ORDER AND FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on April 8, 2005 in the Sacramento County Superior Court on charges of attempted robbery with use of a firearm. He seeks federal habeas relief on the grounds that his sentence violates his rights to due process and a jury trial, and his trial counsel rendered ineffective assistance. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal*fn1 , the California Court of Appeal for the Third Appellate District provided the following factual summary:
Defendant Christopher Boyd Crockett pled guilty to attempted robbery with personal use of a firearm in exchange for a stipulated prison sentence of 13 years and dismissal of another count. Defendant now contends his sentence violates the principles set forth in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856]. We affirm.
PROCEDURAL BACKGROUND It is not necessary to recite the facts of defendant's offense, as they are not pertinent to resolution of the issue on appeal.
At the time of the plea agreement, it was stipulated that defendant would receive the upper term of three years for the attempted robbery and the upper term of 10 years for the firearm enhancement, for a total of 13 years in state prison.
At the sentencing hearing, the prosecutor stated he had been mistaken about the applicable sentence triad for attempted robbery and believed the correct term was two years six months. The trial court accepted the prosecutor's representation and sentenced defendant to an aggregate term of 12 years 6 months, which included the upper term of 10 years for the firearm enhancement. The court noted that the stipulated resolution did not require a discussion of factors in aggravation, but it nevertheless, stated the factors on the record.
Defendant appealed and the judgment was affirmed by this court in case No. C049893. His petition for review was denied and the remittitur issued on January 9, 2006.
On March 26, 2007, defendant filed a petition for writ of habeas corpus with the trial court seeking relief from the upper term sentences pursuant to Cunningham. The trial court denied the petition but discovered that the two-year six-month sentence for attempted robbery was unauthorized. The trial court vacated the previously imposed unauthorized sentence and imposed the upper term of three years for attempted robbery, for an aggregate term of 13 years in state prison. The court stayed its order for 30 days to provide the parties with an opportunity to request a resentencing hearing.
Defendant moved for a resentencing hearing, which took place on September 12, 2007. At the resentencing hearing, the prosecutor acknowledged his previous error and noted that the plea agreement was for 13 years. Nevertheless, the prosecutor requested the court impose the middle term of two years for the attempted robbery, instead of the previously agreed-upon upper term. Defense counsel stated she had no objection to the proposal. The trial court imposed the middle term of two years for attempted robbery and the upper term of 10 years for the firearm enhancement for an aggregate term of 12 years in state prison.
Applicable to Habeas Corpus Claims 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. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 ...