The opinion of the court was delivered by: Marilyn Hall Patel United States District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Raymon Allen Curtis, currently on parole in Mendocino County, California, filed this pro se action seeking a writ of habeas corpus under 28 U.S.C. § 2254. This matter is now before the court for consideration of the merits of the pro se habeas petition. For the reasons discussed below, the petition is denied.
On April 2, 2004, Curtis pled guilty to possession of a controlled substance for sale and admitted that he was armed with a firearm during the commission of the offense. See Cal. Health & Safety Code § 11378; Cal. Penal Code § 12022. Three weeks later, on April 23, 2004, Curtis was temporarily allowed out of jail to visit his sick father in a hospital. After excusing himself to use the restroom at the hospital, he absconded. After being apprehended again, Curtis pled guilty to escaping from jail. See Cal. Penal Code § 4532(b)(1). 6/3/04 RT 5.
On July 1, 2004, he was sentenced to a total of four years and eight months in prison. The term consisted of the upper term of three years on the drug offense, plus a consecutive one-year term for the firearm enhancement, plus eight months for the escape. In this petition Curtis challenges the upper term sentence he received for the drug offense.
In choosing the upper term sentence for the drug offense, the sentencing court found the following aggravating circumstances: (1) the "defendant's prior convictions are both numerous and of increasing seriousness," (2) the defendant "was on three separate grants of probation when he committed this offense," (3) the defendant's "prior performance on probation was unsatisfactory," and (4) the crime involved "an enormous amount of controlled substance." 7/1/04 RT 28; see Cal. Rule of Court 4.421(b)(2), (4), (5), (10). The court then balanced the aggravating circumstances against the mitigating circumstances and found that Curtis' attempt to escape outweighed the mitigating circumstances that Curtis "suffered from drug addiction and chronic mood disorder" and had admitted "wrongdoing at an early stage of the criminal process." 7/1/04 RT 28; see Cal. Rule of Court 4.423(b)(2), (3). Tthe court imposed a sentence of three years on the drug offense, plus one year for the firearm enhancement, plus eight months for the escape conviction. Curtis appealed. The California Court of Appeal affirmed the conviction on July 22, 2005, and the California Supreme Court denied the petition for review on September 28, 2005.
This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in Mendocino County, California, within this judicial district. 28 U.S.C. §§ 84, 2241(d).
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c). The parties do not dispute that state court remedies were exhausted for the claim asserted in the petition.
This court may entertain a petition for 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 Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision ...