ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in writings signed by the parties or their representatives and filed by Petitioner on August 23, 2010 (doc. 5), and by Respondent on December 21, 1910 (doc. 10). Pending before the Court is the petition, which was filed on August 4, 2010. On February 7, 2011, Respondent filed and served an answer with documentation ofstate court proceedings. No traverse was filed.
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. -, -, 131 S.Ct. 13, 16 (2010) (per curiam). Petitioner claims that in the course of the proceedings resulting in his conviction, he suffered violations of his Constitutional rights. Further, the challenged judgment was rendered by the Fresno County Superior Court (FCSC), which is located within the territorial jurisdiction of this Court. 28 U.S.C. §§ 84(b), 2254(a), 2241(a), (d).
Respondent filed an answer on behalf of Respondent Randy Grounds, Warden of the Correctional Training Facility (CTF) at Soledad, California, where Petitioner has been incarcerated at all pertinent times during this proceeding. Petitioner has thus named as Respondent a person who had custody of the Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules). See, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
Accordingly, this Court has jurisdiction over the subject matter of this action and over Respondent Grounds.
Following a jury trial in FCSC cases F07903293 and F07904634, Petitioner was convicted of attempting to dissuade a witness in violation of Cal. Pen. Code § 136.1(a)(2), corporal injury to a former cohabitant with a prior conviction in violation of Cal. Pen. Code 273.5(e), criminal threats in violation of Cal. Pen. Code § 422, and misdemeanor contempt of court in violation of Cal. Pen. Code § 166(c)(1). He was sentenced to an indeterminate term of twenty-five years to life plus ten years for two prior serious felony convictions pursuant to Cal. Pen. Code § 667. (LD1 4, 1, 9.)
Petitioner appealed the judgment to the California Court of Appeal, Fifth Appellate District (CCA) in case number F054388. (LD 4.) In an unpublished opinion filed on April 29, 2009, the CCA affirmed the judgment. (LD 4.)
Petitioner sought review in the California Supreme Court (CASC) in case number S173469. (LD 5.) On July 8, 2009, the CASC denied the petition for review without any statement of reasoning or authority. (LD 6.)
Petitioner did not file any habeas corpus petitions in the state courts with respect to the judgment.
Petitioner filed his petition in this proceeding on August 4, 2010.
In a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct; the petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. 28 U.S.C. § 2254(e)(1); Sanders v. Lamarque, 357 F.3d 943, 947-48 (9th Cir. 2004). The following factual summary is taken from the opinion of the California Court of Appeal, Fifth Appellate District, in People v. Rojas, case number F054388. See, Galvan v. Alaska Dep't. Of Corrections, 397 F.3d 1198, 1199 n.1 (9th Cir. 2005) (setting forth a factual summary from the state appellate court's decision).
FACTS
Appellant and Loretta B. had been friends for many years, and they began dating at the end of 2003. In March 2006, they started to live together, but they broke up in September 2006 because of appellant's violence toward her, and they no longer lived together. On October 13, 2006, the court issued a protective order involving a domestic violence incident between appellant and Loretta, and ordered appellant not to come within 100 yards of Loretta, and not to harass, threaten, batter, stop, or stalk her.
Around 7:00 p.m. on January 19, 2007, Loretta went to a party at a home near Shields and Blackstone Avenues in Fresno. There were about nine or 10 women there when she arrived. Appellant and four men arrived at the house between 10:00 p.m. and 11:00 p.m. Loretta did not know that appellant was going to be there.
Appellant smelled of alcohol and appeared intoxicated. Loretta tried to make small talk but he became verbally abusive toward her, acted jealous, accused her of cheating on him, and called her all kinds of names.
Around 12:30 a.m. on January 20, 2007, Loretta decided to leave and walked out of the house. Appellant followed Loretta, called her a bitch, and said he was going to kill her. One of appellant's friends called out that they should get back in the house because the police would come. FN2FN2. The friend's warning may have referred to the existence of the protective order against appellant.
Loretta told appellant to leave her alone. She crossed the street and tried to walk away from him. Appellant grabbed her hair and began hitting and kicking her. Appellant repeatedly punched her face with both open and closed fists, and Loretta put up her hands to protect herself. Loretta thought the people at the party saw appellant hit her, but they did not help because they were his friends.
Loretta ran down the street and headed towards a liquor store, but she briefly stopped to take off her high-heeled boots so she could run faster. She ran into the alley behind the liquor store, and appellant caught up with her. He called her a bitch and said he was going to kill her. Appellant repeatedly hit her with closed fists, and kicked and stomped her on the head, face, and hands. At some point, appellant grabbed her purse and scattered the contents and her cellphone on the street. Loretta tried to run but she tripped and fell to the ground, and he continued to kick her. Loretta was screaming and crying for help, and thought appellant was going to kill her.
Loretta managed to get up, she kicked appellant in the ankle, and she ran out of the alley and toward an office building that was next to a canal. She ran behind the office building but appellant caught her, and repeatedly punched her head, face, back, and side. Appellant said he was going to kill her and throw her into the canal.
Appellant stopped hitting Loretta, and she ran into the street, cried for help, and was almost hit by a car. Appellant ran right behind her and kept calling her a bitch. She ran back toward the office building and appellant followed her.
The dispatch
Around 12:30 a.m., Cristomo Luna was in his house on Glen Avenue when he heard screaming. He looked outside and saw a man hitting a woman. The man was holding a pair of boots and the woman was barefoot. The woman seemed to be following the man. The man did not want her to follow him and threw both boots at the woman. The woman fell down and the man punched the woman in the face. The man and woman kept walking and fighting. They crossed the street to the liquor store and went toward the trash cans. Luna could not see them, but he could hear the woman screaming and crying, and the sounds of someone being hit against the trash cans.
Luna decided to call the police because the man was hitting the woman so much that he was afraid he would kill her.
At approximately 12:57 a.m., Fresno Police Officer Douglas Zavala responded to the dispatch, and saw appellant and Loretta walking on the sidewalk, side by side, about 100 yards away from the liquor store. He immediately noticed that Loretta had facial injuries, a bloody lip, and scrapes on her hands, legs, and knees. Loretta was scared, crying and very upset.
Zavala placed appellant in handcuffs and had him sit on the curb. Appellant did not appear to have any injuries, and he seemed calm and relaxed. Loretta was standing next to appellant and she was still crying and upset. Appellant and Loretta were speaking in Spanish to each other. Zavala asked them what was going on. Either appellant or Loretta replied that Loretta got into a fight with some females. Zavala told them that witnesses called in the disturbance and said that it involved a man and a woman, and he wanted to know what actually happened. Zavala did not receive a response. Zavala testified he never told Loretta that she would be arrested if she did not tell the truth.
Loretta testified appellant stopped the assault about two or three minutes before the police arrived. Loretta testified that after he was handcuffed, appellant spoke to her in Spanish, told her to say that some girls jumped her, or he would send someone to hurt her. Loretta testified she decided to lie to the officer because she was afraid appellant would get out of jail and beat her again. Loretta testified she told the
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