Giurbino

ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITION FOR WRIT OF HABEAS CORPUS

PROCEDURAL HISTORY

Tyrone Rogers filed a Petition for Writ of Habeas Corpus on November 14, 2006 challenging his prison sentence. (Petition, at 11.) On January 13, 2004, a San Diego County Superior Court judge found Petitioner guilty on one count of rape by foreign object of an unconscious victim under California Penal Code § 289(d) and one count of attempted rape of an unconscious person under Penal Code §§ 261(a)(4), 664. (Lodgment 1, at 40; Lodgment 2, vol. 2, at 156.) Petitioner appealed his conviction, which the California Court of Appeal denied in part on September 12, 2005. (Lodgment 6.) Rogers argued the trial court erroneously denied his Faretta motion, the admission of evidence as to his prior convictions under California Evidence Code § 1108 violated his due process and equal protection rights, the proof of prior convictions by the preponderance of evidence violated his due process right to proof of guilt beyond reasonable doubt, the evidence in support of his prior convictions was insufficient, and his sentence of 25 years to life under the three strikes law was cruel and unusual.…