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Scott Joseph Rippey v. Edmund Brown

September 12, 2012

SCOTT JOSEPH RIPPEY, PETITIONER,
v.
EDMUND BROWN, RESPONDENT.



ORDER

Petitioner is a state prisoner without counsel proceeding with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 He challenges his sentence on a 2009 judgment of conviction entered against him in the Shasta County Superior Court, pursuant to a guilty plea, on charges of transportation of methamphetamine, with enhancements for having suffered prior "strike" convictions and having served prior prison terms. He seeks relief on the grounds that:

(1) the trial court violated his right to due process in denying his motion to strike his prior conviction enhancements at sentencing; (2) his sentence constitutes cruel and unusual punishment; and (3) his trial counsel rendered ineffective assistance. Upon careful consideration of the record and the applicable law, and for the reasons set forth below, petitioner's application for habeas corpus relief must be denied.

I. Factual Background*fn2

In August 2008, a Shasta County deputy sheriff stopped defendant's truck because defendant, three weeks discharged from parole, was not wearing a seat belt and the truck's license plate was obstructed. Defendant told the deputy that his driver's license had been suspended or revoked for over 14 years because of prior convictions for driving under the influence.

During a search of the truck, the deputy found two "baggies" containing marijuana weighing 3.5 grams and 2.8 grams, respectively, and two "baggies" containing methamphetamine weighing 0.9 grams and 0.5 grams, respectively. The deputy also found 14 new baggies, an empty baggie with methamphetamine residue on it, three empty baggies that once contained marijuana, and $260 in cash.

Defendant was arrested and charged with transportation of methamphetamine (Health & Saf.Code, § 11379, subd. (a)-count 1), possession of methamphetamine for sale (Health & Saf.Code, § 11378-count 2), possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a)-count 3), driving with his license suspended for prior conviction for driving under the influence (Veh.Code, § 14601.2, subd. (a)-count 4), and failing to provide evidence of financial responsibility (Veh.Code, § 14601.2, subd.

(a)-count 5).

It was further alleged that defendant had two prior strike convictions: (1) a 1978 conviction for robbery (Pen.Code, § 211), and (2) a 1988 conviction for second degree robbery (Pen.Code, § 211). (Pen.Code, § 1170.12.) It was also alleged that defendant previously served prison terms on convictions for second degree robbery (Pen.Code, § 211), possession of a controlled substance (Health & Saf.Code, § 11377, subd. (a)), and failing to appear (Pen .Code, § 1320.5). (Pen.Code, § 667.5, subd. (b).)

The court later amended the charging information to remove all references to the word "sale" in count 1. Defendant then pled guilty to count 1 as amended, admitted the two prior strike convictions, and admitted serving the three prior prison terms as alleged. The remaining charges were dismissed and defendant reserved the right to make a motion to dismiss either or both of his prior strike convictions pursuant to People v. Romero (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 (Romero).

Defendant also pled guilty to a misdemeanor charge of driving with a blood-alcohol level exceeding .08 percent in an unrelated case. (Case No. 08CT9462.)

Defendant filed his Romero motion, which the trial court denied. Defendant was then sentenced to state prison for 25 years to life plus one year for each of his prior prison terms, for an aggregate term of 28 years to life. Defendant appeals his sentence.

People v. Rippey, No. C062515, 2010 WL 3180272, at *1 (Cal.App.3d Dist. Aug. 12, 2010) (Opinion).

II. Standards for a Writ of Habeas Corpus

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 Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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 ...


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