The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Following a jury trial in the Fresno County Superior Court, Petitioner was found guilty of corporal injury to a spouse (Ca. Pen. Code*fn1 § 273.5, subd. (e)), false imprisonment by violence (§ 236), and resisting, obstructing, or delaying a peace officer, a misdemeanor (§ 148, subd. (a)(1)). (CT 53-56.)
On October 25, 2005, Petitioner waived his right his right to a jury trial on the issue of his prior convictions and admitted the two prior prison terms. (CT 247-248; RT 1206-1207.)
On November 28, 2005, the trial court sentenced Petitioner to the aggravated term of five years as to count one, plus two years for the two prison priors, for a total of seven years. The court imposed the aggravated term of three years for the false imprisonment by violence which was stayed pursuant to section 654. As to the misdemeanor conviction, the court ordered Petitioner to receive credit for time served. (CT 249; RT 1219-1220.)
Petitioner filed a timely notice of appeal. On November 28, 2006, the California Court of Appeal, Fifth Appellate District affirmed the judgment. (Unpublished Opinion, 2006 WL 3411412.)
On September 12, 2007, the California Supreme Court denied the petition for review. (Lodged Doc. No. 15.)
Petitioner filed the instant federal petition for writ of habeas corpus on June 6, 2008. (Court Doc. 1.) Respondent filed an answer to the petition on September 29, 2008, and Petitioner filed a traverse on November 2, 2008. (Court Docs. 8, 9.)
On July 4, 2005, Nina McNeil called her mother, Evelyn,*fn3 who had recently married Graves. Graves answered the phone sounding "very upset." In the background, Nina could hear Evelyn crying and saying her face was swollen and he would not let her leave. Nina hung up, called 911, and called her mother back. Evelyn was still crying; Nina heard Graves say, "That's what you get." Nina drove to Evelyn's apartment and found Evelyn sitting on the front porch. Her face was swollen. Evelyn told Nina that Graves had hit her face several times.
Fresno Police Officer Brandon Wiemiller was called to the scene. When he arrived, medical personnel were treating Evelyn. The left side of her face was swollen and the skin above her lip was torn. There were abrasions on her elbows and knee and discoloration on her chest. There were old cut marks on her wrists but nothing to indicate recent injury. Evelyn told Wiemiller that she and Graves had been drinking. When she told Graves she wanted out of the relationship, he replied, "you've turned against me," and hit her. Graves punched her face several times as she was attempting to leave. When he heard the police had been called, he left with his nine-year-old daughter, who was also in the apartment.
Officers found Graves and his daughter several miles away on bicycles. They were riding to the nearby residence of the child's mother. Graves did not immediately comply with the ...