The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2007 conviction for assault with a deadly weapon on a correctional officer while serving a life sentence (Cal. Penal Code § 4500) and possession of a sharp instrument while confined in a penal institution (Cal. Penal Code § 4502(a)). Pursuant to the Three Strikes law, petitioner was sentenced to 32 years to life imprisonment.
The petition raises one claim: the trial court erred in refusing to admit evidence regarding the victim's propensity for violence. After carefully reviewing the record, the court recommends that the petition be denied.
The Antiterrorism and Effective Death Penalty Act (AEDPA) applies to this petition for habeas corpus which was filed after the AEDPA became effective. Neelley v. Nagle, 138 F.3d 917 (11th Cir.), citing Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997). The AEDPA "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).
In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.
"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Williams (Terry), 529 U.S. at 407-08, 120 S.Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[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. Rather, that application must also be unreasonable." Williams (Terry), 529 U.S. at 410-11, 120 S.Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S.Ct. 357 (2002).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S.Ct. at 366.
However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
Petitioner was convicted of assaulting Officer Tuter with an inmate made weapon at California State Prison-Sacramento on May 8, 2002. In defense, petitioner testified that Officer Tuter attacked him.
Officer Mitchell testified in support of Officer Tuter's version of events for the prosecution. Officer Mitchell testified that on May 8, 2002, petitioner came into the dining room and asked if he could work for her. RT at 146. Officer Mitchell told him "no" because it was his day off. RT at 146. Officer Mitchell told petitioner that he needed to go back to his block because the yard was getting ready to go in. RT at 147. Officer Mitchell testified that petitioner went to the seven-control first and asked the officer if he could leave. RT at 147. The officer told petitioner to ask the eight-control officer to let him out because he could not do it as he was getting ready to bring the yard in. RT at 147. Petitioner then asked the eight control officer, Officer Kaiser, to let him out so he could go to his block. RT at 148. Officer Kaiser told petitioner that he would not let him out. RT at 148. Officer Mitchell asked Officer Kaiser to "please let him out" so he could go to his block. RT at 148. Officer Kaiser told petitioner no again. RT at 149. Petitioner and Officer Kaiser then began yelling at each other. RT at 149.
Officer Mitchell testified that at this point, Officer Tuter came out of his office. RT at 150. Officer Tuter then asked petitioner to put on handcuffs. RT at 150. Officer Tuter let petitioner back into the dining room to put on the handcuffs. RT at 150. As Officer Tuter went to put the handcuffs on, petitioner jerked away. RT at 150. Officer Tuter then attempted to grab petitioner, who then began swinging at Officer Tuter. RT at 151. Officer Mitchell attempted to intervene, but was pushed back. RT at 151. She then sounded a personal alarm. RT at 151. Officer Mitchell testified that she did not see Officer Tuter put his hands on petitioner's throat. RT at 153.
Officer Tuter testified that on May 8, 2002, at approximately 2:50 p.m. he was in his office doing paperwork. RT at 180. He heard a commotion in the rotunda area, so walked out to see what was going on. RT at 181. He saw petitioner yelling at Officer Kaiser. RT at 181. Officer Tuter told petitioner to quiet down. RT at 181. Petitioner responded, "fuck you," and walked into the dining room. RT at 181. Officer Tuter then turned and walked back into the dining room. RT at 182. Officer Tuter told petitioner that he was going to place him in handcuffs. RT at 182. Officer Tuter then grabbed petitioner's arms and turned him toward the table in the dining room. RT at 182. When Officer Tuter released petitioner's right hand so that he could retrieve the handcuffs, petitioner turned to his left and hit Officer Tuter in the side of the head. RT at 183. As petitioner continued to hit him, Officer Tuter realized that he was stabbing him. RT at 183. ...