FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner, proceeding pro se, with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 On March 18, 2004, the Tehama County Superior Court found petitioner guilty of one count of petty theft (California Penal Code §666), with a prior, and found the enhancement allegations based upon prior felony convictions, admitted to by petitioner, to be true. (Resp't Lodged Doc. 1, Clerk's Transcript on Appeal (hereinafter "CT") at 8-12, 19.) Petitioner was sentenced to an indeterminate term of twenty-nine years-to-life in state prison. (Id. at 38-41.) In his petition before this court petitioner alleges that: (1) "the trial court abused its discretion by declining to grant petitioner's motion to dismiss some of his prior strike convictions for a lesser sentence"; (2) "his sentence is cruel and unusual, wrongly upheld by state courts, and must be interjurisdictionally compared for disproportionality"; and (3) he was "denied his constitutional right to effective assistance of counsel and, thus, a fair trial." (Pet. at 6.) Upon consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts were taken from the unpublished opinion of the California Court of Appeal for the Third Appellate District:
On June 26, 2003, [petitioner] went to a recycling center and sold recyclables to Lloyd Guinn. Guinn paid [petitioner] from a cash box located inside a desk. After getting the money, [petitioner] had a drink and moved around behind the desk. Guinn told [petitioner] he was not supposed to be behind the desk. [Petitioner] claimed he was looking for ice, which Guinn told him they did not have. [Petitioner] then went to his truck and drove away. Guinn took the recyclables out to the crusher where for three to five minutes he could not see the office. As Guinn was dumping recyclables into the crusher, he heard a boy who was working at a nearby taco wagon yell, "That man took your box." Guinn ran to the office and found the cash box missing. The cash box contained $210.
The boy had seen [petitioner] park his truck, pace in front of the recycling center, and then go in. A minute later he saw [petitioner] exit the center with a cash box and drive away.
Within an hour, Sergeant Craig Bassett found [petitioner] playing slots at the Rolling Hills Casino. Sergeant Bassett told [petitioner] he was investigating a theft at the recycling center and that he knew [petitioner] had taken the cash box. [Petitioner] denied it, and Sergeant Bassett said he had seen [petitioner] take the cash box on videotape. [Petitioner] replied, "I did take the cash box, I need money to pay bills." [Petitioner] claimed he only had $20 left and that he had given some to his brother. [Petitioner] said he grabbed the box when Guinn had turned around. [Petitioner] then took Sergeant Bassett to his brother's apartment where the cash box was stashed.
Officer Kimberly Lim interviewed [petitioner] at the Corning Police Department. [Petitioner] asserted he found the cash box across the street from the recycling center after hearing the sound of something hitting the ground and seeing someone running away. [Petitioner] claimed there was only a small amount of money in one-dollar bills and change in the box.
(Resp't Lodged Doc. 2 (hereinafter Opinion) at 2-3.)
Petitioner timely appealed from his judgment of conviction, raising the same issues on appeal as he presents in his habeas petition before this court. (Id. at 4-14.) The California Court of Appeal affirmed petitioner's conviction and sentence. (Id.) Petitioner filed a petition for review with the California Supreme Court which was denied on January 12, 2005. (Resp't Lodged Docs. 3-4.)
I. Standards of Review Applicable to Habeas Corpus Claims
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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 ...