The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of six years imprisonment after pleading no contest to one charge of continuous sexual abuse of a child under the age of fourteen. Petitioner raises several claims in his federal habeas petition; specifically: (1) his plea was invalid as it was not knowing and voluntarily due to his unawareness of a five-year parole term as opposed to a three-year term after his prison sentence of six years ("Claim I"); (2) his plea agreement was violated due to a five-year term as opposed to a three-year parole term ("Claim II"); (3) Petitioner was denied the right to counsel at an interview with a probation officer ("Claim III"); and (4) ineffective assistance of counsel by failing to provide Petitioner with the relevant information regarding the length of his parole term ("Claim IV"). For the following reasons, the habeas petition should be denied.
II. FACTUAL AND PROCEDURAL BACKGROUND
In July 2006, a felony complaint was filed against Petitioner which raised one count and alleged the following:
On or about and between September 25, 2003 and September 30, 2005, defendant(s) STEPHEN RODDEN did commit a felony namely: CONTINUOUS SEXUAL ABUSE, a violation of Section 288.5(a) of the Penal Code of the State of California, County of Solano, in that said defendant did unlawfully engage in three and more acts of "substantial sexual conduct", as defined in Penal Code section 1203.066(b), and three and more acts in violation of Section 288 with B.H., a child under the age of 14 years, while the defendant(s) resided with, and had recurring access to, the child. (Resp't's Answer Ex. 1.) An information charging Petitioner with the same crime was filed on April 11, 2007. (See id. Ex. 6.)
On May 2, 2007, Petitioner entered into a negotiated plea of no contest whereby he would serve six years in prison. (See id. Ex. 2.) Within the plea form, Petitioner agreed that he understood that, "If I am sentenced to state prison, I would be subject to parole supervision for a period of three years*, and if I violated that parole, I could be returned to state prison for up to four years." (Id.) The asterisk noted that the period of the three years was subject to California Penal Code § 3000(b) (Life Sentence Exception). During the colloquy with the judge at the change of plea hearing, Petitioner stated that the initials on the plea form were his and that he understood all of the rights and information on the form. (See id. Ex. 3 at p. 3.)
Petitioner was sentenced on June 12, 2007. At the sentencing hearing, Petitioner stated on the record that the reason he was pleading no contest was because he "did not want to risk the consequences of a jury trial based on the negative public opinion and the social stigma attached to cases such as this." (Id. Ex. 4 at p. 3-4.) The sentencing judge then stated the following:
The Court imposes the low term of six years, which is, again, the agreement of Court, counsel, and the defendant, and the prosecution. [¶] All right. The Court imposes $1200 pursuant to 1202.4, $1200 pursuant to 1202.45, which will be suspended unless parole is revoked. [¶] The Court grants him credits of 136 actual custody days, 20 days pursuant to 29 -- 2933.1, for a total of 156 days credit for time served.
Mr. Rodden, after you serve your state prison sentence, they'll place you on a period of parole for up to three years. Violations of parole can return you to prison for one year; for multiple violations, for up to four years. (Id. at p. 4-5.)
On October 31, 2007, Petitioner filed an inmate request for an interview to the "Case Records Specialist" in which he argued that his parole period was incorrectly listed as five years instead of three years. (Pet'r's Pet. at p. 28.) The response to this request stated the Petitioner's sentence met California Penal Code § 3000(b)(1), and Petitioner had a five -year parole period. (See id.)
In February 2008, Petitioner filed a state habeas petition in the Superior Court of California, County of Solano. On April 18, 2008 that Court issued the following opinion:
Petitioner complains that he received ineffective assistance of counsel from his trial attorney in Solano County Case FCR234262, when counsel failed to advise him of his right to appeal and failed to advise him that he would be subject to five years of parole supervision.
Petitioner cannot raise these issues on writ of habeas corpus because he should have raised them on appeal in the first instance. (In re Harris (1993) 5 Cal 4th 813, 826-827.) Petitioner does not justify his failure to file an appeal by stating that he did not know about his right to appeal. He was informed of and acknowledged his right to appeal at the time he entered his plea. Furthermore, Petitioner has failed to state a claim on which relief can be granted. (People v. Duvall (1995) 9 Cal 4th 464, 474.) Petitioner has not shown by independent corroborating evidence that Petitioner would not have pled guilty had he known about the five year parole period or his right to appeal. (In re Resendiz (2001) 25 Cal 4th 230, 253.)
(Resp't's Answer Ex. 5.) Petitioner then filed a state habeas petition to the California Court of Appeal which summarily denied the ...