Gregory Powell v. D.L. Runnels

MEMORANDUM

We review a petition for a writ of habeas corpus de novo, giving deference to the state court’s factual findings and reviewing the district court’s factual findings for clear error. Lopez v. Thompson, 202 F.3d 1110, 1116 (9th Cir.2000) (en banc).

“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court” may only be granted where

28 U.S.C. § 2254 (d).

I.

The California Court of Appeal’s conclusion — that the state trial court had not violated Powell’s Sixth Amendment jury trial right by relying on Powell’s parole status as an aggravating circumstance warranting upper term sentences — was not “an unreasonable application” of Supreme Court precedent. See Harrington v. Richter, 562 U.S. 86 , 131 S.Ct. 770, 786-87 , 178 L.Ed.2d 624 (2011). At the time the California Court of Appeal reached its decision, the Supreme Court had not spoken on the breadth of the prior conviction exception in Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 , and the circuits were split on whether one’s parole status fell within it. See Kessee v. Mendoza-Powers, 574 F.3d 675, 677 (9th Cir.2009) (“For purposes of AEDPA review, ... a state…