FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his March 31, 1999 conviction ("the 1999 conviction") on charges of first degree burglary, oral copulation, robbery, forcible digital penetration, and two counts of rape. This matter is pending before the court on respondent's motion to dismiss. Petitioner opposes the motion.
Following the 1999 conviction, petitioner was sentenced on May 14, 1999 under the three-strikes-law to an aggregate term of 175 years to life, which was to be served consecutively to a ten-year determinate term. (Lodgment (hereinafter, "LD") [07cv2755] 1 at 1-2.) Petitioner's first two strikes were a prior rape conviction and a prior out-of-state robbery conviction, which the trial judge found qualified as a strike under California law. (Id.)
Petitioner appealed that sentence, asserting that the trial court relied on insufficient evidence to find that the out-of-state conviction qualified as a strike. (LD [07cv2755] 1 at 1-2.) On July 1, 2001 and upon concession by the Attorney General that sufficient evidence did not exist for the trial court's finding that petitioner suffered a third strike, the case was remanded for retrial to determine whether there was sufficient evidence for the out-of-state conviction to qualify as a strike under California law. (Id.) Petitioner also asserted instructional and evidentiary error in the appeal. (Id.) Other than the remand on the issue of the out-of-state conviction, the judgment was affirmed in all other respects. (Id.)
On July 26, 2002, petitioner sought review in the California Supreme Court. (LD [07cv2755] 2.) On September 18, 2002, the California Supreme Court granted review, but on April 5, 2004, review was dismissed. (See LD [07cv2755] 3 and 4.)
On remand, the Attorney General did not seek to retry the out-of-state robbery conviction. (See LD [07cv2755] 7 at 1-2.) Thus, on September 24, 2004, petitioner was re-sentenced to an aggregate term of sixty-five years, which was to run consecutively to one term of life with a minimum parole eligibility of fifty years. (Id. at 5.)
On August 15, 2006, the California appellate court denied petitioner's second direct appeal, in which he challenged the sentence imposed following remand.*fn2
(LD [07cv2755] 13.) Specifically, petitioner challenged the trial court's imposition of fully consecutive sentences on counts three, four and five; challenged the trial court's imposition of fully consecutive and upper terms based on factors not presented to the jury and in violation of Blakely v. Washington, 542 U.S. 296 (2004); and argued that his sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment. (See LD [07cv2755] 13, App. A.)
On September 21, 2006, petitioner appealed the appellate court's August 15, 2006 order to the California Supreme Court. (LD [07cv2755] 13.)
On November 1, 2006, review was denied by the California Supreme Court. (LD [07cv2755] 14.)
On January 8, 2007, petitioner filed a petition for writ of certiorari in the United States Supreme Court. (LD [07cv2755] 15.) Therein, petitioner challenged the California appellate court's August 15, 2006 order in light of Cunningham v. California, 549 U.S. 270 (2007).
On March 19, 2007, the petition for writ of certiorari was granted. (LD [07cv2755] 16.) The judgment of the California Court of Appeal was vacated and the case was remanded for further consideration in light of Cunningham.
On March 26, 2007, the state appellate court vacated its August 15, 2006 order, reinstated the appeal, and invited further briefing addressing Cunningham. (LD [07cv2755] 17.) /////
On June 13, 2005, petitioner filed an appeal of the denial of his petition for writ of habeas corpus with the California ...