The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Kings, following his conviction by jury trial on June 24, 2009, of possession of marijuana while confined in a state prison (Cal. Penal Code § 4573.6). (CT*fn1 56.) In a bifurcated proceeding, the court found that Petitioner had sustained six prior serious and/or violent felonies within the meaning of California's Three Strikes Law (Cal. Penal Code § 1170.12(a)-(d)). (CT 28-29.) Petitioner was sentenced to serve an indeterminate term of twenty-five years to life. (CT 120.)
Petitioner appealed his conviction. On August 6, 2010, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), affirmed Petitioner's judgment in a reasoned decision. (See Lodged Doc. No. 6.) Petitioner then filed a petition for review in the California Supreme Court. (See Lodged Doc. No. 7.) On October 14, 2010, the petition was summarily denied. (See Lodged Doc. No. 8.)
Petitioner filed the instant federal habeas petition in this Court on May 13, 2011, presenting the following two claims for relief: 1) He alleges the trial court abused its discretion and/or misunderstood the scope of its discretion when it declined to strike Petitioner's priors; and 2) He claims his sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment. On July 12, 2011, Respondent filed an answer to the petition. On August 23, 2011, Petitioner filed a traverse.
On May 10, 2008, Correctional Officer Timothy Davis was assigned to the dining hall at Avenal State Prison. He conducted random clothed-body searches of the inmates to make sure they did not have any contraband when they left the dining hall. Davis had already searched three inmates when he randomly selected [Petitioner] and conducted a patdown search over his clothes. Davis detected an object along [Petitioner]'s waistband. Davis asked [Petitioner] about the object, and [Petitioner] said it was marijuana.
After a thorough search of [Petitioner], Davis discovered [Petitioner] was wearing personal athletic shorts under his prison-issue pants. The shorts contained an inmate-manufactured pocket. There were three items inside the pocket: two round bindles which were wrapped in clear cellophane and one bindle which was inside a tubular object.
The bindles contained 6.27 net grams of marijuana and five hand-rolled cigarettes which weighed 2.2 net grams, for a total of 8 .47 grams. One of the cigarettes was tested, and it was positive for marijuana. The evidence officer inadvertently destroyed the shorts that contained the contraband. (See Lodged Doc. No. 6.)
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, 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 Kings 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. Lockyer v. Andrade, 538 U.S. 63, 70 (2003); 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 (1997), quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) (holding AEDPA only applicable to ...