The opinion of the court was delivered by: Milan D. Smith, Jr. United States Circuit Judge Sitting by Designation
Petitioner Noah Church, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a). Pending before this court are Church's petition for a writ of habeas corpus (Pet.), Respondent James A. Yates's answer (Ans.), Church's traverse to the answer (Trav.), and Lodged Documents 1-6. For the reasons discussed below, Church's petition is DENIED.
I On February 10, 2006, Church was convicted by a Shasta County Superior Court jury of possession of heroin for sale (Health and Safety Code § 11351); maintaining a place for selling heroin (Health and Safety Code § 11366); possession of an injection/smoking device (Health and Safety Code § 11364); and possession of a needle/syringe (Business and Professions Code § 4140). Lodged Doc. 4 at 1. Church was sentenced to twenty-eight years to life in prison, consisting of 25 years to life for possessing heroin for sale, plus a consecutive three years for the narcotics enhancement. Lodged Doc. 4 at 2. He is currently serving this sentence.
Church filed a direct appeal of the conviction with the California Court of Appeal, Third Appellate District. In its decision affirming the judgment, the Court of Appeal summarized the relevant facts as follows:*fn1
We need not recount in detail the facts of the underlying offenses. Suffice it to say that on May 22, 2005, the Shasta Interagency Narcotics Task Force searched [Church's] residence -- a room at the Capri Motel in Redding, which he shared with his wife and son -- and found hypodermic syringes, approximately one-quarter gram of heroin, a digital scale, a used glass pipe, "pay/owe" sheets, "clean packaging," a loaded .50 caliber handgun, and ammunition. Officers also searched a van parked near the hotel room and found approximately 7.9 grams of heroin behind the ashtray and a glass pipe on a ledge over the driver's seat door. [Church] told one of the law enforcement officers the heroin "underneath" the ashtray was his.
Both of [Church's] prior strike convictions were for attempted robbery. [Church] was convicted of attempting to rob two separate victims. Both attempted robberies occurred on October 1, 1983, and involved the use of a knife. [Church] was sentenced to three years for one of the attempted robberies and a consecutive eight months for the other. In deciding to impose consecutive sentences, the trial court found "the crimes involved separate acts of violence" and "multiple victims."
Before the sentencing hearing in this case, [Church] made a request pursuant to People v. Superior Court (Romero) [, 917 P.2d 628 (Cal. 1996),] and Penal Code section 1385 to strike at least one of his prior convictions. Although the court found the motion was "a close one," it denied it. Lodged Doc. 4 at 2-3.
The California Court of Appeal for the Third Appellate District affirmed Church's conviction on direct appeal on July 5, 2007. Lodged Doc. 4. On September 12, 2007, the California Supreme Court denied Church's petition for review.
Church filed his petition for a writ of habeas corpus in this court pursuant to 28 U.S.C. § 2254(a) on August 28, 2008. Pet. 6. Church has exhausted his state remedies.
A Church's petition was filed after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, a federal court has limited power to ...