ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed his original petition on August 29, 2011. Therein he challenged his 2007 judgment of conviction, entered by the Shasta County Superior Court pursuant to his no contest plea, on charges of sexual penetration by force and possession of a controlled substance. Petitioner also claimed that he received ineffective assistance of trial counsel when his lawyer failed to file a notice of appeal from the denial of petitioner's motion to withdraw his plea.
On December 5, 2011, respondent moved to dismiss the petition as barred by the applicable statute of limitations. Petitioner did not timely file an opposition to the motion, and on January 20, 2012 he was ordered to file within thirty days an opposition or a statement of non-opposition to the motion to dismiss. Petitioner filed neither. Instead, on March 6, 2012, petitioner filed a first amended petition challenging the sentence imposed following his conviction and claiming that he received ineffective assistance of counsel in connection with his sentencing. Petitioner also claimed in his amended petition that he is entitled to the benefit of day-for-day credits recently restored by the California Legislature to reduce prison overcrowding.
On June 29, 2012, respondent filed a motion to dismiss the first amended petition pursuant to Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts, contending that petitioner's claims are not cognizable. Petitioner once again did not timely respond to this motion to dismiss. For that reason, by order filed August 23, 2012, petitioner was ordered to file within thirty days either an opposition or a statement of non-opposition to the respondent's motion to dismiss the amended petition. The thirty day period has now expired and petitioner has not responded in any way either to the court's August 23, 2012 order or to respondent's motion to dismiss the amended petition.*fn1
In his amended petition, petitioner claims that California Penal Code § 667(g) prohibited the use of prior convictions to enhance his sentence and that California Penal Code § 651 prohibited enhancing the sentence "based on any other elements of the crime." (First Am. Pet. filed Mar. 6, 2012 (Doc. No. 11), Attachment B at 1.) He argues that the enhancement of his sentence constituted error under California law and therefore violated his right to equal protection.
"Habeas corpus relief is 'unavailable for alleged error in the interpretation or application of state law.'" Windham v. Merkle, 163 F.3d 1092, 1107 (9th Cir. 1998) (quoting Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir.1985)). The Equal Protection Clause of the Fourteenth Amendment requires evenhanded application of laws to all persons. McQueary v. Blodgett, 924 F.2d 829, 834-35 (9th Cir. 1991). Petitioner has alleged no facts which support a finding that the provisions of state law upon which he relies were applied to him in violation of this constitutional guarantee. Accordingly, this sentencing error claim is not cognizable in these federal habeas proceedings.
Next, petitioner claims that he received ineffective assistance of counsel when his attorney failed to bring the above cited provisions of state law to the trial court's attention at sentencing. As explained further below, in order to prevail on his claim of ineffective assistance of counsel, petitioner must show two things, an unreasonable error and prejudice flowing from that error.
The Sixth Amendment guarantees the effective assistance of counsel. The United States Supreme Court set forth the test for demonstrating ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). To support a claim of ineffective assistance of counsel, a petitioner must first show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. 466 U.S. at 687-88. "In determining deficiency, a 'a court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance[.]'" Wood v. Ryan, 693 F.3d 1104, 1118 (9th Cir. 2012) (quoting Strickland, 466 U.S. at 689). After a petitioner identifies the acts or omissions that are alleged not to have been the result of reasonable professional judgment, the court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id. at 690; Wiggins v. Smith, 539 U.S. 510, 521 (2003). Second, a petitioner must establish that he was prejudiced by counsel's deficient performance. Strickland, 466 U.S. at 693-94. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. See also Williams, 529 U.S. at 391-92; Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000). The focus of the prejudice analysis is on "whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). A reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 697).
In advancing his ineffective assistance of counsel claim, petitioner misconstrues California Penal Code § 667(g). That statute provides:
Prior felony convictions shall not be used in plea bargaining as defined in subdivision (b) of Section 1192.7. The prosecution shall plead and prove all known prior felony convictions and shall not enter into any agreement to strike or seek the dismissal of any prior felony conviction allegation except as provided in paragraph (2) of subdivision (f).
Cal. Pen. Code § 667(g). The statute does not, as petitioner contends, prohibit use of prior convictions for sentence enhancement in plea bargained cases. To the contrary, with limited exceptions it prohibits prosecutors from agreeing to dismiss prior felony conviction allegations as part of the plea bargain process.*fn2 Accordingly, petitioner's counsel was not ineffective for failing to raise a non-meritorious objection based on California Penal Code § 667(g). See Jones v. Smith, 231 F.3d 1227, 1239 n. 8 (9th Cir. 2000) (An attorney's failure to make a meritless objection or motion does not constitute ineffective assistance of counsel.) (citing Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985)); see also Matylinsky v. Budge, 577 F.3d 1083, 1094 (9th Cir. 2009), cert. denied ___ U.S.___, 130 S. Ct. 1154 (2010) (counsel's failure to object to testimony on hearsay grounds not ineffective where objection would have been properly overruled); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) ("the failure to take a futile action can never be deficient performance"); Shah v. United States, 878 F.2d 1156, 1162 (9th Cir. 1989) (Defense counsel's advice to client that he had no basis upon which to withdraw his plea despite his claim that he was surprised to learn that his prior convictions could be relied upon at his sentencing did not support a claim for habeas relief since "[t]he failure to raise a meritless legal argument does not constitute ineffective assistance of counsel.")
In support of his ineffective assistance of counsel claim, petitioner also erroneously relies upon California Penal Code § 654(a) which provides:
An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.
However, there is no evidence in the record before this court that petitioner's sentence violated this state law provision upon which he relies or that petitioner's counsel was ineffective in failing to bring that provision to the trial court's attention at the time of sentencing.
For the foregoing reasons, even assuming arguendo petitioner's ineffective assistance of counsel claim is cognizable in these federal ...