The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge
MEMORANDUM OPINION AND ORDER DISMISSING PETITION AND DENYING CERTIFICATE OF APPEALABILITY
Petitioner brings this habeas corpus petition pursuant to 28 U.S.C. § 2254, alleging that his sentence is unconstitutional because the trial court imposed an upper-term sentence based on facts that were not proved to a jury beyond a reasonable doubt. For the following reasons, the Court finds that the trial court did not err.
Petitioner was charged with selling crack cocaine. He faced a 25-years-to-life sentence due to the fact that, if convicted of the charge, it would have been his third strike under California's Three Strikes law. Instead of going to trial, Petitioner entered into a plea agreement with the prosecutor in which Petitioner agreed to plead to the charges and receive a ten-year prison sentence in exchange for the prosecutor dropping one of the strike allegations.
Petitioner (and his co-defendants) appeared at a change of plea hearing with counsel and were admonished by the prosecutor on the record:
You each have a right to a jury trial. You would have the right to have the charge and the allegations against you, that's including all of the alleged prior convictions and special allegation, decided by a jury of 12 persons. Every charge and allegation would have to be proven by the People beyond a reasonable doubt. (Lodgment No. 8, Report's Transcript from Plea and Sentencing (hereinafter "RT") at 6.)
Petitioner acknowledged that he had the right to a jury trial on the substantive charge, the priors, and any special allegations (RT 7) and, thereafter, pleaded no contest to the charge and admitted the special allegation:
[The Prosecutor]: Now, as to [Petitioner], to the charge in Count 1, violation of 11352(a), that's a felony, commonly known as sale of a controlled substance, to wit, cocaine base, how do you plead?
[Petitioner]: No contest. [The Prosecutor]: As to the special allegation pursuant to Penal Code section 1170.12(a) through (d) and 667(b) through (I) that you suffered two felony convictions that were serious or violent felonies in Case No. TA022987, violation 211, May 1, 1997 and NA027795, violation of section 211 on November 1, 1996, do you admit or deny this allegation? [Petitioner]: Admit. (RT 11.)
The trial court then sentenced Petitioner to ten years in prison in conformance with the plea. (RT 13.) This sentence was based on the high term of five years on the substantive charge doubled to ten years based on the fact that Petitioner had a prior serious felony conviction. (RT 13.)
Petitioner subsequently filed habeas corpus petitions in the state superior court and state supreme court, claiming that his sentence was unconstitutional because he did not receive a jury trial on the sentence enhancement. (Lodgment Nos. 3 and 5.) Both petitions were denied. (Lodgment Nos. 4 and 6.) Petitioner then ...