Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Ct. No. BA158527 denying a petition for writ of habeas corpus. Steven R. Van Sicklen, Judge. Appeal dismissed.
Cynthia A. Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ZELON, J.
Andre Lavell Wooten was convicted by a jury on February 24, 1998 of possession for sale of cocaine (count 1) and selling cocaine (count 2). In a bifurcated proceeding he admitted having suffered a prior serious or violent felony conviction under the “Three Strikes” law.
At sentencing, the trial court granted Wooten’s new trial motion as to count 1, dismissed that count in furtherance of justice, and imposed an aggregate state prison term of 13 years, consisting of five-year upper term for selling cocaine, doubled under the Three Strikes law, plus a three-year enhancement for having a prior narcotics conviction. Wooten received presentence custody credit of 233 days (159 actual days and 74 days of conduct credit). The court ordered Wooten to pay a $50 lab analysis fee and a $200 restitution fine.
Wooten appealed and this court affirmed the judgment. (People v. Wooten (Feb. 17, 1999, B121395) [nonpub. opn.].)
On February 2, 2007, Wooten, in propria persona, filed a motion to reconsider his sentence in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) which the court deemed a petition for writ of habeas corpus on March 15, 2007. The superior court denied the petition for writ of habeas petition on April 2, 2007, on grounds Wooten’s case had become final before Cunningham was decided and that Cunningham should not be applied retroactively.
Wooten entitled his motion, a “MOTION TO REOPEN CASE TO REVIEW AND ADJUST UNCONSTITUTIONAL MAXIMUM SENTENCING IMPOSED BY THE HONORABLE SAMUEL L. MAYERSON, PURSUANT TO SUPREME COURT RULING IN CUNNINGHAM v. CALIFORNIA, CASE NUMBER 05-6551.”
On May 15, 2007, Wooten filed a petition for writ of habeas corpus in this court arguing in part that Cunningham should be given retroactive application. We summarily denied habeas corpus relief. (In re Andre L. Wooten (May 24, 2007, B198963).)
On May 16, 2007, Wooten purportedly appealed from the superior court’s order denying his petition for writ of habeas corpus on April 2, 2007. We appointed counsel to represent him on appeal. After an examination of the record, counsel filed an “Opening Brief” in which no issues were raised. On August 31, 2007, we advised Wooten that he had 30 days within which to personally submit any contentions or issues he wished us to consider. No response has been received to date.
We have examined the entire record and are satisfied that Wooten’s attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106, 112-113; People v. Wende (1979) 25 Cal.3d 436, 441.)
In any event, the denial of a habeas corpus petition is not appeal able. (In re Clark (1993) 5 Cal.4th 750, 767, fn. 7; In re Hochberg (1970) 2 Cal.3d 870, 876, disapproved on other grounds in In re Fields (1990) 51 Cal.3d 1063, 1070, fn. 3.) “Because no appeal lies from the denial of a petition for writ of habeas corpus, a prisoner whose petition has been denied by the superior court can obtain review of his claims only by the filing of a new petition in the Court of Appeal.” (See In re Clark, supra, 5 Cal.4th at p. 767, fn. 7.) Wooten has already unsuccessfully sought habeas corpus relief in this court on the same grounds.
The appeal is dismissed.
We concur: WOODS, Acting P.J. WILEY, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.