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Lewis v. Knowles

January 28, 2010

MYLVIN OTIS LEWIS, PETITIONER,
v.
MIKE KNOWLES, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the sentence he received on a 2001 conviction for felony car theft and receiving stolen property. He seeks relief on the grounds that his sentence constitutes cruel and unusual punishment and the trial judge abused his discretion when he failed to strike any of petitioner's prior convictions at sentencing. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

I. Background*fn1

Defendant entered a plea of guilty to taking and driving a vehicle (Veh.Code, § 10851) and receiving stolen property (Pen.Code, § 496; further undesignated section references are to the Penal Code), and he admitted eight prior felony convictions within the meaning of sections 667, subdivisions (b)-(I) and 1170.12. Sentenced to a total indeterminate term of 25 years to life in state prison, defendant appeals, contending the trial court abused its discretion when it failed to strike seven of the eight prior felony conviction allegations. We affirm the judgment.

Facts On June 9, 2000, an officer stopped defendant for a traffic violation and found he was in possession of a stolen car. At the beginning of trial, defendant asked the court to exercise its discretion to strike the prior felony conviction allegations from 1972 and 1976 as remote and dissimilar to the current offenses. The court declined to do so at that time but did not foreclose a later request at sentencing. Subsequently, defendant entered a plea of guilty to the offenses charged in the complaint (Veh.Code, § 10851 and § 496) and admitted he had the following prior felony convictions: (1) 1989 burglary (§ 459); (2) 1976 robbery (§ 211); (3) 1976 burglary (§ 459); (4) 1976 burglary (§ 459); (5) 1976 attempted murder (§§ 664/187); (6) 1976 rape (§ 261.3); (7) 1976 attempted sodomy (§§ 664/286); and (8) 1972 robbery (§ 211). According to the probation report, in addition to the above offenses, defendant was committed to the California Youth Authority (CYA) for an unknown adjudication in 1969 and released in 1970. Defendant was committed to CYA a second time for the offenses committed in 1972; he escaped from and was returned to CYA in 1972 and was paroled in 1975. He was sent to state prison for offenses committed in 1975 and 1976 and was paroled in 1982. He violated parole once and was discharged from parole in 1984. In 1984 and 1986 he was convicted of two misdemeanors: disorderly conduct (§ 647, subd. (b)) and burglary (§ 459). In 1988 and 1989 defendant suffered convictions for three petty thefts with prior theft-related convictions (§ 666), possession of cocaine (Health & Saf.Code, § 11350) and the charged prior conviction for burglary (§ 459) and was sentenced to state prison for a total term of 10 years four months. He was paroled in 1995 and violated parole eight times before he was discharged from parole in 1999. While on parole, defendant committed two more theft-related misdemeanors: petty theft with a prior theft-related offense (§ 666) in 1996 and unauthorized entry of a dwelling (§ 602.5) in 1998. The probation report further stated that, while in custody on the current offense, defendant had six minor and three major jail infractions, one of which was assaulting another inmate. Evidence at the sentencing hearing established that the then-47-year-old defendant had some skills as an automobile mechanic, and relatives believed he could become a productive member of society. However, while encouraged to enter substance abuse rehabilitation, defendant had not done so. Defendant admitted he had stolen the car and driven from Oakland to Sacramento to get food stamps, because he was on general assistance in Sacramento.

At the close of testimony, defense counsel again moved to strike seven of the prior felony conviction findings, arguing defendant had changed and no longer committed crimes of violence. Counsel suggested that, with the single remaining prior felony conviction finding, the court would still have the ability to impose a substantial period of imprisonment.

The court denied the application to strike the prior felony conviction findings and sentenced defendant to an indeterminate term of 25 years to life for violation of Vehicle Code section 10851 and stayed imposition of sentence on the violation of section 496 pursuant to section 654, because the act underlying the two counts was identical. The court then discussed the reasons for denying defendant's application to strike the prior felony conviction findings. The court relied on "the seriousness of his historical crimes," defendant's continued pattern of criminality after release from a substantial term in state prison, the seriousness of the current offense, and the lack of effort on defendant's part to deal with his drug problem and to change his lifestyle. The court further noted defendant was cheating on the welfare system when the crime was committed. Overall, the court concluded defendant did come within the spirit of the three strikes law.

Petitioner filed a timely appeal of his conviction in the California Court of Appeal. Answer, Ex. 1. Therein, he argued that the trial court abused its discretion in declining to dismiss his prior convictions at the sentencing proceedings, and that his sentence constituted cruel and unusual punishment. Id. The Court of Appeal rejected both of petitioner's claims and affirmed his judgment of conviction in its entirety. Answer, Ex. 3. Petitioner subsequently filed a petition for review in the California Supreme Court, raising a sole claim that his sentence under the Three Strikes law constituted cruel and unusual punishment. Answer, Ex. 4. That petition was summarily denied. Answer, Ex. 5.

The instant habeas petition was filed in this court on October 22, 2003. Therein, petitioner claimed that his sentence constitutes cruel and unusual punishment. He also claimed that the trial court abused its discretion in not striking his prior convictions at sentencing, and that his plea had been induced by the trial court and the attorneys acting in concert. On December 29, 2003, respondent filed a motion to dismiss, arguing that petitioner's latter claims (not striking priors and that the plea was induced) had not been exhausted in state court. On April 2, 2004, petitioner elected to file an amended habeas petition raising his only exhausted claim: that his sentence constitutes cruel and unusual punishment. Respondent filed an answer on June 10, 2004, and petitioner filed a traverse on August 24, 2004.

II. Analysis

A. Standards for a Writ of Habeas Corpus

Federal habeas corpus relief 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 ...


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