The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge
Pending before the Court is Petitioner Kenneth Lee Martinez' ("Petitioner") amended application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a) (Doc. No. 74), Roseanne Campbell's ("Respondent") answer (Doc. No. 81), and Petitioner's traverse (Doc. No. 86). For the reasons discussed below, Petitioner's application is denied.
On December 20, 2002, a jury in the San Joaquin County Superior Court found Petitioner guilty of the following offenses: count one, torture (Cal. Penal Code § 206); counts two, three, four, five, and six, assault by means of force likely to produce great bodily injury or with a deadly weapon (Cal. Penal Code § 245(a)(1)); count seven, corporal injury to a cohabitant (Cal. Penal Code § 273.5), count eight, forcible rape (Cal. Penal Code § 261(a)(2)), count 9, forcible oral copulation (Cal. Penal Code § 288a(c)), count eleven, criminal threats (Cal. Penal Code § 422), count twelve, dissuading a witness by force or threat (Cal. Penal Code § 136.1(c)(1)), count thirteen, false imprisonment by violence (Cal. Penal Code § 236). With regard to counts seven, eight, and nine, the jury also found that Petitioner personally inflicted great bodily injury under circumstances involving domestic violence (Cal. Penal Code § 12022.7(e)). Petitioner was acquitted on count ten, a second act of forcible oral copulation (Cal. Penal Code § 288a(c)). The prosecution dismissed counts fourteen, fifteen, and sixteen, assault with the intent to commit rape (Cal. Penal Code § 220). People v. Martinez, 23 Cal. Rptr. 3d 508, 510 n.1 (Cal. Ct. App. 2005).
On February 3, 2003, the trial court sentenced Petitioner to state prison for a term of fifty-four years, eight months to life, calculated as follows:
25 years to life on count 8, the principal term, pursuant to the "one strike" law (Pen. Code, § 667.61; undesignated section references are to the Penal Code), and imposed the same term on the enhancements to count 8 but stayed that term under section 654.*fn1 The court then imposed a consecutive sentence of 25 years to life on count 9, finding that the offenses charged in counts 8 and 9 occurred on separate occasions. The court further imposed consecutive sentences of one year (one-third the middle term) on count 2, three years (the middle term) on count 12, and eight months (one-third the middle term) on count 13. Finally, the court imposed a life sentence on count 1 and upper terms on the remaining counts and enhancements (counts 3--6, four years; count 7, four years; the enhancement to count 7, five years; count 11, three years), but stayed these sentences under section 654.
People v. Martinez, 83 Cal. Rptr. 3d 738, 742 (Cal. Ct. App. 2008); see Clerk's Transcript, Vol. IV of IV at 1017-20; Reporter's Transcript, Vol. V of V at 1407-1413.
On February 11, 2003, Petitioner filed a direct appeal from the trial court's judgment and sentence to the California Court of Appeal for the Third Appellate District. The California Court of Appeal summarized the facts as follows:*fn2
On June 8, 2002,*fn3 R., the victim, and defendant, her live-in boyfriend, got into a physical fight at his workplace. Both were arrested and jailed. R. bailed out that day, but defendant spent four days in jail.
When released from jail, defendant went back to the home of R. and her 12-year-old son in Stockton. However, on June 14, defendant learned that the fight with R. at his workplace had cost him his job. Instead of going home, he went to a friend's house in Thornton. Early the next day, defendant called R. to ask her to come pick him up.
After R. got there, defendant burst out of a parked van, grabbed her by the hair, and dragged her into the van. Keeping her trapped inside, he accused her of making him lose his job, vandalizing his vehicle, and stealing his briefcase. He struck her with a chain on the head, back, and shoulders and kicked her repeatedly with steel-toed boots.
Later in the day, defendant drove with R. back to her house. When he fell asleep, she left to look for her missing wallet. She did not report defendant to the police at that point because she feared for the safety of her son if she did so, and because the police had sided with defendant over her in the June 8 incident. Furthermore, defendant had disconnected the telephones in the house.
From Sunday, June 16, to Tuesday, June 18, defendant held R. hostage and beat her repeatedly, at different times using his fists, his steel-toed boots, a star-shaped tire iron, a flashlight, and a metal nail puller. He also raped her and forced her to orally copulate him three or four times.*fn4 Throughout this period, he continued to berate her about his lost job; he also threatened to kill her and her family if she told anyone about what he was doing to her.
On June 17, R. went across the street to her neighbor M.G.'s house to get hamburger meat. M.G. noticed R.'s face was bruised and asked her to stay, but R. said she could not because defendant would get mad at her. M.G. urged R. to call the police, but R. said she did not want to get M.G. involved.
On the evening of June 18, defendant twice poured rubbing alcohol over R. while they were in the bathroom, then set pieces of toilet paper alight and threw them at her. He told her he wanted her to die and to see her burn in hell.
Failing to set R. on fire the first time, defendant poured a bottle of hydrogen peroxide over her and told her to shower. She could not undress or operate the shower because her hands were broken. Defendant forced her in and poured shampoo on her head. When he put her hands on her head, she screamed in extreme pain. He ordered her to dress and put on makeup, but she could not. He kept on hitting and kicking her.
Defendant then repeated the process, again trying and failing to set R. on fire, then forcing her into the shower. He pulled her up by the arms, which had been broken in the course of his assaults. He again demanded sex. R. felt sure she would die if she did not escape.
When defendant left the bathroom for a moment, R. ran naked out of the bathroom and across the street to M.G.'s house, where she was able to call 911.
The emergency room doctor observed that R. was bruised all over. She had significant swelling and broken skin over her right temple, deeply bruised forearms, and a bony deformity in one arm. X-rays revealed both forearms, a rib, and a leg bone were broken; the right forearm had multiple fractures. R.'s lesions looked like the result of being beaten with a crowbar or tire iron, as she told the doctor she was.
The prosecution also introduced the testimony of K.M. pursuant to Evidence Code section 1109. K.M., a former girlfriend of defendant's who had had a child with him, testified that on May 2, 1999, defendant unexpectedly came to her apartment. During the ensuing conversation, he got mad at her, struck her in the face, and damaged the apartment. When she tried to leave, he grabbed her arm hard enough to cause a bruise.
At trial, R. repudiated her prior accounts inculpating defendant, including her stories to the police and her preliminary hearing testimony. She claimed she assaulted defendant repeatedly during the episode, while defendant hit and kicked her only once near the end of the episode and only in self-defense. According to R., she was jealous about defendant's imagined infidelity and was drinking heavily throughout the episode. She suffered almost all her injuries either from falling off a gate when she jumped a fence at the Thornton residence or from falling off a ladder when trying to kick defendant.
In addition to presenting R.'s preliminary hearing testimony and the stories she had previously told police and others, the prosecution impeached R.'s trial testimony by introducing the tape and transcript of her conversation with defendant and her son-in-law during a jail visit after the preliminary hearing. In that conversation, defendant repeatedly apologized for what he had done and told R. he loved and needed her, she repeatedly told him she loved and needed him, and they talked about how to get this incident behind them and reunite. Her son-in-law said the two of them would have to "get a story going and . make sure it sounds right."
Defendant did not testify.
Martinez, 23 Cal. Rptr. 3d at 511-513. Petitioner appealed to the California Court of Appeal on the same grounds he raises herein. The California Court of Appeal affirmed the judgment of conviction. Id. at 519. Petitioner filed a petition for review before the California Supreme Court. It denied the petition without prejudice stating, "[p]etition for review denied without prejudice to any relief to which defendant might be entitled after this court determines in People v. Black, S126182, and People v. Towne, S125677, the effect of Blakely v. Washington (2004) 542 U.S. __ [159 L.Ed. 2d 403, 124 S.Ct. 2531], on California law." People v. Martinez, No. S131668, 2005 Cal. Lexis 4432, at *1 (Cal. Apr. 20, 2005).
In 2007, Petitioner filed a motion for a new sentencing hearing in the trial court. The trial court denied the motion citing Cunningham v. California, 549 U.S. 270 (2007). Martinez, 83 Cal. Rptr. 3d at 742. Petitioner appealed to the California Court of Appeal, Third Appellate District. Id. In a reasoned opinion, the court affirmed. Id. at 745. The California Supreme Court denied Petitioner's petition for review without prejudice to any relief to which defendant might be entitled after the United States Supreme Court decides Oregon v. Ice, No. 07-901." People v. Martinez, Case No. S167946, 2008 Cal. LEXIS 14391 (Cal. Dec. 10, 2008). Accordingly, Petitioner exhausted his federal constitutional claims in state court.
Petitioner's application sets forth eight claims for relief. Petitioner's application was filed after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under AEDPA, a federal court has limited power to grant habeas corpus relief under § 2254(d). AEDPA provides that:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence ...