The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both parties consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). Petitioner challenges his 2010 conviction on charges of transportation of a controlled substance, and driving with a blood alcohol level of .08 or greater. Petitioner's sentence was enhanced based on his admission regarding a prior conviction. Petitioner was sentenced to six years in prison. Petitioner claims that the trial court's consideration of a dismissed charge violated petitioner's constitutional rights. After careful review of the record, this court concludes that the petition should be denied.
On June 28, 2010, petitioner pled guilty to transportation of a controlled substance, and driving with a blood alcohol level of .08 or greater. (Reporter's Transcript ("RT") at 21-26.) Petitioner was sentenced on August 2, 2010. (RT at 27-34.)
Petitioner filed a timely appeal, and on July 8, 2011, the California Court of Appeal, Third Appellate District, Case No. C065875, affirmed the conviction. (Respondent's Lodged Document ("LD") 1.)
Petitioner filed no collateral challenges in state court.
On September 13, 2012, pursuant to Rule 3(d) of the Federal Rules Governing Section 2254 Cases, the instant action was constructively filed. (Dkt. No. 1 at 26.)
III. Facts and Proceedings*fn1
The opinion of the California Court of Appeal contains a factual summary of petitioner's offenses, and the proceedings below.
In light of [petitioner's] guilty plea, the facts are taken from the preliminary hearing.
On April 17, 2010, at approximately 2:20 a.m., Sergeant Dave Kain of the Tehama County Sheriff's Department saw a car drive off the right portion of a road while making a turn and then drive into the opposite lane of traffic while making another turn. He stopped the car.
[Petitioner] was driving the car. When Sergeant Kain came up to the car, he noticed the odor of alcohol and saw that [petitioner's] eyes were bloodshot and watery. Kain told [petitioner] to step out of the car and noticed [petitioner's] gait was unsteady and he had alcohol on his breath. Kain asked [petitioner] if he had any weapons on him and [petitioner] told him he had a knife in a sheath strapped to [petitioner's] right ankle. As Kain took the knife, he saw [petitioner] make a throwing motion with his left hand and saw a piece of tissue fly through the air. Kain picked up the tissue and found that it contained a usable amount of marijuana.
At this point, Sergeant Kain arrested [petitioner] and conducted a more thorough search. He discovered a baggie sticking out of [petitioner's] left sock that contained 1.85 grams of psilocybin. [Petitioner] was taken to a hospital and his blood was drawn. His blood alcohol level was determined to be 0.11.
[Petitioner] was charged with three felonies: possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), transportation of a controlled substance (id., § 11379, subd. (a)), and carrying a concealed dirk or dagger (Pen. Code, § 12020, subd.
(a)(4)). On each felony, [petitioner] was also charged with a prior strike (id., §§ 459, 1170.12, subds. (b)-(2)), to wit, a 1999 first degree burglary, and a prior felony for which he served a term in prison (id., § 667.5, subd. (b)). [Petitioner] was also charged with three misdemeanors: driving under the influence (Veh. Code, § 23152, subd. (a)), driving while his license was suspended or revoked (id., § 14601.1, subd. (a)), and driving with a blood alcohol level of 0.08 or higher (id., § 23152, subd .(b)).
[Petitioner] entered a negotiated plea of guilty to transportation of a controlled substance and driving with a blood alcohol level of 0.08 or higher. He also admitted the ...