The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
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 2008 conviction on charges of receiving stolen property, and the resulting aggregate sentence of five years in state prison. Petitioner claims the trial judge violated petitioner's right to a jury trial by imposing an upper term sentence based on facts not found true by a jury or admitted by petitioner, and alleges that appellate counsel was ineffective for refusing to challenge the alleged sentencing error on appeal. Both parties consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). After careful review of the record, this court concludes that the petition should be denied.
On May 23, 2008, petitioner was found guilty of receiving stolen property and driving under the influence. (Clerk's Transcript ("CT") 252.) On July 18, 2008, petitioner was sentenced to an aggravated term of three years on charges of receiving stolen property, and an additional two years for two prior prison term special allegations found true. (CT 248.) He was sentenced to one concurrent year for misdemeanor driving under the influence. (Id.)
Petitioner filed a timely appeal in the California Court of Appeal, Third Appellate District. On September 3, 2009, the California Court of Appeal affirmed the judgment. (Respondent's Lodged Document ("LD") 7.)
On August 24, 2010, petitioner filed a petition for writ of habeas corpus in the Shasta County Superior Court. (LD 9.) The Superior Court denied the petition in a reasoned decision on September 14, 2010. (LD 10.)
On October 29, 2010, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District. (LD 11.) On November 4, 2010, the California Court of Appeal denied the petition without comment. (LD 12.)
On November 29, 2010, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (LD 13.) On May 18, 2011, the petition was denied without comment. (LD 14.)
Petitioner filed the instant petition on June 10, 2011. (Dkt. No. 1.)
The opinion of the California Court of Appeal contains a factual summary of petitioner's offenses.
On January 27, 2008, a police officer conducted a traffic stop of a vehicle driven by [petitioner]. The officer smelled alcohol on [petitioner's] breath. [Petitioner] initially refused to perform any field sobriety tests. Upon learning [petitioner] was on parole and searching [petitioner], the officer found two California Identification cards and three Social Security cards belonging to victims whose car was stolen on January 6, 2008. More than an hour after the initial stop, [petitioner] agreed to a breath test, which revealed a blood alcohol level of .072.
In May 2008, a jury found [petitioner] guilty of receiving stolen property (§ 496, subd. (a)) and driving under the influence of alcohol (Veh.Code, § 23152, subd. (a)).
[Petitioner] waived jury trial on the allegations that he had three prior prison terms (§ 667.5, subd. (b)) and two prior convictions for driving under the influence (Veh.Code, § 23540). The trial court found true the first two prior prison term allegations, but not the third. The court found true both prior DUI convictions.
On July 18, 2008, the trial court sentenced [petitioner] to five years in prison as follows: The upper term of three years for the property crime, plus two consecutive one-year enhancements (§ 667.5, ...