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Freeman v. Evans

May 14, 2009

DORN ALLEN FREEMAN, PETITIONER,
v.
M. S. EVANS, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Dorn Allen Freeman is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. At issue is his 2005 judgment of conviction for corporal injury of a former co-habitant, entered after jury trial in the Shasta County Superior Court, case number 03F08925. Petitioner alleges that his conviction is unconstitutional due to prosecutorial misconduct and ineffective assistance of counsel at trial. For the reasons that follow, petitioner is not entitled to relief on his claims.

II. BACKGROUND

The following facts, including footnotes, were set forth in the unpublished opinion of the California Court of Appeal, Third District, case number C049939. (Lodged Document 3.)

Sometime in 2003, defendant and relationship in which they W.P. entered into a romantic shared a residence in Cottonwood. After six to eight months, in October 2003, the relationship ended and defendant moved out.

From October 2003 to February 19, 2004, defendant made "almost daily" unwanted contact with W.P. She would ask him to leave, her friends would ask him to leave, and her employer would ask him to leave her workplace. She had to start calling the police. In February 2004, she sought a restraining order against him.

On the evening of February 19, 2004, W.P. was playing a slot machine at a local casino. Unexpectedly, defendant approached her from behind and asked to talk to her. She agreed to talk with him and they proceeded to a restaurant in the casino. After they placed their order at the restaurant, she advised him that her daughter expected her home. At her suggestion, they got their food "to go." Defendant asked W.P. for a ride home. She agreed to transport him provided that he agree to leave her daughter alone. They entered her car and she drove toward Anderson. When they neared his place of employment, he asked her to pull over and explained that he had left his truck at that location. She turned onto a tree-lined access road and stopped at a gate. He got out of the car and she inquired, "What are we doing? I thought you were here to pick up your car." He responded that he had to urinate. After urinating, he grabbed her by the hair and dragged her from the driver's seat to the passenger seat. She screamed, "What are you doing this for?" and he told her to shut up. He entered the car on the driver's side and began driving.

Defendant activated the car's power locks so that W.P. could not open a door. She repeatedly tried to unlock her door and he repeatedly locked it. He was "very angry" and kept elbowing her in the face. He also tried to pin her with his arm to prevent her from reaching the car keys or the steering wheel.

At some point defendant stopped the car, removed the belt from W.P.'s clothing and tried to bind her wrists. When she succeeded in freeing her hands he again stopped the car, removed the belt from his own clothing and bound her wrists with both belts. Unable to use her hands, she started kicking him. She was then able to lodge her foot in the steering wheel and overpower his ability to turn the car.

When the car stopped, W.P. unlocked the door and rolled out of the car. She removed the belts, screamed for help and ran. Defendant tackled her and shoved her onto the asphalt. A couple was driving by and observed defendant on top of W.P. with his hands around her throat apparently attempting to choke her. The motorists honked their horn in an effort to get him to stop and called 911. Shortly thereafter, defendant fled from the scene. W.P. ran toward the motorists who had heard her cries for help and stopped to render assistance. W.P. told them that defendant was trying to kill her.

W.P. sustained bruising to her face in the area of her eyes, nose, neck and wrists. Her lips were swollen and she sustained scrapes on her sides. Her knee had a deep injury and she was unable to work for a week.

The defense rested without presenting evidence or testimony. (C049939 opinion at 1-2)

III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS

An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under ...


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