Petitioner Chambers is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. Petitioner stands convicted of evading a pursuing peace officer in the Butte County Superior Court, case number CM022702, for which she is currently serving an aggregate term of nine years in prison (the upper term of three years, doubled to six years pursuant to the "three strikes law" (see Cal. Penal Code §667), plus three years for three separate, prior prison term enhancements (see Cal. Penal Code §667.5)).
Petitioner raises a single ground for relief challenging imposition of the three year upper term at sentencing. Specifically, petitioner contends that the upper term sentence violated her "constitutional rights to due process and trial by jury as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and the California Constitution."
The parties have consented to jurisdiction by a United States Magistrate Judge. Based on a thorough review of the record and applicable law, and for the reasons that follow, the petition will be denied.
Just after noon on March 11, 2005, a deputy sheriff saw petitioner in a car parked in the driveway of a home in Paradise, California. The deputy knew petitioner "was 'a wanted absconding parolee.'" Petitioner tucked her head down after the deputy approached and called out her name. When the deputy told her to get out of the vehicle, petitioner said: "'That's not going to happen.'" She put the vehicle in gear and drove onto the public roadway. With a patrol car in pursuit, petitioner fled at speeds reaching 80 to 90 miles per hour. She caused a minor traffic collision by failing to yield to traffic, and she passed numerous vehicles at blind curves or by crossing double yellow lines. Petitioner turned onto southbound Highway 99, but got off at an exit. After driving through a red light, she drove back onto southbound Highway 99 and exceeded 118 miles per hour as she passed many vehicles, forcing many to move to the shoulder of the roadway. Petitioner did not stop even after driving over a spike strip north of Gridley. Instead, she drove through the town at a high rate of speed, "failing to yield at all stop lights and failing to obey the designated traffic laws in the city." With her left tires going flat, petitioner reduced her speed to between 70 and 80 miles per hour as she continued south on Highway 99. Petitioner drove over another spike strip, but continued to drive as her left side tires disintegrated to the rims. She finally stopped when she lost control of her vehicle four miles north of Yuba City.
III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Additionally, this petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).
In addition, before a claim such as this one may be properly brought on federal habeas corpus, it must first be fairly presented to the highest court of the applicable state. 28 U.S.C. § 2254(b)(1). In California, that is the California Supreme Court. Castille v. Peoples, 489 U.S. 346 (1989). It is petitioner's burden to show that she has exhausted her state court remedies. See Lambert v. Blackwell, 134 F.3d 506, 513 (3rd Cir. 1997), as amended 1998, cert. denied, 532 U.S. 919 (2001); Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), cert. denied, 522 U.S. 833 (1997); Olson v. McKune, 9 F.3d 95, 95 (10th Cir. 1993).
Respondent asserts by answer filed on February 9, 2009 that petitioner's claim is unexhausted because it was still pending before the California Supreme Court. Petitioner makes no response in her traverse. Notwithstanding petitioner's apparent failure to fully exhaust administrative remedies, the merits of her claim will be reached because it is clear that the claim is not colorable. See 28 U.S.C. § 2254(b)(2) ("[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State"); Cassett v. Stewart, 406 F.3d 614, 624 (9th ...