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Brewer v. Salazar

May 20, 2009

MIKE BREWER, PETITIONER,
v.
JOHN SALAZAR, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER ADOPTING REPORT AND RECOMMENDATION FOR WRIT OF HABEAS CORPUS

On January 4, 2008, Mike Brewer ("Petitioner"), a California prisoner proceeding pro se, filed a Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging various aspects of his sentencing. (Doc. No. 1.) On May 15, 2008, John Salazar ("Respondent"), Warden of Chuckawalla Valley State Prison, filed his Answer in Opposition and Memorandum of Points and Authorities. (Doc. No. 9.) On June 4, 2008, Petitioner filed his Traverse to Respondent's Answer. (Doc. No. 10.) On August 27, 2008, the Magistrate Judge filed a Report and Recommendation, recommending that this Court deny Petitioner's Petition for writ of habeas corpus. (Doc. No. 11.)

For the reasons set forth below, the Court ADOPTS the Report and Recommendation, and DENIES Petitioner's Petition for writ of habeas corpus.

Background

A. Procedural History

On April 14, 2006, Petitioner pled guilty*fn1 to one count of failing to register as a sex offender under Cal. Penal Code § 290(g)(2). Petitioner also admitted prior convictions under the California Three Strikes Law for kidnaping and sexual offenses. See Cal. Penal Code §§ 667(b) and 1170.12(a)-(d). (Lodgments 2, 3.) Petitioner was then sentenced to six years in prison. (Lodgment 4.)

On February 27, 2007, Petitioner filed a petition for writ of habeas corpus with the California Superior Court. (Lodgment 5.) The Superior Court denied the petition on March 6, 2007, noting that Petitioner provided no record to substantiate his claims. (Lodgment 6.) On March 21, 2007, Petitioner filed a second petition with the Superior Court, which was also denied on April 2, 2007. (Lodgments 7, 8.) Petitioner then filed supplemental documents with the Superior Court on April 17, 2007 in an effort to further support his previous petitions. After treating the new filing as a motion to reconsider, the Superior Court denied the petition on May 11, 2007. (Lodgment 9.)

Petitioner subsequently filed a petition for writ of habeas corpus with the California Court of Appeal on April 12, 2007. (Lodgment 10.) The petition was denied without comment or citation on April 19, 2007 (Lodgment 11.) On May 3, 2007, Petitioner appealed to the California Supreme Court (Lodgment 12), which denied the petition on October 31, 2007 without comment or citation. (Lodgment 13.)

On January 4, 2008, Petitioner filed this Petition for writ of habeas corpus with the United States District Court for the Southern District of California. (Doc. No. 1 at 1.) Petitioner alleged that (1) his due process rights under Fourteenth Amendment to the Federal Constitution were violated because he did not receive 50% good-time, or work-time, custody credits, even though he was told that he would receive such credit; (2) his rights under the Eighth Amendment to the Federal Constitution were violated because his sentence, absent the 50% work-time custody credit, amounted to cruel and unusual punishment; and (3) his rights under the Sixth Amendment to the Federal Constitution were violated because his sentence was improperly enhanced based on factors not found by a jury. (Doc. No. 1 at 6-10.)

Discussion

A. Standard of Review

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") amended 28 U.S.C. § 2254(d) to provide the following standard of review applicable to state court decisions:

(d) 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 ...


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