Free Response to Habeas Petition - District Court of California - California

Case 3:08-cv-00477-JAH-NLS

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GARY W. SCHONS Senior Assistant Attorney General 4 KYLE NIKI SHAFFER Deputy Attorney General 5 KEVIN VIENNA, State Bar No. 186751 Supervising Deputy Attorney General 110 West A Street, Suite 1100 6 San Diego, CA 92101 P.O. Box 85266 7 San Diego, CA 92186-5266 Telephone: (619) 645-2198 8 Fax: (619) 645-2191 Email: [email protected] 9 10 Attorneys for Respondent 11 12 13 14 15 16 17 18 19 20 21 Pursuant to this Court's Order, Respondent respectfully submits the instant Answer to the v. The Honorable Nita L. Stormes JAMES E. TILTON, Secretary, Respondent. KIMBERLY LORRAINE GRIGGS, Petitioner, 08cv0477-JAH (NLS) ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

22 Petition for Writ of Habeas Corpus in accordance with Rule 5 of the Rules Governing Section 2254 23 Cases in the United States District Court. 24 Respondent denies all allegations contained in the Petition that Petitioner's custody is

25 unlawful and makes the following assertions: 26 27 I. Petitioner Kimberly Griggs is currently in Respondent's lawful custody, serving a prison

28 term of six years following her conviction for burglary. She challenges her sentence, contending
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1 that her upper-term was based on facts found only by the trial judge, in violation of a right to jury 2 fact finding. 3 4 II. The claim is exhausted, because it was presented to the California Supreme Court in a

5 petition for review. The claim is timely filed and is not procedurally defaulted. 6 7 III. The claim in the Petition is subject to the deferential evaluation set forth in 28 U.S.C. §

8 2254(d). In ground one, must be denied under this standard because the right to jury fact finding 9 on which Griggs relies does not apply to prior convictions, on which her upper term was based. 10 11 IV. Relevant state court records will be lodged contemporaneously with this Answer, under

12 a separate Notice of Lodgment. 13 14 V. Griggs is not entitled to an evidentiary hearing to resolve her claims. 28 U.S.C. §

15 2254(e)(2). 16 17 VI. The relevant facts and procedural history set forth in the accompanying Memorandum of

18 Points and Authorities are incorporated herein by this reference. Except as expressly admitted 19 herein or in the Memorandum of Points and Authorities, Respondent denies that Petitioner's custody 20 is in any way improper, that any condition of Petitioner's custody is illegal, or that any of her 21 constitutional rights has been or is being violated in any way. 22 /// 23 /// 24 /// 25 26 27 28
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WHEREFORE, for the reasons set forth in this Answer, the Memorandum of Points and

2 Authorities filed in support of this Answer and incorporated herein by this reference, and for such 3 other and further good cause as the Court may find, this Court should deny the Petition, deny all 4 other relief, and deny any request for a certificate of appealability. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Dated: June 12, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General KYLE NIKI SHAFFER Deputy Attorney General

s/Kevin Vienna KEVIN VIENNA Supervising Deputy Attorney General Attorneys for Respondent

SD2008700236

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