The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY [Doc. 1]
Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge. Local Rule 305(b).
On October 1, 2008, a second-amended information was filed in the Tulare County Superior Court, charging Petitioner with five separate counts arising from two different incidents. (Lod. Doc. 1.) In Count One, Petitioner was charged with attempted first-degree residential robbery from the immediate presence of T.R. (Cal. Penal Code*fn1 § 664/211). (Id. at 2.) In Count Two, Petitioner was charged with residential burglary of a dwelling occupied by T.R. and J.H. (§ 459). (Id.) In Count Three, Petitioner was charged with grand theft by taking a laptop and cell phone belonging to I.M. (§ 487(a)). (Id. at 3.) In Count Four, Petitioner was charged with the second-degree robbery of A.L. (§ 211). (Id. at 3.) In Count Five, Petitioner was charged with second-degree robbery of M.S. (§ 211). (Id. at 4.) It was further alleged as to all five counts that Petitioner had a prior juvenile adjudication for robbery within the meaning of California's Three Strikes law (§§ 667(b)-(i), 1170.12(a)-(d)). (Id. at 2-5.)
On January 16, 2009, Petitioner entered a no contest plea to all five counts and the prior strike allegation in exchange for a low-term sentence of nine years and four months. (Lod. Doc. 2 at 1-7.) By accepting the plea, Petitioner avoided a potential mid-term sentence of thirteen years and four months and a maximum upper-term sentence of seventeen years and four months. (Lod. Doc. 4 at 3.)
On March 11, 2009, Petitioner was sentenced to an aggregate low-term sentence of nine years and four months in compliance with his plea. The sentence was imposed as follows: a four year term on count 2 as the principal offense-representing the low-term doubled pursuant to the Three Strikes law; plus consecutive sentences-representing one-third the mid-term doubled, of one year and four months on count 3; two years on count 4, and two years on count 5. (Lod. Doc. 5 at 1.) The court stayed the oue-year term on count 1 pursuant to section 654. (Id.) Petitioner waived the right to appeal at the sentencing hearing. (Lod. Doc. 4 at 6.) Consequently, a notice of appeal was never filed. Thus, Petitioner's state court conviction became final sixty days later on May 10, 2009.
On December 1, 2009, Petitioner filed a habeas corpus petition, along with a motion to reduce the restitution fine, in the Tulare County Superior Court. (Lod. Doc. 6 at 7.) Petitioner raised the following two claims: (1) the use of his prior non-jury juvenile adjudication for robbery to impose an enhancement under the Three Strikes law violated his constitutional right to a jury trial under Apprendi; and (2) the use of the prior adjudication violated his right to a jury trial under Cunningham. (Lod. Doc. 6 at 8-13.) On December 3, 2009, the superior court granted Petitioner's motion to reduce the restitution fine but otherwise denied the habeas petition on the merits. (Lod. Doc. 8 at 1-2.)
On February 16, 2010, Petitioner filed a habeas corpus petition in the California Court of Appeal raising both claims he presented in the first petition. (Lod. Doc. 10 at 4, 12-17.)*fn2
Petitioner also claimed the Tulare County Superior Court erroneously denied his petition because trial counsel failed to timely advise him of the facts and law in support of his claims and, had counsel done so, he would have filed a notice of appeal raising these claims. (Lod. Doc. 10 at 6, 8.)
On February 26, 2010, the California Court of Appeal denied the petition "without prejudice" on procedural grounds pursuant to In re Walker, 10 Cal.3d 764, 773-75 (1974), because Petitioner's failure to file a notice of appeal precluded him from raising issues which could have been raised on appeal. (Lod. Doc. 11.) The appellate court further found that this procedural bar was not excused by Petitioner's claim that his counsel was ineffective for failing to advise him of the underlying issues because under Roe v. Flores-Ortega, 528 U.S. 470 (2000), such knowledge is not required in order to file a notice of appeal. (Lod. Doc. 11.)
On May 6, 2010, Petitioner filed a habeas petition in the California Supreme Court. (Lod. Doc. 12.) Petitioner raised the same claims as the prior petitions and also argued the California Court of Appeal erroneously denied his petition on procedural grounds because his failure to file a timely notice of appeal was excused by his counsel's ineffectiveness for failing to challenge the alleged unlawful sentence or advising him of the ramifications of accepting the terms of the plea. (Lod. Doc. 12 at 6, 7-12.) On November 23, 2010, the California Supreme Court summarily denied the petition. (Lod. Doc. 13.)
Petitioner filed the instant petition for writ of habeas corpus on February 25, 2011. Respondent filed an answer to the petition on May 26, 2011. Petitioner filed a traverse on August 9, 2011.
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Tulare County Superior Court, which is located within the jurisdiction of this Court.
28 U.S.C. § 2254(a); 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997; Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
Where a petitioner files his federal habeas petition after the effective date of the Anti- Terrorism and Effective Death Penalty Act ("AEDPA"), he can prevail only if he can show that the state court's adjudication of his claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...