                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             APR 29 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LOUIS ARTHUR CALVIN,                              No. 12-56739

              Petitioner - Appellant,             D.C. No. 2:10-cv-00948-GW-
                                                  MRW
 v.

RON DAVIS,                                        MEMORANDUM*

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     George H. Wu, District Judge, Presiding

                        Argued and Submitted April 8, 2016
                               Pasadena, California

Before: FARRIS, SENTELLE**, and M. SMITH, Circuit Judges.

      Louis Arthur Calvin appeals the district court’s denial of his petition for a writ

of habeas corpus.    Calvin challenges his custody resulting from his conviction in

Santa Barbara Superior Court for voluntary manslaughter, shooting from a motor


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable David Bryan Sentelle, Senior Circuit Judge for the
U.S. Court of Appeals for the District of Columbia Circuit, sitting by designation.
vehicle, and carrying a concealed weapon–all arising from a road rage incident.

Calvin appealed his sentence based on a number of alleged errors, including, as

relevant here, that under Cunningham v. California, 549 U.S. 270 (2007), the trial

court violated his Sixth Amendment right to a jury trial when the judge used facts not

found by a jury to impose an upper term sentence. People v. Calvin, 2d Crim. No.

B194933, 2008 WL 3120374, *2, *8-9 (Cal. Ct. App. Aug. 7, 2008). The California

Court of Appeal agreed that there was a Cunningham error, but concluded that the

error was harmless beyond a reasonable doubt. Id.; see Chapman v. California, 386

U.S. 18, 24 (1967) (holding that a federal constitutional error is harmless only if the

reviewing court declares a belief that the error was harmless beyond a reasonable

doubt). The district court held that the state appellate court’s decision rejecting

Calvin’s Cunningham claim on harmless error grounds “was not contrary to, or an

unreasonable application of, federal law.” E.R. 101-02.

      We review de novo the district court’s denial of Calvin’s habeas petition, see

Henry v. Ryan, 720 F.3d 1073, 1078 (9th Cir. 2013), and affirm that decision.

       “[A] prisoner who seeks federal habeas corpus relief must satisfy Brecht [v.

Abrahamson, 507 U.S. 619 (1993)].” Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015).

Under the Brecht test, “relief is proper only if the federal court has grave doubt about

whether a trial error of federal law had substantial and injurious effect or influence in


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determining the jury’s verdict.” Id. at 2197-98 (internal quotation marks and citation

omitted). In addition, “[t]here must be more than a ‘reasonable possibility’ that the

error was harmful.” Id. at 2198 (citing Brecht, 507 U.S. at 637). Furthermore, in

Harrington v. Richter, 562 U.S. 86, 99-100 (2011), the Supreme Court held that when

a defendant seeks federal habeas from a state sentence, the Antiterrorism and Effective

Death Penalty Act (AEDPA), see 28 U.S.C. § 2254(d), “does not require a state court

to give reasons before its decision can be deemed to have been adjudicated on the

merits.”

      In this case, there is no dispute that the California Court of Appeal decision

constituted an adjudication of Calvin’s constitutional claims on the merits. Therefore,

“the highly deferential AEDPA standard applies.” Ayala, 135 S. Ct. at 2198.

      Under AEDPA, habeas relief may be granted only if the state court’s denial of

Calvin’s claim was either “contrary to, or involved an unreasonable application of

clearly established Federal law,” or “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). Because the state court adjudicated his claim on the merits, the

Brecht test includes the limitations imposed by AEDPA. See Ayala, 135 S. Ct. at

2199. Accordingly, “we may not overturn the California [Court of Appeal’s] decision

unless that court applied Chapman in an objectively unreasonable manner.” Ayala,


                                          3
135 S. Ct. at 2198 (internal quotations omitted); see also id. at 2199 (“When a

Chapman decision is reviewed under AEDPA, a federal court may not award habeas

relief under § 2254 unless the harmlessness determination itself was unreasonable.”

(internal quotations omitted)). And “[a] state court’s determination that a claim lacks

merit precludes federal habeas relief so long as fairminded jurists could disagree on

the correctness of the state court’s decision.” Richter, 562 U.S. at 101 (internal

quotations omitted); see also Ayala, 135 S. Ct. at 2199. Thus, Calvin must show that

the state court’s decision to reject his claim “was so lacking in justification that there

was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Richter, 562 U.S. at 103; see also Ayala,

135 S. Ct. at 2199.

      Calvin, however, cannot show that fairminded jurists could disagree. At the

sentencing hearing, the trial court considered “all of the testimony in this case[,]” the

probation department’s recommendation, the prosecution’s sentencing memorandum,

defense trial counsel’s arguments regarding both a new trial motion and sentencing,

and every letter that had been submitted to the court. E.R. 301. The court based its

sentencing on the following aggravating factors: (1) “the crime involved great

violence, great bodily injury, or other acts disclosing a high degree of cruelty,

viciousness, or callousness” as the victim was shot “point blank”; (2) “[t]he crime


                                            4
shows planning, sophistication, or professionalism” as Calvin armed himself with a

weapon that had to be manually unfolded and cocked; and (3) “Calvin’s violence

poses a serious danger to society.” People v. Calvin, 2008 WL 3120374, at *8-9.

Although the state appellate court did not analyze the third aggravating factor, it

acknowledged the Cunningham error in Calvin’s case and properly found that the

error was harmless beyond a reasonable doubt. See id.

       “[A] single aggravating factor is sufficient to authorize imposition of the upper

term sentence.” Butler v. Curry, 528 F.3d 624, 641 (9th Cir. 2008). As the state

appellate court explained, “[a] reasonable jury would have found beyond a reasonable

doubt that the crimes involved great violence as well as viciousness and callousness

even if it also found that [the victim] had initiated the confrontation.” People v.

Calvin, 2008 WL 3120374, at *9. While the victim was outside of Calvin’s vehicle,

Calvin shot him “from close range while he was in the relative safety of his van.” Id.

Calvin left his vehicle running, poising him for the escape he made “without

contacting 911 or otherwise providing assistance” to the victim. Id. Given these facts,

it is difficult to imagine a jury not making the findings reached by the state trial judge

on the same evidence. Thus, the state appellate court decision regarding the

aggravating factor of viciousness and callousness was not so lacking in justification

as to require habeas relief.


                                            5
      Moreover, the California Court of Appeal committed no constitutional error in

reviewing the upper term sentence and concluding that “a reasonable jury would have

found beyond a reasonable doubt” that the crimes involved a second aggravating

factor–preparation and planning. People v. Calvin, 2008 WL 3120374, at *9. As the

court explained, it too was “undisputed that Calvin had armed himself prior to the

incident with a handgun that he had concealed in the console of his van, and that the

gun could not be discharged without being unfolded and cocked.” Id. Accordingly, if

there is ever a harmless Cunningham error, this is it. We therefore affirm the district

court’s denial of Calvin’s habeas petition.

      As a final matter, Calvin filed an urgent motion for an order allowing a private

telephone call with his counsel. Prior to the motion, Calvin’s counsel made multiple

requests, all denied, to San Quentin State Prison for such a call. As Calvin can

regularly communicate with his attorney via telephone and mail, as well as via in-

person visits, the denial of a confidential telephone call does not violate Calvin’s

constitutional rights. Cf. Valdez v. Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002)

(upholding restriction on prisoner telephone access where reasonably related to

legitimate penological interests). Because Calvin failed to show that officials at San

Quentin State Prison have violated any rights, the motion is denied.




                                          6
      In summary, the state court’s decision concerning the harmlessness of the

Cunningham constitutional error was not an unreasonable application of clearly

established federal law; Ayala’s construction of Brecht and Chapman controls; and

the district court did not err in denying Calvin’s petition.

      AFFIRMED.




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