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McCLOUD v. GIURBINO

September 16, 2005.

CHARLES LAWRENCE McCLOUD, Petitioner,
v.
G.J. GIURBINO, Warden, Respondent.



The opinion of the court was delivered by: LOUISA PORTER, Magistrate Judge

REPORT AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS
Charles Lawrence McCloud, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, raising four grounds for relief. The Court has considered the Petition, Respondent's Answer and Memorandum of Points and Authorities, Petitioner's Traverse and Memorandum of Points and Authorities, and all supporting documents submitted by the parties. Based upon the documents and evidence presented in this case, and for the reasons set forth below, the Court recommends that the Petition be DENIED and the case be dismissed with prejudice.

I. Factual Background

  This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Parke v. Baley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness). Petitioner has not attempted to rebut the factual findings made by the state court. Therefore, the following facts are taken from the California Court of Appeal opinion in People v. McCloud, No. D035776, slip op. (Cal.Ct.App. June 18, 2002):
In the early morning of November 25, 1999, San Diego Police Officer Benjamin MacBeth was on patrol near Texas Street and El Cajon Boulevard. MacBeth at that time observed McCloud, in a vehicle, run a red light. MacBeth activated his emergency lights and pursued McCloud until McCloud halted. While MacBeth was calling in the license plate numbers, McCloud sped off.
As MacBeth again pursued McCloud, he observed McCloud run through one stop sign and then past a second stop sign and crash into a telephone pole. McCloud tried to get his car moving, and when he failed, he ran off on foot. Ignoring MacBeth's commands to stop, McCloud ran to the front yard of a house, where he threw something away. McCloud then fell into some bushes and was arrested.
A witness had seen McCloud throw away a small chrome semiautomatic handgun. The witness directed police officers to the location, where the police recovered a chrome-plated semiautomatic handgun with two bullets in the clip and one in the chamber. Later tests demonstrated the gun was operable.
McCloud had three prior robbery convictions which were "strikes."
(Lodgment No. 10.)

  II. Procedural Background

  On December 23, 1999, the San Diego county district attorney's office filed an amended information charging Petitioner with: 1) evading police with reckless driving in violation of Cal. Vehicle Code § 2800.2(a) (Count One); 2) possession of a firearm by a felon in violation of Cal. Penal Code § 12021(a)(1) (Count Two); 3) carrying a concealed firearm in violation of Cal. Penal Code § 12021.1(a) (Count Three); and 4) resisting an officer in violation of Cal. Penal Code § 148(a)(1) (Count Four). (Lodgment No. 1, Clerk's Transcript, at 4-6.) The information further alleged that Petitioner had served a prior prison term and had three prior strikes. (Id.)

  On April 18, 2000, Petitioner pleaded guilty to Counts One and Two and admitted the three prior strike convictions. (Id. at 9-11.) In return, the remaining counts and allegations were dismissed. (Id.) On May 26, 2000, the trial court denied Petitioner's motion to dismiss the prior strike allegations and sentenced Petitioner to two concurrent terms of 25 years to life for the two charges to which he pleaded guilty. (Id. at 20-21; Lodgment No. 2, Reporter's Transcript, at 53-55.) On May 26, 2000, Petitioner filed a notice of appeal challenging the validity of his guilty plea. (Lodgment No. 1 at 22-23.) On June 6, 2000, in pro per, and on August 8, 2000, through counsel, Petitioner moved to withdraw his guilty plea by reason of his having received ineffective assistance of counsel. (Id. at 25-30, 41-51.) After hearing arguments and witnesses, the trial court, on January 26, 2001, denied Petitioner's motion and executed a certificate of probable cause, which permitted an appeal of the guilty plea. (Id. at 86, 106; Lodgment No. 2 at 223-25.)

  On November 15, 2000, Petitioner filed a petition for writ of habeas corpus in the trial court, alleging ineffective assistance of counsel in his 1986 robbery plea and arguing that the prior conviction should be invalidated. (Lodgment No. 3.) The petition was denied on January 22, 2001. (Lodgment No. 4.) On February 1, 2001, Petitioner filed a "Motion to Exclude Prior Convictions `Strikes,'" which the trial court construed as a second petition for writ of habeas corpus.*fn1 That petition was also denied on March 26, 2001. (Lodgment No. 6.)

  On August 23, 2001, Petitioner filed an appeal in the California Court of Appeal, Fourth Appellate District, Division One. (Lodgments Nos. 7-9.) Petitioner argued: 1) it was error to deny his motion to withdraw his guilty plea; 2) it was error to deny his motion to recuse the trial judge; and 3) it was error to deny his motion to strike the prior "strike" convictions. (Lodgment No. 7, Appellant's Opening Brief.) In an unpublished opinion, on June 18, 2002, the state appellate court rejected all of Petitioner's arguments and affirmed the trial court's judgment. (Lodgment No. 13.) Petitioner's petition for review of the state appellate decision was denied by the California Supreme Court on September 25, 2002. (Lodgments Nos. 17-18.)

  On June 11, 2002, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. (Lodgment No. 10.) Petitioner argued: 1) the waiver of his appeal rights made upon entry of a guilty plea was invalid; 2) the sentence he received due to application of the Three Strikes law constituted cruel and unusual punishment; and 3) it was abuse of discretion for the trial court to refuse to dismiss any of his prior strikes. (Id.) The petition was denied on September 25, 2002. (Lodgment No. 19.) The state appellate court found that the first and third claims were denied on appeal and would not be reconsidered on habeas corpus. (Id.) In addition, the court found the second claim, that Petitioner's sentence amounted to cruel and unusual punishment, was never raised in the trial court and was, therefore, waived. (Id.)

  On June 24, 2003, Petitioner filed a third petition for writ of habeas corpus with the trial court. (Lodgment No. 21.) Petitioner argued that: 1) his sentence of 25 years to life violated the Eighth Amendment; 2) application of the Three Strikes law, when he pleaded guilty to having three prior strikes, violated due process and his plea bargain in the strike case; and 3) he received ineffective assistance of counsel in connection with his guilty plea. (Id.) On July 21, 2003, the trial court denied the petition, finding that Petitioner had previously raised the issues and could not raise them again. (Lodgment No. 22.)

  Petitioner then presented these same three issues to the state appellate court in a petition for writ of habeas corpus filed on August 6, 2003. (Lodgment No. 23.) On September 10, 2003, the state appellate court denied the petition. (Lodgment No. 24.) The court found that claims one and two were procedurally barred, because Petitioner did not raise them on appeal. (Id.) In addition, the court found that all of Petitioner's claims failed on the merits. (Id.) On September 23, 2003, Petitioner filed a petition for writ of habeas corpus with the California Supreme Court and raised these same three issues. (Lodgment No. 25.) The petition was denied on June 23, 2004.*fn2

  On August 2, 2004, Petitioner filed the current Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Docket No. 1.) Respondent filed an Answer, Memorandum of Points and Authorities in Support of Answer and Lodgments on December 23, 2004. (Docket Nos. 9-11.) Petitioner filed a Traverse to Matters Raised in Answer and Memorandum of Points and Authorities in Support of Traverse on February 7, 2005. (Docket Nos. 18-19.)

  III. Discussion

  A. Scope of Review

  Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the ...

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