                                                                           FILED
                               NOT FOR PUBLICATION                          MAY 03 2012

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



JAMES CALLOWAY,                                     No. 09-17280

              Petitioner/Appellant,                 D.C. No. 02-cv-05882-rmw

  v.
                                                    MEMORANDUM*
RANDY GROUNDS,

              Respondent/Appellee.



                       Appeal from the United States District Court
                         for the Northern District of California
                       Ronald M. Whyte, District Judge, Presiding

                                 Submitted July 22, 2011 **

                                 San Francisco, California

Before:         TASHIMA and RAWLINSON, Circuit Judges, and HATTER,
                District Judge***.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The panel unanimously concludes this case is suitable for decision
without oral argument.
       ***
             The Honorable Terry J. Hatter, Jr., Senior United States District Judge
for the Central District of California, sitting by designation.
      James Calloway (“Calloway”) appeals the district court’s denial of his

summary judgment motion and the granting of Appellee’s motion to dismiss

Calloway’s petition for habeas corpus.

      We review de novo a district court’s denial of a petition for habeas corpus.

Estrada v. Scribner, 512 F.3d 1227, 1235 (9th Cir. 2008). When reviewing a state

court’s imposition of a criminal sentence, we must “look to the last reasoned state

court decision.” Van Lynn v. Farmon, 347 F.3d 735,738 (9th Cir. 2003). Here,

that decision was the unpublished California Court of Appeal opinion in People v.

Calloway, 2002 WL 31053941 (2002). Because that decision was filed after the

effective date of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), this appeal is subject to

the AEDPA. See Martinez v. Garcia, 379 F.3d 1034, 1037 (9th Cir. 2004).

Accordingly, we may grant habeas relief only if the state court’s decision was

“contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States; or resulted

in a decision that was based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-

(2). A state court decision is “contrary to clearly established Supreme Court

precedent if the state court applies a rule that contradicts the governing law set


                                           2
forth in [Supreme Court] 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 our precedent.” Williams v. Taylor,

529 U.S. 362, 405 (2000).

      In 2001, James Calloway was charged in the San Mateo County Superior

Court with willfully failing to comply with California’s Sex Offender Registration

Act. During trial, Calloway moved to have the jury determine whether a 1993

felony conviction for assault with a deadly weapon and with force likely to

produce great bodily injury qualified as his second strike under California’s three

strikes law. That conviction would count as a strike only if Calloway actually

inflicted great bodily injury upon his victim. The Superior Court denied the

motion and ruled that such a determination was for the court to make at sentencing.

After the jury returned a guilty verdict, the Superior Court made factual findings,

based only on transcripts and records of Calloway’s prior case, that Calloway

actually inflicted great bodily injury upon his assault victim and, therefore, the

1993 assault conviction qualified as his second strike. Accordingly, the conviction

for violating the Sex Offender Registration Act was Calloway’s third strike. He

was sentenced to a prison term of 25 years to life. The California Court of Appeal

affirmed the conviction and sentence, and denied Calloway’s state habeas petition.


                                           3
      The question we now consider is whether the Superior Court erred in not

permitting the jury to determine whether Calloway actually inflicted great bodily

injury upon his 1993 assault victim and, thereby, violated Calloway’s clearly

established constitutional right to a jury trial. Based on the recent opinion in

Wilson v. Knowles, 638 F.3d 1213 (9th Cir. 2011), the answer to the question is

yes. Thus, Calloway’s petition for habeas relief must be granted.

      REVERSED.




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