The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY [Doc. 6]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge. Local Rule 305(b).
Following a jury trial in the Tulare County Superior Court, Petitioner was convicted of kidnapping for ransom (Cal. Penal Code*fn1 § 209(a)), two counts of assault with a deadly weapon (§ 245(a)(1)), attempted robbery (§§ 664/211), and commercial burglary (§ 459). The jury further found true that one of the victims was a developmentally delayed adult (§ 667.9(a)), and that Petitioner personally used a deadly and dangerous weapon (§ 12022(b)(1)). On March 5, 2008, the trial court sentenced Petitioner to state prison for the term of 13 years to life.
The California Court of Appeal affirmed the judgment, and Petitioner did not seek review in the California Supreme Court.
Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. The California Supreme Court denied the petition, citing In re Waltreus, 62 Cal.2d 218 (1965), In re Swain, 34 Cal.2d 300, 304 (1949), and People v. Duvall, 9 Cal.4th 464, 474 (1995).
Petitioner filed the instant petition for writ of habeas corpus on June 15, 2010, and a first amended petition on August 11, 2010. Respondent filed an answer to the petition on October 1, 2010. Petitioner did not file a traverse.
Richard St. Louis, Jared O., and other customers were in a liquor store in Tulare on July 19, 2007. St. Louis and Jared O. were purchasing sodas. Petitioner ran into the store with a plastic grocery bag over his head. Petitioner grabbed Jared O. around the neck, proceeded to pound the counter, and told the clerk twice to: "Give me the fucking money." When Petitioner left, St. Louis could see that he was carrying a knife with a blade five or six inches long and St. Louis could see Petitioner's face from the bridge of his nose down. St. Louis was later able to identify Petitioner from a police photograph.
The clerk of the store, Roxanne Ali, did not begin to take money out of the cash register. St. Louis testified that Ali appeared to be shocked. Ali never gave Petitioner money. As Petitioner was leaving the store, he gave Jared O. a slight push causing Jared O. to fall to the floor. Jared O. has a handicap. Jared O.'s father testified that his son suffers from Down's Syndrome.
Marie Hernandez and Darci Massey were in the store taking a break from work. They saw Petitioner enter the store with a plastic bag over his head, grab Jared O., and demanded money from Ali. Hernandez and Massey saw a knife in Petitioner's hand. Both women heard Petitioner demand money or he would cut Jared O.
Ali testified that a man later identified as Petitioner came into her store with a bag on his head. The man grabbed Jared O. by the neck. Although the man demanded money, Ali refused to give it to him. Ali told the man there was a cop standing outside the store. The man pushed Jared O. to the floor and left. Although the store is equipped with a videotape device, it was not working at that time.
Devon Fowler, who was in the store during the incident, testified that Petitioner grabbed Jared O. by the neck and put a knife to Jared O's throat. The man demanded money. Ali refused to give him any. Petitioner started smashing stuff off the counter. The knife Petitioner was carrying made a small little cut on Jared O's neck. Petitioner asked Ali if she wanted Jared O. to die. Ali said she had no money. Petitioner pushed Jared O. away and fled.
David Frausto was walking home by the liquor store next to the post office when he saw Petitioner. Frausto had never seen Petitioner before. Petitioner looked at Frausto strangely and appeared to be angry. As Frausto walked past Petitioner, who was standing next to a telephone booth, Frausto thought Petitioner hit him. Petitioner had stabbed Frausto's right hip. A ...