The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable James V. Selna, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on July 6, 2012. Respondent filed an Answer on October 17, 2012, asserting that the Petition is unexhausted. Petitioner filed a Traverse on December 14, 2012.
An Information charged Petitioner with unlawful driving or taking of a vehicle, a felony, in violation of California Penal Code section 10851(a) (Respondent's Lodgment I, Clerk's Transcript ["C.T."] 40-42). The Information further alleged that Petitioner had suffered:
(1) eight prior felony convictions within the meaning of California Penal Code section 1203(e)(4); (2) four prior convictions for violation of California Penal Code section 10851 within the meaning of California Penal Code section 666.5; and (3) a prior 1987 robbery conviction qualifying as a "strike" under California's Three Strikes Law, California Penal Code sections 667(b) - (i) and 1170.12(a) - (d) (C.T. 40-42).*fn1
On September 25, 2009, a Los Angeles Superior Court jury found Petitioner guilty of the charged felony (Respondent's Lodgment K, Reporter's Transcript ["R.T."] 357; C.T. 69, 71). The court found true the prior conviction allegations, including the 1987 robbery conviction (R.T. 365; C.T. 71).
Prior to sentencing, on October 22, 2009, Petitioner filed a habeas corpus petition in the California Supreme Court, which that court denied on November 10, 2009 with citations to People v. Duvall, 9 Cal. 4th 464, 37 Cal. Rptr. 2d 259, 265, 886 P.2d 1252 (1995) ("Duvall"), and In re Swain 34 Cal. 2d 300, 304, 209 P.2d 793 (1979), cert. denied, 338 U.S. 944 (1950), 340 U.S. 938 (1951), and 342 U.S. 914 (1952) ("Swain") (Respondent's Lodgment G, H).
On November 23, 2009, the court imposed a mid-term sentence of three years, doubled to six years pursuant to the "one strike" provisions of the Three Strikes Law, California Penal Code sections 667(e)(1), 1170.12(c)(1) (R.T. 1204; C.T. 75-76).
In or about March, 2011, Petitioner filed a habeas corpus petition in the Superior Court, which that court denied on March 17, 2011 (see Traverse, Exhibits, pp. 22-23).*fn2
The Court of Appeal affirmed the judgment on June 29, 2011 (Respondent's Lodgment D). On September 14, 2011, the California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment F).
The Petition contends that the doubling of Petitioner's sentence pursuant to California's Three Strikes Law was improper because Petitioner's 1987 prior conviction allegedly did not constitute a "strike." Petitioner contends that the sentencing judge imposed sentence without an adequate "969b" priors packet, which Petitioner contends would have shown that the 1987 conviction, assertedly the result of a plea bargain, was not a conviction for robbery, but allegedly was a conviction for grand theft (Petition, p. 6). Petitioner contends that the judge in the 1987 case agreed with Petitioner's counsel in that case, that the offense was "closer to grand theft," because there purportedly was "no force, fear, duress or contact" between Petitioner and the victim, Petitioner possessed no ...