The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner, Eddie J. Adair, a state prisoner, proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. On August 1, 2010, Petitioner filed a first amended complaint. Respondent filed an answer and Petitioner filed a traverse. After a thorough review, this Court DENIES and DISMISSES the Petition for Writ of Habeas Corpus for the reasons outlined below.
On January 23, 2008, a jury convicted Petitioner of corporal injury on a spouse in violation of California Penal Code ("Penal Code") section 273.5(a) and arson in violation of Penal Code section 451(d). (CT at 142-43.) He was sentenced to 12 years in state prison, consisting of a term of six years for the corporal injury to a spouse, a concurrent four years for the arson, a consecutive term of five years for the serious felony enhancement and a consecutive one year term for the prison prior. (CT at 103-04; 146.)
On April 24, 2008, Petitioner filed an appeal with the Court of Appeal arguing that the one year sentence on the prison prior must be vacated because it was based on the same prior conviction as the serious felony prior. (Lodgment 7.) The People did not oppose. (Id.) On October 14, 2008, the Court of Appeal modified the judgment and struck the one year enhancement for the prior prison term. (Id.)
On December 5, 2008, Petitioner filed a petition for writ of habeas corpus in the San Diego Superior Court. (Lodgment 8.) On January 29, 2009, the San Diego Superior Court denied the petition finding the claims "unintelligible." (Id.) Alternatively, the court also found that he failed to establish a prima facie showing of ineffective assistance of counsel. (Id.)
On February 25, 2009, Petitioner filed a petition for writ of habeas corpus in the Court of Appeal. (Lodgment 9.) On May 29, 2009, the Court of Appeal denied the petition, finding it "incomprehensible," and therefore failed to state a prima facie case for relief. (Id.) The Court of Appeal also stated that the sentencing issues could have been raised on direct appeal. (Id.)
On July 6, 2009, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Lodgment 3.) On December 2, 2009, the California Supreme Court denied the petition in a one line denial with a citation to In re Clark, 5 Cal. 4th 750 (1993). (Lodgment 3.)
On January 20, 2010, Petitioner filed the instant petition for writ of habeas corpus. (Dkt. No. 1.) On February 10, 2010, Petitioner filed an application for a stay and abeyance. (Dkt. No. 5.) On July 13, 2010, the Court adopted the report and recommendation of the Magistrate Judge and denied Petitioner's motion for a stay and abeyance. (Dkt. No. 16.)
On August 1, 2010, Petitioner filed a first amended complaint. On October 25, 2010, Respondent filed an answer. Petitioner filed a traverse on February 19, 2011. On October 14, 2010, the parties consented to Jurisdiction by U.S. Magistrate Judge. (Dkt. No. 23.) On March 11, 2011, then Magistrate Judge Battaglia was elevated to District Judge and the case was reassigned to Judge Battaglia as the District Judge.
On September 20, 2007, Petitioner and his wife were at a motel when they had an argument which became physical. (1 RT 33-38.) Petitioner pulled out some of his wife's hair, slapped her, and hit her with his fists and a wooden clothes hanger. (1 RT 37-38, 156-157, 161, 191.) After the fight, at Petitioner's direction, his wife took a shower and got dressed. (1 RT 44.) Petitioner was waiting for her in her car. (1 RT 49.) His wife got into the rear seat, and Petitioner told her to get in the front seat. (1 RT 51-52.) When she refused, Petitioner opened the rear passenger door, grabbed her leg, and pulled her out of the car. (1 RT 52-54, 192.) As they struggled, Petitioner's wife's dress was ripped off. (1 RT 55.) Petitioner got back in the car and drove around the motel, came back and threw the room key at his wife and drove off. (1 RT 60, 192.)
Shortly thereafter, Petitioner called his wife and told her she could find her car on the street where his mother lived. (1 RT 61-62.) He then called again and told her the next time she saw her car it would be burning from the inside out. (1 RT 62.) The car was subsequently found on fire, which was started in the trunk by a match or lighter. (2 RT 215-17.)
Petitioner raises four claims in his petition. First, he claims ineffective assistance of trial counsel. Second, he argues ineffective assistance of appellate counsel for failing to file a claim of ineffective assistance of trial counsel. Third, he alleges prosecutorial misconduct. Lastly, he asserts trial court error in sentencing Petitioner in violation of his Fourteenth Amendment Right to due process.
28 U.S.C. § 2254(a) provides:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a). As amended, the AEDPA now reads:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--(1) resulted in a decision that was contrary to, or involved an unreasonable application of, ...