The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are petitioner's amended petition for a writ of habeas corpus (Doc. 11), respondent's answer (Doc. 15), and petitioner's reply (Doc. 25).
The state court recited the following facts, and petitioner has not offered any clear and convincing evidence to rebut the presumption that these facts are correct:
On August 17, 2005, at around 1:30 p.m., 82-year-old Warren Nielsen was inside the U.S. Bank at 9th and J Streets in Sacramento. He had just left the teller and was heading outside. He was checking the $150 he had withdrawn from his bank account, getting ready to put it inside his wallet, when a man suddenly appeared alongside him. The man took control of Nielsen's hand with one of his hands and grabbed Nielsen's money with the other hand. Nielsen testified that in the time he and the man "were fighting over the money," they went from inside the bank to outside the bank on J Street. Nielsen admitted "it wasn't much of a fight" because the man just grabbed the money, pushed Nielsen away, and ran. Nielsen said he tried to hang onto his money, but could not do so. Nielsen said the man hurt him "a little bit" because he was grabbing for the money, but he did not think the man was trying to hurt him. (footnote omitted). The man just wanted the money. Nielsen raised his hand with the money up near his face and as the man grabbed the money, the man exerted some pressure on the left side of Nielsen's jaw. Nielsen said it was "just a normal part of getting the money." When asked if the man had used any more force than necessary to get the money out of Nielsen's hand, Nielsen non-responsively answered that the man was not trying to hurt him; he just wanted the money. Nielsen believed the man used two hands; one to push his head away and the other to grab the money. Nielsen did not recall anything the man did or said before he took the money to make Nielsen afraid.
Nielsen testified he tried to run after the man, but the man disappeared into a park. Security officers from the bank started chasing the man. Nielsen went back inside the bank and the bank replaced his money.
At the time of the incident, Steve Benstead was on his motorbike, riding on J Street, when a rapid movement to his left caught his attention. He turned and saw an encounter between a Caucasian man in his mid-70's or older and a young African-American man. One man ran into the other, causing a "deflection" of his body. He saw the two people rotate slightly. There were rapid hand movements consistent with something being taken. The older man used one hand, while the African-American man used both hands. The young African-American man took off running east on J Street. A large African-American man came out of a store and gave chase.
Benstead watched as the young man made a left onto 9th Street off of J Street and headed toward a park, where Benstead lost sight of him. Benstead turned left off of J street onto 10th Street. When he saw a CHP bicycle officer, Benstead stopped and gave the officer a description of the incident he had witnessed and what the person involved looked like. Benstead then continued on 10th Street. After a couple of blocks, Benstead saw the large African-American man, who had been chasing the young man, running on a cross-street. Benstead turned right and when he caught up to the man, Benstead spotted the young man ahead of them. Benstead followed the young man into another park. When Benstead got close, the young man turned to face him and pulled out a knife. Benstead backed off, but continued to follow the young man at a distance. Then the CHP officer that Benstead had spoken to arrived. The officer drew his gun, ordered the young man (identified in court as defendant) to the ground, and handcuffed him. Defendant had a wad of cash and a bank receipt in his left hand. The account number on the receipt belonged to Nielsen. A knife was found a short distance away from defendant.
Terence Litton, the manager of Mango's Grill on J Street, also witnessed the incident between Nielsen and defendant. He was speaking to his employees when they brought to his attention something going on out on the sidewalk outside the restaurant; someone was being robbed. Litton turned and observed through the restaurant's window a slender Black man grabbing a bag from an elderly White man. The Black man was jerking the bag away while trying to push the elderly man off or away. Litton believed the man actually pushed the elderly man and he saw the elderly man start to go down. Litton did not know if he hit the ground because Litton instinctively ran after the black man. Another man joined the chase. Finally, the man they were chasing was stopped by the police.
Both Litton and Benstead positively identified defendant to the police as the man they saw commit the crime. Litton told the police he witnesses a struggle and saw defendant take cash from the victim's hand.
Petitioner was convicted following a jury trial of robbery and misdemeanor brandishing a knife. The jury found true the special allegation that the victim was an elderly adult over the age of 65. The trial court found true that petitioner had a prior conviction in Illinois for attempted murder, a serious felony under California's three strikes law. Petitioner was sentenced to the middle term of three years for the robbery conviction, doubled to six years under the three strikes law. A five-year enhancement was added for the prior serious felony conviction, for a total sentence of 11 years in prison. The trial court stayed an enhancement for having robbed an elderly adult and sentenced petitioner to time served for the misdemeanor knife brandishing conviction.
Petitioner's conviction and sentence were affirmed on direct appeal by the California Court of Appeal in a partially published opinion. See People v. Jefferson, 154 Cal.App.4th 1381 (2007). The California Supreme Court denied direct review without comment or citation, and petitioner did not file any state court ...