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Lombardi v. Cate

October 5, 2009

PAUL JOSEPH LOMBARDI, PETITIONER,
v.
MATTHEW CATE, SECRETARY OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, RESPONDENT.



The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254

On June 6, 2008, Petitioner Paul Joseph Lombardi ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On September 8, 2008, Respondent filed an answer. (Doc. No. 13.) On November 26, 2008, Petitioner filed a traverse. (Doc. No. 20.) The Magistrate Judge issued a Report and Recommendation, on May 29, 2009, to deny the petition. (Doc. No. 21.) On August 10, 2009, Petitioner filed his objections to the report. (Doc. No. 25.) After careful consideration, the Court ADOPTS the Report and Recommendation of the Magistrate Judge on the merits and DENIES the petition for writ of habeas corpus.

I. BACKGROUND

A. Procedural History

On July 20, 2005, Petitioner was convicted of the attempted kidnapping and infliction of corporal injury on Lisa Pond, his spouse. (Lodgment 1 at 179-80.) Petitioner admitted in a separate proceeding that he had been previously convicted of two crimes, a 1983 kidnapping and a 1995 aggravated assault, that qualified as serious felonies and strikes under California's Three Strikes Law. (Lodgment 2, vol. 4, at 628-29.) Petitioner also admitted he had served four separate prior prison terms. (Id.)

On August 26, 2005, the trial court imposed a sentence of thirty-seven years to life imprisonment, comprising: (1) the Three Strikes sentence of twenty-five years to life for attempted kidnapping; and (2) twelve years for the two serious-felony priors and for two prison priors. (Lodgment 2, vol. 5 at 641-42.)

Petitioner filed an appeal to the California Court of Appeal. (Lodgment 3.) On January 15, 2007, the Court of Appeal affirmed the judgment. (Lodgment 6.) Petitioner filed a petition for review in the California Supreme Court. (Lodgment 7.) On April 18, 2007, the petition for review was denied. (Lodgment 8.)

B. Statement of Facts

The following facts are taken from the California Court of Appeal opinion in People v. Lombardi, No. D047173, 2007 WL 97156, at *1 (Cal. Ct. App. 2007); (Lodgment 6 at 2-4.)

At all pertinent times defendant and appellant Paul Joseph Lombardi and his wife Lisa Marie Pond were married. During 2002 Lombardi subjected Pond to physical abuse and threatened her with a firearm. As a result of this behavior in July 2003 Pond left Lombardi and the Northern California home she shared with him and moved to her sister's home in Poway.

On the morning of September 24, 2003, Pond was in her car at her sister's house about to drive to work. Lombardi suddenly appeared, opened her car door and attempted to pull her out of the car. He told her, "You walked out on me, bitch. You don't walk out on me. You're coming with me. You're coming with me."

Pond screamed at Lombardi: "No, I'm not going with you." In attempting to pull Pond out of the car Lombardi grabbed Pond's face, hair and arm. Pond fought back and at one point Lombardi grabbed her throat and tried to pull her out of the car. Pond was able to slide over to the passenger side of the car and honk the horn. In response Lombardi got in the driver's seat and attempted to start the car; however, in his haste he bent the key.

Both Pond and Lombardi got out of the car and Pond continued to scream. Pond's sister and brother-in-law emerged from their home along with other family members. . . . When Pond's relatives were present Lombardi became a different person and told them that he just wanted to talk to Pond.

Pond's demeanor did not change. According to her brother-in-law, he remembers seeing Pond terrified, "frozen stiff" and shaking. Another witness heard Pond screaming over and over again "Oh, my God. Help me." The witness called the police and handed the phone to Pond.

Following the attack, Pond had a cut on her eye and scratches and bruises.

Lombardi is six foot, four-inches tall and weighs approximately 270 pounds; Pond is approximately five-foot, seven-inches tall and weighs approximately 130 pounds.

At trial the prosecution presented evidence from Lombardi's first wife and former girlfriend. Lombardi's first wife testified that shortly after she left Lombardi in December 1982 he found her at a gas station with her sister, pulled her out of her sister's car, forced her into his car, drove her to a motel and sexually assaulted her. Later, Lombardi was arrested while holding a knife to his wife's throat. Following this incident ...


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