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Steven Mccarter v. Kathy Prosper

March 4, 2011

STEVEN MCCARTER, PETITIONER,
v.
KATHY PROSPER, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner proceeding without counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2006 conviction on charges of burglary and two counts of receiving stolen property. Petitioner was convicted by a jury on all three counts. The trial court found petitioner sustained a prior conviction in 1989 and served prior prison terms. Petitioner was sentenced to sixteen years in prison. Petitioner contends the use of his prior conviction to enhance his prison sentence violated his due process rights, and defense counsel was ineffective based on an alleged failure to investigate and seek specific performance of petitioner's 1989 plea agreement. After careful review of the record, this court concludes that the petition should be denied.

II. Procedural History

On March 28, 2006, a jury convicted petitioner of one count of burglary and two counts of receiving stolen property. (Clerk's Transcript ("CT") at 324-26.) The trial judge found petitioner had sustained a prior serious felony conviction in 1989, and that petitioner served prior prison terms in 1993, 1996, and 2002, for purposes of California Penal Code § 667.5(b). (CT at 327.)

Petitioner was sentenced on May 26, 2006, to four years for burglary, doubled pursuant to California Penal Code § 667(a), plus a five year enhancement, pursuant to California Penal Code § 667(a), plus three one-year enhancements, pursuant to California Penal Code § 667.5(b), for a total state prison term of sixteen years. (CT at 397.) Sentence on the two counts of receiving stolen property was stayed by the court. (CT at 397.)

On August 20, 2007, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court. (LD 14.) The petition was denied in a reasoned opinion issued October 11, 2007. (Dkt. No. 1 at 21-22.)

On October 22, 2007, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District. (LD 15.) The Court of Appeal denied the petition, without comment, on October 25, 2007. (Dkt. No. 1 at 25.)

Petitioner filed a timely appeal of his conviction, and on December 17, 2007, the Court of Appeal for the Third Appellate District affirmed the conviction in a reasoned opinion. (LD 12.)

On January 16, 2008, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (LD 16.) The California Supreme Court denied the petition, without comment, on July 9, 2008. (Dkt. No. 1 at 27.)

On January 28, 2008, petitioner filed a petition for review in the California Supreme Court. (LD 11.) On March 12, 2008, the California Supreme Court denied the petition for review without comment. (LD 13.)

Petitioner filed the instant petition on August 22, 2008. (Dkt. No. 1.)

III. Facts*fn1

The opinion of the California Court of Appeal provides the following factual summary:

On the morning of August 27, 2005, Sergeant Charles Husted of the Sacramento Police Department drove around Sacramento in his patrol car looking for a "parolee at large" by the name of William Thurston. At 10:20 a.m., the officer saw an individual, later identified as [petitioner], near a market. The officer testified that [petitioner] resembled Mr. Thurston in both build and stature. In addition, the bicycle [petitioner] was riding looked like the same bicycle Mr. Thurston had been riding the week prior when he had evaded the officer.

The officer pulled up next to [petitioner] and asked "if [he] could speak to him." The officer testified that [petitioner] simply "stood there and [they] began to talk." The officer asked [petitioner] his name, and [petitioner] identified himself. Next, the officer asked [petitioner] if he was on probation or parole and [petitioner] admitted that he was on parole. Sergeant Husted learned [petitioner's] parole status "within a minute" of his first contact with [petitioner].

After [petitioner] admitted he was on parole, Sergeant Husted conducted a parole search of [petitioner]. That search revealed a credit card in [petitioner's] back pocket with the name "Matthew Kanelos" on it. [Petitioner] claimed he found the card in a dumpster. The officer determined that, at that time, the credit card was not reported stolen. The officer kept the credit card and let [petitioner] go.

Later, it was discovered the card was in fact stolen, along with several other items from the home of Livia Moe and Tim Foster. Mr. Kanelos was in a band with Mr. Foster and had left his credit card in Mr. Foster's home before they left to tour Europe. [Petitioner and his co-defendant] Fondren were subsequently arrested for their respective roles in the burglary.[fn]

[fn] Defendant Fondren appeals only his sentence and the $20 court security fee. We do not summarize the facts as they relate to his role in the crime because they are not relevant to his claims on appeal.

(People v. McCarter, 2007 WL 4381747 at *1-2 (Cal. App. 3 Dist.).

IV. Standards for a Writ of Habeas Corpus

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. ยง 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. ...


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