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Floyd v. Hickson

June 21, 2010

RITA NINA FLOYD, PETITIONER,
v.
ARLENE HICKSON, RESPONDENT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY [Doc. 1]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge. Local Rule 305(b).

BACKGROUND*fn1

In the California Superior Court for the County of Tuolomne, Petitioner pled guilty to two counts of identity theft in 2002 (case number CRF9710) and one count of identity theft in 2003 (case number CRF9998), in violation of California Penal Code*fn2 section 503.5, subdivision (a). The trial court suspended sentence in both cases and placed Petitioner on probation for a period of five years.

In October 2006, Petitioner was sentenced to a nine-year term of imprisonment in New Mexico. In March 2007, Petitioner wrote a handwritten request to the Tuolomne superior court with reference to case number 9998 and appeared to demand concurrent sentencing for the probation violation. The same type of motion was received by the court in April 2007. Both motions were denied by the trial court.

In May 2007, the probation department filed an affidavit suggesting that Petitioner's probation be revoked due to her sentence in New Mexico. The matter was heard on July 2, 2007, and defense counsel argued that the court lacked jurisdiction over Petitioner under section 1203.2a, and the matter was set for further hearing to determine if Petitioner had satisfied the notice requirements.

In July 2007, Petitioner again mailed two handwritten letters to the court requesting concurrent sentencing. The next month, defense counsel filed a motion to terminate probation and the court's jurisdiction to impose sentence under section 1203.2a. The court denied Petitioner's motion finding it did not lose jurisdiction to sentence her because she failed to provide the probation department or court with notice sufficient under section 1203.2a.

On September 7, 2007, by and through counsel, Petitioner filed a demand for sentencing in cases 9998 and 9710 under section 1203.2a. The trial court sentenced Petitioner to the upper term of three years in case 9998 and two consecutive terms of eight months in case 9710, to run consecutive to the sentence imposed by New Mexico.

Petitioner filed separate appeals challenging his sentences and argued the trial court lacked jurisdiction to sentence her under section 1203.2a. Petitioner also argued that imposition of the upper term in case 9998 violated her right to a jury trial.

The appellate court upheld the trial court's determination that it had jurisdiction under section 1203.2a because Petitioner failed to comply with the notice requirements. However, the appellate court found the trial court erred in imposing the upper term in case 9998, and the sentence was vacated and the case was remanded for re-sentence. The judgment in case 9710 was affirmed in all respects.

Upon remand, the trial court re-sentenced Petitioner to the mid-term of two years in case 9998 and two consecutive eight-month terms in case 9710, to run consecutive to the New Mexico prison sentence. Petitioner filed a timely notice of appeal.

On June 23, 2009, the California Court of Appeal, Fifth Appellate District affirmed the judgment in all respects.

Petitioner did not file a petition for review in the California Supreme following the appellate court's decision.

Petitioner filed the instant federal petition for writ of habeas corpus on February 16, 2010. Respondent filed an answer to the petition on May 7, 2010, and Petitioner filed a traverse on June 8, 2010.

STATEMENT OF FACTS

Because the factual circumstances of Petitioner's underlying convictions are not relevant to the disposition of the instant petition ...


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