Maine v. Sherman

• Decision Date: 31 January 2018
• Docket Number: No. 1:17-cv-01307-AWI-JLT (HC),1:17-cv-01307-AWI-JLT (HC)
• Court: U.S. District Court — Eastern District of California
• Parties: NATHANAEL MAINE, Petitioner, v. S. SHERMAN, Warden, Respondent.

NATHANAEL MAINE, Petitioner, v. S. SHERMAN, Warden, Respondent.

No. 1:17-cv-01307-AWI-JLT (HC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

January 31, 2018

FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS

[TWENTY-ONE DAY OBJECTION DEADLINE]

Petitioner is currently serving a life sentence in state prison for his conviction of domestic violence causing injury and torture. He has filed the instant habeas action challenging the conviction and sentence. As discussed below, the Court finds the claims to be without merit and recommends the petition be DENIED.

I. PROCEDURAL HISTORY

On July 11, 2014, Petitioner was found guilty in the Kern County Superior Court of domestic violence causing injury (Cal. Penal Code § 273.5(a)), and torture (Cal. Penal Code § 206). (Doc. 1 at 1.¹) The jury found enhancements for great bodily injury to be true. (Doc. 1 at 1.) In a bifurcated hearing, the trial court found true allegations that Petitioner had suffered three prior serious felony convictions within the meaning of California's Three Strikes law (Cal. Penal Code §§ 667(c)-(j), 1170.12(a)-(e)). People v. Maine, 2017 WL 1034683, at *1 (Cal.Ct.App.2017). On August 8, 2014, he was sentenced to prison for life with the possibility of parole, plus consecutive terms totaling 11 years. Id.

Petitioner appealed to the California Court of Appeal, Fifth Appellate District ("Fifth DCA"). The Fifth DCA affirmed the judgment on March 17, 2017. Id. Petitioner filed a petition for review in the California Supreme Court, and the petition was summarily denied on May 24, 2017. Id.

Petitioner next filed a habeas petition in the California Supreme Court. (LD² 22.) The petition was denied on August 30, 2017. (LD 23.)

On October 2, 2017, Petitioner filed the instant petition for writ of habeas corpus in this Court. (Doc. 1.) Respondent filed an answer on December 6, 2017. (Doc. 11.) Petitioner filed a traverse on January 8, 2018. (Doc. 13.)

II. FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision³:

New Year's Day Attack

At the time of trial, six months after the incident, Kayla McKinney was 19 years old with two children from defendant, both under two years old. McKinney testified she was in a romantic relationship with defendant for three years and still loved him. On December 31, 2013, McKinney was drinking from a half gallon bottle of Captain Morgan rum at her kitchen table with defendant, her sister Karissa, Karissa's friend Allie, and McKinney's friends Clay and Brandy.

McKinney stated she did not recall anything else from that evening except waking up the next day at 9:00 a.m. in her parents' house. When she awoke, McKinney had a black eye, which she could not open for about six hours, and her eye and head were in pain. McKinney's eye took days to heal. Her lip remained swollen for another day. McKinney testified she did not recall how she received her injuries. McKinney said she remembered nothing from New Year's Eve and did not remember telling her mother what had happened. McKinney denied making statements to sheriff's deputies about the incident.

About a week after the incident, McKinney talked to a social worker from child protective services. The social worker was looking at the injury to McKinney's eye. McKinney told the social worker she did not know what had happened, though McKinney admitted she and defendant were involved in domestic violence on New Year's Eve. The social worker told McKinney she knew what had happened and advised McKinney to get a restraining order on defendant orMcKinney's children would be taken from her. McKinney denied making specific statements about the incident to the social worker.

McKinney told the social worker she had had a food fight with defendant at their home in March 2013. In retaliation, defendant threw a perfume bottle at McKinney, hitting her in the left cheek. McKinney's mother came over and took McKinney to her home where she called the sheriff's office because McKinney had asked her to do so. McKinney talked to a deputy about the incident. Defendant had stomped on McKinney's pinky toe and she showed deputies the injury.

A few days after the New Year's Day incident, McKinney filled out an application for a protective order prepared by someone from the Family Alliance who had read the deputies' report of the incident. McKinney obtained a protective order against defendant. Three recorded phone conversations McKinney had with defendant in January 2014 were played for the jury. McKinney admitted she visited defendant in January 2014 and several times since then. Defendant's parents visited McKinney. McKinney said she did not want defendant prosecuted for what happened on New Year's Eve and January 1, 2014, because she still loved defendant and wanted him to come home.

On New Year's Eve 2013 and New Year's Day 2014, Kimberly Harvey lived next door to McKinney and defendant. McKinney's bathroom window was five feet from Harvey's front door. Harvey was awakened by her daughter who heard a woman screaming for help from the residence next door. Harvey recognized McKinney's voice because their children played together. Harvey heard McKinney screaming "Stop. Stop. Help." Harvey also heard defendant yelling at McKinney and calling her "slut, bitch, whore." Harvey heard defendant repeatedly hitting and slapping McKinney for 30 minutes.

Because she did not have a phone, Harvey could not immediately intervene, but she got to a phone 30 minutes later and called 911. The recording of Harvey's 911 call was played to the jury. When deputies arrived and talked to Harvey, Harvey heard defendant slap McKinney again. Defendant was arrested. McKinney told Harvey once that defendant was very physically and mentally abusive to her. McKinney thanked Harvey for saving her life because defendant would have killed her. After Harvey was subpoenaed to testify at trial, McKinney told her not to come to court. Harvey was convicted twice for theft in 2014.

Kern County Deputy Sheriff Eric Hughes was dispatched with Deputies John Puga and David Rutter to McKinney's home at 3:00 a.m. on January 1, 2014. Hughes announced his presence, knocked on the door, and saw defendant walking down the hallway. Hughes could see defendant peeking out the blinds and run down the hallway before coming back a minute and a half later and opening the door eight or nine inches. Hughes explained he was investigating a domestic disturbance. Defendant told Hughes McKinney and their children were asleep. Hughes, however, saw blood on defendant's hand and realized he needed to make entry to check on the welfare of the other inhabitants. Hughes pushed the door open and ordered defendant to sit on a couch.

McKinney stepped out of the bathroom. Her face had blood running down it, her lip was busted, and her eye was swollen. McKinney was distraught and crying. Her pants were down around her ankles. McKinney told Hughes defendant had beaten her. She was transported to the hospital.

The jury was shown photographs taken by Deputy Puga the evening of the incidentdepicting the extent of McKinney's injuries. Puga explained that when he went towards the bathroom to check on McKinney, she reached out to grab his hand. McKinney's lips were swollen and bleeding, her eyes were swollen shut, her face was bloody, and she was crying. McKinney told Puga she was afraid that if she did not get up from the floor, the deputies would leave and defendant would come back and continue beating her. McKinney was afraid for her life. Puga did not believe McKinney was intoxicated and saw no symptoms of her being under the influence of an alcoholic beverage.

Puga followed McKinney to the hospital where she was able to answer his questions without hesitation. McKinney told Puga defendant had a prior domestic violence incident in which she was the victim about a year earlier. McKinney explained defendant got together with friends at a New Year's Eve party, had several alcoholic beverages, accused McKinney of cheating on him, and started hitting her. McKinney screamed and pled for defendant to stop. At one point during defendant's attack, McKinney lost consciousness when defendant kicked her in the face.

McKinney was treated at the hospital by a physician's assistant. She suffered from a contusion and abrasion along her face on the right superior orbit, resulting in a hematoma. McKinney complained of a head injury and loss of consciousness.

At defendant's and McKinney's residence, Hughes noticed the bathroom and bedroom doors had large holes in them. The frame of the bathroom door was cracked. Both Hughes and Puga believed someone tried to kick the doors open.

Social worker Debra Vallejo with the Kern County Department of Human Services was assigned to McKinney's case. Vallejo contacted McKinney on January 7, 2014, and observed an injury to McKinney's eye that included swelling and broken blood vessels in the eye itself. The skin underneath the eye was yellow. McKinney told Vallejo she and defendant had been partying on New Year's Eve and got into a physical altercation when they got home. Defendant broke down the bathroom door and hit McKinney several times. Defendant pulled McKinney by the hair onto the bathroom floor, kicking her head and her body.

Prior Assault of Juan Rocha

Pursuant to Evidence Code section 1101, subdivision (b), evidence was admitted through the testimony of Clay Dalton that on June 14, 2009, Dalton and defendant were outside a 7-Eleven when Juan Rocha asked them for change. Dalton and defendant told him no. Rocha asked for a cigarette and was again told no. Rocha became angry and walked toward defendant and Dalton and took a swing at them. Defendant swung back and began fighting with Rocha. The two combatants landed on the ground and continued fighting. Two women came out of a car with a bat but stopped approaching defendant when a sheriff's deputy arrived.

Sheriff's Deputy Marcus Moncur testified he

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