The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is represented by Robert Navarro, Esq.
On June 4, 2004, Petitioner pled guilty to being a felon in possession of a firearm, a.22-caliber rifle (Cal. Penal Code § 12021(a)(1),*fn1 count one). Petitioner also admitted three prior strike convictions within the meaning of the Three Strikes law (§§ 667(c)-(j) & 1170.12(a)-(e)), consisting of violations of section 261.2,*fn2 sections 220/288(a), and section 245(a)(1), and one prior prison term within the meaning of section 667.5(b). All other charges were dismissed in exchange for his plea.
On July 1, 2004, the trial court denied Petitioner's motion to strike his prior convictions, and he was sentenced to a total state prison term of 25 years- to- life. (CT 6.)
Petitioner filed a timely notice of appeal to the California Court of Appeal, Fifth Appellate District. On February 21, 2006, the Court of Appeal vacated Petitioner's sentence, finding one of the strike convictions did not qualify as a strike and his trial attorney rendered ineffective assistance for failing to raise such issue to the trial court.*fn3 The case was remanded for reconsideration of Petitioner's motion to strike the prior convictions "and for resentencing following preparation and consideration of a new probation report." (CT 5-12.)
Thereafter, on June 30, 2006, Petitioner filed a motion pursuant to section 1385 to strike one of the prior convictions. (CT 50-68.) The People filed an opposition on July 7, 2006. (CT 118-127.)
On July 11, 2006, the trial court denied Petitioner's motion to strike a prior conviction and resentenced him to 25 years- to- life and stayed the one-year prior prison term enhancement. Petitioner was given credit for a total of eighty-seven presentence custody days and the California Department of Corrections and Rehabilitation was ordered to recalculate credits for time served by Petitioner after his original commitment. In addition, Petitioner was ordered to pay fines and restitution. (CT 130-131, 135-136.)
The California Court of Appeal affirmed the judgment, with the exception of striking the prior prison term enhancement and modifying the custody credits. (Lodged Doc. No. 5, Opinion, at 9.) The California Supreme Court denied review. (Lodged Doc. Nos. 3-4.)
Petitioner filed the instant federal petition for writ of habeas corpus on October 23, 2008. (Court Doc. 1.) Respondent filed an answer to the petition on January 30, 2009. (Court Doc. 14.) Petitioner filed a traverse on March 28, 2009. (Court Doc. 19.)
On May 4, 2004, at approximately 12:58 a.m., officers effected a traffic stop on a suspect vehicle for speeding. The driver of the vehicle was identified as Juan Carlos Olivas, the defendant. While speaking to the defendant, officers observed a twelve-ounce opened can of Budweiser beer near the floorboard of the vehicle and a glass water bong sitting on top of the front passenger seat. The defendant exited the vehicle and was searched, at which time officers located a pocket knife and a glass narcotics smoking pipe on his person.
A search of the defendant's vehicle revealed a knife hidden between the front driver's seat and the transmission. In the trunk area of the vehicle, officers located a pair of jeans which were wrapped around a.22 caliber rifle with a broken stock. The firearm was not loaded; however, it appeared to be functional.
When questioned, the defendant stated he found the rifle near the Howard's Mini Market at the corner of Bernard and Haley Streets. He stated the pipe found on his person was used for incense burning, not for narcotics use and denied knowledge of the glass water bong lying on the front passenger seat of the vehicle. The defendant was subsequently transported to the Kern County Jail ...