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Capps v. Giurbino

December 15, 2008

PHILLIP LYNN CAPPS, PETITIONER,
v.
WARDEN GIURBINO, RESPONDENT



The opinion of the court was delivered by: Milan D. Smith, Jr. United States Circuit Judge Sitting by Designation

ORDER

Phillip Lynn Capps (Petitioner) is proceeding pro se with an application for a writ of habeas corpus under 28 U.S.C. § 2254(a). Pending before the court are Petitioner's "First Amended Petition," filed on June 26, 2006; Warden Giurbino's (Respondent's) "Answer to Amended Petition for Writ of Habeas Corpus," filed on November 8, 2006; and "Petitioner's Final Response," filed on December 13, 2006. For the reasons discussed below, Petitioner's application for a writ of habeas corpus pursuant to § 2254(a) is denied.

I.

A.

Petitioner pleaded guilty to one count of being a felon in possession of a firearm, in violation of California Penal Code § 12021(a)(1). The state trial court found that Petitioner also had received two prior serious felony convictions within the meaning of the "Three Strikes" law as alleged in the special allegation. CAL. PENAL CODE § 667(b)-(i). After denying Petitioner's request to strike one of the prior convictions, the state trial court sentenced him to twenty-five years to life in prison.

B.

Petitioner timely filed a direct appeal from the state trial court's judgment and sentence in the California Court of Appeal for the Third District. After briefing by the parties, the California Court of Appeal affirmed the state trial court's judgment and sentence on April 2, 2004 in an unpublished opinion.

C.

Petitioner timely filed a petition for review of the California Court of Appeal's decision in the California Supreme Court. The California Supreme Court summarily denied review on June 16, 2004.

D.

Petitioner timely filed a petition for a writ of habeas corpus in the California Supreme Court. The court summarily denied the petition on April 26, 2006.

E.

Petitioner timely filed the pending amended petition for a writ of habeas corpus before this court on June 26, 2006. In its answer filed on November 8, 2006, Respondent concedes that Petitioner has properly exhausted the four state grounds for relief raised in the petition.

II.

The California Court of Appeal summarized the facts presented in the state trial court as follows in its unpublished decision in which it ...


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