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Hayes v. Cate

July 9, 2009

LEVERT HAYES, JR., PETITIONER,
v.
MATTHEW CATE, SECRETARY, RESPONDENT.



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

ORDER ADOPTING REPORT AND RECOMMENDATION and DENYING WRIT OF HABEAS CORPUS

On August 12, 2008, Levert Hayes, Jr. ("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 November 7, 2008, Matthew Cate ("Respondent"), filed his Answer with a Memorandum of Points and Authorities. (Doc. No. 7.) Petitioner did not file a Traverse to the Answer, nor has Petitioner requested additional time to file one. On March 13, 2009, the Magistrate Judge filed a Report and Recommendation, recommending that this Court deny the Petition for writ of habeas corpus. (Doc. No. 15.)

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

Background

A. Procedural History

On March 17, 2004, Petitioner pled guilty to first degree robbery. (Lodgment 2 at 11.) Petitioner also admitted that the juvenile court made two true findings for robbery, both on June 20, 1996. (Lodgment 2 at 7, 11.) As part of his guilty plea, Petitioner stipulated to a sentence term of 25 years to life. (Lodgment 2 at 9.) Petitioner waived his right to appeal any issues related to the prior strikes in the plea agreement. (Lodgment 2 at 10.) The court at the change of plea hearing noted that Petitioner reserved his right to appeal the constitutionality of using non-jury juvenile adjudications as strikes to enhance his sentence. (Lodgment 3 at 21.)

Petitioner's appeal was unsuccessful on procedural grounds. (Lodgments 4, 5, and 10.) Petitioner then filed a petition for writ of habeas corpus for a late issuance of a Certificate of Probable Cause. (Lodgment 10 at 9.) The California Supreme Court denied the petition on November 30, 2005. (Lodgment 10 at 7.) On July 6, 2006, Petitioner filed a petition for writ of habeas corpus in the California Superior Court based on ineffective assistance of counsel. (Lodgment 8 at 4-5.) The petition was dismissed for lack of jurisdiction to recall the Court of Appeal's remittitur. (Lodgment 10, Ex. M at 3.) Petitioner then filed a motion to recall the remittitur with the Court of Appeal, which was denied. (Lodgment 10, Ex. N.)

On August 22, 2007, Petitioner filed a second petition for writ of habeas corpus in the California Superior Court alleging that his juvenile priors, which enhanced his sentence under the California Three Strikes Law, violated his Sixth Amendment rights under the Federal Constitution. (Lodgment 9 at 1.) Petitioner also raised Fourteenth Amendment equal protection claims, and argued in the alternative that his plea should be withdrawn since it was made involuntarily. (Lodgment 9 at 14-26.) The Superior Court denied the petition on the merits. (Lodgment 1, Ex. O.) On December 7, 2007, Petitioner filed a petition for writ of habeas corpus with the California Court of Appeal. The Court of Appeal denied the petition without prejudice pending the outcome of People v. Nguyen, a case pending before the California Supreme Court. (Lodgment 11.) Petitioner then filed for a writ of habeas corpus with the California Supreme Court. The California Supreme Court denied the petition on the same grounds as the Court of Appeal. (Lodgment 13.)

On August 12, 2008, Petitioner filed this Petition in the Southern District of California. Petitioner alleges that the use of juvenile priors to enhance his sentence violates his Sixth and Fourteenth Amendment rights under the Federal Constitution, that he had ineffective assistance of counsel, and that, in the alternative, his plea agreement was not knowingly and voluntarily made. (Doc. No. 1.)

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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