The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Kern, following his conviction by jury trial on May 8, 2007, of five counts of second degree burglary. Allegations that Petitioner had suffered a prior prison term were found true for each count. On June 6, 2007, Petitioner was sentenced to serve a determinate term of six years and eight months in state prison.
Petitioner filed a timely notice of appeal. On June 10, 2008, the California Court of Appeal, Fifth Appellate District (hereinafter "Fifth DCA"), affirmed Petitioner's judgment. He then filed a petition for review in the California Supreme Court. The petition was summarily denied on August 21, 2008.
On October 15, 2009, Petitioner filed a federal habeas petition. He presents the following claims for relief: The trial court improperly used a single conviction to impose both an enhancement and an upper term; and, Defense counsel rendered ineffective assistance by failing to object to the aggravated sentence. On July 29, 2010, Respondent filed an answer to the petition. Petitioner did not file a traverse.
Appellant Gerald Anthony Davis was convicted by jury trial of five counts of second degree burglary in violation of Penal Code FN1 section 460, subdivision (b). The jury, in a bifurcated proceeding, found as to each count that Davis had suffered a prior conviction of section 243, subdivision (c) (battery of custodial officer), for which he served a prior prison term within the meaning of section 667.5, subdivision (b). [Citation.] The trial court sentenced Davis to the upper term of three years on count one, plus a consecutive one-year enhancement for the prior prison term. In addition, the court sentenced Davis to consecutive eight-month sentences for each of the remaining counts, for a total term of six years eight months. [Citation.]
FN1. All further references are to the Penal Code.
When imposing the upper term, the trial court stated it found no factors in mitigation other than the expression of a certain amount of remorse. [Citation.] In contrast, it found a number of circumstances in aggravation, including a substantial number of prior adult convictions and juvenile adjudications; a prior California Department of Corrections and Rehabilitation, Juvenile Justice, commitment; Davis's status as a probationer and parolee when he committed the offenses; and past unsatisfactory performance on probation and parole. [Citation.]
The facts of the case are not relevant to the issues on appeal. In summary, Davis committed the offenses by entering various grocery stores and stealing wallets out of the purses of unsuspecting shoppers. (See Lodged Doc. No. 4.)
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Kern County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997; Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
The instant petition is reviewed under the provisions of the Antiterrorism and Effective Death Penalty Act which became effective on April 24, 1996. Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Under the AEDPA, a petitioner can prevail only if ...