The opinion of the court was delivered by: Robert H. Whaley United States District Judge
ORDER DENYING HABEAS PETITION
Before the Court is Petitioner's Petition for Writ of Habeas Corpus, 28 U.S.C. Section 2254 (Ct. Rec. 1). Petitioner is a state prisoner currently confined by the California Department of Corrections at High Desert State Prison, Susanville, California, and is proceeding pro se.*fn1
Petitioner was convicted by a jury of the offenses of second degree murder (Cal. Penal Code § 187) and assault by means of force of a child in his care and custody, resulting in the death of a child under eight years old (Cal. Penal Code § 273ab). On January 17, 2003, Petitioner was sentenced to an indeterminate term of twenty-five years to life imprisonment.
Petitioner appealed his conviction and sentence. In his appeal, he asserted two claims for relief: (1) the trial court committed reversible error by giving an improper "pinpoint" instruction; and (2) a sentence of 25 years to life was cruel and unusual punishment as applied to Petitioner. The California Court of Appeal affirmed the judgment on September 24, 2004, in an unpublished opinion. Petitioner petitioned for review to the California Supreme Court, which was summarily denied on December 1, 2004. Petitioner's conviction became final on March 1, 2005.
On December 5, 2005, Petitioner filed a Petition for Writ of Habeas Corpus in the Superior Court of California, County of Sacramento. In his petition, he asserted seven claims for relief: (1) he received ineffective assistance of trial counsel; (2) there was insufficient evidence to support his conviction; (3) his conviction was wrongful for numerous reasons; (4) he received ineffective assistance of appellate counsel; (5) his expert testimony was deficient; (6) the trial court erroneously gave CALJIC No. 2.03; and (7) his sentence is cruel and unusual. The petition was denied on January 19, 2006.
Petitioner then filed a Petition for Writ of Habeas Corpus in the Court of Appeal for the State of California. Again, he asserted seven claims for relief: (1) he received ineffective assistance of trial counsel; (2) there was insufficient evidence to support his conviction (actual innocence); (3) he received ineffective assistance of appellate counsel, client/attorney breakdown; (5) disproportionate sentence; conflict of interest, and numerous errors committed at trial; (6) the trial court erroneously gave CALJIC No. 2.03; and (7) his sentence is cruel and unusual. This petition was summarily denied on March 9, 2006, without comment.
On April 12, 2006, Petitioner filed a Petition for Writ of Habeas Corpus in the California Supreme Court. In his petition, he asserted seven claims for relief:
(1) ineffective assistance of trial and appellate counsel; (2) lack of sufficiency of the evidence; (3) denial of due process; (4) wrongful conviction; (5) disproportionate and illegal sentence; (6) wrong jury instructions; and (7) cruel and unusual punishment and unfair punishment. The petition was summarily denied on December 13, 2006.
On February 22, 2007, Petitioner filed his federal Petition for Writ of Habeas Corpus presenting seven grounds for relief: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appointed appellate counsel; (3) insufficiency of the evidence; (4) illegal instructions given to the jury by the trial court; (5) illegal sentence imposed in violation of the U.S. Constitution as factors used to sentence Petitioner were determined by the court and not by the jury, in violation of Petitioner's rights under Cunningham v. California; (6) cruel and unusual sentence imposed in violation of the U.S. Constitution; and (7) Petitioner is factually innocent.
The California Court of Appeal summarized the facts as follows:
Defendant and Racquel Wynn started dating when he was a senior in high school. Shortly after graduating, Wynn discovered she was pregnant. The child, whom they named Nadia, was born in July, 2001. Defendant and Wynn each lived with their parents.
On the Friday after Thanksgiving 2001, Wynn and Nadia spent the night at the residence of defendant's mother. On Saturday morning, Wynn left for work shortly after 9:00 a.m. She told defendant Nadia was asleep on the bed; defendant replied that he might take Nadia to his great-grandmother's house to visit his cousin.
Later that morning, defendant's younger sister checked on Nadia. Defendant, who had just gotten out of the shower with Nadia, was dressing Nadia. The sister noticed Nadia was starting to fall asleep while Defendant dressed her, had "a raspy sound in her voice when she was breathing," and seemed lifeless. Defendant denied knowing why Nadia was acting this way. Defendant's mother checked Nadia and also noticed her "raspy" breathing and a red mark on her lip." Defendant explained that his younger brother had hit Nadia with a toy. In the early afternoon, defendant's great-grandmother and his cousin arrived to take defendant and Nadia to the great-grandmother's house for a visit. Since Nadia still appeared non-responsive, they decided to stop at a clinic to have her examined.
When they were unable to find a clinic that was open, they called Wynn's father to ask for a ride to the hospital. While they were waiting, defendant called 911 and reported that Nadia was not breathing normally. The 911 dispatcher sought to ascertain the source of the problem; but defendant's responses merely described Nadia's physical symptoms. The dispatcher relayed instructions for mouth-to-mouth resuscitation, which defendant attempted until the fire department emergency medical personnel arrived at 3:20 p.m. The emergency medical personnel determined that Nadia was not breathing and had no pulse. They immediately established an airway to her lungs, gave her oxygen, and undertook cardiopulmonary resuscitation. The emergency medical personnel, who did not observe any external signs of trauma, were unable to elicit much information from defendant, which they considered unusual.
Nadia was transported to the pediatric intensive care unit of a nearby hospital. She was already extraordinarily cold; her brain was unable to perform necessary functions; and bruises were apparent on her head, neck and abdomen.
Defendant was questioned by Sacramento police officers at the hospital. His only explanation for four-month-old Nadia's injuries was his assumption that his one-year-old brother had hit Nadia with a toy.
Early Sunday morning, defendant told Wynn that after the toy incident he had accidentally dropped Nadia while he was taking a shower with her and that she had hit her head on the back of the bathtub. Wynn's father advised defendant to speak with an attorney "immediately" ...