FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas corpus. See 28 U.S.C. § 2254. He has filed a motion to submit supplemental briefing on his contention that his sentence violates the holding of Apprendi v. New Jersey, 530 U.S. 446, 490 (2000). He also seeks to amend his petition to add a claim that the trial court relied on inadmissible evidence to prove he was eligible for enhanced sentencing and that his counsel was ineffective in failing to raise this issue on appeal. For the reasons explained below, the court denies the request for supplemental briefing and recommends that the motion to amend be denied.
On August 2, 2001, the State of California charged petitioner with robbery and grand theft, and alleged that he had prior convictions of serious felonies which made him eligible for enhanced sentencing. Resps.'s Ans., Docs. Lodged in Supp. ("Lodg. Docs."), Lodg. Doc. 17, at 2-4. Pursuant to his plea of guilty, he was convicted of robbery. Lodg.. Doc. 17, at 512. State law entitled him to a trial at which a jury would determine whether the prosecution proved beyond a reasonable doubt that he had previously been convicted of crimes that could support enhancement of his sentence. People v. Towers, 57 Cal.Rptr. 3rd 530, 532 (Cal. App. 2007); People v. Jones, 44 Cal.Rptr.2d 552, 554 (Cal. App. 1995). However, petitioner waived this right. Lodg. Doc. 18, at 122. Thus, the trial judge heard evidence and found that the petitioner had two prior convictions of armed robbery resulting from federal prosecutions. Lodg. Doc. 18, at 125, 147; Lodg. Doc. 4, at 2. Judgment was entered on November 1, 2002. Lodg. Doc. 17, at 512.
Petitioner filed his application for federal habeas relief on December 27, 2005. In it, he asserts three grounds for relief: (1) his plea of guilty was involuntary; (2) his sentence was imposed in violation of the negotiated plea agreement; (3) his sentence violates the Sixth Amendment right to jury trial and the Due Process Clause of the Fourteenth Amendment, see Apprendi v. New Jersey, 530 U.S. 446, 490 (2000). In particular, petitioner argues that the trial judge should have permitted the jury to determine whether the elements of the out-of-state crimes were substantially similar to the equivalent offenses in California.*fn1 Trav. at 26-27. In his proposed supplemental brief he argues that the prosecution did not prove beyond a reasonable doubt the existence of the prior convictions. Supp. Brf. at 4-6. In their answer, the respondents argue that the holding in Apprendi, explained below, defeats his claim.
Petitioner moves to amend his petition to add a claim that the trial court considered inadmissible evidence in finding that the prior felonies could be used to enhance his sentence in violation of state law. See People v. Trujillo, 51 Cal. Rptr.3d 718, 728 (Cal. 2006). In addition, petitioner wants to add a claim that his appellate counsel was ineffective for failing to argue the inadmissibility of certain evidence the trial court considered at sentencing.
II. Supplemental Briefing
Supplemental briefing is permitted when it will assist the court in resolving an issue before it. Here, that issue is whether petitioner's sentence was rendered in violation of the Sixth and Fourteenth Amendments of the Constitution as applied in Apprendi. Petitioner argues that the question of whether these prior convictions existed should have been submitted to the jury.*fn2
Pet., at 23. The supplemental argument that he would provide elaborates on how he believes the holding in Apprendi applies in this case. The additional briefing is unnecessary. Petitioner has already made his point and the law in this area is well-settled. Facts used to prove recidivism, such as those necessary to prove the defendant previously was convicted of a serious felony, typically do "not relate to the commission of the offense" charged. Almendares-Torres v. United States, 523 U.S. 224, 243 (1998). Instead, such facts relate to the sentence that will be imposed if a defendant is convicted. Id.
Under United States Supreme Court precedent, the process of proving facts which relate only to a defendant's sentence and which could be used to increase the possible minimum sentence are not subject to the same Constitutional requirements as the elements of a crime. McMillian v. Pennsylvania, 477 U.S. 79, 85-86, 89 (1986). Thus, such facts need not be alleged in a charging document or presented to a jury for proof beyond a reasonable doubt. See Id. Quite simply, recidivism "is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence." Almendares-Torres v. United States, 523 U.S. 224, 243 (1998). Therefore, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (emphasis added).
It is clear from the record that the court merely determined that petitioner had been convicted of prior felonies, and imposed an enhanced sentence pursuant to state law. Under Apprendi, this was permissible. Petitioner has no viable challenge to his sentence under Apprendi. Thus, the briefing is adequate for the court to resolve the issues and petitioner's request to submit supplemental briefing on this question is denied.
III. Amending the Petition
Motions to amend a petition for a writ of habeas corpus is governed by the same standards as a motion to amend a complaint in other civil actions*fn3 and are governed by Fed. R. Civ. P. 15. Mayle v. Felix, 545 U.S. 644, 649 (2005). As noted above, respondents have failed to file either an opposition or a statement of no-opposition to the motion. However, it is clear that an amendment here would be futile. As discussed below, the first proposed claim is grounded in state law and in not cognizable in this federal habeas petition. The second proposed claim is time barred.
Petitioner seeks to add two claims: first, that the prosecution did not properly prove facts demonstrating recidivism; second, that counsel was ineffective in failing to raise this issue on appeal. With respect to the first, he argues that the trial court's reliance on statements in a federal probation report was unlawful. Supp. Brf. at 6-7. He points to recent California case authority that where there is no other evidence of the facts underlying the conviction, it is unlawful for the finder of fact to rely on a defendant's statements contained in a probation report to establish that the defendant was armed. See People v. Trujillo, 51 Cal.Rptr.3d 718, 729 (Cal. App. 2006). However, this claim is not cognizable on federal habeas law and an amended petition to assert it would be futile.
A district court must entertain a habeas petition "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). Habeas relief is unavailable for alleged errors in the interpretation and application of state law. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991); Engle v. Issac, 456 U.S. 107, 119 (1982); Butcher v. Marquez, 758 F.2d 373, 378 (9th Cir.1985); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985). Petitioner cites no federal precedent in attempting to persuade the court that he should be permitted to add this claim. Moreover, the state court's holding in Trujillo is based solely on ...