The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner, Kavasio K.Hall, is a state prisoner proceeding with a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of twenty-four years to life in prison after a jury convicted him of kidnapping for the purpose of committing robbery, first degree robbery, and the acquisition of another's access card information for fraudulent purposes. Petitioner raises three claims in this federal habeas petition; specifically: (1) that his conviction for aggravated kidnapping was based on insufficient evidence ("Claim I"); (2) that his sentence is cruel and unusual under the Eighth Amendment ("Claim II"); and, (3) that his right to an impartial tribunal was violated when the trial judge repeatedly asked witnesses questions ("Claim III"). For the reasons stated herein, the federal habeas petition should be denied.
I. FACTUAL BACKGROUND*fn1
A jury found defendant Kavasio Hall guilty of kidnapping for the purpose of committing robbery, first degree robbery, and the acquisition of another's access card information for fraudulent purposes. The court sustained recidivist allegations and, after extended posttrial proceedings, sentenced defendant to state prison for a determinate term of 10 years and a consecutive indeterminate term of 14 years to life. . . .
On a January 2007 evening, the victim was walking down P Street through midtown Sacramento to meet a friend and then join her boyfriend. As she approached 22nd Street, the co-defendant crossed P Street and approached her from behind in the middle of the intersection. He placed a pointed object that she took for a gun against her neck and grabbed her, directing her to be quiet and comply with his demands.
He directed her to a dark spot by some tall shrubbery on 22nd Street. He rummaged through her pockets and purse, and checked under her bra. During this search of her person, a car (which the victim thought had passed her earlier along her walk) parked next to them. The co-defendant handed the victim's purse to the driver. The victim did not get a good look at the driver. She made a hesitant selection of defendant's photo in a line-up as looking the most like the driver, but admitted at trial that she could not confirm with certainty that defendant was in fact the driver. She was, however, later able to identify the car in which she had been riding. After the co-defendant conferred with defendant at the car, he came back and told the victim to get in the car. She resisted because this was "the biggest thing that [she] was fearing." However, she heard what sounded like the sound of a gun being "charged" (by which we assume she meant its slide was being operated). As a result, she got into the car without any express threats from defendants.
As they drove off, the co-defendant asked where she had a bank account. She told him Washington Mutual. At this point, she could see that they were near N and 28th Streets and told them the nearest branch was back at Capitol Avenue and 21st Street (not wanting to be stranded at some distant location). At some point during the ride, the co-defendant demanded that the victim give him her cell phone.
Defendant parked the car on 21st Street down the block from the bank. The co-defendant handed the victim her ATM card. She withdrew all the money she had in the account. Although there were a few girls walking by, she was too afraid to seek their assistance because she did not know how much help they would be. She returned to the car, handing them $280 and the receipt to show that she could not withdraw any more cash. Giving back her purse (but keeping her cell phone and wallet, which had $100 inside), the co-defendant asked if the victim wanted them to take her back to P and 22nd Streets. She declined the offer and they drove off. She walked to K and 24th Streets where her boyfriend was waiting for her and phoned 911 on his cell phone.
In closing argument, the prosecutor clarified that while there were two distinct robberies in this case (for which reason the court instructed on the need for unanimity), the charged kidnapping commenced when defendants forced her into the car for the purpose of the robbery that occurred at the ATM (which was the only robbery charged in the information). The prosecutor argued that this transit resulted in substantial psychological harm to the victim, who no longer feels safe to walk in Midtown Sacramento.
II. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the state court proceedings unless the state court's adjudication of the 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 state court. See 28 U.S.C. 2254(d); Perry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000).
In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). "When it is clear, however, that the state court has not decided an issue, we review that question de novo." Reynoso v.Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S. 374, 377 (2005).
III. ANALYSIS OF PETITIONER'S CLAIMS 1. Claim I
In Claim I, Petitioner argues that there was insufficient evidence to support a guilty finding with respect to the charge of kidnapping for the purpose of committing robbery (also referred to as "aggravated kidnapping"). Specifically, Petitioner contends that there is insufficient evidence to show that "the movement of the victim [was] beyond that merely incidental to the commission of, and increase[d] the risk of harm to the victim over and beyond that necessarily present in" the underlying robbery as required by California Penal Code section 209(b)(2).
The Due Process Clause of the Fourteenth Amendment "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime for with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a conviction, if "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). "[T]he dispositive question under Jackson is 'whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.'" Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 318). A petitioner for writ of habeas corpus "faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005).
A federal habeas court determines the sufficiency of the evidence in reference to the substantive elements of the criminal offense as defined by state law. See Jackson, 443 U.S. at 324 n. 16. California law defines kidnapping for the purpose of committing robbery as follows:
(1) Any person who kidnaps or carries away any individual to commit robbery . . . shall be punished by imprisonment in the state prison for life with the possibility of parole.
(2) This subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense.
Cal. Penal Code § 209(b). The California Court of Appeal stated the following in analyzing ...