The opinion of the court was delivered by: Robert H. Whaley United States District Judge
ORDER DENYING HABEAS PETITION
Before the court is Petitioner's Petition under 28 U.S.C. 2254 for Writ of Habeas Corpus by a Person in State Custody (Ct. Rec. 1).
On September 29, 2005, a complaint was filed in the Sacramento County Superior Court, charging Petitioner with, in count 1, Infliction of Corporal Injury on a Spouse Resulting in a Traumatic Condition, in violation of Cal. Penal Code § 273.5(a)*fn1 and, in count 2, Felony Removal of a Telephone Line, in violation of Cal. Penal Code § 591. The complaint further alleged in count 1 that Petitioner had a prior section 273.5 conviction, and that he had a prior strike for robbery.
On December 6, 2005, the jury found Petitioner guilty by a jury of Count 1, and found true that he had a prior § 273.5 conviction. It found Petitioner not guilty of Count 2. At trial, and outside the presence of the jury, Petitioner admitted to the prior strike.
On January 20, 2006, the court sentenced Petitioner to a total of ten years, which is double the upper term.*fn2 It applied Rule of Court 4.421(b)(4) and found that Defendant was on probation when the crime was committed*fn3 and also found that Petitioner committed the crime in the presence of a child.*fn4 Finally, the court declined to disregard the previous strike.*fn5
On July 2, 2007, the California Court of Appeals affirmed the judgment, and on September 19, 2007, the California Supreme Court denied Petitioner's Petition for Review.
On April 4, 2008, Petitioner filed his Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, alleging that his sentence imposed was in violation of his constitutional rights. Specifically, Petitioner alleges that the trial court erred when it imposed a sentence more than the middle term, and abused its discretion when it refused to strike the prior conviction.
Because Petitioner is not making a claim based on the sufficiency of the evidence or challenging his conviction on substantive grounds, it is not necessary to present the underlying conduct that is the basis for Petitioner's conviction.
Petitioner's Petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under AEDPA, habeas relief may be granted only upon a finding that the last reasoned state court decision rejecting Petitioner's claims "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the State court proceeding." 28 U.S.C. § 2254(d)
Petitioner argues that his Sixth and Fourteenth Amendment rights were violated when the judge on his own, without a jury determination or waiver of the right to a jury, sentenced Petitioner to the upper term.
In his direct appeal, Petitioner argued that the imposition of the upper term for corporal injury violated the Sixth Amendment as interpreted in Apprendi v. New Jersey*fn6 and Blakely v. Washington.*fn7 The California Court of Appeals ruled that Petitioner's claim failed on the merits, noting that the trial court specifically cited as the sole basis for imposing the upper term was that Petitioner was on probation when the crime was committed.*fn8 Specifically, the Court of Appeals noted, the Sixth Amendment jury trial guarantee does not apply to prior convictions that are used to impose greater punishment. That exception applies also to 'an issue of recidivism which enhances a sentence and is ...