The opinion of the court was delivered by: J. Clifford Wallace United States Circuit Judge
Petitioner Bustillos filed a petition for writ of habeas corpus pursuant 28 U.S.C. section 2254, challenging his sentence of 10 years and 8 months imposed pursuant to his plea of guilty to one count of gross vehicular manslaughter while intoxicated and one count of driving while intoxicated and causing great bodily injury.
I have reviewed the Petition, the Respondent's Answer, the Traverse, and all supporting documents. I hold that Bustillos is not entitled to the relief requested and order that the Petition be denied. I further order that Petitioner's additional motions and requests to the court be denied as moot.
The following statement of facts is excerpted from the summary of the offense provided in the probation officer's report:
On April 30, 2003, at approximately 3:32 p.m., officers responded to California and Oak Streets in Stockton, California, regarding a traffic collision. The defendant and his passenger, William Chestine, were traveling northbound on California Street and failed to stop for a red light at the intersection at Oak Street. The defendant's vehicle collided with another vehicle at the intersection. Witnesses observed the passenger toss a bottle of Vodka from the defendant's vehicle as it stopped.
The right front passenger of the victim's vehicle, Ramon Jesus Contreras, suffered multiple blunt force trauma and died as a result of his injuries. The driver, Sally Fernandez, suffered a fractured arm and a collapsed lung. The right rear passenger, Matthew Gomez, suffered a fractured foot and several lacerations.
The defendant was driving on a suspended/revoked license due to a prior DUI and reckless driving which occurred in September of 2002. He showed signs of being under the influence of alcohol. He stated that he and Chestine were drinking Vodka. He stated that he took three drinks of Vodka between 10:00 a.m. and 2:00 p.m. that afternoon. He admitted that he was feeling sleepy and hit a car at the intersection of Oak and California Streets. The defendant's blood alcohol level was.15. His passenger Chestine had a blood alcohol level of.22. Chestine suffered severe laceration to his arm and contusions to his chest. [Lodged Doc. L.; see also Lodged Doc. A.] Bustillos does not contest the underlying facts of the offense and, during the plea colloquy, stipulated to the factual basis for his guilty plea. [Lodged Docs. A & J.]
The following summary of procedural background is taken from the unpublished opinion of the California Court of Appeal, Third District:
In case No. TF031841A, defendant Robert Bustillos pleaded guilty to misdemeanor battery with injury upon emergency personnel. (Pen. Code, § 243, subd. (c)(1); further undesignated statutory references are to the Penal Code.) He was placed on informal probation for three years and was ordered to serve 90 days of incarceration with 90 days of credit for time served.
In case No. SF088363A, defendant pleaded guilty to gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a); count one) and driving with 0.08 percent blood alcohol causing injury (§ 23153, subd. (b); count three). In exchange, three related counts and various enhancements were dismissed. Defendant was sentenced to state prison for the upper term of 10 years on count one plus eight months consecutive on count three. He was awarded 279 days of custody credit and 139 days of conduct credit, and was ordered to pay a $200 restitution fine (§ 1202.4) and a $200 restitution fine suspended unless parole is revoked (§ 1202.45). Defendant's application for a certificate of probable cause was denied.
Bustillos, acting pro se, applied for a certificate of probable cause to challenge his plea. [Lodged Docs. B & C.] The California Court of Appeal appointed counsel to represent Bustillos on appeal. [Lodged Doc. C.] Bustillos's counsel sought permission to apply for a certificate of probable cause on grounds not stated in Bustillos's prior application and requested that the Court of Appeal conduct an independent review of the record. [Lodged Doc. A.]
While his appeal was pending, Bustillos filed a state habeas petition in the Superior Court for San Joaquin County. [Lodged Doc D.] On April 13, 2005, the superior court denied this petition. [Lodged Doc. E.] The superior court deemed the petition premature insofar as Bustillos sought review of his sentence, which was still the subject of a pending appeal. [Lodged Docs. AC.] As to Bustillos's claim of ineffective assistance of counsel, the superior court concluded that Bustillos had "failed to set forth facts sufficient to state a prima facie ...