The opinion of the court was delivered by: Timothy J Bommerunited States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner and is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury of evading a police officer with reckless driving and driving under the influence of an alcoholic beverage. Petitioner also pled no contest to driving with a suspended licence. (See Clerk's Tr. at p. 73.) The trial judge also found that Petitioner had several prior convictions. Petitioner was sentenced to eleven years. Petitioner raises four claims in his federal habeas petition; specifically: (1) the trial court abused its discretion when it failed to dismiss his prior "strike" conviction or any of his prison priors ("Claim I"); (2) application of the 2007 amendments to California Penal Code section 1170 to his crimes committed before the effective date of the amendments violated the Ex Post Facto Clause ("Claim II"); (3) the trial court committed constitutional error by imposing the upper term sentence on the evading a police officer charge based on facts not admitted by Petitioner nor found by the jury ("Claim III"); and (4) the trial court's imposition of an upper term sentence was an abuse of discretion ("Claim IV"). For the following reasons, the habeas petition should be denied.
II. FACTUAL AND PROCEDURAL BACKGROUND*fn1
Around midnight of December 3, 2006, police officers attempted to stop defendant for speeding, but he sped off and a chase ensued which lasted about 15 minutes and covered over 13 miles. During the chase defendant's speeds reached 70 miles per hour in 45 mile per hour zones, he ran several stop signs and red lights, he drove onto the freeway and reached speeds approaching 100 miles per hour, he repeatedly weaved and changed lanes without signaling, and he drove off of the freeway and into a field where he was stopped by a barbed wire fence.
A police car pulled in behind defendant, however defendant was not done. Defendant put his vehicle in reverse, hit the patrol car and then drove alongside the fence until he was able to again enter the street. The chase ended when an officer used a "pursuit intervention technique," meaning he rammed defendant's vehicle, and he was taken into custody. His blood-alcohol content was .13 percent. (Slip Op. at p. 2.)
After Petitioner was convicted and sentenced, he appealed to the California Court of Appeal. That court affirmed the judgment in a written decision on August 18, 2009. Petitioner's petition for review to the California Supreme Court was summarily denied on November 19, 2009.
In November 2010, Petitioner filed this federal habeas petition. Respondent answered the petition on March 9, 2011.
III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1994); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the state court proceedings unless the state court's adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court. See 28 U.S.C. 2254(d).
As a threshold matter, a court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").
IV. ANALYSIS OF PETITIONER'S CLAIMS
In Claim I, Petitioner argues that the trial court abused its discretion by failing to dismiss a prior strike conviction and/or any of Petitioner's prison priors. This Claim is solely one that the sentencing court abused its discretion under state law in failing to strike a prior conviction and prison priors. No federal due process claim is presented within Claim I. The Claim presented is not cognizable under § 2254 since habeas corpus relief is not available to correct alleged errors in the state court's application or interpretation of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Middleton, 768 F.2d at 1084-85; see also Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989) ...