The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is represented in this action by Charles Carbone, Esq.
Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Kern, following his conviction by jury trial on March 16, 2007, of corporal injury to a cohabitant (Cal. Penal Code § 273.5(1)*fn2 ); torture (§ 206); rape by force or fear (§ 261(a)(2)); oral copulation by force or fear (§ 288a(c)(2)); making threats with intent to terrorize (§ 422); and dissuading a victim from reporting a crime(§ 136.1(b)(1)). The jury found true the allegations that Petitioner had personally inflicted great bodily injury in the commission of corporal injury (§ 12022.7(e)). In a bifurcated proceeding, the trial court found true the allegation that Petitioner had served a prior prison term (§ 667.5(b)).
He was sentenced to serve an indeterminate term of life with the possibility of parole plus twelve years and four months.
Petitioner filed a timely notice of appeal. On February 18, 2009, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), affirmed Petitioner's judgment in a reasoned decision. Petitioner then filed a petition for review in the California Supreme Court. The petition was summarily denied on May 13, 2009.
On June 30, 2010, Petitioner filed the instant federal habeas petition. He claims the trial court violated his constitutional rights under the Sixth and Fourteenth Amendments when it refused to re-appoint him a lawyer at trial. Respondent filed an answer to the petition on September 16, 2010. On October 17, 2010, Petitioner filed a traverse.
On January 13, 2005, [Petitioner] lived with his girlfriend Ruth and her eight-month-old son. Around 10:00 p.m., after she had put her son to bed, Ruth went upstairs to lie down. She was still wearing her street clothes, including a belt with a large, heavy, metal buckle. [Petitioner] was downstairs smoking crystal methamphetamine.
Later, [Petitioner] came into the bedroom and accused Ruth of talking to his friends behind his back. Ruth insisted she had not done so, but [Petitioner] was convinced that Ruth was telling his friends he had a small penis. Ruth was not able to calm [Petitioner] down and, because she was afraid of him, began to back out of the room. [Petitioner] grabbed her face and pushed her onto the bed. Ruth tried to get up, but [Petitioner] pushed her back down.
[Petitioner] ripped off Ruth's sweater and belt and beat her with the buckle. When the buckle fell off the belt, [Petitioner] began to punch Ruth in the face and tried to suffocate her by pushing her face into the bed. He turned up the volume on a radio to drown out Ruth's screams as he continued to punch her in the head.
[Petitioner] then kneed Ruth in the face, which caused her nose to bleed and knocked her unconscious. When Ruth awoke, she was lying on the floor and [Petitioner] was kicking her in the stomach. At some point, [Petitioner] placed one hand around Ruth's neck and used the other to poke his fingers into her eyes.
[Petitioner] told Ruth he would kill her if she tried to leave the room or told anyone what had happened. [Petitioner] grabbed another belt and beat Ruth with the buckle as he continued to accuse her of talking to his friends behind his back. Eventually, Ruth admitted she had done so even though it was not true.
[Petitioner] became angrier and continued to beat Ruth until her vision blurred and she threw up. [Petitioner] continued to kick Ruth in the stomach. [Petitioner] then threw up and blew "snot" on Ruth. He eventually stopped and left the room when Ruth heard a man's voice downstairs.
Ruth passed out in the bathroom, and [Petitioner] carried her to bed and changed her clothes.
Ruth woke the next morning, January 14, and called out for help. She was still throwing up. [Petitioner] changed her shirt and told her he was sorry and loved her. She dozed off again. When she awoke, [Petitioner] changed her son's diaper and then left Ruth and the baby for the rest of the day.
Ruth stayed in bed the entire day because she was so sore. Sometime during the day, [Petitioner] brought her a sandwich, saying she needed to eat, but she was not able to. That evening, after the baby was asleep, [Petitioner] helped Ruth down the stairs because he said she needed to eat. While they were in the kitchen, someone knocked on the door. [Petitioner] went upstairs to get his gun and told Ruth to open the door, but her hands were too badly bruised. [Petitioner] then opened the door and two individuals came in and went upstairs with [Petitioner]. It was dark in the living room and kitchen and neither individual looked at Ruth. Ruth did not try to leave the apartment because she did not have a key for the locked door and her son was upstairs. Eventually, the two individuals left.
[Petitioner] went back upstairs and Ruth slowly followed. She lay down on the bed next to [Petitioner], who began poking her and again accusing her of talking behind his back. Although Ruth complained she was in pain, [Petitioner] laughed and continued to poke her. [Petitioner] grabbed a red indelible marking pen and drew pictures on her cheek. He then used his cell phone to take pictures of the drawings. [Petitioner] showed her the pictures and threatened to beat her up again. Eventually Ruth fell asleep.
When Ruth woke the next morning, January 15, 2005, [Petitioner] told her to get up and do the laundry. Ruth's son crawled into the room, and Ruth fed him before he crawled out again. [Petitioner] then told Ruth he wanted to have sex. Although Ruth protested that she was in pain, [Petitioner] threatened to hurt her again if she did not comply.
[Petitioner] pulled off his pants and began to masturbate. He ordered Ruth to do the same. He forced Ruth to orally copulate him and have sexual intercourse. He then left the room.
When [Petitioner] returned, Ruth was curled up crying, but [Petitioner] told her to "get over it" and do the laundry. Ruth slowly got up and went into her son's room, where she contemplated how to leave the apartment. She grabbed some clothes to make it look like she was going to do the laundry and hid her son's diaper bag under the clothes. She went downstairs and put the clothes and diaper bag under the stairs. [Petitioner] was still upstairs lying down at the time.
Ruth tried the door, but it was locked and she didn't have a key. When [Petitioner] asked what she was doing, Ruth replied that she was in need of quarters to do laundry. [Petitioner] told her there were quarters by the microwave. Ruth remembered that the back door might be unlocked and, when [Petitioner] eventually fell asleep, Ruth took her son and the diaper bag and ran as fast as she could.
Ruth made it to the house of her relatives, Mr. and Mrs. Ruiz, where she told Mr. Ruiz that [Petitioner] had assaulted her. Mr. Ruiz noticed bruises all over Ruth's arms and blood smeared on her face. Mrs. Ruiz took Ruth into the bathroom where she was able to see that her entire body was covered with bruises and red marks on her arms.
Ruth begged the Ruizes not to call the police because [Petitioner] had threatened to kill her if she told anyone what had happened. The Ruizes took Ruth and her son to the apartment of her aunts. Ruth appeared to be in constant pain and needed help getting in and out of the car.
Despite Ruth's protests not to call the police, her aunts did. Firefighters arrived and found Ruth on the couch crying. She had bruises on her head, neck, and arms, and a cervical collar was placed around her neck as a precaution. Veteran firefighter, Captain Steve Woodward, had never seen such extensive bruising on a live patient.
An ambulance arrived and took Ruth to the hospital. Paramedic Ryan Beck noticed a number of visible bruises on Ruth's body and vaginal bleeding was visible through her clothing. En route to the hospital, Ruth was in pain, seemed anxious, and repeatedly asked if someone was following them.
Dr. David Obert treated Ruth when she arrived at the hospital. He noticed multiple abrasions, contusions, discoloration, and bruising over nearly all of her body. Dr. Obert examined her for internal injuries. Ruth complained of neck, back, and chest pain. Ruth's right eye was swollen and her nose fractured. The bruises on Ruth's body were in various stages of healing-some as little as 12 hours old and others several days old-and were consistent with Ruth's explanation of how she received them.
Police arrived and Ruth told Officer Ted Martinez that she was afraid of the person who caused the injuries.
A sexual assault examination was performed on Ruth. She told the nurse who performed the exam that she had been beaten multiple times over three days and was sexually assaulted during that period. Ruth's injuries, including a recent laceration on her vaginal wall that was oozing blood, were consistent with injuries that could have been caused by a sexual assault.
Officers went to [Petitioner]'s apartment and attempted to coax him outside. [Petitioner] appeared at a window with a cordless phone. He said he wanted the officers to explain to the person on the phone what was going on. He also said he needed to retrieve the key to unlock the front door. Eventually, he unlocked the door and was arrested.
Officers returned to the apartment with a search warrant and found, inter alia, a red marking pen, cell phones, a sword, a survival knife, and belts. The officers also found red ink on a pillow, dried blood and smeared red ink on a white comforter, a pair of women's blood-stained jeans, and a belt that was torn where the buckle had been attached but was missing.
While in jail, [Petitioner] spoke on the phone with an ex-girlfriend, Erica L., and told her he had "fucked [Ruth] up" because "[s]he was pushing my buttons too fuckin' much." The call had been recorded and replayed for the jury.
Photographs recovered from [Petitioner]'s cell phone included one on January 13, 2005, at 10:59 p.m., showing Ruth sitting on the stairs of the apartment with a bloody nose, and two others, taken January 15, 2005, at 6:58 and 7:04 a.m., showing what looks like an erect penis and scrotum drawn in red ink on the right side of Ruth's face.
Angela C. testified that she was [Petitioner]'s girlfriend in 1999, and that during their relationship, he had accused her of giving him "crabs." When the two walked to the store to buy some cream to treat the "crabs," [Petitioner] pushed and punched Ms. C., pulled her hair, and called her a whore and a slut. Ms. C. tried to run away, but [Petitioner] caught up with and tackled her. She fell to the ground and heard her collarbone snap. [Petitioner] covered her mouth when she screamed. He told Ms. C. not to tell anyone what had happened. When questioned by officers, she said that her injury had occurred while she and [Petitioner] were playing around. At the hospital, Ms. C. told the doctor she tripped and fell while walking with [Petitioner], but the doctor thought that an unlikely explanation.
After [Petitioner] apologized to her, Ms. C. resumed her relationship with him. Sometime later, [Petitioner] choked Ms. C. until she blacked out. When she woke, [Petitioner] told her she could not leave until she kissed his shoe. He proceeded to grab her, rip her pants, throw her out the door, kick her, and spit on her. On another occasion, [Petitioner] got drunk, choked Ms. C., and kneed her in the stomach, although both thought she was pregnant at the time. Their relationship ended in 2000.
During Ms. C.'s relationship with [Petitioner], her mother noticed bruises all over Ms. C.'s body. At one point, she noticed Ms. C. was missing a patch of hair from the back of her head. Ms. C. made various excuses for her injuries and alienated herself from her family.
Erica L. began a relationship with [Petitioner] in October of 2004. One day, [Petitioner] grabbed the tie of her work uniform and threw her down the stairs, resulting in a huge bruise on her hip. When her mother asked about the injury, Ms. L. said she had hit the corner of a table at work. Ms. L. was afraid to leave the relationship because [Petitioner] would physically prevent her from leaving. He kept the doors of the apartment locked and did not give her a key. He also kept a baseball bat by the door. On one occasion, despite her refusal, [Petitioner] forced Ms. L. to have sexual intercourse with him.
[Petitioner] testified in his own behalf. According to [Petitioner], Ruth arrived at the apartment on the night of January 13, 2005, holding her son in his car seat. She was beat up and smelled like alcohol. They went upstairs and Ruth began vomiting. Ruth insisted that she was fine, so [Petitioner] took a picture of her bloody nose to show her what she looked like. [Petitioner] cleaned Ruth up with water and gave her a change of clothes. [Petitioner] and Ruth then went to bed.
The following day, [Petitioner] thought Ruth seemed normal, although she did have some bruising on her fingers and a black eyelid. [Petitioner] claimed Ruth changed the comforter on the bed, replacing it with one she had brought the previous day when she moved some of her items into the apartment. In the evening, [Petitioner] and Ruth visited with two of their friends, Maureen Deanda and Mark Zavala.
After the friends left, [Petitioner] and Ruth had consensual sex, and she consensually orally copulated him. [Petitioner] acknowledged that he had taken methamphetamine earlier in the day, which changed his personality. After having sex, [Petitioner] took a shower and noticed an abnormal growth on his genital area, which he attributed to large lumps Ruth had earlier shown him in her vagina. [Petitioner] "freaked out" about the possibility of contracting AIDS or a "fatal STD" from Ruth. He was angry because Ruth had hidden this problem from him for so long. He responded by drawing a penis on Ruth's cheek while she slept.
When Ruth woke up, [Petitioner] took pictures of the drawing to show her and to warn her to stop running around with other men. He claimed Ruth cussed at him and accused him of sleeping with two women friends. [Petitioner] attacked Ruth after she hit him in the face. He claimed to use his hands and feet to beat her, and did not remember using a belt. [Petitioner] did not recall how long the beating lasted, but he acknowledged that it was "severe" and that it caused the injuries shown in the prosecution's photographs.
[Petitioner] acknowledged that he never told the officer that Ruth had come to his apartment on January 13, 2005, drunk and with a bloody nose. He told the officer that he only hit Ruth six times and she was "playing victim."
[Petitioner] denied causing Ms. C.'s injuries, claiming instead that he fell on top of her, although he did not know that her collarbone was broken at the time. [Petitioner] admitted that the two of them had a physically abusive relationship.
[Petitioner] described his relationship with Ms. L. as verbally abusive, and he pushed her one time, causing a bruise on her hip.
A neighbor, Edward Perez, testified that he lived in the same apartment complex as [Petitioner]. The complex had three joined apartments; his was on one end and [Petitioner]'s was on the other. Perez did not hear any loud music or screams on January 13, 2005.
Maureen Deanda testified that she and a man named Mark Zavala visited the apartment on January 14, 2005. Deanda physically saw Ruth, who answered the front door, and she did not notice anything unusual about Ruth's appearance. Ruth went into the kitchen, and Deanda and Zavala went upstairs.
[Petitioner]'s mother, Marta Murphy, testified that she received a phone call from [Petitioner] on January 14, 2005, and she had a "normal conversation" with both [Petitioner] and Ruth. She called back later that day and spoke to both of them again. The next morning Murphy received a call from [Petitioner]. He was crying and told her Ruth had given him AIDS. Murphy testified she was on the phone with her son at the time of his arrest. She briefly spoke to an officer who said he would call her back.
In rebuttal, Detective Terry testified that he returned Murphy's phone call on January 16, 2005. At that time, Murphy admitted that [Petitioner] had told her he hit Ruth.
(See Resp't's Answer Ex. A.)
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of Kern County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008 (1997), quoting, Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh, 521 U.S. 320 (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
The instant petition is reviewed under the provisions of the Antiterrorism and Effective Death Penalty Act which became effective on April 24, 1996. Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Under the AEDPA, a petitioner can prevail only if he can show that the state court's adjudication of his claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d); Lockyer, 538 U.S. at 70-71; Williams, 529 U.S. at 413.
As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71, quoting 28 U.S.C. § 2254(d)(1). In ascertaining what is "clearly established Federal law," this Court must look to the "holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Id., quoting Williams, 592 U.S. at 412; see also Harrington v. Richter, __ U.S. __, 131 S.Ct. 770, 785 (2011). "In other words, 'clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer, 538 U.S. at 71.
Finally, this Court must consider whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." Lockyer, 538 U.S. at 72, quoting, 28 U.S.C. § 2254(d)(1). "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413; see also Lockyer, 538 U.S. at 72. "Under the 'reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413.
"[A] federal court may not issue the writ simply because the 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 411; see also Harrington, 131 S.Ct. at 785. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Williams, 529 U.S. at 409. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 131 S.Ct. at 786, quoting, Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). Further, "it is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court." Knowles v. Mirzayance, 556, U.S. __, __, 129 S.Ct. 1411, 1413-14 (2009). "Under 2254(d), a habeas court must determine what arguments or theories supported or, . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding of a prior decision of [the Supreme] Court."
Harrington, 131 S.Ct. at 786. Only "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents" may the writ issue. Id.
Petitioner has the burden of establishing that the decision of the state court is contrary to or involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is objectively unreasonable. See Duhaime v. Ducharme, 200 F.3d 597, 600- 01 (9th Cir.1999).
AEDPA requires that we give considerable deference to state court decisions. "Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceedings, § 2254(d)(2)." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Both subsections (d)(2) and (e)(1) of ...