ORDER GRANTING PETITIONER’S 28 U.S.C. § 2251 PETITION TO VACATE EXTENDED SENTENCE
I. INTRODUCTION.
Petitioner Wayman Kaua challenges an extended sentence imposed on him by a state judge pursuant to the state law in effect at the time he was sentenced. Following the imposition of his sentence, but before his judgment of conviction and sentence became final, the United States Supreme Court decided
Apprendi v. New
*850
Jersey,
This § 2254 petition presents the question of whether Kaua’s extended sentence of incarceration violates Apprendi. This court concludes that Kaua’s extended sentence clearly violates Apprendi, and that the extended sentence was based on an unreasonable application of Apprendi. This court therefore grants Kaua’s § 2254 petition.
II. BACKGROUND.
The facts of this case are undisputed and have been set forth in
Hawaii v. Kaua,
After a trial, the state court jury returned a verdict on November 22, 1999, acquitting Kaua of the charge of attempted murder in the first degree (Count I), but finding him guilty of:
(1) the lesser included offense of attempted assault in the first degree (Count II); (2) the lesser included offense of reckless endangering in the first degree (Count III); (3) the lesser included offense of attempted manslaughter based upon extreme mental or emotional disturbance (EMED) (Count IV); (4) kidnapping (Count V); (5) the lesser included offense of unlawful imprisonment in the second degree (Count VI); (6) kidnapping (Count VII); (7) terroristic threatening in the first degree (Count VIII); (8) possession of any firearm or ammunition by a person convicted of certain crimes (Count IX); (9) reckless endangering in the first degree (Counts X-XII); and (10) carrying or use of a firearm in the commission of a separate felony (Count XIII).
Kaua,
It is undisputed that the attempted manslaughter and one of the firearm-related offenses were class A felonies. Under Haw.Rev.Stat. § 706-659, a person who has been convicted of a class A felony “shall be sentenced to an indeterminate term of imprisonment of twenty years without the possibility of suspеnsion of sentence or probation.”
It is also undisputed that the first-degree assault and another one of the fire *851 arm-related offenses were class B felonies. The first-degree terroristic threatening and the four counts of reckless endangering offenses were class C felonies. Under Haw.Rev.Stat. § 706-660, those class B and C felony convictions subjected Kaua to indeterminate terms of imprisonment of ten and five years, respectively.
Rather than seeking a sentence in accordance with sections 706-659 and 706-660, the prosecution filed a motion for extended terms of imprisonment pursuant to Haw. Rev.Stat. § 706-662(4) (Supp.1999). At that time, section 706-662(4) provided:
A convicted defendant may be subject to an extended term of imprisonment under section 706-661, if the convicted defendant satisfies one or more of the following criteria:
(4) The defendant is a multiple offender whose criminal actions were so extensive that a sentence of imprisonment for an extended term is necessary for protection of the public. The court shall not make this finding unless:
(a) The defendant is being sentenced for two or more felonies or is already under sentence of imprisonment for felony; or
(b) The maximum terms of imprisonment authorized for each of the defendant’s crimes, if made to run consecutively, would equal or exceed in length the maximum of the extended term imposed, or would equal or exceed forty years if the extended term imposed is for a class A felony.
Kaua,
After a heаring, the sentencing judge granted the prosecution’s motion for an extended sentence.
Kaua,
The sentencing judge then turned to what it viewed as “discretionary matters,” including whether an extended term of imprisonment was necessary for the protection of the public.
Kaua,
Defendant’s history suggests the following; from an early age, alcoholism, substance abuse. And the substаnce abuse is of great concern, because as a youth, it went from marijuana to cocaine, opiates, and then crystal methamphetamine. The use sometimes was sporadic. But when [Kaua] abused the drugs, it was very severe. And undoubtedly, in the days or weeks surrounding these offenses and perhaps shortly before these offenses, [Kaua] was abusing drugs in the court’s judgment.
Now, his history also suggests assaul-tive behavior, threatening behavior. We have abuse of household member, ter-roristic threatening, other incidents which have been reported or mentioned by the prosecution. Basically, it’s the court’s conclusion that while under the influence or while under extreme stress, [Kaua] is unable to control his behavior. And that impairment has brought about assaultive behavior as well as threatening behavior.
Of more concern is ... his access to firearms. Before these incidents, [Kaua] did have a firearm conviction. And reportedly on other occasions, he *852 resorted to use of firearms, although in one incident, I understand that it’s been disputed. And, of course, in the incidents before the court, [Kaua] used an assault rifle.
.... CertainlyU he had the assistance of his spouse in identifying who these people were outside and [in] what capacity they were out there. It’s not only the police officer who could have been shot, but it could have been other people. And I understand that there were children in the vicinity. He may not have intended to hit any children. But in the manner that thе rifle was being fired, there’s also a strong ... possibility that minors could have been hurt as well as other innocent bystanders.
Basically, [Kaua], I believe when I look at the factors and consider his character, his history, his attitude, and the need for a structured environment, I believe that it’s necessary for the protection of the public to impose the extended terms....
Kaua,
The court then sentenced Kaua as follows:
(1) for the lesser included offense of attempted assault in the first degree (Count II), an extended indeterminate maximum twenty-year prison term, subject to mandatory minimum terms of three years and four months as a repeat offender and ten years for the use of a semiautomatic firearm; (2) for the offense of reckless endangering in the first degree (Counts III, X, XI, and XII), extended indeterminate maximum ten-year prison terms as to each of Counts III, X, XI, and XII, subject to mandatory minimum terms of one year and eight months as a repeat offender and five years for the use of a semiautomatic firearm; (3) for the lesser included offense of attempted manslaughter based upon EMED (Count IV), an extended indeterminate maximum term of life imprisonment with the possibility of parole, subject to mandatory minimum terms of six years and eights months as a repeat offender and fifteen years for the use of a semiautomatic firearm; (4) for the offense of terroristic threatening in the first degree (Count VIII), an extended indeterminate maximum ten-year prison term, subject to mandatory minimum terms of one year and eight months as a repeat offender and five years for the use of a semiautomatic firearm; (5) for the offense of possession of any firearm or ammunition by a person convicted of certain crimes (Count IX), an extended indeterminate maximum twenty-year prison term, subject to a mandatory minimum term of three years and four months as a repeat offender; and (6) for the offense of carrying or use of a firearm in the commission of a separate offense (Count XIII), an extended indeterminate maximum term of life imprisonment with the possibility of parole, subject to a mandatory minimum term of six years and eight months as a repeat offender. The circuit court further ruled that the six terms were to run concurrently with each other but consecutively to the sentence in Cr. No. 90-1996.
Kaua,
On February 28, 2000, Kaua filed a timely notice of appeal. On May 1, 2001, the Hawaii Supreme Court issued a summary disposition order that affirmed the trial court’s judgment of conviction and sentence.
Kaua,
*853
On June 26, 2000, after Kaua had filed his direct appeal but before the Hawaii Supreme Court had issued its summary disposition of Kaua’s direct appeal, the United States Supreme Court decided
Apprendi v. New Jersey,
On March 13, 2002, pursuant to Rule 35 of the Hawaii Rules of Penal Procedure, Kaua filed a motion with the trial court (“Rule 35 court”) for correction of his sentence based on
Apprendi.
The Rule 35 court denied that Rule 35 motion on May 6, 2002. In denying the motion, the Rule 35 court found that Kaua had stipulated to the fact that he was being sentenced for two or more felonies and had been under a sentence of imprisonment for another felony. The Rule 35 court also noted that the sentencing court had “made specific findings justifying the conclusion that an extеnded term of imprisonment was necessary for the protection of the public.” These findings included Kaua’s “history of substance abuse, his assaultive and threatening' behavior, access to firearms, [Kaua’s] inability to control his behavior under extreme stress, and the severe trauma [Kaua’s] behavior caused the victim.”
Kaua,
102 Hawai‘i at 6-7,
On June 4, 2002, Kaua appealed the denial of his Rule 35 motion to correct illegal sentence. The Hawaii Supreme Court affirmed the Rule 35 court in a reported decision on July 8, 2003.
See Kaua,
III. ANALYSIS:
A. Kaua Exhausted His State Court Remedies.
Before filing the present petition, Kaua was required to exhaust his state court remedies.
See
28 U.S.C. § 2254(b)(1)(A). This exhaustion requiremеnt included
Apprendi
issues. While retroactive application of
Apprendi
to initial petitions for collateral review is barred,
see United States v. Sanchez-Cervantes,
Although Kaua could have, but did not, raise Apprendi in the direct appeal of his sentence to the Hawaii Supreme Court, he did raise Apprendi in his Rule 35 motion and in the appeal of the denial of that motion. The Hawaii Supreme Court addressed the merits of Kaua’s Apprendi claim in the appeal of the denial of his Rule 35 motion. It is unclear, however, on what ground the Hawaii Supreme Court reached the merits of Kaua’s Apprendi claim. Either the Hawaii Supreme Court addressed the claim because Apprendi had been decided during the pendency of Kaua’s direct appeal, meaning that its application was not a retroactive application on collateral review, or the Hawaii Supreme Court was relying on the provision in Rule 35 allowing a motion to correct an illegal sentence “at any time” and thereby permitting an Apprendi issue that had not been argued on Kaua’s direct appeal. 2
The State argues in its supplemental brief that Kaua “should not be permitted to now raise” the Apprendi argument because he failed to raise it in his direct appeal. 3 That argument is unpersuasive. By the time the Hawaii Supreme Court addressed the Apprendi issue on July 8, 2003, Rules 35 and 40 of the Hawaii Rules of Penal Procedure had been amended. As amended, a Rule 35 motion brought more than 90 days after a sentence was imposed was governed by Rule 40 of the Hawaii Rules of Penal Procedure. The amended Rule 40(a)(3) clearly stated that a motion to correct an illegal sentence was not waived when a petitioner failed to raise the issue of the allegedly illegal sentence before the trial court or on appeal. 4
*855
Nor does § 2254 provide that Kaua waived any
Apprendi
argument. In
Reiger v. Christensen,
B. The Hawaii Supreme Court’s Decision was Contrary to, as well as an Unreasonable Application of, Clearly Established Federal Laio, as Determined by the United States Supreme Court.
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d), Kaua requests relief from the extended sentence imposed оn him. The AEDPA imposes a “highly deferential standard for evaluating state-court rulings.”
Lindh v. Murphy,
521 NS. 320, 334,
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on 'the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) 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). Kaua bases his petition oh § 2254(d)(1).
For purposes of § 2254(d)(1), a state court decision is “contrary to ... clearly established Federal law, as determined by the Supreme Court,” when “the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law,” or when “the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Supreme Court].”
Williams v. Taylor,
A state court decision is “an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States” when “the state court identifies the correct governing legal rule from [Supreme Court] cases, but unreasonably applies it to the facts of the particular case,” or when “the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.”
6
Williams,
Based on Apprendi, Kaua argues that the extended sentence he received was contrary to clearly established federal law, as determined by the Supreme Court of the United. States, and that it was an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States. This court agrees.
In
Apprendi,
the Supreme Court examined a New Jersey law that allowed a judge to enhance a sentence beyond the statutory maximum sentence for a crime when the judge found by a mere preponderance of the evidence that the crime was committed with the purpose of intimidating an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation, or ethnicity.
Apprendi,
*857
The holding of
Apprendi
applies both to elements of a crime and sentencing factors. “[T]he relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict.”
Apprendi,
The Supreme Court limited its holding in
Apprendi
to cases in which the statutory range of punishment was exceeded.
See Apprendi,
Before the Supreme Court decided
Ap-prendi,
the Hawaii Supreme Court had examined Hawaii’s extended sentence law, found at section 706-662 of the Hawaii Revised Statutes.
See State v. Schroeder,
In
State v. Carvalho,
The ICA then ruled that the sentencing court’s further determination that a defendant’s incarceration was necessary for the protection of the public was merely an exercise of the court’s discretion to impose a sentence within the extended range. The ICA therefore held that Apprendi was not applicable to the determination of whether the defendant’s incarceration was necessary for the protection of the public because that fact did not increase the penalty for a crimе beyond the prescribed statutory maximum. Id.
This court is compelled to conclude that, in
Carvalho,
the ICA took a wrong turn. The
Apprendi
issue presented in
Carvalho
was one of first impression for Hawaii’s appellate courts, but it had been addressed by the appellate courts of other jurisdictions. The ICA relied heavily on the decision by the Court of Appeals of New York in
People v. Rosen,
This court agrees with the ICA that Carvalho presented a situation that, for Apprendi purposes, was indistinguishable from Rosen. But in relying on the Court of Appeals of New York, Hawaii’s ICA was relying on a case that clearly contravenes the dictates of Apprendi, 9 The ICA was mistakenly diverted by Rosen from applying Apprendi.
The Hawaii Supreme Court initially granted a writ of certiorari to review the ICA’s decision in
Carvalho, see State v. Carvalho,
The Hawaii Supreme Court explained that the finding that Kaua was a multiple offender fell outside the scope of
Appren-di,
like any finding based solely on a prior conviction.
See id.
at 13,
The Hawaii Supreme Court noted that the facts establishing the need to protect the public were not “intrinsic” to the crimes charged; that is, they were not “contemporaneous with, and enmeshed in, the statutory elements of the proscribed offense.”
Id.
at 11,
In considering whether the
Kaua
decision contravenes
Apprendi,
this court confines itself to examining the grounds on which the Hawaii Supreme Court held that Kaua’s sentence survived
Apprendi.
This court may not, on this § 2254 petition, justify the Hawaii Supreme Court’s ruling on the basis of alternative grounds that the Hawaii Supreme Court could have, but did not, articulate.
See Van Lynn v. Farmon,
The
Kaua
decision’s reading of
Appren-di
flies in the face of the actual language of
Apprendi,
especially as that language has been construed in
Ring v. Arizona,
In
Ring,
the United States Supreme Court examined an Arizona statute that provided for life imprisonment or death for those convicted of first-degree murder. The death penalty, however, was available only if- the sentencing court made further findings as to the presence or absence of
*860
certain aggravating and mitigating circumstances.
See Ring,
Ring was convicted of first-degree murder in connection with the robbery of a Wells Fargo armored van in which a guard was killed and money was taken from the van. The Supreme Court explained that, under Arizona law, Ring was eligible for the death penalty only if he was either the actual killer or a major participant in the armed robbery that led to the killing who had exhibited a reckless disregard for or indifference to human life.
Id.
at 592,
On appeal, Ring argued that his sentence violated
Apprendi. Apprendi
held that “the relevant inquiry is one not of form, but of effect.”
Id.
at 604,
In
Ring,
Arizona argued that Ring’s murder conviction was what exposed Ring to a sentence of either life in prison or death. Arizona contended that the judge had merely selected a sentence within the range of life imprisonment to death, based on aggravating factors. The Supreme Court rejected this contention, concluding that it was the aggravating circumstances that had exposed Ring to the death penalty. Because the aggravating circumstances were not determined by a jury, the Supreme Court concluded that Arizona’s statute violated
Apprendi. See Ring,
Ring flowed inexorably from Apprendi. Like Ring’s extended sentence, Kaua’s extended sentence violated Apprendi.
The Hawaii Supreme Court’s conclusion that Kaua’s extended sentence did not violate Apprendi was contrary to, and involved an unreasonable application of, clearly established federal law, as determined by the United State Supreme Court. This law was clearly established even before Ring so pointedly applied Apprendi. The Kaua decision simply ignored the language in Apprendi stating:
[Wjhen the term “sentencing enhancement” is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense *861 than the one covered by the jury’s guilty verdict. Indeed, it fits squarely within the usual definition of an “element” of the offense.
Apprendi
Apprendi
noted that “the relevant inquiry is one not of form, but of effect.” .
Apprendi,
This case involves a statute that exposed Kaua to an enhanced punishment based on judge-determined facts. The sentencing judge made the “protection of the public” determination only after finding (1) that Kaua had a history of substance abuse and assaultive and threatening behavior, (2) that, when Kaua was under the influence of extreme stress, Kaua was unable to control his behavior, and (3) that Kaua had access to firearms and used those firearms in a manner that could have hurt minors or other innocent bystanders. These facts were not determined by a jury and were not restricted to Kaua’s recidivism. His extended sentence, which was based on these findings, violated Apprendi and represented “a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d).
C. Blakely is not Retroactive.
Kaua argues that his extended sentence also violates the United States Supreme Court’s June 2004 decision in
Blakely v. Washington,
— U.S. —,
IV. CONCLUSION.
Kaua’s § 2254 petition is GRANTED, as Kaua’s extended sentence was contrary to, and involved an unreasonable application of Apprendi.
This court denies the State of Hawaii’s request for a stay of this order. The State of Hawaii is ordered to resentence Kaua in a manner consistent with this order.
The Clerk of this Court is directed to enter judgment in Kaua’s favor and to close this case.
IT IS SO ORDERED.
Notes
. Because
Apprendi’s
new rule was announced before Kaua's state court judgment became final, the court is not faced with the issue of whether
Apprendi
applies to a collateral review of Kaua’s judgment.
See Teague v. Lane,
. Proper exhaustion of state court remedies occurred given the following circumstances: (a) Kaua could have raised Apprendi on direct review because Apprendi had been decided before Kaua’s judgment of conviction and sentence became final; (2) the issue was raised and addressed for the first time in a Rule 35 motion and on appeal of the denial of that motion; and (3) the State has failed to articulate any exhaustion argument based on § 2254(b)(1)(A).
. This argument is related to but slightly different from an argument of complete failure to exhaust state court remedies under § 2254(b)(1)(A). The State is not arguing here that Kaua’s appeal of the denial of his Rule 35 motion was insufficient to exhaust his state court remedies for purposes of § 2254(b)(1)(A). Instead, the State appears to be arguing in essence that, by failing to raise an issue on direct appeal, Kaua waived the right to raise that issue on a Rule 35 motion or under § 2254. No law supports this argument or any procedural default argument.
See Carter v. Giurbino,
.Before the amendments became effective on July 1, 2003, Rule 40(a)(3) provided that an issue was waived
if the petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this rule, and the petitioner is unable to prove the existence of extraordinary circumstances to justify the petitioner’s failure to raise the issue.
See
Order Amending the Hawaii Rules of Penal Procedure (April 25, 2003);
Reiger v. Christensen,
. The State does not contend that § 2244(d)(l)’s one-year statute of limitation bars Kaua’s petition, presumably because that limitation period was tolled during the pen-dency of Kaua’s Rule 35 motion and appeal of the denial of that motion. This court is therefore not faced with the issue of whether a petition would be barred under § 2244(d)(1) if a Rule 35 motion were brought in state court more than a year after the judgment of conviction and sentence became final.
. “While circuit law may be 'persuasive authority’ for purposes of determining whether a state court decision is an unreasonable application of Supreme Court law, only the Supreme Court’s holdings are binding on the state courts and only those holdings need be reasonably applied.”
Clark,
. The Supreme Court exempted “prior convictions” from the
Apprendi
requirements, reasoning that, with respect to these previous convictions, defendants have already received the requisite procedural safeguards.
See Apprendi,
*857 [T]he court said long ago that a State need not allege a defendant's prior conviction in the indictment or information that alleges the elements of an underlying crime, even though the conviction was necessary to bring the case within the statute.
Almendarez-Torres,
.
McMillan v. Pennsylvania,
. Thus, in
Brown v. Greiner,