Louis Arthur Calvin v. Ron Davis

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOUIS ARTHUR CALVIN,
Petitioner - Appellant,
v.
RON DAVIS,
Respondent - Appellee.
No. 12-56739
D.C. No. 2:10-cv-00948-GW-
MRW
MEMORANDUM*
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
FILED
APR 29 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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.

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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,
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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
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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.
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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.
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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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