United States District Court, E.D. California
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
with a petition for writ of habeas corpus under 28 U.S.C.
§ 2254. Both parties have consented to the jurisdiction
of a magistrate judge. (ECF Nos. 10, 11.) Petitioner alleges
he is entitled to relief because the trial court abused its
discretion when it refused to grant his motion to strike two
prior felony strike convictions before sentencing. Respondent
argues petitioner's claim is not cognizable in habeas.
For the reasons set forth below, the court will deny the
filed a petition for writ of habeas corpus on August 26,
2015. (ECF No. 1.) The magistrate judge then assigned to the
case screened the petition and directed respondent to file a
response. (ECF No. 7.) Respondent filed an answer (ECF No.
14) and petitioner did not reply.
was an inmate at the Sugar Pine Conservation Camp
(“SPCC”), a fire camp operated by the California
Department of Corrections and Rehabilitation
(“CDCR”). (LD 5 at 2.) On April 28, 2012, a staff
member observed two individuals wearing inmate clothing
running outside the camp perimeter. (Id.) Petitioner
was located approximately 150 yards outside the camp
perimeter and was returned to custody without incident.
was charged with escape from custody, a felony.
(Id.) At the beginning of trial, petitioner admitted
two prior felony strike convictions for first degree burglary
in 1996 and 2009. (Id. at 2-3.) Petitioner also
admitted five prior prison terms for (1) the 1996 burglary
conviction, (2) a 1997 conviction for possession of a
controlled substance, (3) a 2000 conviction for possession of
a controlled substance, (4) a 2005 conviction for possession
of a controlled substance for sale, and (5) the 2009 burglary
conviction for which petitioner was serving time at SPCC.
(Id. at 3.) Following the two day trial, petitioner
was found guilty of escape from custody. (Id.)
sentencing, petitioner filed a Romero
motion arguing the court should strike his prior
strike convictions because (1) the 1996 burglary conviction
was temporally remote and the 2009 burglary while not as
remote, was still four years old; (2) the escape was far less
serious than the strike offenses; and (3) the remaining prior
convictions were nonviolent and mostly drug related.
government opposed the motion, arguing petitioner had
suffered numerous felony convictions since 1996 and committed
another felony offense while in custody. (Id.) The
trial court denied the motion and sentenced petitioner to
three years, doubled due to his strike offenses pursuant to
California Penal Code section 1170.12, plus an additional
four years, one year each for four of his prior prison terms,
for a total of ten years in prison. (Id. at 4.)
appeal petitioner alleged the trial court abused its
discretion by failing to grant the Romero motion and
thus, violated his state and federal due process rights. (LD
3.) The California Court of Appeal affirmed the judgment
reasoning the trial court did not abuse its discretion in
refusing to grant the Romero motion and thus,
petitioner's due process rights had not been violated.
(LD 5.) The California Supreme Court summarily denied the
petition for review. (LD 7.)
OF REVIEW APPLICABLE TO HABEAS CORPUS CLAIMS
state a claim for relief cognizable in habeas a petitioner
must allege a violation of the Constitution or federal law.
28 U.S.C. § 2254(a) (A prisoner in custody pursuant to
the judgment of a state court may seek federal habeas relief
“only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United
States.”). Title 28 U.S.C. § 2254(d) sets forth
the following standards for granting federal habeas corpus
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court ...