

“[C]learly established Federal law, as determined by the

Supreme Court” refers to Supreme Court precedent at the

time of the last-reasoned state court decision.6Id. at 1034.

6The last-reasoned state court decision for Stokes’s claim regarding the

judge’s act of disregarding the jury’s findings of dangerousness is the

Court of Appeals’s July 20, 2000 memorandum decision. This is the lastreasoned state court decision because the state supreme court denied

review on direct appeal without comment. The subsequent “minute entry”

denying Stokes’s petition for post-conviction relief did not address the

unlawful sentence issue, as Stokes did not raise it in his petition for postconviction relief. 

17440 STOKES v. SCHRIRO
A. The judge did not violate Apprendi by opting to

sentence Stokes as a repetitive offender whose

previous convictions were for non-dangerous

offenses.7

According to Stokes, the Court of Appeals’s memorandum

decision affirming the judge’s sentencing order is contrary to

Apprendi in the following way: The jury found Stokes’s

offenses to be dangerous. Under § 13-604(I) (the first-time

dangerous offender statute), the judge could only impose a

sentence of fifteen years. However, the judge opted to sentence Stokes as a repetitive offender whose previous convictions were for non-dangerous offenses. Under § 13-604(D)

(the repetitive offender statute), the judge sentenced Stokes to

twenty years (not counting the additional five-year enhancement based on aggravating circumstances). 

[1] Apprendi was violated, Stokes argues, when the judge

disregarded the jury’s findings of dangerousness and exposed

him to a sentence greater than that allowed by the jury’s verdicts. The jury’s verdicts were sufficient to expose Stokes to

a twenty-year sentence, however. In disregarding the dangerousness finding, the judge did not negate that finding. Instead,

the existence or nonexistence of the crime’s dangerousness

was irrelevant to the application of § 13-604(D), which

With respect to the propriety of the judge’s findings of aggravating circumstances, however, there is no last-reasoned state court decision.

Accordingly, we “perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable.” Pham

v. Terhune, 400 F.3d 740, 742 (9th Cir. 2005) (per curiam) (citation and

internal quotation marks omitted). 

7Even though Apprendi was decided after the sentencing order,

Apprendi nevertheless constitutes applicable, controlling federal law for

purposes of this appeal. Because “Apprendi was decided while [Stokes’s]

case was still on direct review[,] . . . the rule announced in Apprendi can

be asserted by [Stokes] in a § 2254 petition.” Schardt v. Payne, 414 F.3d

1025, 1035 n.10 (9th Cir. 2005) (citation omitted). 

STOKES v. SCHRIRO 17441
requires only that the defendant have previous non-dangerous

convictions. See, e.g., State v. Sammons, 749 P.2d 1372, 1376

(Ariz. 1988) (regarding as “mere surplusage” under § 13-

604D a finding that the current offense was dangerous);

Smith, 828 P.2d at 780 (holding that § 13-604(D) applied

“[b]ecause [defendant’s] prior convictions were for nondangerous felonies”). Accordingly, under Arizona law the

applicable statutory maximum was the greater of those provided by §§ 13-604(D) and 13-604(I). See Sammons, 749 P.2d

at 1376 (considering the greater of the two a proper “sentencing option selected by the trial court”); Smith, 828 P.2d at 780

(same); cf. State v. Quinonez, 976 P.2d 267, 270 (Ariz. Ct.

App. 1999) (holding in a similar situation that “the only sentencing range that applied in this case was . . . the more severe

one”). 

[2] Contrary to Stoke’s arguments, the Arizona state courts’

interpretation of these provisions does not contradict any

clearly established federal law. A statutory maximum need

not be defined by every one of the facts found at trial, so long

as the defendant is not “expose[d] . . . to a greater punishment

than that authorized” solely by those facts (or the fact of a

prior conviction). Apprendi, 530 U.S. at 490, 494. The application of § 13-604(D) did not depend on any fact that was not

submitted to the jury, other than the facts of Stokes’s prior

convictions. See id. at 490. Because the twenty-year sentence

was authorized by the jury’s findings, no Apprendi violation

occurred. See United States v. Sua, 307 F.3d 1150, 1154 (9th

Cir. 2002). Stokes is therefore not entitled to habeas relief on

this claim. 

B. The judge violated Apprendi by enhancing Stokes’s

sentence based on aggravating circumstances found

by the judge.

The sentencing judge enhanced Stokes’s sentence by finding three aggravating circumstances: (1) “physical and emotional harm to the victim,” (2) “the defendant was previously

17442 STOKES v. SCHRIRO
convicted of felonies within 10 years immediately preceding

the date of this offense,” and (3) “defendant’s 1981 convictions for kidnapping and aggravated assault . . . are strikingly

similar to the instant offenses.” These findings enhanced

Stokes’s sentence to twenty-five years, beyond the prescribed

statutory maximum of twenty years. Because these findings

were not made by a jury, the sentence violated applicable federal law. See Apprendi, 530 U.S. at 490-92.8

[3] The judge’s findings of aggravating circumstances are

not covered by Apprendi’s prior conviction exception. Even

if the prior conviction exception covers the finding that “the

defendant was previously convicted of felonies within 10

8This conclusion is reinforced by the legislative activity surrounding

§ 13-702(C) and § 13-702.01(E), the applicable sentencing statutes, both

of which were amended in 2005. 

Pre-2005, § 13-702(C) stated that “the court shall consider the following aggravating circumstances[.]” Ariz. Rev. Stat. Ann. § 13-702(C)

(1999) (emphasis added). As amended, this subsection now states that “the

trier of fact shall determine and the court shall consider the following

aggravating circumstances[.]” Ariz. Rev. Stat. Ann. § 13-702(C) (2005)

(emphasis added). 

Similarly, pre-2005, § 13-702.01(E) stated: “[I]f a person is convicted

of a felony offense and has two or more historical prior felony convictions

and if the court finds that at least two substantial aggravating factors . . .

apply, the court may increase the maximum term of imprisonment . . .”

Ariz. Rev. Stat. Ann. § 13-702.01(E) (1993) (emphasis added). As

amended, the subsection stated: “[I]f a person is convicted of a felony

offense and has two or more historical prior felony convictions and if the

trier of fact finds beyond a reasonable doubt that at least two aggravating

factors . . . apply, the court may increase the maximum term of imprisonment . . .” Ariz. Rev. Stat. Ann. § 13-702.01(E) (2005) (emphasis added).

The legislature also added subsection (J), which states that “ ‘trier of fact’

means a jury.” Id. § 13-702.01(J). Further amendments in 2006 preserved

these changes, in effect. See 2006 Ariz. Legis. Serv. Ch. 148 (West). 

Under the current statutes, aggravating factors are to be found by a jury

beyond a reasonable doubt, and not by the court. This change, as well as

the revision to § 13-702(C), indicates that the legislature recognized that

the pre-2005 versions used by the judge in this case were problematic. 

STOKES v. SCHRIRO 17443
years immediately preceding the date of this offense,” neither

of the other two findings is covered by the exception because

each was directed at Stokes’s present offenses, not the fact of

his prior offenses. 

[4] The judge found that there was “physical and emotional

harm to the victim.” This finding, directed at the present

offenses, is not covered by the prior conviction exception. See

United States v. Matthews, 312 F.3d 652, 664 (5th Cir. 2002)

(holding that the judge violated Apprendi when he enhanced

the defendant’s sentence by finding that the defendant committed his offenses (1) while participating in a criminal street

gang with knowledge of its criminal activities and (2) with

intent to promote criminal activities or to maintain or increase

his position in the gang because those findings were “unrelated to the fact of a prior conviction, but directly related to

the current charged offense.”) (emphasis added). 

[5] The judge also found that Stokes’s “1981 convictions

for kidnapping and aggravated assault . . . are strikingly similar to the instant offenses.” This finding similarly focuses on

the present offenses as a basis of comparison to past offenses

and is beyond the scope of the prior conviction exception. See

United States v. Kortgaard, 425 F.3d 602, 608-09 (9th Cir.

2005) (holding that the sentence enhancement violated the

defendant’s Sixth Amendment right to a jury trial because the

findings that trigger the enhancement “do not follow necessarily from the fact of any prior conviction or sentence but

instead call for the judgment of a factfinder.”). 

[6] Because the prior conviction exception does not inoculate an enhancement predicated upon judicial factfinding,

Stokes’s sentence violated Apprendi. See Apprendi, 530 U.S.

at 490-92. Where a court imposes a sentence beyond the statutory maximum, the government has the burden of showing

that the error was harmless beyond a reasonable doubt. See

United States v. Banuelos, 322 F.3d 700, 706 and n.4 (9th Cir.

17444 STOKES v. SCHRIRO
2003). As the government failed to meet its burden, Stokes is

entitled to habeas relief on this claim. 

III

CONCLUSION

[7] The district court correctly concluded that the Arizona

Court of Appeals’s decision upholding Stokes’s enhanced

sentence as a repetitive offender was not contrary to

Apprendi. However, the sentencing judge committed

Apprendi error when he used judicial findings to enhance

Stokes’s sentence. Because the government failed to show

that the Apprendi error was harmless, Stokes is entitled to

habeas relief on that claim. Accordingly, we affirm in part,

reverse in part, and remand for the district court to grant the

habeas petition as to the imposition of the sentence enhancement predicated upon judicial factfinding. 

AFFIRMED in part; REVERSED in part; and

REMANDED. 

STOKES v. SCHRIRO 17445