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Misa v. Almager

May 5, 2009

VINCE VIANE MISA, PETITIONER,
v.
V.M. ALMAGER, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Vince Misa ("Misa"), a state prisoner, filed his federal habeas petition in this Court on September 7, 2007. (Dkt. No. 1.) He filed an amended petition on February 15, 2008 and a second amended petition on April 15, 2008. (Dkt. Nos. 7, 9.) Pursuant to 28 U.S.C. § 636, his operative petition was referred to Magistrate Judge Leo Papas for a report and recommendation ("R&R"). Respondent Almager ("Almager") filed an answer to Misa's petition on September 8, 2008. (Dkt. No. 17.) Judge Papas issued his R&R on December 4, 2008; he recommended that Misa's petition be denied with prejudice on the merits. (Dkt. No. 19.)

On March 7, 2005, a California jury convicted Misa of one count of torture and two counts of assault with a deadly weapon likely to produce great bodily injury. (R&R 4.) On April 29, 2005, he was sentenced to a life term for the torture conviction and a 12-year term for the assault convictions. (Id.) Misa's habeas petition challenges his conviction and sentence on three grounds: (1) there was insufficient evidence that he was guilty of torture; (2) the torture provision of California's Penal Code is unconstitutionally vague; and (3) the trial court erred in its application of a prior conviction to enhance Misa's sentence. The Court agrees with the R&R that these objections are without merit and therefore DENIES Misa's habeas petition.

I. Legal Standards

Because Misa is proceeding pro se, the Court construes his pleadings liberally and affords him the benefit of any doubt. See Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). That said, "[p]ro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

"The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3). In other words, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

The R&R does a commendable job of setting forth the scope of review for federal habeas corpus claims, and the Court does not need to replicate its discussion. The most important point is that Misa's federal habeas petition is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d), which, as amended, reads:

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 presented in the State court proceeding 28 U.S.C. § 2254(d)(1)-(2). To obtain federal habeas relief, Misa must satisfy either § 2254(d)(1) or §2254(d)(2). See Williams v. Taylor, 529 U.S. 362, 403 (2003). If his conviction in state court did not violate established federal law, and if it was not categorically unreasonable, Misa is not entitled to habeas relief.

II. Procedural History

After Misa was convicted on March 7, 2005 and sentenced on April 25, 2005, he appealed his conviction to the California Court of Appeal on October 26, 2005. Misa made the same three objections to his conviction and sentence that he now makes in his habeas petition. The Court of Appeal affirmed Misa's conviction on April 23, 2006. Misa then appealed to the California Supreme Court, which denied his petition without comment on October 11, 2006. Misa then sought habeas relief in federal court.

III. Analysis

The Court will address in turn each of Misa's three challenges to his conviction and sentence in state court. For the purposes of this analysis, the Court takes to be true the facts of this case as articulated in the California Court of Appeal opinion.*fn1 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the Judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct."). These facts are quoted at length in the R&R, and Misa does not take issue with them. (R&R 2-3.)

The essentials are as follows. Misa and a group of men were smoking methamphetamine in the early morning hours of April 25, 2004. Misa was upset with one of the men, Kevin Hoock ("Hoock"), apparently for stealing from him. Sometime between 7:15 and 7:30 a.m. Misa approached Hoock from behind holding a golf club (specifically, a driver) and swung it at Hoock's head, connecting. Hoock was instantaneously in awful shape; he was bleeding profusely and his brain tissue was exposed. Misa was enraged, and yelling at Hoock "You don't steal from me or my old lady," "You're going to pay for this," and "I'm going to teach you a fucking lesson." For 15 to 30 minutes, he continued to taunt, prod, and threaten Hoock with the golf club. After more time passed and Hoock's condition worsened, Misa, who had since given up the golf club, refused to let his companions take Hoock to the hospital and further ...


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