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September 29, 2005.

TIMOTHY O'KEEFE, Petitioner,
JEANNE WOODFORD, Director of the California Department of Corrections, Respondent.

The opinion of the court was delivered by: JAMES STIVEN, Magistrate Judge

Timothy O'Keefe, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, raising three grounds for relief. The Court has considered the Petition, Respondent's Answer and Memorandum of Points and Authorities, Petitioner's Traverse and Supplemental Traverse, 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

  At about 11:00 p.m. on December 26, 2000, a student at the University of California, San Diego, saw Petitioner break into an adjacent student apartment through a window, and the student called the campus police. (Lodgment No. 1, Reporter's Transcript, Arraignment, at 4-8.) Officers Michael Kizzee and Karen Scofield responded to the call. (Id. at 46, 50.) Kizzee saw Petitioner inside the apartment, identified himself as a police officer, and called for Petitioner to come outside. (Id. at 51-53.) Petitioner said, "I'm not going back." (Id. at 54.) Later, Petitioner repeated, "I'm not going back to prison." (Id. at 56.) Kizzee continued to direct Petitioner outside, "so we could take care of this." (Id.) Petitioner continued to make comments like, "You're going to have to kill me. You're going to have to shoot me. I'm not going back to prison." (Id. at 57.)

  After continued attempts by the officers to get Petitioner to come out, Petitioner appeared at the window of the apartment with two large knives, one in each hand. (Id.) Petitioner climbed out the window, and the officers directed Petitioner to drop the knives, but he did not. Petitioner made several more advances and warned that he would have to be shot to be stopped. He approached the officers until he was within 10 feet of them, and each of the officers fired at him. (Id. at 60-65.) Petitioner was struck in the chest and in the hand. (Lodgment 2, Clerk's Transcript, at 32.)

  II. Procedural Background

  On December 26, 2000, the San Diego county district attorney's office filed an information charging Petitioner with: 1) assault with a deadly weapon on a peace officer in violation of Cal. Penal Code § 245(c) (count one); 2) assault with a deadly weapon on a second peace officer in violation of Cal. Penal Code § 245(c) (count two); and 3) residential burglary in violation of Cal. Penal Code §§ 459 and 460 (count three). (Id. at 8-9.) The information further alleged that Petitioner had been previously convicted of five serious felonies (residential burglaries) within the meaning of California's Three Strikes Law. (Id.)

  On May 1, 2001, Petitioner pleaded guilty to count one and admitted to four prior strike convictions. (Id. at 27; Lodgment 3, Reporter's Transcript, Change of Plea, at 2.) In return, the district attorney agreed to recommend a sentence of 25 years to life, that the balance of the charges would be dismissed, and that it would recommend sexual offender treatment at Atascadero State Mental Institution ("Atascadero") or California Men's Colony East ("CMC East"). (Lodgment 2 at 27-28; Lodgment 3 at 2-3.) On May 30, 2001, the trial court sentenced Petitioner to 25 years to life and recommended that he serve his sentence at Atascadero and/or CMC East. (Lodgement 4, Reporter's Transcript, Sentencing, at 3-4.)

  On July 3, 2001, Petitioner filed a Notice of Appeal and a Request for a Certificate of Probable Cause, in which he asserted: 1) ineffective assistance of counsel, because he did not end up going to Atascadero or CMC East; and 2) he felt pressured by the trial court and the district attorney to enter into his guilty plea. (Lodgment 1 at 60-61.) Petitioner's appointed appellate counsel filed an opening brief on appeal but raised no specific issues. (Lodgment 5.) Instead, the brief pointed to five possible issues to assist the state appellate court in conducting its own independent review of the case: 1) whether Petitioner received effective assistance of counsel; 2) whether the pleas were constitutionally valid; 3) whether the trial court abused its discretion in denying Petitioner's request for a certificate of probable cause; 4) whether Petitioner's waiver of appeal rights was valid; and 5) whether the trial court abused its discretion in imposing a $5,000 restitution fine. (Id. at 8-9.) The California Court of Appeal, Fourth Appellate District, Division One, concluded that a review of the record disclosed no reasonably arguable appellate issue. (Lodgment No. 6.) The court affirmed the judgment of the trial court. (Id.)

  While direct appeal was pending, Petitioner filed his first petition for writ of habeas corpus in the state superior court on October 19, 2001. (Lodgment 8 at 2.) He asserted that his guilty plea was illegally entered, because: 1) he received ineffective assistance of counsel; and 2) he was pressured into accepting his plea. (Id.) That petition was denied because the direct appeal was still pending. (Id.) Petitioner filed his second habeas petition on January 29, 2002, asserting that the Department of Corrections failed to take steps to ensure his safety. (Id.) The petition was denied, because Petitioner failed to exhaust administrative remedies and because he failed to state a prima facie case for relief. (Id.) Petitioner filed his third habeas petition on April 8, 2002, raising the same issues set out in his first petition. (Id.) The petition was denied on May 7, 2002, because the state appellate court had not yet issued a remittitur. (Id.)

  On June 20, 2002, Petitioner filed a fourth habeas petition asserting the same grounds raised in the first and third petitions. (Id.) By that time, the state appellate court had issued a remittitur, so the superior court had jurisdiction to consider the petition, and the court denied the petition on June 21, 2002. (Id.) The court determined that the matters were procedurally barred, because they had been raised on direct appeal and could not be reviewed on a habeas petition absent special circumstances. (Id. at 2.) The court then determined that the petition also failed on the merits. (Id. at 3.) On September 17, 2003, Petitioner filed a petition for writ of habeas corpus in the state appellate court, asserting ineffective assistance of counsel and that he was impaired when he entered into his plea. (Lodgment 9.) The state appellate court denied that petition on October 15, 2003. (Lodgment 10.) On December 1, 2003, Petitioner filed a petition for writ of habeas corpus with the California Supreme Court and raised the same two issues in addition to a third one: his negotiated plea violated Cal. Penal Code § 1170.12, which precludes bargaining over prior strike offenses. (Lodgment 11.) The petition was denied by the state supreme court on September 15, 2004. (Lodgment 12.)

  On October 19, 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 January 11, 2005. (Docket Nos. 18-20.) Petitioner filed a Traverse*fn1 on April 19, 2005 and a Supplemental Traverse*fn2 on July 12, 2005.

  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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