FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 31, 1999, petitioner was convicted by a jury on the following: first degree burglary (Cal. Penal Code § 459 (count one)); oral copulation (Cal. Penal Code § 288a, subd. (c) (count four)); robbery (Cal. Penal Code § 211 (count six)); forcible digital penetration (Cal. Penal Code § 289, subd. (a) (count three)); and two counts of rape (Cal. Penal Code § 261, subd. (a)(2) (counts two and five)). (Lodgment (hereinafter LD) 27 at 11-20.) With the addition of enhancements, petitioner was sentenced to an aggregate term of 65 years to life, to be served consecutively to a life term with a minimum parole eligibility of fifty years. (LD7 at 5.)
In the petition now pending before this court, petitioner seeks habeas relief on the grounds that (1) he did not forfeit his claims raised herein by failing to object in the trial court to his full-term consecutive and upper-term sentence, which he alleges violates his Fifth, Sixth and Fourteenth Amendment rights; (2) he was denied effective assistance of counsel when his trial attorney failed to object to the sentence imposed; and (3) his sentence violates the Eighth Amendment. (Pet. at 1-2.*fn1 ) Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
Following his conviction on March 31, 1999 for first degree burglary, oral copulation, robbery, forcible digital penetration, and two counts of rape, petitioner was first sentenced on May 14, 1999 under the three-strikes-law to an aggregate term of 175 years to life, which was to be served consecutively to a ten-year determinate term. (LD1 at 1-2.) Petitioner's first two strikes were a prior rape conviction and a prior out-of-state robbery conviction, which the trial judge found qualified as a strike under California law. (Id.)
Petitioner appealed that sentence, asserting that the trial court relied on insufficient evidence to find that the out-of-state conviction qualified as a strike. (LD1 at 1-2.) On July 1, 2001 and upon concession by the Attorney General that sufficient evidence did not exist for the trial court's finding that petitioner suffered a third strike, the case was remanded for retrial to determine whether there was sufficient evidence for the out-of-state conviction to qualify as a strike under California law. (Id.) Petitioner also asserted instructional and evidentiary error in the appeal. (Id.) Other than the remand on the issue of the out-of-state conviction, the judgment was affirmed in all other respects. (Id.)
On July 26, 2002, petitioner sought review in the California Supreme Court. (LD2.) On September 18, 2002, the California Supreme Court granted review, but on April 5, 2004, review was dismissed. (See LD 3 and 4.)
On remand, the Attorney General did not seek to retry the out-of-state robbery conviction. (See LD 7 at 1-2.) Thus, on September 24, 2004, petitioner was re-sentenced to an aggregate term of sixty-five years, which was to run consecutively to one term of life with a minimum parole eligibility of fifty years. (Id. at 5.)
On August 15, 2006, the California appellate court denied petitioner's second direct appeal, in which he challenged the sentence imposed following remand.*fn2 (LD13.) Specifically, petitioner challenged the trial court's imposition of fully consecutive sentences on counts three, four and five; the trial court's imposition of fully consecutive and upper terms based on factors not presented to the jury and in violation of Blakely v. Washington, 542 U.S. 296 (2004); and argued that his sentence constitutes cruel and unusual punishment. (See LD 13, App. A.)
On September 21, 2006, petitioner appealed the appellate court's August 15, 2006 order to the California Supreme Court. (LD13.)
On November 1, 2006, review was denied by the California Supreme Court. (LD14.)
On January 8, 2007, petitioner filed a petition for writ of certiorari in the United States Supreme Court. (LD15.) Therein, petitioner challenged the California appellate court's August 15, 2006 order in light of Cunningham v. California, 549 U.S. 270 (2007).
On March 19, 2007, the petition for writ of certiorari was granted. (LD16.) The judgment of the California Court of Appeal was vacated and the case was remanded for further consideration in light of Cunningham.
On March 26, 2007, the state appellate court vacated its August 15, 2006 order, reinstated the appeal, and invited further briefing addressing Cunningham. (LD17.)
On August 21, 2007, the state appellate court filed its opinion. (See LD18.) Therein, the appellate court again addressed petitioner's arguments that (1) the trial court erred in imposing fully consecutive sentences on counts three, four, and five; (2) the imposition of fully consecutive and upper terms based on factors not presented to the jury violated his Sixth Amendment rights as interpreted in Blakely v. Washington, 542 U.S. 296 (2004), and Cunningham v. California, 549 U.S. 270 (2007); (3) his counsel was ineffective for not objecting to the upper term consecutive sentences; and (4) his sentence violated the Eighth Amendment. The state appellate court upheld the sentence.
On October 3, 2007, petitioner filed a petition for review in the California Supreme Court. (LD19.) On November 14, 2007, the petition was denied. (LD20.)
On December 20, 2007, petitioner filed a petition for writ of habeas corpus in this court. On April 3, 2008, respondent filed an answer. On April 21, 2008, petitioner filed a traverse.
On August 31, 2009, petitioner filed another petition for writ of habeas corpus in this court in case number 2:09-cv-2433-WBS-JFM. Under a related case order, that action was related to the present action.*fn3
The following facts are obtained from the August 21, 2007 opinion of the California Court of Appeal, Third Appellate District, in which petitioner's sentence was upheld:
On remand, the trial court sentenced defendant as follows: "I do not find that there are any circumstances that I have found in the probation report that show circumstances in mitigation. I do note that there are criteria under Rule 425 that affect and will impact on the consecutive or concurrent sentence. That is, Rule 425(a)(1), the crimes and their objectives in Counts Two, Three, Four, Five and Six are predominantly independent of each other.
"And the Rule 425(a)(2), the applicability in this regard is as follows: The crimes in the above counts involved separate acts of violence.
"I note Rule 426, violent sex crimes, that it says the crimes not sentenced under Penal Code 669 as life terms could be subject to full term consecutive sentencing for qualified violent sex crimes concerning the same victim on the same occasion pursuant to Section 667.6c of the Penal Code.
"This was a particularly violent crime. It was a particularly heinous crime that obviously had great impact upon the victim. I agree with the probation department that the defendant is not eligible for probation, and the sections that I cited certainly are-- but I want to clearly say even if the defendant were eligible for probation, I would not give probation in this case because of the nature and seriousness of the offenses that have convictions and findings by the jury.
"Allegations pursuant to 667.61(d)(4) of the Penal Code, which mandates a life sentence per victim during a single occasion, were found to be true as to Counts Two through Five, and I am sentencing him as if his prior conviction pursuant to Penal Code Section 667(b)(1), that sentence, that conviction was found to be true by the Court in a separate hearing and I confirm that ruling.
"Regarding Count Two, the violation of 667.61(d)(4) of the Penal Code allegation, that was found to be true and, therefore, the defendant is sentenced to state prison for life with a minimum eligibility of 25 years pursuant to 667.61(a) of the Penal Code, and that sentence is now doubled pursuant to Penal Code Sections 667(e)(1) and 1170.12(c)(1), which results in a life term with a minimum parole eligibility of 50 years. This is to run consecutive to all other counts because I find this to be a separate act of violence and predominantly independent of all other counts.
"In regards to Counts Three, Four and Five, the defendant is sentenced to the full high term of eight years state prison as to each count under Penal Code Section 667.6(c), as these crimes were violent sex crimes and I sentence under that section due to the vicious treatment of the victim and the fact that the defendant did have time to reflect on these offenses.
"The high term of eight years is going to be imposed by the Court because of consideration of the defendant's history of violent conduct which indicates to the Court that he is indeed a serious danger to society, and it is applicable to each count.
"I further find that Section 667(e)(1) and 1170.12(c)(1) of the Penal Code mandate that the sentence for each of these counts is to be doubled, which results in a sentence of sixteen years as to each of the aforementioned counts.
"Further, I find that Penal Code 667.6(c) mandates that the defendant serve a full, separate and consecutive term applicable to each count. Total aggregate sentence imposed by ...