The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2004 conviction of first degree robbery. The trial court found petitioner suffered a prior serious felony conviction within the meaning of California Penal Code § 667(a), and a prior prison term within the meaning of California Penal Code § 667.5(b). Petitioner was sentenced to eighteen years in state prison. Petitioner raises one claim in his petition, filed July 24, 2006, that his prison sentence violates the Constitution.
The opinion of the California Court of Appeal contains a factual summary.*fn1 After reviewing the record, the undersigned finds this summary to be accurate and adopts it herein.
In 2002[,] Pete Fagre was an independent contractor with Yellow Cab. He leased the cab and received fares by responding to calls from the Yellow Cab dispatcher and to his own cellular telephone. To generate business, Fagre distributed business cards around town, including at the Exxon station at the corner of Fulton and Marconi Avenues.
On June 5, 2002, at approximately 4:00 a.m., Fagre received a call from Exxon employee Gordon Hoeft that some customers needed a ride. When he arrived, [petitioner] and Genea Smith were waiting outside. [Petitioner] wanted Fagre to take them to Vince's Motel on Folsom Boulevard in Rancho Cordova.
During the 15-minute drive, Fagre and [petitioner] talked about the job corps and about drugs. [Petitioner] asked Fagre whether he used drugs in order to stay awake so he could work at night. Fagre said he had not done drugs in over a year. [Petitioner] said he had done them in the past and had just been released from jail. When Fagre dropped [petitioner] off, [petitioner] told him he was a good cab driver and asked for his business card.
At approximately 6:30 p.m., Fagre received a cellular telephone call from [petitioner], asking him for a ride. When Fagre arrived at the corner of Martin Luther King Boulevard and 21st, Smith and [petitioner] entered the cab. Halfway through the trip, [petitioner] whispered to Smith and the two became quiet. [Petitioner] told Fagre to take the El Camino Avenue exit. Fagre refused because it was not the proper exit. Fagre exited at Marconi Avenue and, as he attempted to move into the left lane, [petitioner] told him to keep going. [Petitioner] then instructed Fagre to pull over. Smith got out of the car and walked down the street. [Petitioner] also got out and appeared to be looking for his money. [Petitioner] told Smith, "[B]itch, get back here, give me my money." She responded, "I don't have any money, you know that." Smith got back in the car*fn2 and [petitioner] said he needed to go to the "ATM" to get some money. Fagre suggested the Bank of America, which was close by, but [petitioner] refused. [Petitioner] told Fagre to drive to Edison and Howe Avenues, where he could get money from his friends. As they approached the intersection, [petitioner] said his friends were not home and instructed Fagre to turn left on Howe Avenue. As they passed Rainbow Street, [petitioner] said he saw his aunt's car and told Fagre to pull over. Smith got out of the cab and started walking down the street. [Petitioner] came up behind Fagre, put a gun that was wrapped in a coat up to his head,*fn3 and said, "[T]his is a robbery, mother fucker, give me the money or I'll blow your fucking head off." Fagre handed [petitioner] $180.
Fagre immediately called 911 and said he had been robbed.*fn4 [Petitioner] had disappeared, but Fagre saw Smith two or three minutes later on the next street. Smith tried to flag down several cars and succeeded in getting a Mazda to pull over and let her in. Fagre followed the Mazda.
Jasmine Washington was driving the Mazda. She saw Smith, who she believed was 18 or 19 years old, running to the middle of the street waving her arms back and forth, looking frightened, scared, and shaken up. Her hair was messed up, her breasts were hanging out of her shirt, and she looked as though she was running away from something. Washington asked Smith if she was okay. She said "no" and that her boyfriend had beaten her up. She was crying. Once inside Washington's car, she was shaking and talking loudly, like she was hysterical. Smith asked to be taken home.
After driving approximately two blocks, Washington noticed a taxicab behind her and wondered aloud why it was following her. Before they reached Fulton Avenue, Washington heard sirens and saw two police cars coming toward them. Smith then said that her boyfriend had robbed the cab driver but she did not know he was going to do it. She also said that she did not do it.*fn5 The police pulled them over at gunpoint and handcuffed them.
Sacramento County Sheriff's Deputy Matt Curtis interviewed Fagre shortly after he observed Fagre following the Mazda. Fagre was visibly upset, shaking, having a hard time talking, and chain smoking. Fagre said that when he gave the money to [petitioner], both Smith and [petitioner] got out of the car and then [petitioner] took off. Fagre never said he actually saw the gun.
Smith directed Sheriff's Sergeant Kenneth Georges, Deputy Curtis, and Deputy Aaron Zelaya to an apartment at 2401 Marconi Avenue, a little over a quarter of a mile away from the robbery. [Petitioner's] mother, Terry Reid, was inside the apartment. Terry Reid said that [petitioner] had arrived at her apartment at approximately 8:30 p.m., yelling to be let in. He was sweaty and agitated and kept asking, "[W]here is the girl[?]" He came inside and changed his clothes. She overheard him saying on the telephone that he had just gotten some money and that he called for a cab. [Petitioner] stayed for 25 to 30 minutes. At trial, Terry Reid denied making these statements.*fn6
On June 12, 2002, deputies found [petitioner] hiding in the bedroom closets of one of the apartments at the complex where his mother lived. Investigators from the Sacramento County District Attorney's Office unsuccessfully tried to locate Smith, ...