The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2007 conviction for false imprisonment with force and violence (Cal. Penal Code §§ 236, 237(a)), assault by means of force likely to produce great bodily injury and assault with a deadly weapon (Cal. Penal Code § 245(a)(1)), and infliction of corporal injury on a spouse or cohabitant (Cal. Penal Code § 273.5(a)). Petitioner is serving a sentence of 25 years to life.
This action is proceeding on the original petition filed March 9, 2009. Petitioner raises the following claims: 1) jury instruction error; 2) the trial court erred by failing to notify defense counsel prior to responding to requests by the jury; 3) the trial court failed to adequately respond to a jury inquiry.
After carefully considering the record, the undersigned recommends that the petition be denied.
II. Anti-Terrorism and Effective Death Penalty Act ("AEDPA")
In Williams (Terry) v. Taylor, 529 U.S. 362 (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 405. "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. Id. at 407-08. 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." Id. at 410-11 (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 (2002).
"Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection).
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 (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 (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.
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).
The California Court of Appeal was the last state court to issue a reasoned decision addressing petitioner's claims. (Respondent's Lodged Documents D, E.) Accordingly, the undersigned considers whether the denial of petitioner's claims by the California Court of Appeal was an unreasonable application of clearly established Supreme Court authority. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000) (when reviewing a state court's summary denial of a claim, the court "looks through" the summary disposition to the last reasoned decision.)
The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the undersigned finds this summary to be accurate and adopts it herein.
Defendant and Donna Ray were together for seven years and married for four of those years. On July 24, 2006, they were living in room 268 at the Granada Inn in West Sacramento, Yolo County, California. Around 11:00 a.m., Donna went to the convenience store across the street to buy a 12-pack of beer for defendant. FN2 Donna stayed in the room about an hour before leaving again to go to the supermarket. During that time, defendant had one or two of the beers.
FN2. We refer to Donna Ray by her first name to avoid confusion. No disrespect is intended.
Donna took a bus to the supermarket. The couple did not have a car. She returned from the supermarket around 2:00 p.m. She noticed the 12-pack of beer had been consumed, and defendant appeared intoxicated. Defendant was angry because he thought she had left with another man. He started yelling at her, then began hitting her. He hit her face, head, and arms with his fists. He grabbed her hair and tossed her around the room. When she fell to the ground, he kicked her. She cried, but did not scream, because she was afraid he would hurt her even worse if she did. Defendant told Donna that if she ever tried to leave, he would kill her. She thought this meant he would kill her if she left the room and kill her if she left "the marriage." "[H]e kept telling me that [if] I left with another man ... he would kill me." At one point, Donna testified defendant put a knife to her throat, and told her he would kill her. She did not try to leave "[b]ecause I was afraid if I tried to leave or call the police, he would kill me."
The beating continued, on and off, throughout the night. The next morning, sometime between 8:00 and 10:00, Donna told defendant she was going to check the mail at their post office box in Fair Oaks, and left. Donna went to the post office first, then to the hospital because she was having trouble walking. The hospital staff contacted the police around 4:00 p.m. The police contacted her at the hospital, and she told them what had happened.
Donna had bruises around her eye, on her neck, under her chest, on her left thigh, on her hands, shoulder, arms, and all over her back. She had swelling on her head, and a cut on her ear. Officers went to defendant's motel room, and arrested him.
(Respondent's Lodged Document D, Appendix A, at 2-4.)
A. Claim 1 -- Alleged Jury Instruction Error
A challenge to jury instructions does not generally state a federal constitutional claim. See Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983); see also Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985). Habeas corpus relief is unavailable for alleged error in the interpretation or application of state law. Estelle v. McGuire, 502 U.S. 62 (1981); see also Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 1987); Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir. 1986). The standard of review for a federal habeas court "is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States (citations omitted)." Estelle v. McGuire, 502 U.S. at 68. In order for error in the state trial proceedings to reach the level of a due process violation, the error had to be one involving "fundamental fairness." Id. at 73. The Supreme Court has defined the category of infractions that violate fundamental fairness very narrowly. Id.
When what is at issue is the failure to give an instruction, petitioner's burden is "especially heavy" because it has been held that "[a]n omission or an incomplete instruction is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 155 (1977). Moreover, a trial judge need not instruct on a defense which would be inconsistent with petitioner's theory of the case. Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir. ...