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 2006 judgment of conviction entered against him in the Sacramento County Superior Court on two counts of transportation of a controlled substance (cocaine), one count of transportation of a controlled substance (marijuana), and one count of conspiracy to transport a controlled substance (cocaine). Petitioner seeks federal habeas relief on the following grounds: (1) the trial court abused its discretion when it denied his motion to dismiss a prior "strike" conviction at the time of his sentencing in the interests of justice; and (2) his sentence constitutes cruel and unusual punishment.*fn1 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In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal*fn2 , the California Court of Appeal for the Third Appellate District provided the following procedural and factual summary:
A jury convicted defendant Kevin Lewis Holloway of transportation of cocaine base (Health & Saf. Code, § 11352, subd.
(a) -- count one), transportation of heroin (ibid. -- count two), transportation of marijuana (Health & Saf. Code, § 11360, subd.
(a) -- count three), and conspiracy to transport cocaine, heroin and marijuana (Pen. Code, § 182, subd. (a)(1) -- count seven). The jury found true allegations that defendant had suffered a 1988 robbery conviction (Pen. Code, § 211) and a 1998 voluntary manslaughter conviction (Pen. Code, § 192, subd. (a)). The trial court declined to strike either prior felony conviction. Defendant was sentenced to state prison on counts one, two, and three for concurrent terms of 25 years to life. The sentence on count seven was stayed pursuant to Penal Code section 654.
On appeal, defendant contends (1) the trial court's refusal to strike one or both prior felony convictions was an abuse of discretion, and (2) his sentence of 25 years to life is cruel and unusual within the meaning of the Eighth Amendment to the United States Constitution. We shall affirm the judgment.
The facts of defendant's offenses are not at issue and may be briefly stated.
In March 2003 Folsom Prison correctional officers monitored a letter
that defendant, an inmate, sent to Cyndra Holloway.*fn3
Based on the contents of the letter, officers initiated an
the possible smuggling of narcotics into Folsom Prison during a family
visit scheduled for later that month.
During the investigation, four telephone calls were recorded and two letters were monitored. The communications indicated that defendant was conspiring with Holloway and at least four other persons to introduce narcotics into the prison.
Officers obtained a warrant to search Holloway on the day of the family visit. They approached her outside the prison's visitor processing building, informed her of the search warrant, and took control of Holloway's handbag. In an interview room, Holloway was asked if she had any narcotics or contraband that she had planned to take into the prison. She answered that she had ibuprofen for a toothache.
The officers read the search warrant to Holloway and explained that she would undergo a body cavity search at a medical facility. She was again asked if she had narcotics or contraband, and this time she answered "yes." A female officer watched as Holloway removed three packages from her vagina. The packages contained 36.5 grams of marijuana, 6.7 grams of heroin, and 1.5 grams of rock cocaine. (Opinion at 2-4.)
I. Standards of Review 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 ...