                                                                                      FILED
                               NOT FOR PUBLICATION                                     MAY 24 2011

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




                                FOR THE NINTH CIRCUIT



 JOSEPH JOHNSON, JR.,                                   No. 10-15786

                Petitioner-Appellant,                   D.C. No. 3:08-cv-05148-SI

      v.
                                                        MEMORANDUM *
 ROBERT L. AYERS, JR., Warden,

                Respondent-Appellee.



                      Appeal from The United States District Court
                         for the Northern District of California
                        Susan Illston, District Judge, Presiding

                                 Submitted May 10, 2011 **
                                  San Francisco, California




Before: D.W. NELSON and W. FLETCHER, Circuit Judges, and DUFFY, 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. See Fed. R. App. P. 34(a)(2).
***
       The Honorable Kevin Thomas Duffy, District Judge for the U.S. District Court for
Southern New York, New York, sitting by designation.
      Appellant Joseph Everett Johnson, Jr. (“Johnson”) appeals the denial of his

pro-se petition for writ of habeas corpus by the United States District Court for the

Northern District of California. Johnson contends that the California state court

violated the Sixth Amendment by imposing an upper-term sentence based on the

aggravating factors of the increasing seriousness of his prior convictions and

unsatisfactory performance on parole. We have jurisdiction under 28 U.S.C. §

1292(b) and § 2253 and we AFFIRM.

     On July 22, 2005, a jury in California Superior Court, San Mateo County,

found Johnson guilty of unlawful vehicle taking, possession of a firearm by a felon,

possession of ammunition by a felon, possession of drug paraphernalia, and

receiving stolen property. Before the trial, Johnson stipulated to having been

previously convicted of a felony for robbery in 1998. On September 30, 2005,

Johnson was sentenced to the upper-term of three years for the possession of a

firearm by a felon, which was then enhanced to six years because the judge found

that he had violated parole numerous times and that his prior convictions were of

increasing seriousness.

       This Court reviews de novo the district court’s denial of a petition for writ of

habeas corpus. Lopez v. Thompson, 202 F.3d 1110, 1116 (9th Cir. 2000) (en banc).

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),


                                           2
“[f]ederal habeas relief may not be granted for claims subject to § 2254(d) unless it

is shown that the earlier state court's decision ‘was contrary to’ federal law then

clearly established in the holdings of [the Supreme] Court; or that it ‘involved an

unreasonable application of’ such law; or that it ‘was based on an unreasonable

determination of the facts’ in light of the record before the state court.” Harrington

v. Richter, 131 S. Ct. 770, 785 (2011) (quoting 28 U.S.C. § 2254) (citations

omitted). “We review the state court's last reasoned decision.” Maxwell v. Roe,

628 F.3d 486, 495 (9th Cir. 2010). In denying Johnson’s appeal, the California

Court of Appeal relied on the reasoning of the California Supreme Court in Black v.

People, 161 P.3d 1130 (Cal. 2007) (“Black II”). Thus, we “look to the reasoning of

[Black II] to determine whether the AEDPA requirements have been met.” Butler

v. Curry, 528 F.3d 624, 640 (9th Cir. 2008).

      In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held

that “[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,

and proved beyond a reasonable doubt.” Id. at 490. In Blakely v. Washington, 542

U.S. 296 (2004), the Supreme Court expanded Apprendi, holding that “the

‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may




                                            3
impose solely on the basis of the facts reflected in the jury verdict or admitted by

the defendant.” Id. at 303 (emphasis in original) (citations omitted).

        In Cunningham v. California, 549 U.S. 270 (2007), the Supreme Court

struck down California’s determinate sentencing law, which prescribed that a

middle-term sentence should be imposed, unless in the judge’s sole discretion, there

were mitigation or aggravation factors to warrant a lower-term or upper-term

sentence, which could be established by a preponderance of the evidence. Id. at

278. The Court held this law violated Apprendi, stating that “[i]f the jury's verdict

alone does not authorize the sentence, if, instead, the judge must find an additional

fact to impose the longer term, the Sixth Amendment requirement is not satisfied.”

Id. at 290. In Black II, the California Supreme Court considered a defendant’s

challenge to his sentence in the wake of Cunningham. The court broadly applied

the “prior conviction” exception outlined in Apprendi, holding that it includes “not

only the fact that a prior conviction occurred, but also other related issues that may

be determined by examining the records of the prior convictions.” 161 P.3d at

1143.

   It cannot be said that there is clearly established Supreme Court precedent that

is contrary to the holding in Black II. The scope of the “prior conviction” exception

has not been defined by the Supreme Court, and the state court’s decision is a


                                           4
reasonable interpretation of that exception. We therefore deny relief. See Kessee v.

Mendoza-Powers, 574 F.3d 675, 676-77 (9th Cir. 2009).

      Further, even assuming there was a constitutional error, any such error is

harmless, as it is clear that a jury would have found beyond a reasonable doubt that

Johnson violated parole numerous times and that his prior convictions were of

increasing seriousness. Butler, 528 F.3d at 648 (“[Our court] must grant relief if we

are in ‘grave doubt’ as to whether a jury would have found the relevant aggravating

factors beyond a reasonable doubt.”) (citations omitted).1

AFFIRMED.




      1
        “[U]nder California law, only one aggravating factor is necessary to
authorize an upper term sentence.” Butler, 538 F. 3d at 641.


                                          5
