The opinion of the court was delivered by: Dennis L. Beck 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. 20]
Petitioner is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1
Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented
to the jurisdiction of the United States Magistrate Judge. Local Rule
Following a jury trial in the Kern County Superior Court, Petitioner was convicted of penetration by a foreign object, assault with intent to commit penetration by a foreign object, sexual battery, spousal battery, assault with a deadly weapon, and criminal threats. Several related enhancements were also found true. Petitioner was sentenced to a three-year determinate term and an indeterminate term of 15 years to life.
On May 7, 2007, Petitioner filed a petition for writ of habeas corpus with the Kern County Superior Court. The petition was denied in a reasoned decision on July 9, 2007.
Petitioner then filed a petition for writ of habeas corpus in the California Court of Appeal, Fifth Appellate District. On June 6, 2008, the Court of Appeal struck the conviction of assault with intent to commit penetration by foreign object and directed the superior court to amend the abstract of judgment, but otherwise affirmed the judgment.
Petitioner filed a petition for review in the California Supreme Court. On September 17, 2008, the California Supreme Court denied the petition.
Petitioner then filed another petition for writ of habeas corpus in the Kern County Superior Court on July 6, 2009. The petition was denied in a reasoned decision on August 31, 2009.
On October 26, 2009, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Fifth Appellate District. On December 15, 2009, the Court of Appeal denied the petition.
On December 28, 2009, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. The petition was denied on February 22, 2010.
Petitioner filed the instant federal petition in this Court on November 25, 2009. On April 15, 2010, the Court granted Petitioner's request to amend the petition. The amended petition was filed on May 11, 2010. Respondent filed an amended answer to the petition on June 7, 2010, and Petitioner filed a traverse on June 29, 2010.
On June 30, 2006, at approximately 2:30 a.m., Maria Velasquez was awakened by Petitioner, her husband, in the apartment where they resided with their two children, Salvador Garcia, Jr. and Nayeli Garcia.*fn2 (RT 363, 694.) Petitioner told Velasquez he could hear a rattling noise coming from her vagina. Petitioner touched her vagina over her clothing and told her she smelled. (RT 646-648.) Petitioner repeatedly told Velasquez that he could hear a rattling noise in her vagina that was making her masturbate. When Velasquez denied the accusation Petitioner did not believe her. (RT 452-453.)
Petitioner pressed his hand on Velasquez's neck and asked what was inside her. He continued to squeeze her neck and Velasquez attempted to push him away. Petitioner hit her leg leaving a bruise. (RT 455-458, 622.) Petitioner ordered Velasquez to take off her clothing to check her and she complied. Petitioner pushed her legs open and spread open her vagina with his fingers. (RT 454, 459, 462-463, 648.) Petitioner obtained a knife from under the bed and threatened to kill her if she did not tell him the truth. Petitioner continued to look into her vagina insisting there was something inside. (RT 465-466.)
Nayeli heard Petitioner loudly asking Velasquez to tell him something. Nayeli went into their bedroom and saw her mother naked and Petitioner hide his hand. Sandoval also went into the bedroom and saw his mother naked and Petitioner holding a knife, which he placed under the pillow. (RT 730-731.) Petitioner told Nayeli to get out of the room and Velasquez signaled for them to comply. (RT 470-473, 657, 697-698.) Nayeli complied out of fear of Petitioner. (RT 697-698.) Salvador indicated he needed to use the restroom and Petitioner allowed him to do so. (RT 732.) When he exited the restroom, his mother was covered and his father was in bed. Petitioner told him to get out and Salvador complied. (RT 732-733.)
After the children left, Petitioner was angry and yelling. Velasquez told him to calm down because she was afraid the neighbors would hear and call the police. (RT 661.) Nayeli heard Petitioner continue to yell at her mother. (RT 699-700.)
Velasquez needed to use the restroom and Petitioner went with her carrying a knife. As Velasquez sat on the toilet, Petitioner stood at the doorway swinging his knife threatening to kill her. (RT 470-473.) Out of fear that Petitioner would kill her, she said she would tell the truth. She then told him falsely that Alejandra Rosales gave her something to put in her vagina. Petitioner said he was going to call Rosales and if she did not answer he would kill Velasquez. Petitioner called Rosales and both he and Velasquez spoke to her. Velasquez told Rosales she was scared because Petitioner threatened to kill her with a knife because he wanted to remove something she put in her vagina. Both Petitioner and Velasquez asked Rosales if she had given her something to put in her vagina but Rosales did not answer. (RT 475-476, 717.)
After Petitioner hung up the phone, he asked Velasquez why she had previously not told him the truth and said if she had he would not have hit her. Petitioner then said they should both go to sleep but Velasquez was too frightened to sleep. The next morning Petitioner awoke with pain in his chest. He cried and his fingers were curled together. Velasquez believed Petitioner may have been having a heart attack and asked Salvador to call Alejandra. (RT 477-478, 664-665, 753.)
When Alejandra arrived Petitioner appeared better. (RT 665.) It looked like Velasquez had been crying, and Petitioner told Alejandra that if she had not answered the phone he would have killed Velasquez. (RT 718.) Petitioner asked Alejandra why she gave Velasquez something to put inside her, and Alejandra asked why he was accusing her of that. (RT 479-480, 719.) Petitioner wanted Alejandra to take Velasquez to the doctor to have the item removed. He then pushed Velasquez and told her to come back the way she was before. (RT 479-480, 665-667, 719.)
As Alejandra drove Velasquez told her what happened the previous night. Velasquez attempted to get some medication to show Petitioner that she had put something inside her, but the assistant refused to do so. (RT 481, 726.) Alejandra drove Velasquez to a church where her children were attending summer school. Petitioner was there talking with the pastor. (RT 482-483, 726.)
Velasquez went home with Petitioner and their children. The next morning, Petitioner told her they were going back to the clinic to have the thing removed from her vagina. (RT 484-486, 670.) Salvador drove them to the clinic, but he stayed inside the vehicle. (RT 484-487, 735.) Petitioner told the medical assistant at the front desk that he wanted a doctor or nurse to check Velasquez in front of him to remove the foreign object in her vagina. (RT 803.) Petitioner and Velasquez spoke with the medical assistant in a back room. Petitioner said his wife was breathing heavily when she slept and something was making her masturbate. (RT 809.) She informed Petitioner that she could not perform the examination because she was only a medical assistant. The assistant did not report the incident to the police because she did not believe violence was involved. (RT 804, 806.)
Medical assistant, Anita Diaz, remembered Petitioner saying that he attempted to remove the object out of Velasquez's vagina. (RT 804.) Diaz wrote a report regarding the incident but did not mention Petitioner's statement. She also provided a statement to the police a month or two after the incident and spoke with the prosecutor. She did not mention Petitioner's statement to the police or the prosecutor. (RT 806-808, 809-810.)
As Petitioner and Velasquez walked back to the car, Petitioner became angry and said they knew what was inside her because one of them winked at her. He continued to accuse her of putting something inside her vagina and she repeatedly denied doing so. (RT 489-490.) Salvador observed that his father was angry and heard him accuse a medical worker of winking at his mother and taking her side.
After returning home, Petitioner told Nayeli to pack his clothes because he was fed up with them and he was going to Oregon. (RT 491-492, 701.) Nayeli did not see his mother or brother pack clothes. (RT 701-702.)
Petitioner later received a phone call regarding a missing paycheck. (RT 738.) Petitioner told Velasquez he wanted her to go with him to pick up the check. (RT 491-492, 739.) Petitioner told Salvador not to go with them, but Velasquez asked him to go. When they left, Petitioner was very angry and Velasquez was crying. (RT 491-492, 609, 739.)
As they began driving, Velasquez noticed that Petitioner was taking a different freeway than the one that lead to his employer's business to pick up the check. Petitioner told Velasquez he was taking them to Oregon and told her to tell the truth about what she had inside her. (RT 613-614.) During the drive, Petitioner called Nayeli and told her to go stay at another family's home. (RT 704-705.)
After driving for a few hours, Petitioner stopped at a gas station. He told Salvador to go and get some food. When Salvador exited the car, Petitioner told Velasquez that he was going to kill her when they arrived in Oregon. (RT ...