FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition before this court petitioner challenges the sentence imposed by the Sacramento County Superior Court on November 16, 2006 pursuant to a plea bargain in which petitioner pled no contest to two counts of assault with a deadly weapon in violation of California Penal Code § 245(a)(1). Pursuant to that plea agreement, petitioner also admitted enhancement allegations for inflicting great bodily injury under circumstances involving domestic violence in violation of California Penal Code § 12022.7(e) and having a prior serious felony conviction within the meaning of the Three Strikes Law pursuant to California Penal Code § 667(a). Petitioner seeks federal habeas relief on the ground that he received ineffective assistance of counsel.
Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
On September 14, 2006, petitioner entered a plea of not guilty to various charges brought against him, including attempted murder, stemming from an alleged domestic assault. (Reporter's Transcript on Appeal (RT) at 11; Clerk's Transcript on Appeal (CT) at 93-95.) At that time petitioner also denied an alleged prior conviction for a three strikes offense. (Id.)
On the same day, petitioner through his attorney of record, filed a motion to dismiss the alleged strike pursuant to California Penal Code § 1385 (hereinafter "§ 1385 motion") in which he sought a discretionary dismissal based on the facts that he not been convicted of a felony for ten years prior to the then-current allegations, that he had been sentenced to prison only once, and that his prior felony strike in 1988 was not serious enough to merit a prison sentence. (CT at 112-119.)
At a hearing in the Sacramento County Superior Court on September 18, 2006, the prosecutor argued that petitioner faced up to twenty-nine years in prison if he went to trial on the attempted murder charge and was convicted. (RT at 18-19.) The prosecutor also stated that, given petitioner's criminal history, the prosecution would "argue strenuously" for the maximum sentence to be imposed if that occurred. (Id.) Alternatively, the prosecutor offered petitioner a plea bargain pursuant to which he would plead to the assault with a deadly weapon charge and serve a sentence of fifteen years imprisonment, with credit for one year's time already served. (Id. at 21-22.) The court noted that the plea offer was being made in open court and advised petitioner: "You have excellent counsel, you are fortunate in that regard, and you can talk to him and he can answer any questions that you have." (Id. at 23.)
As to the then-pending § 1385 motion, petitioner's counsel informed the court as follows:
I have filed a motion to strike the strike, and that's something Mr. Jackson wanted done as soon as possible. It is a little premature at this point because there is no decision on guilt for this case, but I did file it and put my arguments in there about the age of the prior and his conduct since. (Id. at 26.)
Later in the hearing, and after further discussion with his attorney, pursuant to plea agreement petitioner entered a no contest plea to assault with a deadly weapon and admitted an enhancement for personally inflicting great bodily injury under circumstances involving domestic violence. (RT at 39-40.) Notwithstanding the then-pending §1385 motion, petitioner also admitted a prior strike. (Id. at 40.)
Pursuant to this plea agreement entered into by the parties, on November 16, 2006, petitioner was sentenced to 15 years in prison in keeping with the agreement. (CT at 167.)
Petitioner appealed his judgment of conviction to the California Court of Appeal for the Third Appellate District. (Resp't's Lod. Doc. 1.) On appeal, petitioner argued that he was denied his constitutional rights to a speedy trial and due process. (Resp't's Lod. Doc. 2.) He also argued that the trial court abused its discretion in failing to dismiss petitioner's prior felony strike pursuant to California Penal Code § 1385. (Id. at 4.) He did not argue on appeal that he had received ineffective assistance of ...