ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court has reviewed the entire record in this action, the attached Report and Recommendation of Magistrate Judge (“Report”), and the objections thereto. Good cause appearing, the Court concurs with and adopts the findings of fact, conclusions of law, and recommendations contained in the Report after having made a de novo determination of the portions to which objections were directed.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Background
On March 11, 1994, petitioner was convicted of two counts of robbery, one count of attempted robbery, and one count of assault with a deadly weapon. In addition, the jury found true allegations that peti *1074 tioner personally used a firearm in the commission of the assault and that a principal was armed with a firearm during the robberies and the attempted robbery. [Motion to Dismiss, Ex. A], Petitioner admitted that the had suffered one prior serious felony conviction and another conviction for which he had served a prison term. [Motion to Dismiss, Ex. A]. On May 11, 1994, petitioner was sentenced to state prison for a term of 18 years and 6 months. [Motion to Dismiss, Ex. A].
Petitioner appealed to the California Court of Appeal, which -affirmed petitioner’s petitioner’s conviction and sentence on February 7, 1995. [Motion to Dismiss, Exs. B & C]. Petitioner then filed a petition for review in the California Supreme Court. [Motion to Dismiss, Ex. D], The petition was denied on January 3, 1996. [Motion to Dismiss, Ex. D],
Petitioner filed this petition on August 26, 1997. 1 The petition alleges that (1) petitioner was denied his right to have a jury decide the truth of the personal firearm use enhancement because the trial court failed to instruct the jury as to the elements of the enhancement and it was questionable whether petitioner’s possession of the gun fell within the definition of the enhancement, and (2) petitioner was denied due process because the trial court did not instruct the jury on the lesser included offense of simple assault and exhibiting a firearm. [Petition at 6-7].
Statute of Limitation
Respondents filed a motion to dismiss the petition on the ground that it is barred by the one year period of limitation set forth in 28 U.S.C. § 2244(d). Petitioner filed an opposition to the motion, alleging that he is entitled to tolling of the limitation period because (a) he tried to file a prior federal petition on February 13, 1997 and (b) his personal property was taken from him by prison authorities. Both parties have filed supplemental briefs submitting evidence in support of their positions. Respondents’ motion should be denied.
This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, which became effective on April 24, 1996.
Fuller v. Roe,
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of—
(A) the date on which the judgment became final by the conclusion of direct review of the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Su *1075 preme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1). Further, the AEDPA provides that
the time during which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d)(2).
The record does not contain any facts suggesting the applicability of subsections (B) through (D). Pursuant to subsection (A), the one-year limitations period began to run on the date on which the judgment became final. 28 U.S.C. § 2244(d)(1)(A).
Petitioner’s conviction became final for purposes of the AEDPA on April 3, 1996 — ninety days after the California Supreme Court denied his petition for review.
Bowen v. Roe,
Statutory tolling
As discussed, the limitation period does not run so long as a properly filed state application for post-conviction relief is pending. 28 U.S.C. § 2244(d)(2). Petitioner does not allege that he had any state applications for relief pending after April 24, 1996. Petitioner, however, alleges that he “filed” a federal petition on February 13, 1997. No such petition was received by the Court. In addition, federal habeas petitions do not toll the limitation period pursuant to section 2244(d)(2).
Jiminez v. Rice,
Equitable tolling
Petitioner alleges that the limitation period should be equitably tolled because extraordinary circumstances beyond his control made it impossible for him to file his petition on time. [Opposition at 1], He points to two separate events that he believes entitle him to equitable tolling.
In order to be entitled to equitable tolling, petitioner must show that he was prevented from filing his petition on time by extraordinary circumstances beyond his control.
Beeler,
First, petitioner alleges that he was deprived of his personal property. [Opposition at 1], Because petitioner is entitled to equitable tolling on the basis of his other allegations, it is unnecessary to address petitioner’s loss of property. Nevertheless, the Court notes that in his inmate grievance related to the alleged deprivation of his property, petitioner did not complain that he was deprived of any legal papers necessary for the preparation of his habeas petition. Rather, he complained that his television set was damaged and that other items were “missing.” [See Opposition, Ex. 1A-2A]. Indeed, as petitioner concedes, he was able to prepare his first habeas petition as early as October 15, 1996 (the date on which petitioner signed the petition itself, as opposed to the request to proceed in forma pauperis, which was signed on February 13, 1997), despite having been deprived of his personal property. [Opposition at 1], Accordingly, this allegation does not entitle petitioner to equitable tolling.
Second, petitioner alleges that he “sent” a federal habeas petition to this Court on February 13, 1997' — prior to the expiration of the one-year limitation period. [Opposition at 1 & 1998 Reynolds Declaration at l]. 3
*1077 Based upon the evidence presented by both parties, the Court makes the following findings of fact. Petitioner prepared his federal petition while incarcerated at Centinela State Prison. [1997 & 1998 Reynolds Declarations at 1; Opposition, Ex. C at 1], On February 13, 1997, petitioner signed the last page of the petition (a Declaration in Support of Request to Proceed In Forma Pauperis) and had that page signed by Correctional Captain John Nettles. [1997 & 1998 Reynolds Declarations at 1; Opposition, Ex. C at 8]. Later the same day, petitioner, who was in administrative segregation at the time, hand delivered the petition to the prison staff member who was working at the time of mail pick up for forwarding to the Court. [1997 & 1998 Reynolds Declarations at 1]. On February 24, 1997, petitioner was transferred from Centinela State Prison to Pelican Bay State Prison. [Respondent’s Supplemental Brief, Ex. H],
The February 13, 1997 petition was never received by the Court. The prison mail log reveals no entry for any mail sent to or from this Court in February, 1997. [Respondent’s Supplemental Brief, Ex. F], Petitioner explains that he waited for a response from the Court, but never received one. Petitioner did not make inquiries to the Court because he believed a response to his petition would be forthcoming. After waiting for seven months, petitioner prepared a second petition and sent it from Pelican Bay State Prison. [1997 & 1998 Reynolds Declarations at 1]. The second petition was filed in this Court on September 24,1997.
Petitioner’s version of events is corroborated by a copy of his February 13, 1997 federal petition, [Opposition, Ex. C], the last page of which was signed by Correction Captain John Nettles on February 13, 1997. [Opposition, Ex. C at 10]. Respondents have not presented any direct evidence suggesting, that petitioner’s statements made under penalty of perjury are false. For example, respondents do not suggest that the petition dated February 13, 1997 and signed by Correctional Captain John Nettles is inauthentic. Further, respondents fail to present any direct evidence contradicting petitioner’s allegation that once signed by petitioner and by Captain Nettles, petitioner handed his petition to the appropriate prison official for mailing.
Instead, respondents submit evidence describing the mail systems at Centinela and Pelican Bay State Prisons, as well as a legal mail log which, as discussed, fails to reflect any legal mail sent by or to petitioner during February, 1997. [Respondents’ Supplemental Brief, Exs. F, G, H, I], Among other things, respondents’ evidence reveals the following:
1. Both Centinela and Pelican Bay State Prisons maintain a legal mail log for all inmates. [Respondents’ Supplemental Briefs, Exs. F & I], The mail log contains notations for all legal mail sent through the prison mail system to or from federal or state courts. [Respondents’ Supplemental Briefs, Exs. F & I].
2. At Centinela State Prison, legal mail is processed as follows:
[A]n inmate must inform the appropriate correctional officer in his yard that he has legal mail. The inmate must hand the legal mail to the correctional officer. In the inmate’s presence, the correctional officer inspects the mail for contraband, places it in the envelope, seals the envelope, and.write[s] his initials and the date over the flap of the envelope. The item is then dropped into the legal mail collection drop on that yard. The legal *1078 mail is picked up by prison staff and taken to the mailroom. There the legal mail items are logged by mailroom staff. An item is “logged” by writing the name and general location of the sender or receiver and the date received or sent on the CDC Form 119.
[Respondents’ Supplemental Brief, Ex. I],
3. The accounting office at Centinela State Prison processes inmate requests for certification — including forms such as the Declaration in Support of Request to Proceed in Forma Pauperis completed by petitioner. In order to process such forms, the inmate must submit his completed and signed declaration to the accounting office which completes the form and returns it to the inmate “through established prison procedures.” The accounting office does not mail the certification.. [Respondents’ Supplemental Brief, Ex. G],
Based upon this general evidence regarding the prison mail system and the procedures followed by the prison accounting office, respondents contend that petitioner cannot show that he “mailed” the petition on February 13, 1997. [Respondents’ Supplemental Brief at 7]. Respondents argue that the mail log is “reliable” because it accurately reflects correspondence between petitioner and this Court after petitioner filed his August 26, 1997 petition and, therefore, it is sufficient to rebut petitioner’s sworn declaration. [Respondents’ Supplemental Brief at 8].
The circumstantial evidence submitted by respondents, however, is insufficient to rebut petitioner’s direct evidence. The prison mail log merely confirms the fact that the February 13, 1997 petition was never mailed by the prison, something already suggested by the fact that the petition was never received by the Court. It does not rebut petitioner’s specific factual allegation that he handed his petition to the prison official assigned to his unit for mailing to the Court. 4 Therefore, the Court finds that petitioner handed the February 13, 1997 petition to the proper prison official on February 13, 1997 and, after failing to hear any response from the Court, petitioner prepared and mailed his August 26, 1997 petition. 5
Petitioner acted with reasonable diligence in pursuing his claims. Petitioner relied upon prison officials at Centinela State Prison to mail his petition to this Court and then waited for the Court to respond. As petitioner explains, “I did not inquire to the court about [the] petition [be]cause I felt the Court would be giving me a response. I did not know how much time [the] Court had to respond so I waited but when I heard nothing for over 7 months, I prepared and submitted another from Pelican Bay State prison which made it to the Court.” [1998 Reynolds Declaration at 1]. This is not a case where petitioner opted to rely on another inmate or family member to file his petition.
See, e.g., Paige v. United States,
In
Miles,
a case similar to this one, the Ninth Circuit concluded that the petitioner was entitled to equitable tolling.
Miles,
The Ninth Circuit held that the limitation period was equitably tolled. As the court explained,
as an incarcerated pro se litigant, Miles depended on prison authorities to draw on his trust account and to prepare a check for the filing fee. He further relied on these same authorities to mail his check and petition to the district court. Once Miles made his request, any delay on the part of prison officials in complying with Miles’ instructions was not within Miles’ control. Nor did Miles fail to exercise due diligence in preparing and submitting his petition. Within seventeen days after his counsel informed him of the looming deadline, Miles submitted his petition to prison authorities.
Miles,
Like the petitioner in Miles, petitioner relied upon the prison official to whom he handed his petition and certification and exercised due diligence in preparing and submitting his petition. 7 Because petition *1080 er is entitled to equitable tolling, respondents’ motion to dismiss the petition as untimely should be denied.
The merits
Standard of review
Under the AEDPA, a federal court may not grant a writ of habeas corpus on behalf of a person in state custody “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);
see Duhaime v. Ducharme,
As recently explained by the Supreme Court, section 2254(d)(1) “places a new constraint on the power of a federal habe-as court to grant a state prisoner’s application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court.”
Williams v. Taylor,
The Supreme Court clarified the meaning of section 2254(d), holding that:
Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.
Williams,
The federal court making the “unreasonable application” inquiry asks “whether the state court’s application of clearly established federal law was objectively unreasonable.”
Williams,
Finally, state court findings of fact are presumed to be correct unless petitioner rebuts that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
1. Failure to instruct the jury with the elements of the allegation that petitioner personally used a firearm
In the underlying criminal prosecution, the State alleged that in the course of the offense of assault with a firearm, petitioner personally used a firearm within the *1081 meaning of section 12022.5 of the California Penal Code. 8 [CT 74], The jury found the allegation true. [CT 160]. As a result of the jury’s finding, petitioner was sentenced to an additional five years in state prison. [CT 166].
The parties agree that the trial court failed to instruct the jury on the elements of personal use of a firearm pursuant to section 12022.5.
9
. Petitioner contends that the trial court’s failure to instruct the jury as to the elements of the personal use of a firearm deprived him of his constitutional right to have a jury decide the truth of the sentence enhancement allegation. [Petition at 6]. Respondents, on the other hand, argue that petitioner has no constitutional right to jury fact-finding because the sentence enhancement is a sentencing factor, and not an “element of the crime.” [Answer at 15-16]. Respondents explain that because the right to a jury trial on the sentence enhancement arose solely from a state statute, namely, California Penal Code § 969c, the erroneous omission of the jury instruction amounted to only a state law error. As respondents correctly point out, under California law, a defendant’s statutory right to jury findings on a use enhancement is constitutionally qualified by the duty of California appellate courts to examine the “entire cause” when instructional error has occurred and to affirm the judgment absent a “miscarriage of justice.”
See People v. Wims,
The California Court of Appeal agreed with respondents’ position, concluding that although the trial court erred by failing to instruct the jury regarding the elements of the personal use of a firearm sentence enhancement, the error was harmless. [Answer, Ex. B at 55]. Following the California Supreme Court’s holding in Wims,
Petitioner is entitled to relief only if he demonstrates that the state court’s conclusion was contrary to or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. This phrase “refers to the holdings, as opposed to the dicta, of [the Supreme Court]’s decisions as of the time of the relevant state-court decision.”
Williams,
It has long been established that the Constitution guarantees criminal defendants the right to a trial by jury, and the right to have every element of the offense proved beyond a reasonable doubt.
See In re Winship,
At the time that petitioner’s conviction became final,
McMillan
was the controlling Supreme Court authority on the issue of a criminal defendant’s entitlement to a jury trial on allegations properly labeled “sentencing factors” rather than elements of a criminal offense. In
McMillan,
the Supreme Court held that the Sixth Amendment does not require a jury determination of facts when a statute makes weapon possession a sentencing factor rather than an element of the crime.
McMillan,
The Supreme Court found that the statute was constitutional. In so concluding, the Court found it important that the stat
*1083
ute did not alter the maximum penalty for the crime committed, but instead, “operated solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm.”
McMillan, 477
U.S. at 87-88,
Under California law, punishment based upon alleged possession or use of a weapon, such as the one imposed in petitioner’s case, are classified as sentencing enhancements, not as separate crimes.
See Wims,
Although the California Supreme Court concluded in
Wims
that there was no constitutional right to a jury trial, the court also noted that a California statute provides for jury trials on sentence enhancements. Cal.Penal Code § 969. It determined that the trial court had erred by failing to instruct the jury on the factual elements that the prosecution was required to prove before the jury could properly find true the enhancement allegation, but further determined that the error merely amounted to state law error which did not require reversal under state law absent a “miscarriage of justice.”
Wims,
The Ninth Circuit has applied
McMillan
with similar results. In
Nichols v. McCormick,
In a recent case similar to this one, the Ninth Circuit upheld California’s classification of a special circumstance of first degree murder as a sentencing factor.
Arreguin v. Prunty,
The trial court in
Arreguin
had failed to properly instruct the jury on the requirement that it find the defendant was a “major participant” in the underlying felony rather than simply a “participant.”
Arreguin,
The petitioner in
A'lTeguin
argued that he was denied of a liberty interest created by state law and denied the right to a jury determination of the special circumstance allegation under the Sixth and Fourteenth Amendments. The district court granted the petition on the ground that the state
*1085
had created a liberty interest in a jury determination of special circumstances and that petitioner’s due process rights were violated by the instructional error.
Arreguin,
The Ninth Circuit also rejected the petitioner’s federal constitutional claim, concluding that the special circumstance was properly considered a sentencing factor under
McMillan,
and therefore no constitutional right to a jury trial attached.
Arreguin,
In this case, the state court rejected petitioner’s instructional error claim based upon an interpretation of McMillan that is consistent with the interpretations adopted in Wims, Nichols and Arreguin. That is, the state court found that the sentence enhancement based upon the use of a firearm in the commission of an offense was a sentencing factor. Given that classification, the state court determined that petitioner had no federal constitutional right to a jury trial on the use of a firearm allegation. Because the failure to instruct regarding the sentence enhancement violated only a state created right, the state court applied a harmless error test that permitted it to consider the entire record. Although, as discussed below, California’s interpretation of McMillan has since proved to be incorrect, the state court’s determination was a reasonable application of clearly established Supreme Court authority existing at the time petitioner’s conviction became final. 11 If the story *1086 ended here, petitioner would not be entitled to relief.
Last year, however, the Supreme Court revisited
McMillan
and 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.”
Apprendi v. New Jersey,
budge from the position that (1) constitutional limits exist to States’ authority to define away facts necessary to constitute a criminal offense ..., and (2) that a state scheme that keeps from the jury facts that “expos[e] [defendants] to greater or additional punishment,” ... may raise serious constitutional concern.
Apprendi,
In
Apprendi,
the Supreme Court invalidated a New Jersey statutory scheme enhancing sentences for defendants found guilty of “hate crimes.” After a defendant was convicted by a jury for the substantive offense, state law provided that the judge ■was allowed to impose an additional sen-fence after finding, by a preponderance of the evidence, that the defendant’s purpose in committing the offense was to intimidate the victim on the basis of a particular characteristic that the victim possessed.
Apprendi,
when the term “sentence 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 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,
Under Apprendi, defendants such as petitioner are entitled to have a jury determine beyond a reasonable doubt whether their conduct fell within the provisions of section 12022.5. Therefore, after Appren-di, the same constitutional guarantees regarding the right to a jury trial on all of the elements of an offense attach to “sentence enhancements” that subject a criminal defendant to a sentence greater than the maximum provided for the conviction for the underlying offense. 12 Before Ap- *1087 prendí, however, a criminal defendants’ right to a jury trial on a sentence enhancement such as section 12022.5 was not “clearly established law” within the meaning of the AEDPA. Petitioner, then, can obtain relief only if the holding in Appren-di is applicable to his case.
The Teague doctrine of non-retroactivity and its exceptions
Before the AEDPA, a habeas petitioner was not entitled to benefit from a new constitutional rule of criminal procedure that was adopted after the petitioner’s conviction became final on direct review.
Teague v. Lane,
Prior to
Apprendi,
the fact that a sentencing factor increased the maximum penalty was not necessarily sufficient to require the state to provide a jury trial in order to comply with the Sixth Amendment. Thus, whether a jury trial was required on the truth of a sentence enhancement such as section 12022.5 was debatable before
Apprendi.
After
Ap-prendi,
however, the answer is clearly “yes.”
Apprendi,
then, announced a “new rule.”
See Jones,
Under
Teague,
the new rule announced in
Apprendi
is not to be applied retroactively on collateral review unless it falls within one of two exceptions. The new rule may be applied retroactively on collateral review if (1) “it places certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe,” or (2) “it requires the observance of those procedures that ... are implicit in the concept of ordered liberty.”
Teague,
The rule announced in Apprendi falls within the second exception to Teag-ue. The language of Apprendi itself recognizes that the holding was a “watershed rule” essential to the fundamental fairness of a criminal proceeding. For example, the Supreme Court described the issue as follows:
At stake in this case are constitutional protections of surpassing importance: the proscription of any deprivation of liberty without “due process of law,” ... and the guarantee that [i]n all criminal prosecutions, the accused shall enjoy the right to a “speedy and public trial, by an impartial jury,” ... Taken together, these rights indisputably entitle a criminal defendant to “a jury determination that he is guilty of every element of the *1088 crime with which he is charged, beyond a reasonable doubt.” As we have, unanimously, explained, the historical foundation for our recognition of these principles extends down centuries into the common law.... [Tjrial by jury has been understood to require that the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant’s] equals and neighbors.... Equally well founded is the companion right to have the jury verdict based on proof beyond a reasonable doubt.
Apprendi,
[t]here is a vast difference between ... a judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof.
Apprendi,
The Supreme Court’s own characterization of the rule announced in
Apprendi
demonstrates its qualification as a watershed rule essential to the fairness of a criminal proceeding.
See Hoffman v. Arave,
Not only does the Apprendi rule involve the core right to a jury trial, it involves the application of the beyond a reasonable doubt standard. As the Supreme Court explained in Winship,
the reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence — that bedrock “axiomatic and elementary” principle whose “enforcement lies at the foundation of the administration of our criminal law.”
In re Winship,
Requiring that a unanimous jury find beyond a reasonable doubt that the defendant committed the charged act is “central to an accurate determination of innocence or guilt.”
Teague,
*1090 Can this Court apply Apprendi retroactively?
It seems clear that
Teague
survived the AEDPA, at least in part.
See Breard v. Greene,
There is some question, however, whether the retroactivity determination must be made by the Supreme Court or whether it may be made by lower federal courts. While the Supreme Court has not addressed the precise issue, the Ninth Circuit’s recent decision in
Jones
assumes that lower courts retain the power to apply
Teague
and its exceptions to cases before them.
Jones,
The Third Circuit’s decision in
West v. Vaughn,
[a]t the time Congress enacted the AEDPA, prevailing Supreme Court precedent “made retroactive” on habeas review new rules that implicated the fundamental fairness of a criminal proceeding and related to the accuracy of the underlying conviction, see, e.g., Teague v. Lane,489 U.S. 288 ,109 S.Ct. 1060 ,103 L.Ed.2d 334 , ..., and we assume Congress to have been aware of this practice.
West,
Courts should assume, as the Third Circuit did, that at the time Congress passed the AEDPA, it was aware of then-current practices in the courts regarding retroactivity.
See Cannon v. University of Chicago,
Practical considerations also weigh in favor of lower courts continuing to make retroactivity determinations. As the court noted in
West,
often the clarity of the fundamental nature of a new constitutional rule announced by the Supreme Court “will obviate the need for the Supreme Court to make a future, more explicit, pronouncement on whether [the new rule] should be applied retroactively.”
West,
For the foregoing reasons, absent a clear expression of Congressional intent to withdraw the retroactivity determination from the lower federal courts, it is better that the burden not be shouldered solely by the Supreme Court, but shared by the lower federal courts, who have been entrusted by the Supreme Court with making similar determinations since
Teague
was announced.
See West,
Application of Apprendi to petitioner’s claim
Application of
Apprendi
to petitioner’s claim entitles him to relief because the wholesale failure to instruct the jury as to any of the elements required to make a finding on the personal use of a firearm sentence enhancement allegation violated petitioner’s constitutional right to a jury trial and resulted in structural error.
See Sullivan,
In
Sullivan,
the Supreme Court refined the distinction between trial errors subject tó harmless-error review and structural errors requiring automatic invalidation of a conviction. There, the petitioner was charged with and convicted of first-degree murder and sentenced to death. In the jury instructions, the judge gave a definition of “reasonable doubt” that previously had been found unconstitutional.
Sullivan,
The Supreme Court went on to explain that the error was not subject to harmless-error review. In particular, the Supreme Court noted that because there had been no valid jury verdict within the meaning of the Sixth Amendment, the question whether the same verdict would have been ren
*1094
dered absent the constitutional error is “utterly meaningless.”
Sullivan,
There is no object, so to speak, upon which harmless-error scrutiny can operate. The most an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonable doubt — not that the jury’s actual finding of guilty beyond a reasonable doubt would surely not have been different absent the constitutional error. That is not enough .... The Sixth Amendment requires more than appellate speculation about a hypothetical jury’s action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty.
Sullivan,
In
Harmon,
a case similar to this one, the trial court gave no instruction to the jury on any of the elements of two of the charges against the petitioner.
Harmon,
[w]e find it difficult to imagine a more fundamental or structural defect than allowing the jury to deliberate on and convict [petitioner] of an offense, for which it had no definition.
Harmon,
Indeed, the California Supreme Court reached a similar conclusion in
Cummings,
a case in which the defendant was charged with numerous counts of robbery. The jury was not instructed with the elements of the crime of robbery. The jury was instructed, however, with the requisite mental state for the crime of attempted robbery (i.e., that “... the crime of attempted robbery ... requires the specific intent to permanently deprive the owner of its property.”).
Cummings,
In this case, the failure to provide the jury with any explanation of the definition
*1095
of the sentence enhancement and the elements that the state was required to prove beyond a reasonable doubt amounted to structural error. Like the juries in
Harmon
and
Ctmmings,
the jury was, in effect, free to convict petitioner without finding that the state had proved any of the requisite elements of the personal use of a firearm sentence enhancement. Indeed, the trial court’s failure to instruct regarding any of the elements of the sentence enhancement, while allowing the jury to render a verdict on that sentence enhancement, sent the jury to its deliberative duties deprived of its essential tool: the law that was to be applied to the facts. The jury, then, was left to speculate or to guess what the prosecutor might be required to prove. Such a wholesale failure is structural error requiring reversal of the finding that petitioner personally used a firearm in commission of the assault within the meaning of section 12022.5 and the five years sentence imposed on the basis of that finding.
See Guam v. Marquez,
Finally, the California Court of Appeal’s finding that the evidence that petitioner personally used a firearm was “compelling” is immaterial.
See Sullivan,
A jury of laypersons forced to guess at the law is not ordered liberty, it is chaos. Part of the core concept of a jury trial is that the jurors find the facts and apply to them the law described by the judge in order to reach a verdict.
See Sparf and Hansen v. United States,
For these reasons, petitioner is entitled to relief on this claim. The finding on the sentence enhancement allegation should be reversed and petitioner’s sentence should be modified accordingly. Of course, the State of California is free to re-try petitioner on the sentence enhancement allegation, so long it provides petitioner his constitutionally protected right to a jury determination of the allegation, including instructions covering the relevant law.
3. Failure to instruct the jury regarding lesser included offenses
Petitioner contends that the trial court erred by failing to instruct the jury on the lesser included offenses of assault and exhibiting a firearm. [Petition at 6-7],
Failure of a state trial court to instruct the jury on lesser included offenses in a non-capital case does not present a federal constitutional question.
Windham v. Merkle,
Conclusion
It is recommended that the Court issue an Order (1) adopting this report and recommendation, and (2) directing that judgment be entered (a) granting the petition on the claim challenging petitioner’s sentence enhancement based upon personal use of a firearm in the commission of the assault with a firearm offense, vacating the jury’s finding on that sentence enhancement, and vacating the sentence imposed as a result of that finding; and (b) denying the petition on the remaining claim.
Jan. 10, 2001.
Notes
. Although the petition was filed by the Clerk on September 24, 1997, the Court applies the "mailbox rule,” and considers the petition filed on the date on which petitioner signed the petition and presumably handed it to the proper prison official for mailing. [Petition at 8].
See Houston v. Lack,
. It is not entirely clear when the limitation period expires in this situation. Although the Ninth Circuit has stated that the limitation period expires on April 23, 1997, it did so without discussing the application of Rule 6(a) of the Federal Rules of Civil Procedure.
See Saffold v. Newland,
. Petitioner’s declarations were filed on different dates and in response to the Court's orders. The first declaration was filed on December 22, 1997, and is attached to petitioner's opposition to the motion to dismiss. *1077 The second declaration was filed on February 9, 1998 and, is attached to petitioner's supplemental brief. The Court refers to the declarations by dates.
. It is not petitioner’s burden to prove that the prison official lost the petition or that the prison mail system did not work as it was designed after the petition left his control and was entrusted to the proper prison official.
See Houston,
. Petitioner’s version of events also makes sense. There is no discernible reason why petitioner would have gone to the trouble of preparing his February 13, 1997 petition, and obtained the requisite certification, but then failed to take the final and simplest step of handing it to a prison official for mailing.
. As the Supreme Court has explained,
The situation of prisoners seeking to appeal without the aid of counsel is unique.... Other litigants may choose to entrust their appeals to the vagaries of the mail and the clerk's process for stamping incoming papers, but only the pro se prisoner is forced to do so by his situation.... Worse, the pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay. No matter how far in advance the pro se prisoner delivers his notice to the prison authorities, he can never be sure that it will ultimately get stamped "filed” on time. And if there is a delay the prisoner suspects is attributable to the prison authorities, he is unlikely to have any means of proving it, for his confinement prevents him from monitoring the process sufficiently to distinguish delay on the part of prison authorities from slow mail service or the court clerk’s failure to stamp the notice on the date received. Unskilled in law, unaided by counsel, and unable to leave the prison, his control over the processing of his notice necessarily ceases as soon as he hands it over to the only public officials to whom he has access — the prison authorities — and the only information he will likely have is the date he delivered the notice to those prison authorities and the date ultimately stamped on his notice.
Houston,
. The Court’s conclusion that petitioner is entitled to equitable tolling will not extend to every prisoner who signs a declaration indicating that he has attempted to file his federal petition by handing it to a prison official. As discussed, petitioner presents evidence — in- *1080 eluding a document signed and dated by a prison official — which respondents do not allege to be inaccurate. Thus, this is not a situation in which the evidence presented consists of nothing more than a petitioner's self-serving declaration.
. Under California law, the allegation that a defendant personally used a firearm in the commission of the underlying offense is considered a "sentence enhancement,” subjecting the defendant to a "separate, additional” sentence. At least at the time of petitioner’s conviction, such allegations were considered "penalty provisions,” not substantive crimes.
See People v. Wims,
. The jury should have been instructed as follows:
If you find the defendant guilty of the crime charged, you must determine whether the defendant personally used a firearm in the commission of that felony.
The word "firearm” includes [any device designed to be used as a weapon from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion.] [The “firearm” need not be operable.]
The term "personally used a firearm,” as used in this instruction, means that the defendant must have intentionally displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it.
CALJIC 17.19. Instead, the jury received no instruction whatsoever.
. The California Supreme Court denied petitioner's petition for review without explanation. [Answer, Ex. C], In analyzing the reasonableness of the state court’s determination of petitioner’s claim, the Court "looks through” the California Supreme Court's unexplained disposition to the last reasoned decision of a state court, which in this case is the opinion of the California Court of Appeal.
See Ylst v. Nunnemaker,
. The reasonableness of the state court determination is confirmed by the decision in
Johnson v. Gomez,
. As Justice Scalia stated, the Sixth Amendment’s
guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right to .. . trial, by an impartial jury” has no intelligible content unless it means that all the facts which must exist in order to subject the defendant to a legally prescribed punishment must be found by the jury.
Apprendi,
.
Indeed, at least one Justice recognized the rule announced in
Apprendi
a "watershed change in constitutional law....”
See Apprendi,
. The Ninth Circuit's decision in
Jones
does not suggest otherwise. In
Jones,
. It is worth noting that nearly all of the cases addressing the retroactivity of
Apprendi
involve federal criminal convictions in which the defendant's sentence was enhanced based
*1090
upon the quantity of drugs involved in the criminal offense. As was the common practice in district courts prior to
Apprendi,
the issue of drug quantity was not submitted to the jury, but was determined by a preponderance of the evidence by the district court.
See West v. United States,
I further note that any other conclusion could well lead to overwhelming and disastrous results given that every court in every jurisdiction in the country has treated drug quantity as a sentencing factor for the judge to determine for well over ten years.... Requiring retroactive application of Appren-di to every federal and state sentence imposed under such a bifurcated fact-finding system would necessitate a review of thousands of cases when actual innocence of the defendant of the charge and sentence is not in doubt.
Pittman,
We understand the implications of extending Apprendi to collateral review. But we do what we believe the law requires. Our constitutional history teaches us we best survive when we hew to the line drawn by the rule of law. Because, under Teague, we conclude Apprendi implicates procedures implicit in the concept of ordered liberty, we find Apprendi applies to a timely-filed post-conviction petition.
Beachem,
. The cases in which a
Teague
analysis was performed with respect to an initial petition do not discuss the continued authority of lower federal courts to declare new rules retroactive after the enactment of the AEDPA. Those cases simply assume that they retain that authority.
See Jones,
. From the perspective of lower federal courts, it would be preferable if the Supreme Court made clear at the time it announces a new rule whether the rule is retroactively applicable on collateral review. In the absence of such an express declaration, however, lower federal courts must perform the Teague analysis independently. Of course, such lower court decisions regarding retroac-tivity are subject to review by the Supreme Court.
. The decision in
Neder v. United States,
. In Sparf and Hansen, the Supreme Court stated:
We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them to be from the evidence. Upon the court rests the responsibility of declaring the law; upon the jury, the responsibility of applying the law so declared to the facts as they, upon their conscience, believe them to be. Under any other system, the courts, although established in order to declare the law, would for every practical purpose be eliminated from our system of government as instrumentalities devised for the protection equally of society and of individuals in their essential rights. When that occurs our government will cease to be a government of laws, and become a government of men. Liberty regulated by law is the underlying principle of our institutions.
Sparf and Hansen,