WILLIAM Q. HAYES, District Judge.
The matter before the Court is the Report and Recommendation issued by Magistrate Judge Nita L. Stormes (ECF No. 19), and the Petition for Writ of Habeas Corpus filed by Petitioner Edul Jinnah Azeez, II. (ECF No. 1).
On July 25, 2012, Petitioner, a prisoner proceeding pro se, filed the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. section 2254 challenging the sentence imposed by the San Diego County Superior Court in case number SCD220467. (ECF No. 1). Petitioner raises seven claims. In claims one through six, Petitioner lists aggravating factors relied on by the sentencing court in imposing the upper-term sentence that Petitioner alleges were improper. In claim seven, Petitioner alleges that he was denied his Fourteenth Amendment right to Equal Protection when the sentencing judge "sentenc[ed] similarly-situated defendants to highly disparate sentences based on race." Id. at 15.
On July 11, 2013, Respondent filed an Answer to the Petition. (ECF No. 16).
On August 5, 2013, Petitioner filed a Traverse. (ECF No. 18).
On August 16, 2013, the Magistrate Judge issued the Report and Recommendation. (ECF No. 19). The Magistrate Judge reviewed each of the Petitioner's claims and recommended that this Court deny the Petition for Writ of Habeas Corpus.
On September 10, 2013, Petitioner filed objections to the Report and Recommendation. (ECF No. 20). Petitioner contends that he is entitled to Habeas Corpus relief because he "has proven that the State Court decision(s) was not only contrary to or involved an unreasonable application of clearly established federal law'; but more importantly, it was based on an unreasonable determination of the facts in light of the evidence presented.'" Id. at 3. Petitioner contends that the sentencing judge relied on improper aggravating circumstances that were not legally justified. Id. at 3. Petitioner contends that his "Equal Protection' under our Fourteenth Amendment' was clearly violated in the adjudication of this matter, and such is conspicuously evident in the record, as was more than set forth in the Petition." Id.
II. Standard of Review
The duties of the district court in connection with a magistrate judge's report and recommendations are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. section 636(b)(1). The district court must "make a de novo determination of those portions of the report... to which objection is made, " and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1); see also U.S. v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).
The Court has reviewed the Lodgments, the Petition, the Report and Recommendation, and the objections in their entirety.
In his objections, Petitioner contends that improper aggravating circumstances were relied on in sentencing that were not legally justified. (ECF No. 20). "[U]nder California law, only one aggravating factor is necessary to set the upper term as the maximum sentence." Butler v. Curry, 528 F.3d 624, 643 (9th Cir. 2008). Once the upper term is set as the maximum sentence, the imposition of the lower, middle, or upper-term sentence "is  discretionary and does not depend on the finding of any aggravating factors." Id. at 652 n.20. This principle is not contrary to or an unreasonable application of federal law. See Butler, 528 F.3d at 642-43; Kessee v. Mendoza-Powers, 574 F.3d 675, 676 n.1 (9th Cir. 2009). Because at least one of the aggravating factors relied on by the sentencing judge was established in a manner consistent with the Sixth Amendment, Petitioner's sentence does not violate the Constitution. See Butler, 528 F.3d at 643. Petitioner's objection relating to claims one through six is overruled.
In his objections, Petitioner contends that his Fourteenth Amendment right to Equal Protection was "clearly violated in the adjudication of this matter, as was set forth in the Petition." (ECF No. 20 at 3). Petitioner alleges that the sentencing judge made an "insensitive and inappropriate" remark, which indicated that Petitioner was sentenced more harshly based on his race and serves as the basis of his equal protection claim. (ECF No. 1 at 15). After review of the record, there is no evidence that the judge imposed a harsher sentence due to race. The record reflects that the judge took into account the circumstances of each individual defendant and relied upon legitimate legal and factual bases for Petitioner's sentence. Accordingly, the state court's finding that the comment made by the sentencing judge did not substantiate Petitioner's claim of racial bias and discrimination was not an unreasonable determination of the law or the facts. Even ...