FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICK J. WILSON, No. 07-17318
Petitioner-Appellant, D.C. No.
v. CV-04-02858-JW
MIKE KNOWLES, ORDER AND
Respondent-Appellee.
OPINION
Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted
January 12, 2011—San Francisco, California
Filed April 1, 2011
Before: Alex Kozinski, Chief Judge, John T. Noonan and
Barry G. Silverman, Circuit Judges.
Opinion by Judge Noonan;
Dissent by Chief Judge Kozinski
4353
4356 WILSON v. KNOWLES
COUNSEL
John Balazs, Sacramento, California, for the petitioner.
Edmund G. Brown Jr., Attorney General of California, Gerald
A. Engler, Senior Assistant Attorney General, Gregory A. Ott,
Deputy Attorney General, and Peggy S. Ruffra, Supervising
Deputy Attorney General, San Francisco, California, for the
respondent.
ORDER
The Opinion and Dissent filed February 8, 2011 are with-
drawn. A new Opinion and Dissent are filed herewith.
With this Opinion, the petition for rehearing is DENIED
and the petition for rehearing en banc is DENIED. Chief
Judge Kozinski would grant the petition for rehearing and the
petition for rehearing en banc.
The full court has been advised of the petition for rehearing
en banc, and no judge of the court has requested a vote
whether to rehear the matter en banc. Fed. R. App. P. 35.
OPINION
NOONAN, Circuit Judge:
Rick Wilson appeals the denial of his petition for a writ of
habeas corpus. Holding that the California courts violated
Wilson’s right to due process under Apprendi v. New Jersey,
530 U.S. 466 (2000), we reverse the judgment of the district
court and remand.
BACKGROUND
In 1993, Wilson pleaded no contest to gross vehicular man-
slaughter while driving under the influence of alcohol in vio-
WILSON v. KNOWLES 4357
lation of California Penal Code § 191.5(a), and to proximately
causing bodily injury while driving under the influence of
alcohol in violation of California Vehicle Code § 23153(b).
There was a preliminary hearing but no trial. He served one
year of imprisonment in a residence for the treatment of
addiction.
Both convictions resulted from a single accident. Wilson
had driven with his girlfriend Deborah Horvat from Reno,
Nevada into California. At some point, Horvat gave Wilson
the keys and asked him to drive. They picked up a hitchhiker,
John Haessly, along the way. Wilson had been drinking and
drove at a high rate of speed. The car veered off the road and
flipped over. Haessly was killed, and Horvat was injured.
PROCEEDINGS
In the latest case, Wilson was convicted in 2000 by a jury
of driving under the influence with a prior felony conviction.
See Cal. Veh. Code §§ 23152(a), 23550.5. The trial judge
found this conviction to be Wilson’s third strike under Cali-
fornia Penal Code § 667(b)-(i). The judge in 2000 found that
the 1993 convictions counted as the first and second strikes.
He sentenced Wilson to imprisonment for 25 years to life.
The prosecutor in 2000 had introduced numerous docu-
ments, including the information and preliminary hearing
transcript from 1993, to establish that the conviction for injur-
ing Horvat should count as a strike. The trial judge in 2000
examined this evidence and announced: “So I feel the evi-
dence presented does satisfy me that—and I’ll make addi-
tional findings as well that the prior conviction alleged for
felony driving under the influence of alcohol with . . . per-
sonal infliction with great bodily injury alleged as first prior
conviction within the meaning of 667(b) through 667(i) and
1170.12, that that allegation is true.”
4358 WILSON v. KNOWLES
The California Court of Appeal affirmed Wilson’s sen-
tence. Justice Rushing dissented and would have found that
the trial court violated Apprendi. Wilson presented the issue
to the state supreme court, which denied his petition for
review on the merits.1 Wilson then sought federal habeas
relief. The district court denied his petition, holding that
“there is no ‘clearly established’ federal right to jury trial in
determining the legal significance of a prior conviction.”
Wilson appeals.
ANALYSIS
The Standard of Review. We review a district court’s denial
of a habeas petition de novo. Lopez v. Thompson, 202 F.3d
1110, 1116 (9th Cir. 2000) (en banc). We review the state
court’s ruling under the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) because Wilson filed his peti-
tion after AEDPA entered into effect. Martinez v. Garcia, 379
F.3d 1034, 1037 (9th Cir. 2004). We may grant habeas relief
only if the state court’s decision was “contrary to, or involved
an unreasonable application of” clearly established Supreme
Court precedent, or “was based on an unreasonable determi-
nation of the facts.” 28 U.S.C. § 2254(d)(1)-(2).
[1] Apprendi Error. The Supreme Court held in Apprendi
that, except for the fact of a prior conviction, any facts that
increase a defendant’s sentence beyond the statutory maxi-
mum must be proved to a jury beyond a reasonable doubt. See
1
The government argues that Wilson failed to exhaust his state remedies
because he didn’t present the Apprendi issue to the state court of appeal.
But the state supreme court’s denial of the claim on the merits is sufficient
to allow Wilson to proceed. See Greene v. Lambert, 288 F.3d 1081, 1086
(9th Cir. 2002) (“[E]xhaustion does not require repeated assertions if a
federal claim is actually considered at least once on the merits by the high-
est state court. . . . If the Washington Supreme Court declined to apply the
procedural bar that was available to it and adjudicated the claim on the
merits, then the claim may proceed.”).
WILSON v. KNOWLES 4359
Apprendi, 530 U.S. at 490. The trial judge in this case in 2000
found three additional facts about the 1993 accident that
increased Wilson’s sentence to 25 years to life: First, that
Wilson personally inflicted bodily injury on Horvat; second,
that the injury was great; and third, that the victim was not an
accomplice. These facts weren’t necessary to Wilson’s 1993
conviction, and there was no purpose in his challenging them
at the time of that conviction in 1993. The issue is whether
these findings made in 2000 fell within the prior conviction
exception.
[2] Courts may reasonably disagree about some of the pre-
cise boundaries of the exception. See Kessee v. Mendoza-
Powers, 574 F.3d 675, 676 (9th Cir. 2009). For example, it
isn’t clearly established whether a judge may find the fact that
a defendant was on probation at the time of an earlier convic-
tion. Id. at 678. But that does not mean that Apprendi is amor-
phous. It would be unreasonable to read Apprendi as allowing
a sentencing judge to find the kinds of disputed facts at issue
here—such as the extent of the victim’s injuries and how the
accident occurred.2 These are not historical, judicially notice-
able facts. The judge in 2000 speculated as to how a jury in
1993 might have evaluated the evidence if the evidence had
been offered and if a jury had been impaneled to evaluate it.
See United States v. Brown, 417 F.3d 1077, 1079-80 (9th Cir.
2005) (per curiam). Wilson did not have any reason to contest
these alleged facts when he was convicted in 1993. See
Apprendi, 530 U.S. at 488 (emphasizing importance of proce-
2
The government points to a Second Circuit decision that stated that
“[j]udges frequently must make factual determinations for sentencing, so
it is hardly anomalous to require that they also determine the ‘who, what,
when, and where’ of a prior conviction.” United States v. Santiago, 268
F.3d 151, 156 (2d Cir. 2001). But the court there held only that a judge
may find that prior convictions arose from offenses committed on different
occasions—a ministerial inquiry into dates, not into the nature of the
offenses or how they occurred. Id. at 155, 156-57. Indeed, it expressly
declined to reach whether the prior conviction exception “extends to all
issues related to recidivism.” Id. at 156.
4360 WILSON v. KNOWLES
dural safeguards during earlier proceeding). The judge’s fact-
finding seven years after the 1993 conviction extended
beyond any reasonable interpretation of the prior conviction
exception. See DeWeaver v. Runnels, 556 F.3d 995, 997 (9th
Cir. 2009) (explaining that the state court violates the “unrea-
sonable application” prong when it “extends or fails to extend
a clearly established legal principle to a new context in a way
that is objectively unreasonable”) (citation and internal quota-
tions marks omitted). It is utterly unreasonable to hold that
what a judge in 2000 imagines might have happened in 1993
is the same as a conviction in 1993.
[3] The harm. The fallback position of the government is
that the error was harmless. To make that argument work, the
government imagines what would have happened if in 1993
Wilson had been charged with the infliction of great bodily
injury and gone to trial. But we really don’t know what would
have happened. Wilson might have created reasonable doubt
as to whether Horvat caused the accident by grabbing the
steering wheel or acted as an accomplice by giving a drunk
Wilson her keys. See, e.g., People v. Verlinde, 123 Cal. Rptr.
2d 322, 334 (Ct. App. 2002). Wilson might also have success-
fully challenged the prosecution’s evidence about the extent
of Horvat’s injuries. No court could now look at the disputed
facts about an accident seven years earlier and conclude
beyond a reasonable doubt that Wilson would have been con-
victed of personally inflicting great bodily injury. Wilson’s
first strike, as determined by the court in this case, does not
exist. It is a crime created by speculation as to what might
have been shown in 1993.
[4] The state’s petition for rehearing has afforded opportu-
nity to take into account the Supreme Court’s summary of its
habeas jurisprudence in Harrington v. Richter, 131 S.Ct. 770
(2011). No reasonable judge could rule that a conviction of
causing bodily injury was the same as a conviction of causing
great bodily injury. No reasonable judge could hold that a
charge that might have been made and proved is equivalent to
WILSON v. KNOWLES 4361
an actual conviction. No reasonable judge could hold that the
Apprendi exception was satisfied by a California court, 7
years after the criminal proceedings were completed, making
a guess as to what could have been proved if the 1993 prose-
cution of Wilson had been different.
For these reasons, the judgment of the district court is
REVERSED and the case is REMANDED.
Chief Judge KOZINSKI, dissenting:
The Supreme Court held in Apprendi that the government
must submit to a jury, and prove beyond a reasonable doubt,
any fact that exposes a criminal defendant to a higher range
of penalties. See Apprendi v. New Jersey, 530 U.S. 466, 490
(2000). But it also carved out an exception: A judge may find
“the fact of a prior conviction.” Id.; see Almendarez-Torres v.
United States, 523 U.S. 224, 239, 247 (1998). Courts have
since debated and disagreed about the scope of the exception,
and the Supreme Court hasn’t stepped in to draw a clear line
for us. See Kessee v. Mendoza-Powers, 574 F.3d 675, 677
(9th Cir. 2009) (“[T]he task of determining the precise con-
tours of that exception has been left to the federal appellate
courts.”); see also Shepard v. United States, 544 U.S. 13, 27
(2005) (Thomas, J., concurring in part and concurring in the
judgment).
It’s hard to believe that the Sixth Amendment permits a
sentencing judge to find disputed facts about what happened
during a defendant’s prior offense. This is especially true
when the defendant had no reason to challenge them at the
time of the original conviction. Here, for example, there was
no doubt Horvat suffered bodily injuries. Any cross-
examination of the victim about the extent of those injuries
would have served no purpose, wasted the judge’s time and
enabled the victim to describe her suffering one more time.
4362 WILSON v. KNOWLES
The original court records thus provide incomplete informa-
tion, and it’s impossible for a judge today to know that a jury
would have found that Horvat’s injuries were “great.” Wilson
may have also raised reasonable doubt as to whether he per-
sonally inflicted the injuries on a non-accomplice: Although
he had little incentive to develop the record, there was at least
some evidence that Horvat directly caused the accident by
grabbing the wheel and that she encouraged Wilson to drive
drunk.
But, under AEDPA, Wilson must point to a Supreme Court
holding clearly establishing that a judge may not find facts
about the offense underlying his prior conviction. See Lockyer
v. Andrade, 538 U.S. 63, 71-72 (2003). Read literally,
Apprendi itself seems to limit judges to finding the mere fact
of the prior conviction. But courts have sometimes read the
exception more expansively. See, e.g., United States v. Santi-
ago, 268 F.3d 151, 156 (2d Cir. 2001) (Sotomayor, J.) (“In
short, we read Apprendi as leaving to the judge . . . the task
of finding not only the mere fact of previous convictions but
other related issues as well. Judges frequently must make fac-
tual determinations for sentencing, so it is hardly anomalous
to require that they also determine the ‘who, what, when, and
where’ of a prior conviction.”). The Supreme Court hasn’t
straightened all this out. The best we’ve been able to say is
that the Court’s uncertain precedent “strongly suggests that
the . . . exception does not extend to any and all facts related
to a prior conviction.” Butler v. Curry, 528 F.3d 624, 644 (9th
Cir. 2008) (emphasis added) (citing Shepard, 544 U.S. at
25-26 (plurality opinion)). This means that, as of 2008, we
concluded that there was no clearly established Supreme
Court authority as to whether the exception permits sentenc-
ing judges to find the kinds of underlying facts at issue here.
The law certainly wasn’t clearly established when Wilson’s
sentence became final five years earlier. Nor was the state
court’s rejection of Wilson’s claim an objectively unreason-
able application of the ambiguous language in Apprendi itself.
WILSON v. KNOWLES 4363
AEDPA deference can be a bitter pill to swallow. See, e.g.,
Brown v. Payton, 544 U.S. 133, 148 (2005) (Breyer, J., con-
curring); see also Harrington v. Richter, 131 S. Ct. 770,
780-81 (2011) (reversing for failure to defer to state court
decision); Premo v. Moore, 131 S. Ct. 733, 740 (2011)
(same). In some habeas cases, we must reject what appear to
be valid constitutional claims because petitioner’s rights have
not yet been clearly established by the Supreme Court. This
appears to me to be such a case. I hope I’m wrong.