The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
Petitioner is a state prisoner proceeding pro se 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.
On December 8, 2005, following a jury trial in the Madera County Superior Court, Petitioner was convicted of the following offenses: attempted murder (Ca. Pen. Code*fn1 §§ 664,187, count one); assault with a deadly weapon (§ 245(a)(1), count two); residential first degree burglary (§ 211, count three); first degree burglary of dwelling, trailer coach or inhabited building (§ 459, count four); lewd act upon a child by use of force/violence/duress/menace or fear of immediate and unlawful bodily injury on the victim (§ 667.61(a), count five); carjacking (§ 215(a), count six); furnishing illegal narcotics to a minor (Ca. Health & Saf. Code § 11380, count seven); and three counts of false imprisonment (§ 236, counts eight, nine, and ten). (Lodged Doc. No. 1, Abstract of Judgment; CT 416-419.) It was also found true that Petitioner personally used a deadly and dangerous weapon and that he personally inflicted great bodily injury on one of the victims. (CT 350-357, 360-379;RT 1809-1819.)
On January 9, 2006, Petitioner was sentenced as follows: an indeterminate life term for attempted murder (count one), plus a consecutive term of three years for the personal use of a weapon; a consecutive indeterminate term of 25-years-to-life in state prison for committing a lewd act on a child by force or violence (count five); a consecutive term of 9 years for first degree robbery of an inhabited dwelling (count three), plus a consecutive three- year term for inflicting great bodily injury; a consecutive term of 1 year 8 months (one-third the midterm) for carjacking (count six), plus a consecutive term of 1 year for inflicting great bodily injury; a consecutive term of 2 years for furnishing narcotics to a minor (count seven); and, a consecutive term of 8 months for each of the three false imprisonment convictions. (CT 412-413, 416-419; RT 1844-1848.) The court stayed the sentences on counts two and four and the enhancements on count five pursuant to section 654. (CT 412.) The total term of imprisonment was 22 years and 8 months. Petitioner was not awarded pre-sentence custody credits because he was serving a prison term for a conviction in the State of Nevada. (CT 418.) The court imposed a restitution fine and a parole revocation restitution fine in the amount of $48,000 each. (Lodged Doc. No. 1; CT 412-413, 416-419.)
Petitioner filed a timely notice of appeal to the California Court of Appeal, Fifth Appellate District. After briefing by the parties, on July 10, 2007, the Court of Appeal reduced the restitution fines to $10,000 each and affirmed the judgment in all other respects. (Lodged Doc. 4.)
On August 13, 2007, Petitioner filed a Petition for Review in the California Supreme Court, which was denied on September 19, 2007. (Lodged Doc. 5.)
On July 20, 2007, Petitioner filed a state petition for writ of habeas corpus in the Madera County Superior Court, which was denied on July 26, 2007. (Lodged Doc. 6.)
On August 13, 2007, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Fifth Appellate District, which was denied on December 4, 2007. (Lodged Doc. 7.)
On December 17, 2007, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, which was summarily denied on June 18, 2008. (Lodged Doc. 8.)
Petitioner filed the instant federal petition for writ of habeas corpus on August 5, 2008. (Court Doc. 1.) Respondent filed an answer to the petition on November 25, 2008, and Petitioner filed a traverse on December 22, 2008. (Court Docs. 22, 23.)
On July 18, 2004, at about 3:00 a.m., the mother and father were asleep in bed. The mother heard a strange voice and awoke to see Petitioner hitting the father repeatedly with a baseball bat. Their 11-year-old boy heard screaming and ran into the parents' room and was forced onto the bed with his mother. The mother admonished him not to look at Petitioner out of fear that he might hurt them too. While the mother and boy hid their faces under the covers and the father lay bleeding on the floor, Petitioner ransacked the room.
Petitioner forced the family into the small hallway bathroom. He removed the boy and told him to help move boxes. Petitioner told him to play the tape that was in the videotape player.*fn3 The boy played the tape, but realized it contained pornography and turned it off. When Petitioner asked him why he had turned it off, the boy said he was "not allowed to watch that." Petitioner told the boy he could pick out some of his things to keep. They went to the boy's room and he chose to keep his games and cards, although Petitioner ultimately took them.
Petitioner had repeatedly asked about a gun and when the boy again said there were no guns in the house, Petitioner said he would give him a "truth shot." He said he would give it either to the boy or to his father, although his father might not survive it in his condition. The boy agreed to take the shot, but voiced his concern that it contained poison. To prove it was not poison, Petitioner injected himself first, then injected the boy. The substance was later determined to be methamphetamine.
Petitioner asked the boy whether he had "ever had sex" and if his "thing ever got hard." The boy replied, "[N]o." Petitioner told the boy, "[Y]ou're about to so don't fight it." Petitioner grabbed the boy's pants and pulled one side down. The boy struggled and tried to run away, but Petitioner pulled him to the ground and hit him on the back of the head. Petitioner wrapped his arm around the boy's neck and strangled him. The boy screamed and said he could not breathe. The boy's parents believed the boy was being murdered. Petitioner released the boy. Petitioner said he was not "like that and he just wanted to see what it was like." As Petitioner returned the boy to the bathroom, Petitioner said, "[I]t was fun. Right? It was just a game. It was just a game." The boy agreed it was "a fun game." In the bathroom, the boy was ill and hallucinated from the methamphetamine.
Petitioner locked the bathroom door from the outside. The family heard Petitioner and another man loading items into the family's Ford Expedition, which was parked in the driveway. They could hear the vehicle repeatedly leaving and returning. The mother believed Petitioner took the vehicle's keys from her purse. He had previously taken her bank card and some cash from her purse. The mother did not try to stop Petitioner from taking the vehicle because she was afraid. Petitioner took numerous items, including the vehicle, from the home. About 24 hours after the ordeal began, the mother was able to break the lock and run for help. (Lodged Doc. 4, at 2-3; footnote in original.)
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Madera County Superior Court, which is located within the jurisdiction of this Court.
28 U.S.C. § 2254(a); 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997; Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
This Court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
The AEDPA altered the standard of review that a federal habeas court must apply with respect to a state prisoner's claim that was adjudicated on the merits in state court. Williams v. Taylor, 120 S.Ct. 1495, 1518-23 (2000). Under the AEDPA, an application for habeas corpus will not be granted unless the adjudication of the claim "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 "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding." 28 U.S.C. § 2254(d); Lockyer v. Andrade,123 S.Ct.1166 (2003) (disapproving of the Ninth Circuit's approach in Van Tran v. Lindsey, 212 F.3d 1143 (9th Cir. 2000)); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). "A federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, at 1175 (citations omitted). "Rather, that application must be objectively unreasonable." Id.(citations omitted).
While habeas corpus relief is an important instrument to assure that individuals are constitutionally protected, Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391-3392 (1983); Harris v. Nelson, 394 U.S. 286, 290, 89 S.Ct. 1082, 1086 (1969), direct review of a criminal conviction is the primary method for a petitioner to challenge that conviction. Brecht v. Abrahamson, 507 U.S. 619, 633, 113 S.Ct. 1710, 1719 (1993). In addition, the state court's factual determinations must be presumed correct, and the federal court must accept all factual findings made by the state court unless the petitioner can rebut "the presumption of correctness by clear and convincing evidence." 28 U.S.C. ...