The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING AMENDED PETITION FOR WRIT OF HABEAS CORPUS
On July 9, 2007, petitioner John Lewis, Jr. ("Petitioner"), a state prisoner proceeding pro se, filed an amended petition for writ of habeas corpus ("Petition"), challenging his California sentence pursuant to 28 U.S.C. § 2254. (Doc. No. 4.) Respondent submitted an answer on November 2, 2007, and Petitioner filed a traverse on December 13, 2007. (Doc. Nos. 12, 15.) On June 17, 2008, the magistrate judge filed a Report and Recommendation recommending that this Court deny the Petition. (Doc. No. 16.) Petitioner has not filed objections to the Report and Recommendation. For the reasons set forth below, the Court ADOPTS the report and recommendation and DENIES the petition for writ of habeas corpus.
On January 2, 2001, Lewis was watching his two young children, four-month-old Jace and two-year-old Jalen. People v. Lewis, 120 Cal. App. 4th 837, 842, 15 Cal. Rptr. 3d 891, 893-94 (Ct. App. 2004). It was the first day Petitioner had been alone with both of his children. His wife, Tricia, had been on maternity leave but resumed work that day. Id. at 842, 15 Cal. Rptr. 3d at 894.
Tricia returned home in the early afternoon. Id. As she was changing Jace's diaper, she noticed red marks on his thigh, and his scrotum was swollen. Id. Tricia took Jace to the hospital. Id. There, a nurse examined Jace and noted his testicles were swollen and caused him pain. Id. About forty minutes after the nurse's evaluation, a doctor examined Jace. Id. Jace's penis was swollen, but his testicles were no longer swollen or red. Id. After a neurological examination failed to show any problems with Jace, Tricia took him home. Id.
The following afternoon, January 3, 2001, Lewis was again watching the two children, Jace and Jalen, while Tricia was at work. Id. at 842-43, 15 Cal. Rptr. 3d at 894. He called 911 at 1:08 p.m., telling the dispatch officer that Jace had slipped in the bathtub and was no longer breathing. Id. Lewis then performed CPR on Jace. Id. at 843, 15 Cal. Rptr. 3d at 894.
When the police and paramedics arrived, they noted several conditions in the apartment that were inconsistent with Petitioner's drowning story. Id. Jace was dry; the spot on the floor where he had been laying was dry; and the baby bathtub was dry and propped against a wall. Id. at 843-44, 15 Cal. Rptr. 3d at 894-95. The paramedic at the scene noted that Jace was not breathing and had no pulse. Id. at 843, 15 Cal. Rptr. 3d at 894. Jace's only symptom consistent with a drowning was the fact that he was not breathing. Id. at 843, 15 Cal. Rptr. 3d at 894-95.
Jace was taken to the hospital, and upon arrival, he was still not breathing. Id. at 844, 15 Cal. Rptr. 3d at 895. Because the doctors were able to restore Jace's heartbeat, he was moved to Children's Hospital. Id. at 844, 15 Cal. Rptr. 3d at 895. There, the examining doctor noted Jace had a swollen scrotum, a bruise on his abdomen which looked like finger marks, fixed and dilated pupils which indicated a severe brain injury, a bulging soft spot on his head which indicated swelling of the brain, retinal hemorrhaging in his eyes, and no fluid in his lungs. Id. at 844-45, 15 Cal. Rptr. 3d at 895. Further tests revealed Jace had three healing rib fractures and one acute rib fracture. Id. at 845, 15 Cal. Rptr. 3d at 896.
Jace died the following day. Id. The hospital conducted an autopsy, which identified a variety of internal injuries. Id. Jace had a large amount of fresh blood in his skull, which indicated he had a "one- to three-month-old subdural hematoma and two acute hematomas." Id. The fresh blood was evidence of a recent injury. Id. Jace had an acute and prior subdural hematoma around his spinal cord. Id. There was also acute subdural bleeding at the base of the skull. Id. Furthermore, Jace had "extensive subarachnoid hemorrhages on the right side of his brain and less extensive subarachnoid hemorrhages on the left side." Id.
The autopsy concluded Jace's death was caused by "blunt force head injuries." Id. at 846, 15 Cal. Rptr. 3d at 896. His injuries were inconsistent with drowning. Id. The brain trauma was likely caused by intense shearing and rotational forces on his brain. Id. The autopsy report further concluded the injury occurred near the time Petitioner dialed 911. Id.
At the hospital, before Jace's death, Petitioner described how Jace was injured. Id. at 845, 15 Cal. Rptr. 3d at 895. Lewis claimed he was giving Jace a bath, and he left the room to get a towel. Id., 15 Cal. Rptr. 3d at 896. When he returned, Jace was lying under water in the baby bathtub. Id. Lewis told the officers he shook Jace in an effort to revive him. Id. at 845, 15 Cal. Rptr. 3d at 896.
In explaining Jace's swollen testicles from January 2, 2001, Petitioner told the officers he was running while holding Jace in his arms like a football, and he tripped and fell. Id. at 844, 15 Cal. Rptr. 3d at 895. As Petitioner fell, he grabbed Jace's crotch, and Jace landed on Lewis's body. Id. At trial, however, Lewis explained that his body landed on Jace. Id. at 846, 15 Cal. Rptr. 3d at 897.
Because the jury was unable to reach a verdict after his first trial, Lewis was retried.
Id. at 842, 15 Cal. Rptr. at 893. During his second trial, Petitioner no longer asserted that Jace drowned. Id. at 847, 15 Cal. Rptr. 3d at 897. He claimed instead that Tricia accidentally dropped Jace in October 2000, which explained his older injuries. Id. When Lewis fell with Jace while running, Jace's fall re-injured him. Thus, Petitioner argued that it was the combination of the original fall with Tricia and the subsequent fall on January 2, 2001, which caused Jace's death. Id.
Petitioner was charged with assault on a child by means likely to produce great bodily harm in violation of California Penal Code section 273ab. (Clerk's Transcript (CT) at 1.) On July 31, 2002, a jury found Petitioner guilty of violating California Penal Code section 273ab. (CT at 123.) Petitioner was sentenced to twenty-five years to life. (CT at 73.)
Petitioner appealed his conviction and sentence to the California Court of Appeal on the following grounds: (1) trial court error in failing to give accomplice instructions, (2) trial court error in finding Petitioner presumptively ineligible for probation, and (3) cruel and unusual punishment under the California and United States Constitutions. Lewis, 120 Cal. App. 4th at 848, 850-51, 854-55, 15 Cal. Rptr. 3d at 897-98, 899-900, 903. On July 19, 2004, the California Court of Appeal determined that Petitioner was not entitled to relief on ground one (accomplice instructions) or ground three (cruel and unusual punishment). Id. at 850, 856, 15 Cal. Rptr. 3d at 899, 904. The court granted relief on ground two (probation eligibility) and remanded for resentencing. Id. at 854, 15 Cal. Rptr. 3d at 902. The court of appeal concluded that the trial court improperly assumed Lewis was presumptively ineligible for probation. Id. Specifically, on remand the trial court was to determine whether Lewis intended to inflict great bodily injury. If he did, Petitioner would be presumptively ineligible for probation. Id. If Petitioner lacked that intent, he would be eligible for probation. Id.
On remand, Petitioner argued for probation. (CT at 3-10.) The trial court denied his request. It first found Petitioner did not have the specific intent to inflict great bodily harm on Jace, so he was not presumptively ineligible for probation. (Lodgment 8 at 46-47.) Nevertheless, the court resentenced Petitioner to twenty-five years to life. (Lodgment 8 at 52.) The trial court reasoned that the sentence, while severe, was justified because Petitioner committed multiple episodes of violence against Jace, he showed incomplete remorse, and he posed a danger to future children. (Lodgment 8 at 47-51.) The court noted, however, that the parole board should consider Petitioner for parole as soon as he is eligible. (Lodgment 8 at 51.)
Lewis appealed again, claiming that his sentence amounted to cruel and unusual punishment under the California and United States Constitutions. (Lodgment 6 at 14-15.) The court of appeal found that the evidence presented at resentencing "pertinent to the cruel and unusual punishment inquiry was [not] substantially different from that presented at his first hearing..." (Lodgment 2 at 10.) Consequently, the court declined to re-examine whether Petitioner's sentence constituted cruel and unusual punishment. (Lodgment 2 at 10.)
Petitioner filed a petition for review in the Supreme Court of California. (Lodgment 3.) He alleged that the appellate court incorrectly applied the law of the case doctrine. (Lodgment 3 at 2.) He also claimed his sentence violated the ban on cruel and unusual punishment contained in the California and United States ...