FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se seeking with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition pending before this court petitioner challenges a judgment of conviction entered against him on July 23, 2007, in the Sacramento County Superior Court pursuant to a plea bargain in which petitioner pled no contest to unlawfully driving another's vehicle in violation of California Penal Code § 10851(a)*fn2 , receiving stolen property in violation of § 496d(a), being a felon in possession of a handgun in violation of § 12021(a)(1), and possessing methamphetamine in violation of California Health and Safety Code § 11377(a).*fn3 Petitioner also challenges the sentence of five years in state prison imposed by the Superior Court on August 24, 2007, insofar as it was based on his plea of no contest to having suffered a prior conviction for a serious felony within the meaning of § 1192.7(c).
Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:
On February 27, 2007, defendant was seen driving a stolen car with license plates belonging to a different car. Defendant had been previously convicted of a felony and knew the car was stolen. When police officers stopped and tried to detain him, he dropped a handgun and a plastic container containing methamphetamine. (Resp't's Lod. Doc. 2 at 1.)
II. Trial Court Proceedings
On March 5, 2007, the Sacramento County District Attorney filed an amended complaint charging petitioner with unlawfully driving another's vehicle, receiving stolen property, being a felon in possession of a handgun, and possessing methamphetamine. The first two counts alleged enhancements for the use of a firearm. The amended complaint also alleged that petitioner had suffered a prior serious felony conviction for attempted first degree burglary. (Clerk's Transcript on Appeal (CT)*fn4 at 10-12.)
On May 2, 2007, petitioner through his attorney of record filed a motion pursuant to California Penal Code § 1538.5 seeking to suppress all evidence seized from him, arguing that Sacramento police officers had improperly performed a warrantless search and seizure. (CT at 20-25.) On May 18, 2007, the Sacramento County Superior Court denied petitioner's motion to suppress evidence. (CT at 35.)
On May 29, 2007, petitioner filed a motion seeking substitution of counsel pursuant to People v. Marsden, 2 Cal. 3d 118 (1970). (CT at 36-37.) He based his Marsden motion on the following stated grounds: his counsel's failure or refusal to confer with him in preparation of his defense; counsel's failure or refusal to perform critical investigation; and counsel's failure or refusal to present an affirmative defense, file critical motions, impeach prosecution witnesses, and present critical evidence. (CT at 37-37.1) An irreconcilable conflict between petitioner and his attorney was not a stated ground for relief, and petitioner's Marsden motion nowhere alluded to any such conflict.*fn5 (Id.)
On June 8, 2007, the Sacramento County Superior Court held a closed hearing on petitioner's Marsden motion. (Reporter's Transcript of Proceedings for June 8, 2007 (RT Marsden).) The trial court asked petitioner what he thought his attorney had done wrong. Petitioner replied that his attorney had not, as petitioner requested, filed motions "for discovery," to suppress evidence, or to seek petitioner's release on his own recognizance. (Id. at 2-3.) Petitioner also stated that his attorney only saw him for "two or three minutes" before each court date and that petitioner "never actually [had] time to sit down and talk with him and really establish a defense for my case." (Id. at 3.) The trial court noted that a suppression motion in fact had been filed by counsel on petitioner's behalf and denied by the court. (Id. at 3, 10.) After ascertaining that petitioner was making no other allegations of ineffective assistance, the trial court called upon petitioner's attorney to address each of petitioner's complaints. (Id. at 5-10.)
Specifically, the trial court questioned petitioner's attorney regarding the status of discovery and whether petitioner had been provided with any discovery received by the defense (id. at 6); how many times the attorney had met or spoken with petitioner (id. at 7-8); the status of the investigation into petitioner's defense (id. at 8, 9); whether the attorney was prepared to go to trial as scheduled (id); and the attorney's plans for conferring with petitioner prior to trial (id. at 9). In response, petitioner's attorney stated that due to a busy trial schedule, he had not spent "enough" time conferring with petitioner, but planned to meet with him again soon. (Id. at 6, 10.) Counsel further indicated to the court that he had met with petitioner on six occasions, that investigation of petitioner's case was complete, and that petitioner's trial could proceed as scheduled. (Id. at 7-9.)
The trial court then asked petitioner if he wished to respond or there was anything he cared to add. (Id. at 9-10.) Petitioner stated that he "would like proper legal representation, and I don't feel he's properly administering it to me," but had nothing else to add. (Id.) At the conclusion of the hearing, the trial court denied petitioner's Marsden motion. (Id. at 10; CT at 4.)
On July 16, 2007, the Sacramento County District Attorney filed an amended information alleging that, in addition to the various charges and enhancements described above, that petitioner had served one prior prison term within the meaning of California Penal Code § 667.5(b). (CT at 39-41.) On July 23, 2007, pursuant to a negotiated plea bargain, petitioner pled no contest to all the charges and admitted all the enhancement allegations, including the prior felony strike. (CT at 49; Reporter's Transcript on Appeal (RT) at 108-115.)
On August 24, 2007, in accordance with the plea bargain, the trial court sentenced petitioner to five years in state prison. (CT at 50-51; RT at 126-128.)
On June 26, 2007, petitioner appealed the denial of his motion to suppress to the California Court of Appeal for the Third Appellate District. (Clerk's Transcript on Appeal in Case No. C056109 at 39-40.) On August 24, 2007, he appealed from the judgment and sentencing to the same court. (CT at 52-53.) The two appeals were consolidated. (Resp't's Lod. Doc. 2 at 1.) After petitioner's counsel filed a brief pursuant to People v. Wende, 25 Cal. 3d 436 (1979), the California Court of Appeal identified two errors in petitioner's abstract of judgment, but otherwise affirmed the judgment of conviction on May 19, 2008. (Id.) The California Supreme Court summarily denied petitioner's petition for review on July 23, 2008. (Resp't's Lod. Doc. 3.)
On August 6, 2008, petitioner filed a petition for a writ of habeas corpus in the Sacramento County Superior Court. (Resp't's Lod. Doc. 4.) That court denied the petition in a reasoned ...