FINDINGS AND RECOMMENDATIONS
Petitioner is a state prison inmate proceeding pro se with a petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his count one and count two convictions on double jeopardy grounds, and challenging his upper term sentence on count two as violating the Sixth Amendment. Respondent has filed an answer and petitioner, his traverse.
Petitioner was charged based on three incidents occurring on the evening of September 16, 2002: a physical fight with Anthony Davis that resulted in Davis's lower orbital floor being fractured; a fire at Davis's home started by a molotov cocktail, allegedly made and thrown by petitioner; and a police chase of petitioner while he was driving under the influence, evading officers, and fleeing the scene of an accident after hitting a road sign. Mem. P. & A. in Supp. Pet. (Pet.) at 5-12. At trial, petitioner argued that he fought Davis in self defense and denied any involvement in the fire. See, e.g., RT 778-779 (defense closing).
Following a jury trial, petitioner was convicted of the following: count one, battery with serious bodily injury (Cal. Penal Code § 243(d)); count two, assault by means of force likely to produce great bodily injury and personally inflicting great bodily injury (Cal. Penal Code §§ 245(a)(1), 12022.7(a)); count five, attempting to elude an officer by means of a vehicle chase (Cal. Veh. Code § 2800.2(a)); count six, failure to stop at the scene of an accident involving property damage (Cal. Veh. Code § 20002(a)); count seven, driving under the influence of alcohol (Cal. Veh. Code § 23152(a)); count eight, driving with a blood alcohol level of .08 percent of more (Cal. Veh. Code § 23152(b)); and count nine, driving when privilege suspended because of driving under the influence of alcohol (Cal. Veh. Code § 14601.2(a)).
CT 334-340; RT 959-960; see also Pet. at 2-3; Answer at 4.
The jury was deadlocked on two additional counts, counts three and four, so the court declared a mistrial on those counts. CT 357, 359, 361. Count three charged petitioner with a violation of California Penal Code section 12303.3, possession of a destructive device with intent to injure, and count four charged petitioner with a violation of California Penal Code section 451(b), arson of an inhabited structure. CT 57. Petitioner waived his right to a jury trial for his prior convictions and allowed a court trial instead. RT 956-957. At the bench trial, the court found five separate, prior, prison terms and one prior strike allegation to be true (Cal. Penal Code §§ 667(a), (b)-(I), and 667.5(b)). RT 965, 978-981.
Petitioner was sentenced to twenty-one years and four months in state prison, in accordance with the recommendation given in the Probation Department's report. For count one, petitioner was sentenced to six years, which included a prior felony conviction enhancement under California Penal Code section 1170.12; this term was stayed under California Penal Code section 654. For count two, petitioner was sentenced to a term of eight years, which included a prior felony conviction enhancement under California Penal Code section 1170.12, and a great bodily injury enhancement, plus an additional three years under California Penal Code section 12022.7(a), because the injury occurred during the commission, or attempted commission, of a felony. RT 1022-1024.
Petitioner filed an appeal with the Court of Appeal of the State of California, Third Appellate District. Lodged Doc. No. 1; Answer at 4. On January 3, 2006, the Court of Appeal affirmed petitioner's judgment, but modified his sentence by staying count six based on California Penal Code section 654.*fn1 Lodged Doc. No. 6 at 13. On February 14, 2006, petitioner filed a petition for review in the Supreme Court of California, which was denied on March 22, 2006. Lodged Docs. Nos. 7, 8. Petitioner filed this federal habeas petition on January 5, 2007.
II. Petitioner's Allegations
Petitioner alleges two errors in his sentence. First, petitioner argues that the double jeopardy clause requires that his conviction on count one, battery with serious bodily injury, be reversed or vacated because it is a lesser-included offense of count two, which charged assault with a great bodily injury enhancement, of which he also was convicted. Pet. at 14-15. Second, petitioner argues he was unconstitutionally sentenced to the high term on count two, in violation of his right to have a jury determine the facts legally essential to his sentence under the Fifth, Sixth and Fourteenth Amendments. Pet. at 22-23.
Petitioner also appears to make some state law claims that are not properly before this court, because the court cannot grant relief through a federal writ of habeas corpus on claims arising under the California Constitution. 28 U.S.C. § 2254(a). Petitioner argues the California state constitution prohibits double jeopardy and the California courts have held that multiple convictions may not be based on necessarily included offenses. Pet. at 17. Petitioner also relies on California courts' determinations holding that enhancements may not be considered for the purpose of defining lesser-included offenses. Pet. at 18. Here as well, petitioner's arguments are not cognizable as federal habeas claims. Moreover, petitioner's arguments based on state law already have been made and rejected at the state court level. Answer at 2; Lodged Docs. Nos. 1, 3, 4 & 7.
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). Federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings 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 ...