                                                                          FILED
                                                                           DEC 08 2011
                          NOT FOR PUBLICATION
                                                                      MOLLY C. DWYER, CLERK
                                                                        U .S. C O U R T OF APPE ALS
                    UNITED STATES COURT OF APPEALS
                           FOR THE NINTH CIRCUIT


BENNY WILLIAMS,                    ) No. 09-57060
                                   )
         Petitioner - Appellant,   ) D.C. No. 3:07-cv-00959-BTM-AJB
                                   )
v.                                 )
                                   )
J. WALKER; JERRY BROWN; JAY )
WALKER,                            ) MEMORANDUM*
                                   )
          Respondents - Appellees. )
                                   )
                                   )

                  Appeal from the United States District Court
                      for the Southern District of California
               Barry Ted Moskowitz, U.S. District Judge, Presiding

                    Argued and Submitted September 1, 2011
                             Pasadena, California


Before: SCHROEDER and GOULD, Circuit Judges, and NAVARRO,** U.S.
District Judge, Presiding.


      Petitioner-Appellant Benny Williams challenges the district court’s denial of
his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.
      Williams’ petition was timely under the AEDPA. Although the California
Supreme Court denied his petition with a citation to In re Clark, 5 Cal.4th 750
(1993), this alone is not a sufficient indication that the court’s citation to Clark was
meant to infer that the petition was found to be untimely because there was no
specific pinpoint citation. The Clark opinion is lengthy and also addresses
procedural bars against piecemeal presentation of claims, “abuse of the writ,” as
well as representation of claims that were previously resolved on direct appeal. In
re Clark, 5 Cal. 4th at 764–82. Accordingly, it is unclear why the state court
denied the petition and the federal court must conduct an independent inquiry to
determine if the state habeas petition was filed within a “reasonable time.” Evans v.
Chavis, 546 U.S. 189, 198 (2006). Finding that all but one time period between
the date Williams’ conviction became final and each subsequent round of habeas
review fit within the 60-day period considered timely by the Supreme Court, the
district court held that Williams’ petition was timely.1 We agree and affirm.
      However, Williams does appear to have procedurally defaulted on his fourth
through eighth claims. Absent showings of “cause” and “prejudice,” federal
habeas relief is unavailable when “a state court [has] declined to address a
prisoner’s federal claims because the prisoner had failed to meet a state procedural
requirement,” and “the state judgment rests on independent and adequate state
procedural grounds.” Coleman v. Thompson, 501 U.S. 722, 729–30 (1991). The
California Supreme Court denied Williams’ claims four through eight with
citations to In re Clark, 5 Cal.4th 750 (1993) and In re Robbins, 18 Cal.4th 770
(1998). “A summary denial citing Clark and Robbins means that the petition is


1 There was one 64-day period that elapsed between the denial by the court of
appeal on May 24, 2006 and Williams’ filing in the California Supreme Court on
June 27, 2006. However, the additional 4 days is not a significant delay to warrant
a determination of untimeliness.
rejected as untimely.” Walker v. Martin, 131 S.Ct. 1120, 1126 (2011). The denial
of habeas relief by the California Supreme Court on the ground that the application
for relief was filed untimely is an independent and adequate state procedural
ground requiring denial of subsequent habeas petitions in federal court. Id.
Williams has not demonstrated “cause” and “prejudice” as a result of the alleged
violation of federal law or demonstrated that failure to consider the claims will
result in a fundamental miscarriage of justice.
      Turning to the merits of Williams’ claims, Williams first argues that
allowing evidence of each charged robbery and one prior robbery to be cross-
admissible to prove identity under California Evidence Code § 1101 was a
violation of due process. The state court gave a limiting instruction, directing the
jury not to draw improper inferences from the evidence. We must presume that the
jury followed the instructions and drew only a permissible inference. Boyde v.
Brown, 404 F.3d 1159, 1172 (9th Cir. 2005). We find that the state court’s
determination that the § 1101 instruction did not violate due process was not
contrary to or an unreasonable application of clearly established Supreme Court
precedent. See Alberni v. McDaniel, 458 F.3d 860, 866–67 (9th Cir. 2006).
      Williams next argues that he was not afforded due process because he was
not given adequate notice of the facts that would be used to prove his prior
conviction. Due process requires that a defendant be given adequate notice of what
he or she has to defend against. Gray v. Netherland, 518 U.S. 152, 167 (1996); In
re Ruffalo, 390 U.S. 544 (1968). Williams was properly notified that the
prosecution would use his prior 1978 conviction of a violation of California Penal
Code § 245(a) as a strike prior under California law. See James v. Borg, 24 F.3d
20, 24 (9th Cir. 1994). Williams has no right to be notified of what evidence the
prosecution will use to prove a prior conviction. Gray, 518 U.S. at 167–168.
      Finally, Williams argues that there was a violation of the contract clause of
the United States Constitution because he entered into plea agreements that
dismissed the counts of firearm use. The legal obligations of the 1974 and 1978
plea agreements appear to be fulfilled. There were no promises in either plea
agreement regarding the use of the convictions for purposes of enhanced
sentencing in the future. The trial court properly applied the law in existence at the
time of the new offense to sentence the defendant, including the determination of
the effect of the prior offense on his sentence for the new crime, without violating
the contract clause. People v. Gipson, 117 Cal.App.4th 1065, 1070 (2004).
      Even if Williams has not procedurally defaulted on claims four through
eight, these claims also lack merit.
      Williams’ fourth claim for relief alleges that dual use of the prior
convictions by the trial court to impose three consecutive five-year enhancements
for each of his three prior convictions and then to impose an indeterminate
sentence under California’s Three Strikes law was improper. California law has
specifically upheld the propriety of such a sentencing scheme. People v. Purata, 42
Cal.App.4th 489, 498 (1996). Consequently, Williams fails to cite a basis for
federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 67–68 (1991).
      Williams’ claim for ineffective assistance of counsel fails because every
issue that Williams argues his appellate counsel should have raised lacks merit.
Therefore, Williams has not shown that his counsel was not functioning as the
‘counsel’ guaranteed
by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984).
      Williams argues in his sixth claim for relief that the 1996 Oregon felony
conviction cannot be used as a strike under California law because the elements of
the Oregon crime do not contain all the elements of a similar offense under
California law. If the conduct of the prior crime satisfies the elements of a “serious
felony” then it is properly classified as a strike. See People v. Myers, 5 Cal.4th
1193, 1200–01 (1993). The facts from the Oregon conviction could lead any
rational trier of fact to conclude that all the elements of a serious felony under
California law were satisfied beyond a reasonable doubt. See Jackson v. Virginia,
443 U.S. 307, 317–20 (1979). Accordingly, the 1996 Oregon felony conviction for
attempted robbery in the second degree qualifies as a “strike” under California’s
Three Strikes law.
      Williams’ seventh claim is substantially similar to his second claim. The
prosecution provided sufficient evidence to demonstrate that the 1978 prior
conviction was a serious felony that involved either a deadly weapon or caused
great bodily injury. Contrary to his assertion, Williams was put on notice that the
prosecution was going to provide evidence to establish that the 1978 prior
conviction qualified as a strike under California law. See James, 24 F.3d at 24.
      Williams’ final contention is that use of the 1974 and 1978 prior convictions
as strikes was a violation of double jeopardy because the firearm use allegations
were dismissed in both cases as a result of plea bargains. This argument lacks
merit because “the enhanced punishment imposed for the later offense is not to be
viewed as either a new jeopardy or additional penalty for the earlier crimes but
instead as a stiffened penalty for the latest crime, which is considered to be an
aggravated offense because a repetitive one.” See United States v. Kaluna, 192
F.3d 1188, 1198 (9th Cir.1999) (en banc) (quoting Witte v. United States, 515 U.S.
389, 399 (1995) for the proposition that recidivist sentencing schemes do not
violate double jeopardy clause).
      Williams filed a supplemental brief presenting the uncertified issue that the
sentencing judge found additional facts in each of the prior convictions that
increased his sentence in violation of Apprendi v. New Jersey, 530 U.S. 466, 490
(2000). We decline to expand the Certificate of Appealability in order to reach
Williams’ Apprendi issue. Therefore, Appellant’s motion is denied.


AFFIRMED
