FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1)
ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is in custody of the California Department of Corrections and Rehabilitation ("CDCR") serving an indeterminate sentence of 32 years-to-life pursuant to a judgment of the Superior Court of California, County of Kings (the "Superior Court"). On February 15, 2007, Petitioner was convicted by jury trial of assault with malice aforethought and by means of force likely to produce great bodily injury while undergoing a life sentence. (Cal. Pen. Code § 4500), and battery on a non-confined person (Cal. Pen. Code 4501.5). (Doc. 22, Lodged Documents ("LD") 1, p. 2). The jury also found that Petitioner had suffered a prior "serious" felony conviction and three prior strike convictions. (Id.).
Petitioner subsequently filed a direct appeal in the California Court of Appeals, FifthAppellate District (the "5th DCA"), which, on April 30, 2008, in an unpublished decision, affirmed Petitioner's conviction. (LD 1). On May 22, 2008, Petitioner filed a petition for review in the California Supreme Court. (LD 6). On July 9, 2008, the state supreme court denied Petitioner's petition for review. (LD 7). Subsequently, Petitioner filed several state habeas proceedings in order to exhaust additional claims raised herein, all of which were denied by the state courts. (LD 2-5; 8-13).
On July 7, 2009, Petitioner filed the instant petition, raising four grounds for relief: (1) the trial court abridged Petitioner's federal due process rights by permitting the arresting officers to proffer lay testimony regarding whether Petitioner was attempting to lift the victim over a railing so to allow him to throw the victim onto the ground floor; (2) the trial court erred in failing to sua sponte instruct the jury on self-defense; (3) the sentence constitutes cruel and unusual punishment under the Eighth Amendment; and (4) ineffective assistance of appellate counsel in refusing to raise the issues of instructional error and cruel and unusual punishment. (Doc. 1). Respondent's answer was filed on January 14, 2010. (Doc. 21). On April 19, 2010, Petitioner filed his Traverse. (Doc. 28).
Respondent concedes that the all grounds for relief in the petition have been fully exhausted. (Doc. 21, p. 7).
The Court adopts the Statement of Facts in the 5th DCA's unpublished decision:
On November 13, 2005, defendant was an inmate at the California Substance Abuse Treatment Facility (SATF) at Corcoran State Prison in Kings County. Defendant shared cell 203 with Freddy Green. Cell 203 was located on the second tier of the building in which they were housed. The second tier was 15 feet above the lower tier and bordered by a 43-inch railing.
Around 2:50 p.m., Correctional Officers Mike Avila and Cecilia Clausing went to conduct a search of cell 203. After the control booth officer remotely opened the cell door, Officer Clausing told the inmates that their cell was to be searched. Defendant responded, "hell no! You guys ain't coming in here."
Officer Clausing told defendant and Green to step out of the cell so that it could be searched. Defendant and Green responded by assuming an "aggressive stance" or "bladed stan[ce]" with "one foot in front of the other, elbow bent, fist clenched."
Officer Clausing sounded her personal alarm and both Officer Clausing and Officer Avilaordered the inmates to get down in a prone position. When the inmates failed to comply, the officers took their canisters of pepper spray from their belts and sprayed the inmates' faces. Green, who was sprayed once in the face by Officer Avila, complied immediately and "proned out." Officer Clausing sprayed defendant in the face several times, discharging her entire canister of pepper spray, before defendant got down on his knees. Officer Avila then instructed defendant to get into a prone position.
While Officer Clausing handcuffed Green, Officer Avila attempted to handcuff defendant. Defendant pushed up, turned, and punched Officer Avila in the left eye. Stunned, Officer Avila backed up further down on the tier. Defendant pursued Officer Avila, swinging at the officer's head and facial area. Officer Avila slipped on water or pepper spray and fell on his back, hitting his head.
Defendant jumped on top of Officer Avila and continued to swing at his head and face. Eventually, Officer Avila managed to get out from under defendant. When he got up onto his feet, Officer Avila was next to the railing. Defendant wrapped his arms around Officer Avila's midsection and tried to lift him. Officer Avila thought defendant was trying to lift him over the railing. Officer Clausing, who was trying to pull defendant off Officer Avila, also described defendant as putting his arms around Officer Avila's torso and lifting him up over the railing. She noted that Officer Avila was leaning back with his back against the railing, as defendant was trying to pick him up.
Fearing for his life, Officer Avila held on to the railing to prevent himself from going over and falling to the concrete floor below. In the meantime, other officers arrived and helped assist Officer Clausing subdue defendant.
Defense
Defendant and Green both testified, in essence, they were victims of harassment by the correctional officers. According to the inmates, after they awoke around 6:30 a.m., they were taken to a different building while their cell was searched. After they were brought back to their cell around 1:30 p.m., they started to clean up and put away items that had been removed and restored to them after the search.
When Officer Avila and Officer Clausing came to search their cell that afternoon, defendant and Green asked why their cell was being searched and complained that their cell had already been searched that day and their cell was still a mess from the earlier search. They also requested to speak with the sergeant about the situation. Defendant and Green both denied that they had pornographic materials in the cell or coverings on their windows, which was the reason the officers gave in their testimony for why the search was to be conducted.
Officer Clausing declined to call the sergeant and ordered the inmates to step out of their cell. Although defendant and Green admittedly refused to comply with her repeated orders, they denied that they assumed an aggressive stance towards the officers. According to the inmates, when they refused to step out of their cell, Officer Clausing stepped into the cell and started spraying them with pepper spray. Green got down on his stomach, and defendant got down on his knees and then tried to maneuver down to his stomach in the small cell.
As defendant tried to get into the prone position, Officer Avila slammed defendant's head on the ground more than once and dragged him out of the cell. Defendant stood up and started struggling with Officer Avila, trying to the officer off him. Defendant denied trying to punch the officer. They continued to struggle outside the cell and defendant ended up with his back against the railing and Officer Avila in front of him. They continued to struggle and "wrestle" together until other officers arrived. Defendant denied that he ever tried to pick up Officer Avila.
(LD 1, pp. *-*).
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Kings County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(d). Accordingly, the Court has jurisdiction over this action.
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by, Lindh v. Murphy, 521 U.S. 320 (holding the AEDPA only applicable to cases filed after statute's enactment). The instant proceedings were initiated by the filing of the original petition on July 7, 2009, after the enactment of the AEDPA, and thus this case is governed by the AEDPA.
II. Legal Standard of Review A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless he can show that the state court's adjudication of his claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams v. Taylor, 529 U.S. at 412-413.
The first prong of federal habeas review involves the "contrary to" and "unreasonable application" clauses of 28 U.S.C. § 2254(d)(1). This prong pertains to questions of law and mixed questions of law and fact. Williams v. Taylor, 529 U.S. at 407-410; Davis v. Woodford, 384 F.3d628, 637 (9th Cir. 2004). A state court decision is "contrary to" clearly established federal law "if it applies a...
