The opinion of the court was delivered by: J. Clifford Wallace United States Circuit Judge
Tyler, a state prisoner, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his sentence of 25 years to life, imposed pursuant to his guilty plea of one count of penetration with a foreign object with enhancements admitted for committing that crime during a burglary and involving binding the victim.
I have reviewed the petition, the respondent's answer, the traverse, and all supporting documents. I hold that Tyler is not entitled to the relief requested and order that the petition be denied.
The following is a summary of the facts, found by the California Court of Appeal in its opinion, which in turn referred to the transcript of the preliminary hearing and probation report:
[Tyler] was the former boyfriend of the victim. Since their breakup, [Tyler] had mentioned to the victim that he was concerned for her safety, and he called her on the night of the offense to inquire about her welfare and to verify that she was continuing to house-sit in Wilton. When the victim returned to the residence that night, she was confronted by an individual (defendant) wearing a ghoulish Halloween mask and armed with a handgun. Defendant handcuffed and blindfolded the victim, pulled her into a bedroom and pushed her down onto a bed. After ransacking her purse, defendant tied the victim's legs with plastic zip ties.
The victim heard defendant leave the bedroom several times, go outside through the sliding glass door, and then return a short while later. During several of those absences, defendant tried to call the victim on her cellular phone, and she heard defendant leave two messages on the answering machine at the residence. In one message, defendant stated he felt something bad might happen to the victim. In the second, he said he was going to drive to the residence.
During one of defendant's absences, the victim loosened the ties on her feet, got up, and locked herself in a bathroom. When defendant returned, he kicked the door until it broke open. Defendant made the victim lie down on the bed again, bound her with zip ties and tape, unzipped her sweater, and cut open her T-shirt and bra. Defendant removed the gloves he was wearing, and rubbed the victim's breasts and nipples with both hands. He then pulled the victim's pants and underwear to her knees, forcibly spread her legs, inspected her, inserted a cylindrical object into her vagina, and rocked it back and forth. Defendant also nuzzled the victim's face, neck, chest and thighs with the muzzle of the handgun. Defendant then turned the victim over, rubbed her buttocks, removed the handcuffs, bound her hands and legs with zip ties, covered the victim's face with pillows, and departed with the victim's car keys and $10 from her purse. Defendant drove the victim's car to another location in Wilton and abandoned it.
The victim managed to free herself enough to call her mom for help, and to hop to the bushes behind the residence in case the assailant returned. Defendant arrived at the residence shortly after the victim's father, but left after crime scene investigators arrived and questioned him. Officers surveilled defendant drive to a nearby road, where he threw a backpack into the ditch. The backpack was later found to contain several items used during the crime, including a pellet handgun that closely resembled an authentic handgun.
During a search of defendant's residence, his 15-year-old sister stated that defendant owned a pellet gun and showed investigators the box where he kept it. The serial number on the box matched the serial number on the pellet gun recovered from the backpack that defendant had abandoned in the ditch.
Defendant's sister also told investigators that defendant had worn a Halloween mask the preceding Sunday and asked her whether she could tell if it was him through the mask.
Following his arrest, advisement and waiver of rights, defendant admitted that he was the perpetrator. [Lodged Doc. 4, Jan. 9, 2006, Opinion of the California Court of Appeal, Third Appellate District, Case No. C047993 (hereinafter Cal. App. Op.) at 2-4.]
The following summary of procedural background is also taken from that opinion:
Defendant was charged by information with single counts of burglary (§ 459 -- count one), unlawfully violating the personal liberty of another by violence, menace, fraud or deceit (§ 236 -- count two), penetrating the genital opening of another by force, violence, duress, menace, or fear of immediate and unlawful bodily injury (§ 289, subd. (a)(1) -- count three), robbery (§ 211 -- count four), vehicle theft (Veh. Code, § 10851, subd. (a) -- count five), and six ...