FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition before this court petitioner challenges a judgment of conviction entered against him on May 22, 2007 in the San Joaquin County Superior Court pursuant to a jury verdict finding petitioner guilty of torture, rape by force or fear, corporal injury to a former cohabitant, dissuading a witness by force or threat, false imprisonment by violence, and obstructing or delaying a peace officer, along with findings that numerous sentence enhancement allegations were true. Specifically, petitioner challenges several such sentencing enhancements based on findings that he personally used three dangerous or deadly weapons (a bat, bed rail, and vacuum)*fn1 during the commission of the rape, witness dissuasion, and false imprisonment counts; and that he personally inflicted great bodily injury*fn2 in the commission of the rape, witness dissuasion, and false imprisonment counts. Petitioner also challenges his sentence of sixty-eight years, four months in state prison imposed by the San Joaquin County Superior Court on July 9, 2007.
Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:
In February 2004, defendant and C. met at a QuikStop market and started dating. C. moved in with defendant a few days later. During their relationship, defendant hit her when he thought she was dating another man and had sex with her after she told him "no." She never reported these incidents to police because she "loved him."
In September 2005, C. ended the relationship and moved out. She began dating another man, although she continued speaking with defendant.
On March 10, 2006, defendant telephoned C. and asked her to help him find a birthday present for his father. She agreed, and he picked her up in his car. After they finished shopping, defendant picked up his son from school at about 3:30 p.m. or 4:00 p.m. Unannounced, defendant then drove them all back to his house.
At the house, defendant called C. into the garage. She complied although she had a feeling "something was going to happen." Defendant followed her into the garage and closed the door. He accused her of having sex with his cousin. C. denied the allegation, although it was true. Defendant then grabbed her neck and hit her on the face, causing her to fall to the ground. She could not get up because defendant kept kicking and punching her. He then hit her on her back with a baseball bat causing the bat to break, hit her on her legs with a bed rail, "body slammed" her onto the cement floor, and hit her with a vacuum cleaner pole causing it to bend. C. was in "[e]xcruciating pain," her back and one finger were fractured, and her face was swollen. She was unable to walk.
About 20 to 30 minutes later, defendant told C. to go inside the house to the bathroom. While C. was crawling to the bathroom, defendant took away her cellular phone. She was scared and thought she was going to die. Inside the bathroom, defendant "back-hit" C. on her lip. He ordered her to undress and "pop it" FN1 for him. While C. was undressing, defendant called his son to the bathroom and told him C. was a "ho" and to "just laugh about it." Although C. was in tremendous pain, she danced naked in front of them while they laughed.
FN1. "Pop it" is a dance move in which a person "shake[s] [ones] butt."
Eventually, defendant's son went to his grandmother's house, and defendant ordered C. to go to the dining room. He made her watch a videotape he had secretly made of the two of them having sex. Defendant then ordered C. to go to his son's bedroom. He followed her and started watching a pornographic movie while masturbating. He asked her if they could have anal sex. When she said "no," he went to change the lock on the door and made a telephone call. It was dark outside.
After defendant hung up the telephone, C. heard a knock on the door and two women (one of whom was the girlfriend of defendant's cousin) came to the house. Defendant told them C. was in the bedroom. The women entered the bedroom and told C. she was lucky because they would not beat her up as she was "already messed up."
At 2:45 a.m. on March 11, 2006, Stockton police officers came to defendant's house in response to a call that somebody inside had been beaten. They banged loudly on the front door and windows but left after six or seven minutes because nobody answered the door. Defendant had told C. if she told police the truth he would kill her.
Later, defendant resumed watching a pornographic movie and masturbating in the bedroom. He then got on top of C. and stuck his penis in her vagina. Crying, she repeatedly told him "no" and that it hurt. Defendant "just kept doing it" until he ejaculated on her thigh. Minutes later, at noon, the police returned to the house. When officers told defendant they were going to break down the door, defendant told C. that if she said something, he was "going to break [her] jaw." The officers had to help C. out of the bedroom because she still could not walk. When they brought defendant out of the bedroom, he told C. to tell police "it wasn't him" and "that he didn't do it." C. believed she would have died if the officers had not come.
(Resp't's Lod. Doc. 4, App. A (hereinafter "Opinion") at 2-5.)
On May 7, 2007, a jury found petitioner guilty of various crimes and found numerous sentencing enhancement allegations to be true, all arising out of his approximately 19-hour attack on his former live-in girlfriend. Specifically, the jury found petitioner guilty of: (1) torture (§ 206); (2) rape by force or fear (§ 261(a)(2)); (3) corporal injury to a former cohabitant (§ 273.5(a)); (4) dissuading a witness by force or threat (§ 136.1(c)(1)); (5) false imprisonment by violence (§ 236); and (6) obstructing or delaying a peace officer (§ 148)). The jury also found that petitioner (1) personally used three dangerous or deadly weapons (a bat, bed rail, and vacuum) during the commission of the torture, rape, corporal injury, witness dissuasion, and false imprisonment (§ 12022(b)(1)); (2) personally inflicted great bodily injury in the commission of the rape (§ 667.61); and (3) inflicted great bodily injury under circumstances involving domestic violence in the commission of the rape, corporal injury, witness dissuasion, and false imprisonment (§ 12022.7(e)). (Vol. 3 Clerk's Transcript on Appeal (hereinafter "3CT") at 803-22.) On July 9, 2007 in the San Joaquin County Superior Court, petitioner was sentenced to a term of sixty-eight years, four months to life in state prison. (5CT 1263-1266.)
Petitioner appealed his judgment of conviction to the California Court of Appeal for the Third Appellate District. (Resp't's Lod. Doc. 1.) On October 15, 2008, the state appellate court affirmed petitioner's conviction in a reasoned opinion. On November 19, 2008, petitioner filed a ...