ORDER AND 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. On August 2, 2006, a jury in Solano County found petitioner guilty of carjacking. Lodgment ("LD") A at 187. Petitioner was subsequently sentenced to an aggravated term of nine years based, in part, upon a finding by the trial court that petitioner suffered a prior prison term in Texas. Id. at 215-18. Petitioner seeks relief on the ground that the trial court imposed the upper term sentence in violation of his right to a jury trial as guaranteed by the Sixth and Fourteenth Amendments of the U.S. Constitution. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
Following his conviction for carjacking, petitioner was sentenced on September 27, 2006 to a term of twenty-three years, which included an upper term of nine years for the carjacking conviction and an additional fourteen years stemming from a Texas prior conviction, which the trial court found to constitute a prior strike and a prior serious felony conviction. See Pet., Ex. C at 1. Petitioner challenged his sentence on direct appeal on the ground that his Texas conviction did not meet the statutory requirements for a strike or a prior serious felony conviction, and that the imposition of the upper term was based on factors not found true beyond a reasonable doubt by a jury, in violation of Cunningham v. California, 549 U.S. 270 (2007). Id.
On appeal, the sentence was affirmed in part and reversed in part. Pet., Ex. C. The appellate court reversed the trial court to the extent it relied on the Texas conviction as a strike or prior serious felony enhancement. Id. at 2-6. However, it found that the trial court's imposition of the upper term for carjacking did not violate Cunningham because the trial court was justified in relying upon the fact of petitioner's Texas conviction to impose the upper term. Id. at 7.
Petitioner appealed this decision to the California Supreme Court, which denied review on June 11, 2008. LD E-F.
Petitioner initiated this action on August 21, 2009, seeking relief on the single ground that the trial court improperly imposed the upper term based on factual findings in violation of his right to a jury trial as guaranteed by the Sixth and Fourteenth Amendments of the U.S. Constitution.
On January 21, 2010, respondent filed an answer.
On April 15, 2010 and following two requests for an extension of time, petitioner filed two documents: the first, a traverse, and the second, a document incorrectly identified by the court as a "First Amended Petition." See Doc. Nos. 24 and 25. After review of the latter document, the court is convinced that the document is, in fact, also a traverse. The purported "First Amended Petition" does not present any new grounds for relief. Further, the heading of the attachment to this document is "Reply/Traverse to Answer." See Doc. No. 24 at 7.
On March 29, 2011, petitioner filed a motion to stay.
Before commencing with the merits of petitioner's Cunningham claim, the court will address petitioner's motion to stay.
Generally, the exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived explicitly by respondent's counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion, thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).
Here, petitioner seeks a stay and abeyance in order to exhaust his state court remedies concerning to the trial court's allegedly unconstitutional use of his prior conviction to sentence him to an aggravated prison term. See Mot. to Stay at 2. The court is perplexed for the simple fact that petitioner is proceeding on this exact claim that respondent concedes was exhausted on direct appeal. See Answer at 2:15-16 ("Petitioner exhausted state remedies for his claims"). Additionally, petitioner attaches to his petition the opinion of the California appellate court addressing this ground for relief. See Pet., Ex. C. Moreover, petitioner has not presented any new claims requiring exhaustion. Finally, in his conclusion to the motion to stay, petitioner requests that this court "proceed to the merits of this petition in the case matter now before the court." Mot. to Stay at 5.
Therefore, this motion will be denied.