ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
(ECF No. 1)
STANLEY A. BOONE, District Judge.
Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States magistrate judge. Local Rule 305(b).
In 1999, a jury convicted Petitioner of multiple felonies, including five counts of forcible rape (Ca. Pen Code § 261, subd. (a)(2)) and two counts of kidnapping (§ 207, subd. (a)). The jury found all of the various enhancement allegations true, with the exception of one. Petitioner was sentenced to 61 years and 4 months in state prison.
In May 2006, this Court granted Petitioner's petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 finding the trial court erred in instructing the jury relating to his five counts for forcible rape. In 2008, the United States Court of Appeals for the Ninth Circuit affirmed this Court's judgment.
In November 2009, the State of California expressed its intention to retry the case. In response, Petitioner pled no contest to the five counts of forcible rape and admitted the firearm use enhancement allegations.
On January 12, 2010, Petitioner was sentenced to 60 years and 8 months, with custody credit of 662 days. The sentence included a three year term on the count 8 firearm use enhancement.
On April 26, 2011, the California Court of Appeal, Fifth Appellate District remanded the case to the trial court for the limited purpose of (1) striking the firearm use enhancement imposed in relation to count 8; and (2) recalculating the number of actual days of custody credit.
On July 26, 2012, the California Court of Appeal, Fifth Appellate District modified the judgment as follows:
As of July 11, 2011, appellant is awarded 4, 687 days of actual time credits and 216 days of custody credits. As modified the judgment is affirmed. The trial court is directed to issue a new abstract of judgment indicating this modification and, in addition, the following: (1) In connection with appellant's count 6 kidnapping conviction, the imposition of a two-year enhancement under former Penal Code section 12022.5, subdivision (a), and (2) all convictions suffered by appellant in the instant case, as indicated on the first and third pages of the abstract of judgment filed July 11, 2011. Appellant need not be present. The trial court is directed to forward a certified copy of the new abstract of judgment to the Director of the Department of Corrections and Rehabilitation.
(People v. Mejia, F063236, 2012 WL 3039733 *5.)
Petitioner subsequently filed state habeas corpus petitions in the California Superior Court for the County of Tulare and California Supreme Court, which were both denied.
Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation (CDCR) pursuant to a July 11, 2011, judgment of the California Superior Court, Tulare County, as modified, which imposed an aggregate state prison term of sixty years and eight months for a plea of no contest to kidnapping and forcible rapes.
Petitioner filed the instant petition for writ of habeas corpus June 5, 2013. Respondent filed an answer to the petition on July 22, 2013. Petitioner filed a traverse on August 20, 2013.
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