MEMORANDUM AND ORDER
STANLEY A. WEIGEL, UNITED STATES DISTRICT JUDGE
Petitioner James Hudson, a state prisoner, pled guilty in Marin County Superior Court to two counts of rape, one count of oral copulation, one count of attempted murder in the second degree, and one count of kidnapping. He was sentenced to state prison for a term of twenty-five years.
Petitioner seeks habeas corpus relief from this Court, pursuant to 28 U.S.C. § 2254, on the grounds that he was improperly sentenced under California Penal Code Section 667.6(d) to (1) two full, consecutive terms for rape, and (2) a full, consecutive term for attempted murder.
I. Propriety of Sentencing Under Cal. Penal Code § 667.6(d)
Petitioner contends that he was improperly sentenced under California Penal Code Section 667.6(d) to two full, consecutive terms for rape. Section 667.6(d) mandates that a sentencing court impose full, consecutive sentences when a defendant has sexually assaulted a victim on "separate occasions."
The state court found that petitioner had raped the victim on two occasions. Petitioner asserts that the two counts of rapes occurred on one occasion. If petitioner's assertion is correct, the state court had the discretion to sentence petitioner under Section 667.6(c) or California Penal Code Section 1170.1, but not under Section 667.6(d). Under Section 667.6(c) or Section 1170.1, the judge would have had a variety of sentencing options. When a court fails to sentence within its informed discretion, a defendant's fourteenth amendment right to due process is violated. United States v. Tucker, 404 U.S. 443, 447, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972). Therefore, if the state court erred in its in finding that Section 667.6(d) was applicable, then petitioner was deprived of his fourteenth amendment right to due process.
The state court based its finding that the rapes occurred on two occasions on the following facts: Petitioner lured the victim into his car. He drove her to Nicasio, where he removed her from the car and raped her. Then petitioner placed the victim back in the car. She asked to be released; petitioner refused and informed her that they were going to the Marin Headlands to pick up his cocaine. He drove to the Headlands, where he removed the victim from the car. Petitioner led the victim around the area and then raped her again. Based on the differing geography and timing of the attacks, as well as the fact that there had been "a break in the action," the state court found that the rapes occurred on two occasions. The record supports the inference that by a "break in the action" the court was referring to both petitioner's announcement to the victim that he was taking her to recover cocaine at the Headlands, and to the drive to that site. The victim testified to these facts at petitioner's preliminary hearing. The probation report also supported these facts.
The California Supreme Court addressed the meaning of "separate occasions" under Section 667.6(d) in People v. Craft, 41 Cal. 3d 554, 224 Cal. Rptr. 626, 715 P.2d 585 (1986).
The court explained:
subdivision [667.6](d) only applies to offenses against the same victim between which the perpetrator temporarily lost or abandoned the opportunity to continue his attack: such opportunity is lost when the victim becomes free of any ongoing criminal activity; it is abandoned when the offender keeps the victim within his control but engages in some significant activity unrelated to continuing his attack.