The opinion of the court was delivered by: James P. Hutton United States Magistrate Judge
REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS
BEFORE THE COURT is an amended Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a person in state custody (Ct. Rec. 20) and Respondent's Answer (Ct. Rec. 25). Petitioner appears pro se. Respondent is represented by Deputy Attorney General Wanda Hill Rouzan. This matter was heard without oral argument. After careful review and consideration of the pleadings submitted, it is recommended that the Petition for Writ of Habeas Corpus be denied.
At the time his petition was filed, Petitioner was in custody in Old Folsom State Prison in Folsom, California, pursuant to his 2005 Sacramento County conviction for selling cocaine and offering to sell cocaine, with an admission that he had suffered a prior serious felony conviction. (Lodged Doc. 1 at 1-2.) Petitioner, represented by counsel, pleaded no contest to these two counts and admitted the prior serious conviction in exchange for dismissal of three counts involving controlled substances and additional associated enhancements. Defendant entered his plea on the basis of a negotiated sentence with a maximum of twelve years and eight months. (Lodged Doc. 19 at 11-14, 17-18.) He faced a sentence of 25-years-to-life, or more, if convicted after trial on all five original counts and enhancements. On February 2, 2005, defendant entered his plea. On March 5, 2005, the court accepted the parties' plea agreement and imposed a sentence consistent with the agreement. (Lodged Doc. 19 at 20-23.) Petitioner raises claims of vindictive prosecution, ineffectiveness of trial and appellate counsel, and Blakely*fn1 -based sentencing error. (Ct. Rec. 20.)
The prosecutor provided the factual basis for Mr. Bobbit's pleas:
PROSECUTOR: As to Count 1, on August 15th, 2003, in the County of Sacramento, the defendant sold a usable quantity of cocaine to a confidential informant who was working under the supervision of the United States Drug Enforcement Administration.
As to Count 2, between the dates of August 15th, 2003, and September 26th, 2003, the defendant engaged in a series of negotiations with an undercover investigator from the Sacramento County DA's office in which he offered to sell a quantity of cocaine. The bulk of those negotiations took place in Sacramento County.
And then as to prior conviction number 1, on or about June 14th, 1989, in Yolo County, he was convicted of the crime of residential burglary in violation of Penal Code Section 459. (Lodged Doc. 19 at 15.)
At the preliminary hearing, the trial court found probable cause to believe defendant had committed the crimes. (Lodged Doc. 18 at 134.)
As noted, on February 2, 2005, petitioner withdrew his not guilty plea and entered a counseled plea of no contest to one count of selling cocaine*fn2 and one count of offering to sell cocaine*fn3 and admitted that he had suffered a prior serious felony conviction. (Lodged Docs. 2,19 at 17.) At the conclusion of the hearing Mr. Bobbit was found guilty of the charges and the enhancement was found true. (Lodged Document 19 at 17-18.) Sentence was imposed on March 2, 2005. (Lodged Document 19 at 20-23.)
Prior to accepting the change of plea, the trial court advised Mr. Bobbit that if the court followed the plea agreement, he could be sentenced to a maximum period of twelve years plus eight months. (Lodged Doc. 19 at 13.) In its May 11, 2007, opinion denying Mr. Bobbit's state habeas petition, the superior court stated: petitioner was charged with five substantive offenses involving controlled substances, five Penal Code § 667.5(b) prior-prison-term enhancements, and three "strike priors" based on what may have been three different residential burglaries that were brought and tried together in one proceeding in Yolo County Superior Court. As such, petitioner faced a potential 25-years-to-life sentence, or greater.
To avoid the life sentence, petitioner entered a change of plea on February 2, 2005, in which he pleased no contest to two of the substantive charges and admitted one "strike prior" conviction and Penal Code § 667.5(b) enhancement, in exchange for a promised lid of 12 years 8 months and a dismissal of the remaining charges. In accepting the plea, the court first advised petitioner of his "right to a jury trial," which petitioner then waived.
On March 5, 2005, the trial court imposed the upper term of five years on the first count, doubled it to 10 years pursuant to the one "strike prior" that was admitted, and imposed a consecutive one-third-themidterm term of 2 years 8 months for the second count, for an aggregate term of 12 years 8 months, the stipulated lid. (Lodged Doc. 13 at 1.)
This procedural history followed:
1. Mr. Bobbit filed a brief in the Third Appellate District on October 21, 2005, in support of his appeal. (Lodged Doc. 1.)
2. The Third Appellate District dismissed Mr. Bobbit's first appeal in a published opinion issued April 7, 2006. (Lodged Doc. 2, People v. Bobbit, 138 Cal. App. 4th 445 (2006.)
3. Mr. Bobbit filed a petition for review in the California Supreme Court on May 16, 2006. (Lodged Doc. 3.)
4. The California Supreme Court summarily denied review on June 21, 2006. (Lodged Doc 4.)
5. Mr. Bobbit filed a petition for writ of habeas corpus in superior court on October 4, 2006. (Lodged Doc. 5.)
6. The superior court denied the petition in a reasoned decision issued November 27, 2006. (Lodged Doc. 6.)
7. Mr. Bobbit filed a petition for a writ in the Third Appellate District on December 18, 2006. (Lodged Doc. 7.)
8. Petitioner filed a motion for an evidentiary hearing on December 18, 2006. (Lodged Doc. 8.)
9. The Third Appellate District denied the petition without comment on January 18, 2007. (Lodged Doc. 9.)
10. Mr. Bobbit filed a petition for a writ in the California Supreme Court on February 21, 2007. (Lodged Doc. 10.)
11. The state supreme court summarily denied the petition on July 18, 2007. (Lodged Doc. 11.)
12. Mr. Bobbit filed a petition for a writ in superior court on March 14, 2007. (Lodged Doc. 12.)
13. The superior court denied the petition on May 11, 2007, in a reasoned decision. (Lodged Doc. 13.)
14. Petitioner filed a petition for a writ in the Third Appellate District on May 30, 2007. (Lodged Doc. 14.)
15. On June 7, 2007, the Third Appellate District denied the petition without comment. (Lodged Doc. 15.)
16. Mr. Bobbit filed a petition in the state supreme court on June 21, 2007, for which no disposition is available. (Lodged Docs. 16, 17.)
On August 17, 2007, Mr. Bobbit filed a second amended (current) petition for writ of habeas corpus with this Court. (Ct. Recs. 1, 20.) C. Federal and state claims
In his federal habeas petition, Mr. Bobbit raises the following claims: Federal habeas claim one: Mr. Bobbit's rights to due process under the Fifth and Fourteenth Amendments to the United States Const. were violated by vindictive prosecution when the prosecutor increased the agreed sentence from six years to twelve years eight months based on Mr. Bobbit's motion for compassionate release. (Ct. Rec. 20 at 5.)
Federal habeas claim two: Mr. Bobbit's Sixth Amendment rights were violated trail counsel's ineffective assistance when counsel failed to advise Mr. Bobbit of the consequences of his motion ...