The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are petitioner's petition for a writ of habeas corpus (Doc. 1), respondent's answer (Doc. 9), and petitioner's reply (Doc. 11).
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:
The victim had known defendant for many years and they dated for about three years and had been engaged for perhaps two years. By September 2002 the relationship had turned sour and they argued regularly. Although she told him she wanted to end the relationship "He did not want the relationship to end and was very adamant about the fact that he wasn't going anywhere."
On about September 1 and 19, 2002, he was violent with her, pushing or pulling her and grabbing her by the throat each time, and she filed for a restraining order against him on about September 21, 2002. At about 3 a.m. on September 23, 2002, she woke up to find defendant standing over her bed.
The victim was scared but got up and spoke with defendant. He told her to go into the shower. Then he became angry and grabbed her arm: "I kept telling him I didn't want to go take a shower. I was tired, and I wanted to go to bed. We started walking back towards the bathroom. He . . . pushed me against the wall and told me: Don't make any noise. Don't wake everyone up, or he would fuck everybody up in the house." He was angry and she was angry and afraid. "It wasn't like he was dragging me down the hall. He had hold of me, and I was reluctant in going with him." Later she testified, "It wasn't a kicking, screaming fit, but I wasn't saying, 'Yeah. Sure. Come. Let's go,' either."
When they entered the bathroom she asked him to leave the door open but he shut and locked it. She reluctantly got into the shower because "he wouldn't let me not." He told her "to suck his dick" while he had his hand on her head with a handful of her hair which he held tightly, pushing her head down: although she told him she did not want to, she eventually did as he ordered. She relented "Because I just wanted him to go away.
Q: And after you did that, what happened next?
A: Then I stopped, and I stood up, and he put my leg on the side of the tub and start[ed] performing oral sex on me, and he stopped.
Q: And when you say he performed oral sex on you, was that your request?
Q: And is that something that you wanted at that time?
The victim was afraid defendant was going to hit her and she fled from the bathroom and pounded on a roommate's door. When the household awoke defendant pretended that he did not know what was happening. As defendant tried to pull a blanket off the victim (who was otherwise still naked), they struggled and he "started hitting me on my face and picked me up by my hair." Defendant said she was going with him. She saw that he had a steak knife, with which he "barely cut" her shoulder.
Eventually the couple left the apartment. At one point away from the apartment defendant "said that he had dug a ditch out there that he was taking me out to put me in," and at another he punched her so hard her vision was blurred for several minutes. The victim thought defendant was "coming down" off of drugs and she had intercourse with him in the back of their truck to help him go to sleep; she viewed this as entirely consensual and so did not mention it during early interviews. When he fell asleep she fled to nearby Grant High School to get help. According to officers who saw her, she was shaking and "very scared" and had visible injuries. When defendant was captured he was asleep near the knife.
A school police officer testified as follows:
"Q: When you were speaking with [victim], did she tell you that the defendant made her perform oral sex on him?
A: Yes." Another officer testified as follows:
"Q: [W]hen you were speaking with the victim and she was recalling to you what had happened to her, did she tell you whether or not the defendant made her give him oral sex?
Q: And what specifically did she say?
A: She said that happened when he was in the apartment where she lives, and that he forced her into the shower and that he forced her to have oral sex on him." Although defendant objected to these passages, his objections were impliedly overruled.
The victim told an investigator there had been no threats during oral sex, but there had been before; she told defendant "no" and he grabbed her hair and held her head down. She told an investigator "the same thing I just told this court, [which] was that I went in there. He was coercing me in there. It wasn't -- like I said before, we weren't holding hands as we tra-la-laed into the bathroom. But I didn't put up a screaming fight either." She testified that as to getting into the shower, to say he "heavily persuaded would probably be an accurate description. He didn't threaten me if I didn't, but I was afraid at the time already."
She also testified on cross-examination as follows:
"Q: It is true, though . . . that you did not have unconsensual oral sex with Albert in the shower at that point; is that true?
A: Correct." On redirect the prosecutor asked her "did the defendant hold you down in the shower while you were in the shower?
A: He had my hair and he had his hand full of my hair and was holding me." She reiterated that she had not wanted to have oral sex and had told him so:
"A: I told him no. I didn't want to do that. I tried to stand up.
"Q: What happened when you tried to stand up?
"A: He just put pressure on my head, and he wasn't like forcefully putting a lot of pressure on me and holding me down, but he was putting enough pressure that I felt that pressure and wasn't going to push back.
"Q: Why didn't you push back and push him down?
"A: I did not want things to escalate, and I wanted to -- wanted him to leave. I just wanted him to go.
"Q: And at that time when he -- when you told him you didn't want to, what words specifically did you say to him?
"A: No, I don't want to do this; no.
"Q: After you said: No, I don't want to do this, what did he do?
"A: He was just persuading: Come on. Do this. Then it was: Oh, you are going to do this. He said: You are going to do this. You are going to do this one last time.
"Q: And when he said that, when he said you were going to do this one last time, was he holding your head at that point?
"Q: And you said after you did -- you performed oral sex on the defendant, he lifted up your leg?
"Q: Can you describe what he did?
"A: He just grabbed my leg like underneath my knee and just lifted my leg and put it on the side of the tub."
She then testified she neither protested nor encouraged him and eventually he stopped.
The victim testified that she went to defense counsel's office "to discuss the case with you because I was concerned about the sexual charges," and when asked if she told counsel defendant had "not force[d] you to have sex in the shower" she replied "That he had not forced-forced, yes."
Later still she attempted to clarify:
"I don't know how to explain how I feel about [whether she was forced] because . . . that's not the focus of why we're here today . . . because if everything had ended after the shower, he could have walked out of my house and it would have been a done deal.
"But that's not why we're in this courtroom today. You know, so I don't feel -- no, I didn't want to do it, but I'm not going to say he forced me or he raped me either because it wasn't -- I don't feel that -- I don't know how to explain to you how I feel about that. I didn't want to do it, but I was heavily ...