Phillip Rosenblum v. James Yates

MEMORANDUM

California state prisoner Phillip J. Rosenblum appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. He challenges his upper term sentence imposed by the state trial court. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.

In Cunningham v. California, the Supreme Court held that California’s sentencing scheme (at the time of Rosen- blum’s conviction) was unconstitutional, because it violated the Sixth Amendment right to a jury trial. 549 U.S. 270, 288-89 , 127 S.Ct. 856 , 166 L.Ed.2d 856 (2007). However, Cunningham did not invalidate upper term sentences imposed as a result of prior convictions. See id. (“Except for a prior conviction, 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.” (internal quotation marks omitted)).

Under California law, “the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence.” People v. Black, 41 Cal.4th 799 , 62 Cal.Rptr.3d 569 , 161 P.3d 1130, 1140 (2007). Thus, for purposes of habeas review, “if at least one of the…