James Flores v. Connie Gipson, Acting Warden

MEMORANDUM

Petitioner James . Joseph Flores (“Flores”) appeals the district court’s denial of his petition for habeas relief. On November 16; 1998, after a jury trial in the California superior court, Flores was convicted- of: simple kidnapping (Cal.Penal Code § 207 ), forcible oral copulation (§ 288a(c)), forcible sodomy (§ 286(c)), corporal injury to a spouse (§ 273.5(a)), and making terrorist threats (§ 422). Flores’s sentence was enhanced from an eight-year term to a twenty-five-year-to-life term pursuant to CaLPenal Code § 667.61(d)(2), because the jury found that Flores “kidnapped the victim and the movement of the victim substantially increased the risk of harm to the victim over and above that level necessarily inherent in the underlying offense” of forcible sodomy. ' The jury found the same with respect to forcible' oral copulation. The § 207 simple kidnapping conviction was reversed on direct appeal, but the validity of the § 667.61(d)(2) “aggravated kidnapping circumstance” of the § 667.61 sentence enhancement -was not raised on direct appeal and, thus, never reversed. ■ This court has jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253,. and we reverse the denial of…