Steve Allen SMITH, Petitioner-Appellant, v. Anthony HEDGPETH, Warden; Attorney General for the State of California, Respondents-Appellees, 706 F.3d 1099

OPINION BYBEE, Circuit Judge: In this Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) action we address whether clearly established federal law requires that sentencing enhancements be considered for purposes of the Double Jeopardy Clause of the Fifth Amendment. The district court denied Smith’s Petition for Writ of Habeas Corpus, holding that clearly established federal law does not require the consideration of sentencing enhancements when determining if one offense is a lesser-included offense of another under the “same-elements” test. We affirm. I. FACTS AND PROCEDURAL HISTORY A.

Facts Steve Allen Smith brutally beat his wife, Amelia Rogers, with his fists and a telephone in the presence of her daughters, ages 13 and 16, and a neighbor friend. Smith’s attack left Rogers with multiple serious injuries, including a fat lip, missing teeth, a broken nose, brain injuries, and a stroke caused by an injury to her carotid artery. Her injuries left Rogers hospitalized, or in the care of a nursing home, for four months. Furthermore, the stroke Rogers suffered left her partially paralyzed, a malady that continued to plague her during Smith’s trial. B.

Prior Proceedings In 2005, a California jury convicted Smith of: (1) infliction of corporal injury on a spouse, with special findings of great bodily injury involving domestic violence and use of a deadly weapon (phone); (2) assault with a deadly weapon (phone), with a special finding of great bodily injury involving domestic violence; and (3) four other related counts.

Smith appealed his conviction in state court, claiming among other grounds, that his conviction for assault with a deadly weapon — coupled with the great-bodily-injury enhancement — was a lesser-included offense of his conviction for infliction of corporal injury on a spouse — coupled with the deadly weapon enhancement — thus, violating the Double Jeopardy Clause.

In 2007, the California Court of Appeal denied Smith’s Double Jeopardy claim based on the reasoning in In re Jose H., 77 Cal.App.4th 1090, 92 Cal.Rptr.2d 228 (2000), though noting that the same issue was currently pending before the California Supreme Court in People v. Sloan, 42 Cal.4th 110, 64 Cal.Rptr.3d 137, 164 P.3d 568 (2007). The California Supreme Court denied Smith’s petition for review. After exhausting his state-law remedies, Smith filed a federal petition for writ of habeas corpus under AEDPA. Smith claimed that Sattazahn v.

Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003), had conclusively rejected the view adopted by the California courts. The district court held, however, that it was not clear whether Sattazahn covered Smith’s position or was limited to the capital-sentencing context; therefore, the California court’s decision could not violate “clearly established Federal law.” 28 U.S.C. § 2254(d)(1). II. STANDARD OF REVIEW We review the district court’s denial of a petition for writ of habeas corpus de novo. Lopez v. Thompson, 202 F.3d 1110, 1116 (9th Cir.2000) (en banc).

Under AEDPA, a writ of habeas corpus maybe granted to a state prisoner only if the state-court decision was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or (2) “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). Under AEDPA, we review the last reasoned state-court decision. Polk v. Sandoval, 503 F.3d 903, 909 (9th Cir.2007). In this case, that decision is the California Court of Appeal’s April 19, 2007 decision.

Before us, Smith has only argued that the California Court of Appeal’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). Clearly established federal law “refers to the holdings, as opposed to the dicta, of th[e Supreme] Court’s decisions as of the time of the relevant state-court decision.” Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (citing Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).

A state-court decision, however, need not “cit[e] [the Supreme Court’s] cases — indeed, [the state court] does not even [need to be] aware [ ] of [the Supreme Court’s] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam); see also Mitchell v. Esparza, 540 U.S. 12, 16, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (per curiam). III.

DISCUSSION The Double Jeopardy Clause of the Fifth Amendment states: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. The Double Jeopardy Clause protects a defendant against both successive punishments and prosecutions for the same criminal offense. United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)).

However, only “where the two offenses for which the defendant is punished or tried cannot survive the ‘same-elements’ test, [does] the double jeopardy bar appl[y].” Id. The “same-elements” test was enunciated by the Court in Blockburger v. United States: “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

Consistent with Blockburger, the California courts look to the “statutory elements” to determine whether “the greater offense included all of the statutory elements of the lesser offense,” which would make “the latter ... necessarily included in the former.” People v. Sloan, 42 Cal.4th 110, 64 Cal.Rptr.3d 137, 164 P.3d 568, 572 (2007) (quoting People v. Reed, 38 Cal.4th 1224, 45 Cal.Rptr.3d 353, 137 P.3d 184, 186-87 (2006)).

Here, the parties do not contest that if the sentencing enhancements are considered as elements of an offense under the “same-elements” test, then Smith’s conviction for assault with a deadly weapon would be a lesser-included offense of his conviction for infliction of corporal injury on a spouse with an enhancement for use of a deadly weapon. As the California Supreme Court has explained, the question is whether the offense of conviction must be considered together with the sentencing enhancement. Id., 64 Cal.Rptr.3d 137, 164 P.3d at 572.

It has recognized that although “looking only to the statutory elements” would not run afoul of the “rule against multiple convictions,” considering the enhancement as an element would, and it has concluded that “[i]n deciding whether multiple conviction is proper, a court should consider only the statutory elements.” Id., 64 Cal.Rptr.3d 137, 164 P.3d at 572-73. We are not called upon to determine whether California’s judgment is correct, because its judgment is subject to direct review by the U.S. Supreme Court.

Rather, our task is to determine whether California’s judgment violates clearly established federal law requiring sentencing enhancements to be considered as elements of an offense for purposes of the Double Jeopardy Clause. In this vein, Smith argues that the Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Texas v. Cobb, 532 U.S. 162, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001); and particularly Sattazahn, clearly establish this principle, entitling him to federal habeas relief. We disagree. A. Apprendi v.

New Jersey In Apprendi the Supreme Court com sidered a New Jersey scheme under which the maximum penalty for second-degree possession of a firearm was 5 to 10 years imprisonment. Apprendi 530 U.S. at 468, 120 S.Ct. 2348. A separate statute, however, provided for an extended term of imprisonment for second-degree offenses of 10 to 20 years if the crime was a “hate crime.” Id. at 468-69, 120 S.Ct. 2348. New Jersey authorized its judges to determine, by a preponderance of the evidence, whether a hate crime had been committed. Id.

The Supreme Court held that New Jersey’s scheme violated the Due Process Clause of the Fourteenth Amendment and the Sixth Amendment right to a jury trial. Id. at 476-77, 120 S.Ct. 2348. The Court stated that “[ojther 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.” Id. at 490, 120 S.Ct. 2348.

At the same time, it observed that “nothing in this history suggests that it is impermissible for judges to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing judgment within the range prescribed by statute.” Id. at 481, 120 S.Ct. 2348; see also id. at 494, 120 S.Ct. 2348 (“[T]he effect of New Jersey’s sentencing ‘enhancement’ here is unquestionably to turn a second-degree offense into a first-degree offense.”).

In his concurring opinion, Justice Thomas, joined by Justice Scalia, expressed his “view that the Constitution requires a broader rule than the Court adopts.” Id. at 499, 120 S.Ct. 2348 (Thomas, J., concurring). Justice Thomas believed that: Sentencing enhancements may be new creatures, but the question that they create for courts is not. Courts have long had to consider which facts are elements in order to determine the sufficiency of an accusation (usually an indictment).

The answer that courts have provided regarding the accusation tells us what an element is, and it is then a simple matter to apply that answer to whatever constitutional right may be at issue in a case.... Id. at 500-01, 120 S.Ct. 2348 (emphasis added). For Justice Thomas, the “elements” of “a ‘crime’ inelude[] every fact that is by law a basis for imposing or increasing punishment.” Id. at 501, 120 S.Ct. 2348.

Although Justice Thomas’s opinion, if it had been a majority opinion and if it extended to Fifth Amendment questions, might have governed California’s analysis, Apprendi itself did not clearly establish whether sentencing enhancements must be considered as an element of an offense for purposes of the Double Jeopardy Clause. Indeed, that case seems to suggest the opposite. In any event, Apprendi alone is insufficient to entitle Smith to federal habeas relief. B. Texas v. Cobb In Texas v.

Cobb, the Court again looked at what constitutes the “elements” of an offense, this time in the context of the Sixth Amendment right to counsel. Cobb, 532 U.S. at 167, 172-73, 121 S.Ct. 1335. Cobb involved a defendant (Cobb) who was represented by counsel on a burglary charge. Id. at 165, 121 S.Ct. 1335. With his counsel’s permission, Cobb was questioned about a mother and infant who had disappeared from the home burglarized by Cobb. Id. Cobb argued that his confession to the murders should have been suppressed because it was secured in violation of his right to counsel. Id. at 166, 121 S.Ct. 1335.

The Court granted review to consider “whether the Sixth Amendment right to counsel extends to crimes that are ‘factually related’ to those that have actually been charged.” Id. at 167, 121 S.Ct. 1335. The Court noted that it had previously considered the definition of an “offense” only in the double jeopardy context. Id. at 173, 121 S.Ct. 1335 (citing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). The Court clarified that there is no constitutional difference between the meaning of the term “offense” in the contexts of double jeopardy and of the right to counsel.

Accordingly, we hold that when the Sixth Amendment right to counsel attaches, it does encompass offenses that, even if not formally charged, would be considered the same offense under the Blockburger test. Id. at 173, 121 S.Ct. 1335. The Court held that because burglary and murder are not the same offense under Blockburger, the Sixth Amendment did not bar Cobb’s questioning. Id. at 174, 121 S.Ct. 1335. Nothing in Cobb should have alerted the California courts that its analysis of sentencing enhancements clearly violates the Constitution.

If anything, Cobb would have warded off the California courts from reading too much into decisions not on point, because the Court observed that “[constitutional rights are not defined by inferences from opinions which did not address the question at issue.” Id. at 169,121 S.Ct. 1335. C. Sattazahn v. Pennsylvania Sattazahn provides a closer question since in that case, unlike Apprendi and Cobb, the Court confronted a Double Jeopardy Clause issue.

In Sattazahn, a capital case, the jury advised the trial court that it was “hopelessly deadlocked at 9-3 for life imprisonment.” Sattazahn, 537 U.S. at 104, 123 S.Ct. 732. The trial judge discharged the jury as hung and entered a life sentence. Id. at 104-05, 123 S.Ct. 732. The trial court was reversed for instructional error, and the case was retried. Id. at 105, 123 S.Ct. 732. This time, Sattazahn was found guilty and sentenced to death. Id. Sattazahn argued that the Double Jeopardy Clause barred the state from seeking the death penalty at his retrial. Id.

The Pennsylvania Supreme Court rejected this argument, and the Supreme Court affirmed. Id. The Court stated that “the touchstone for double-jeopardy protection in capital-sentencing proceedings is whether there has been an ‘acquittal.’ ” Id. at 109, 123 S.Ct. 732. Here, because the jury had deadlocked, the trial judge was obligated by state law to enter a life sentence. Id. at 104-05, 123 S.Ct. 732. The Court, however, held that “[t]he entry of a life sentence by the judge was not [an] ‘acquittal.’ ” Id. at 109, 123 S.Ct. 732. In

Part III of the opinion, Justice Scalia — joined by Chief Justice Rehnquist and Justice Thomas-added that Apprendi had clarified “what constitutes an ‘element’ of an offense for purposes of the Sixth Amendment’s jury-trial guarantee.” Id. at 111, 123 S.Ct. 732 (plurality opinion). Justice Scalia continued: “Just last Term we recognized the import of Apprendi in the context of capital-sentencing proceedings” in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Sattazahn, 537 U.S. at 111, 123 S.Ct. 732 (plurality opinion).

He explained that: [F]or purposes of the Sixth Amendment’s jury-trial guarantee, the underlying offense of “murder” is a distinct, lesser included offense of “murder plus one or more aggravating circumstances”: Whereas the former exposes a defendant to a maximum penalty of life imprisonment, the latter increases the maximum permissible sentence to death. Id.

Justice Scalia added: “We can think of no principled reason to distinguish, in this context, between what constitutes an offense for purposes of the Sixth Amendment’s jury-trial guarantee and what constitutes an ‘offence’ for purposes of the Fifth Amendment’s Double Jeopardy Clause.” Id. (emphasis added) (citing Monge v. California, 524 U.S. 721, 738, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998) (Scalia, J., dissenting)). Smith argues that Sattazahn established that enhancements must be considered part of the crime itself for double jeopardy purposes. Sattazahn does not clearly establish Smith’s claim.

First, as the district court noted, “the ‘context’ [Justice] Scalia emphasized was all-important: capital sentencing.” The Court has long recognized the unique nature of capital sentencing cases. In Monge, for example, the Court refused to extend its

interpretation of the Double Jeopardy Clause in Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), a capital case, to “the noncapital sentencing context.” Monge, 524 U.S. at 731-34, 118 S.Ct. 2246; see also id. at 731-33, 118 S.Ct. 2246 (“[A] critical component of our reasoning in [Bullington ] was the capital sentencing context.... Moreover, we have suggested in earlier cases that Bullington’s rationale is confined to the unique circumstances of a capital sentencing proceeding.” (internal quotation marks omitted)).

The fact that Justice Scalia’s statement in Sattazahn was expressly limited to the capital context is alone sufficient to take it outside the realm of “clearly established Federal law” for Smith’s purposes. Second, even if we thought that these statements in Sattazahn extended to non-capital cases, Justice Scalia’s statements in

Part III are part of a plurality opinion and are not a binding declaration of the Court. “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (internal quotation marks omitted). And, the Court has reminded us that, for purposes of AEDPA, only its “holdings, as opposed to [its] dicta” are relevant.

Lockyer, 538 U.S. at 71, 123 S.Ct. 1166. Here, a single rationale explaining the result did enjoy the assent of five Justices —

Part II of Justice Scalia’s opinion applying the Court’s approach in Bullington and its progeny to the issue before the Court. See Sattazahn, 537 U.S. at 106-10, 123 S.Ct. 732.

Part II did not reach the issue of whether the definition of offense for purposes of the jury-trial guarantee of the Sixth Amendment was coextensive with the definition of “offence” in the Double Jeopardy Clause. See id. The district court correctly held that “Sattazahn offered only dicta on this issue.” Smith argues that Justice Scalia’s statement in

Part III enjoyed the assent of a majority of the Court because, including the dissenters, “fully seven [Jjustices in Sattazahn recognized that enhancing allegations must be considered in determining what constitutes a separate ‘offense’ under the Double Jeopardy Clause.” Although Smith asks us to count the dissenting justices, those justices did not rely upon the rationale presented in

Part III of Justice Scalia’s opinion. Moreover, the dissent, like Justice Scalia, acknowledged the special context of capital sentencing. Id. at 126 n. 6, 123 S.Ct. 732 (Ginsburg, J., dissenting) (“This Court has determined, however, that for purposes of the Double Jeopardy Clause, capital sentencing proceedings involving proof of one or more aggravating factors are to be treated as trials of separate offenses, not mere sentencing proceedings. Our decisions permitting resentencing after appeal of non-capital convictions thus do not address the question presented in this ease.”(citations omitted)).

Even if we could add the dissent to the plurality, the Court has not dearly established the principle Smith argues for outside of the context of capital sentencing. We hold that Sattazahn did not clearly establish whether sentencing enhancements must be considered as an element of an offense for purposes of the Double Jeopardy Clause. Thus, Sattazahn is also insufficient to entitle Smith to federal habeas relief. IV.

CONCLUSION Apprendi Cobb, and Sattazahn— whether considered individually or together — did not create “clearly established Federal law” requiring a state court to consider sentencing enhancements as an element of an offense for purposes of the Double Jeopardy Clause. A state court cannot be expected — much less required— to refer to federal law which is not clearly established.

Thus, we hold the state court’s decision was not “contrary to, or an unreasonable application of, clearly established Federal law.” The Supreme Court has not squarely addressed this issue and fairminded jurists could disagree as to the constitutional principle. The judgment of the district court is AFFIRMED.