FINDINGS AND RECOMMENDATIONS
Petitioner Timothy Prince Franklin is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. He challenges the constitutionality of his 2002 convictions in the Sacramento County Superior Court, case number O1F02563.
A jury convicted petitioner of rape, sexual battery, and commission of a lewd act on a 14 year old victim. The jury also found, for enhancement purposes, that he had a prior serious felony conviction (strike) and had served two prior prison terms. Petitioner was sentenced to state prison for an aggregate term of 32 years and four months, calculated as follows: four years for sexual battery, doubled pursuant to Cal. Penal Code §667(e)(1) for the prior felony conviction; a consecutive sentence of eight years for rape, also doubled pursuant to §667(e)(1), a consecutive sentence of one year and four months for committing a lewd act with a minor, two consecutive one year terms for the prior prison term allegations (§667.5(b)), and a consecutive five year enhancement for the prior serious felony conviction (§667(a)). Petitioner appealed, and the judgment was affirmed.
Petitioner sought habeas corpus relief in the trial court. In May 2005, the Sacramento County Superior Court granted the petition in part, ordering re-sentencing because the trial court had imposed a fully consecutive term for the rape charge pursuant to Cal. Penal Code §667.6(d) without giving a separate reason to support its discretionary choice of that term as it was required to do under the statutory scheme.
At re-sentencing in January 2006, petitioner was committed to state prison for the same term, 32 years and four months, calculated in the same manner. The sentencing court clarified that it was imposing a full, separate, and consecutive term for the rape because first of all the court believes that is a separate offense as defined by law and second defendant was on parole at the time this offense was committed which justifies imposition of consecutive sentences.
(Lodged Doc. 10 at 8.) The California Court of Appeal, Third District, affirmed the judgment after re-sentencing. Petitioner sought habeas corpus relief in the Sacramento County Superior Court and California Supreme Court; this time his petitions were denied.
III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings unless the state court's 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 Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).
This court will look to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003).
The issues presented are largely procedural. Petitioner claims that (1) he was unconstitutionally sentenced to the statutory maximum upper terms for sexual assault and rape in violation of the rule set forth in Blakely v. Washington, 542 U.S. 296 (2004); (2) the court erred during re-sentencing when it imposed his term for rape as a full, separate, and consecutive term; (3) his prior conviction for burglary was improperly counted as a prior "strike" under California's habitual criminals or "Three Strikes" law; (4) he was sentenced under more than ...