The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge
ORDER: 1) ADOPTING MAGISTRATE JUDGE BENCIVENGO'S REPORT AND RECOMMENDATION; 2) DENYING FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS
Before the Court is Magistrate Judge Cathy Ann Bencivengo's Report and Recommendation ("R&R") recommending that the Court deny the First Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 of Petitioner Trenton J. Lohman ("Petitioner"). [Doc. No. 22.] The Court has considered the Petition, Respondent's Answer, Petitioner's Traverse, Petitioner's Objections to the R&R, and all the supporting documents that the parties have submitted. Having considered these documents, this Courtnow ADOPTS the R&R and DENIES the Petition for the reasons stated below.
This Court gives deference to State court findings and presumes their correctness. If Petitioner wishes to rebut the presumption of correctness, he bears the burden of proving that the State court was incorrect by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding that findings of historical fact, including inferences properly drawn from such facts, are entitles to statutory presumption of correctness). Petitioner has not provided the Court with clear and convincing evidence that the State court erred in its findings of fact.
On February 26, 2005, Petitioner approached the victim, Mr. Horning, and demanded that Mr. Horning give him his class ring. [Doc. No. 32.] After Mr. Horning refused, Petitioner threatened to beat him up. Id. Mr. Horning attempted to defuse the situation by walking away and getting into his vehicle, but Petitioner followed him, reached into his truck, and hit Mr. Horning in the face at least four times. Id. Mr. Horning called the police after the fight and reported Petitioner's license plate number.
The police found methamphetamine on Petitioner's person when they arrested him. Id.
Petitioner's strikes to Mr. Horning resulted in the victim's fractured/broken nose and misaligned nasal bones-requiring corrective surgery. Id. Petitioner claimed that he acted in self-defense and denied that he possessed methamphetamine. Id.
On May 25, 2005, a jury found Petitioner guilty of the following crimes: (1) battery with serious bodily injury, in violation of California Penal Code § 243(d) and (2) possession of methamphetamine, a controlled substance, in violation of Health and Safety Code § 11377(a). (Clerk's Transcript at 86-87.) The jury also found that Petitioner inflicted great bodily injury upon the victim, within the meaning of Penal Code § 1192.7(C)(8). Id. at 86. Petitioner was sentenced to a total term of 12 years, which included: (1) the middle term of three years for battery, doubled pursuant to the three strikes law, (2) a five-year consecutive term for a prior serious felony, and (3) a one-year consecutive term for a prior prison term. Id. at 90. The court also imposed a four-year concurrent term for possession of methamphetamine. Id.
On direct appeal, Petitioner argued that the imposition of a sentence other than one under the three strikes law would have been the proper sentence, the jury instructions were confusing, and there was insufficient evidence to establish that Petitioner inflicted "great bodily injury" on the victim. (Lodgment No. 3.) The California Court of Appeal, Fourth Appellate District, Division One, denied the appeal and affirmed the judgment on May 5, 2006.
Petitioner submitted a Petition for Review in the California Supreme Court, which raised the same issues as before the Court of Appeal. (Lodgment No. 7.) The California Supreme Court summarily denied the Petition on July 12, 2006. (Lodgment No. 8.)
On May 17, 2007, Petitioner filed a federal Petition for Writ of Habeas Corpus. [Doc. No. 1.] On June 13, 2007, Petitioner filed a state petition for writ of habeas corpus in the California Supreme Court in order to exhaust state court remedies regarding the federal constitutional issues that Petitioner raised in his federal Petition. (Lodgment No. 9.) On September 6, 2007, the Honorable Magistrate Judge Cathy Ann Bencivengo issued an R&R recommending that this Court deny the Petition, and in response, Petitioner moved to withdraw his Petition without prejudice. [Doc Nos. 17, 19.] On December 12, 2007, the California Supreme Court denied Petitioner's state petition for writ of habeas corpus. (Lodgment No. 10.) On January 10, 2008, this Court granted Petitioner's motion to withdraw his federal Petition and, accordingly, dismissed the Petition without prejudice. [Doc. No. 20.]
On January 22, 2008, Petitioner filed the present First Amended Petition for Writ of Habeas Corpus. [Doc. No. 27.] Respondent Answered on June 27, 2008. [Doc. No. 27.] Petitioner submitted his Traverse on August 7, 2008. [Doc. No. 31.] On August 11, 2008, Magistrate Judge Bencivengo filed an R&R to which ...