The opinion of the court was delivered by: Hayes, Judge
ORDER ADOPTING REPORT AND RECOMMENDATION
The matter before the Court is the review of the Report and Recommendation of Magistrate Judge Barbara L. Major, filed on November 15, 2006, recommending that Petitioner's Petition for Writ of Habeas Corpus be denied and that the case be dismissed with prejudice. (Doc. #10).
On December 28, 2005, Petitioner Arnesa Joyner (Petitioner), a state prisoner proceeding pro se, filed a petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. # 1). Petitioner contends that her sentence pursuant to California's determinate sentencing scheme for possession of a controlled substance (cocaine base) was unconstitutional, and contrary to Blakely v. Washington, 542 U.S. 296 (2004). Lodgments 4, 6. Respondents contend that the petition should be denied because Petitioner has failed to show that adjudication of this claim by the state court on the merits was contrary to, or an unreasonable application of Blakely. Answer at 2.
On April 15, 2003, police contacted Petitioner and found her in possession of .27 grams of cocaine base. Lodgment 1 at 19. On April 17, 2004, the District Attorney of San Diego filed a criminal complaint against Petitioner, and charged her with possession of a controlled substance in violation of California Health and Safety Code § 11350(a) ("count one") and possession of paraphernalia used for narcotics in violation of California Health and Safety Code § 11364 ("count two"). Lodgment 1 at 1-2. On April 25, 2003, Petitioner pled guilty to count one and admitted two prison priors. Lodgment 1 at 1-3, 36; Lodgment 2 at 1. The prosecution dismissed count two pursuant to Petitioner's plea agreement, and the case proceeded to sentencing. Lodgment 2 at 1; Lodgment 3 at 1-2.
California has a determinate sentencing scheme where most offenses are punishable by one of three possible terms of imprisonment: a lower term, a middle term, and an upper term. Cunningham v. California, 127 S.Ct. 856, 861 (2007). At the time of Petitioner's sentencing in early 2004, a sentencing judge in the California Superior Court could deviate from the presumptively correct middle term by considering facts in aggravation or mitigation proven by a preponderance of the evidence. See People v. Black, 35 Cal. 4th 1238, 1247 (2005), overruled by Cunningham v. California, 127 S.Ct. 856 (2007); see also Cal. Penal Code § 1170. Thus, at Petitioner's sentencing hearing on February 13, 2004, the trial court stated that it considered several documents pertaining to Petitioner's treatment status and parole violations, including the probation officer's February 10, 2004 probation report which listed several circumstances both in mitigation and aggravation. Lodgment 3 at 251-52, 258. After considering the circumstances in mitigation and aggravation, and after hearing arguments by counsel and Petitioner, the court sentenced Petitioner to four years in state prison. The sentence consisted of the middle term of two years for count one with additional one-year terms for each of the prison priors. Lodgment 1 at 30, 45; Lodgment 3 at 258-59.
Petitioner appealed to the California Court of Appeal, Fourth Appellate District, Division One. Lodgment 4. On appeal, Petitioner argued that her sentence to the middle term of two years on count one was unconstitutional, and contrary to Blakely. Lodgments 4, 6. Specifically, Petitioner argued that once she presented mitigating evidence at sentencing, Blakely set the lower term sentence as the statutory maximum sentence. Petition at 6. On April 14, 2005, the California Court of Appeal rejected Petitioner's claim and affirmed Petitioner's conviction. Lodgment 7.
On May 13, 2005, Petitioner filed a petition for review in the California Supreme Court, arguing the same claim for relief that she had argued in the California Court of Appeal. Lodgment 8. On June 22, 2005, the California Supreme Court denied the Petition for review without comment or citation to authority. Lodgment 9.
On December 21, 2005, Petitioner filed the instant Petition for Writ of Habeas Corpus, raising the same Blakely claim that she raised in the California Court of Appeal and in the California Supreme Court. (Doc. # 1). Respondent answered on March 16, 2006. (Doc. # 7). On November, 15, 2006, Magistrate Judge Barbara L. Major filed a Report and Recommendation recommending that Petitioner's Petition for Writ of Habeas Corpus be denied and the case be dismissed with prejudice. (Doc. # 10). The parties did not file objections to the Report and Recommendation.
The duties of the District Court in connection with a Magistrate Judge's Report and Recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The District Court "shall make a de novo determination of those portions of the report to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(c).
When no objections are filed, the District Court may assume the correctness of the Magistrate Judge's findings of fact and decide the motion on the applicable law. Brilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989). Under such circumstances, the Ninth Circuit has held that "a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo." Id., citing Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983).
In her Petition for Writ of Habeas Corpus, Petitioner asserts that her sentence to the middle term of two years on count one must be vacated because Blakely requires imposition of the low term where the defendant has presented evidence in mitigation. Petition at 6. Petitioner acknowledges that the middle term is the presumptively correct sentence when no facts in mitigation or aggravation are presented to the court. Petition at 6. Petitioner contends, however, that once mitigating facts are presented, Blakely requires a jury determination as to the truth or falsity of those facts, and the low term becomes the maximum sentence that may be imposed absent a jury trial. Petition at 6. ...