The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Following a jury trial in the Kings County Superior Court, Petitioner was convicted of committing battery on a non-confined person by a prisoner (Cal. Penal Code § 4501.5*fn1 ), with two prior serous felony convictions (§§ 667 & 1170.12).*fn2
On January 18, 2007, the trial court denied Petitioner's motion for a mistrial and sentenced him to prison for twenty-five years to life.*fn3
On May 1, 2007, Petitioner filed a petition for writ of habeas corpus (07W0081A) in the Kings County Superior Court. The petition was denied on September 14, 2007.
On October 1, 2007, Petitioner filed a petition for writ of habeas corpus (F053816) in the California Court of Appeal.
On April 8, 2008, the California Court of Appeal affirmed the judgment in case number F052099. (Ex. A, to Answer.) On this same date, the appellate court issued an Order to Show Cause in habeas case number F053816. The court found Petitioner made a sufficient showing to warrant an evidentiary hearing on his ineffective assistance of counsel claim and remanded the matter back to the superior court.
The Kings County Superior Court began the evidentiary hearing in case number (07W0081A) on March 3, 2009 and concluded on March 20, 2009. The Superior Court Judge George Orndoff found that Petitioner failed to establish his trial attorney, Robert Stover, rendered ineffective assistance.
On April 27, 2009, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. The petition was denied on July 29, 2009.
On August 12, 2009, Petitioner filed a petition for rehearing (F057469) in the California Court of Appeal. The petition was denied on August 21, 2009.
On August 14, 2009, Petitioner filed a petition for writ of habeas corpus (F058273) in the state appellate court. The petition was denied on September 3, 2009.
On August 27, 2009, Petitioner filed a petition for review (S175801) in the California Supreme Court, which was denied on November 10, 2009.
On October 1, 2009, Petitioner filed a petition for writ of habeas corpus (07W0081B) in the Kings County Superior Court. The petition was denied on December 4, 2009.
On January 26, 2010, Petitioner filed a petition for writ of habeas corpus (F059327) in the state appellate court. The petition was on February 3, 2010.
On February 26, 2010, Petitioner filed a petition for review (S180439) in the California Supreme Court, which was denied on March 30, 2010.
On May 6, 2010, Petitioner filed another petition for writ of habeas corpus (07W0081C) in the Kings County Superior Court. The court denied the petition on July 14, 2010.
On May 10, 2010, Petitioner filed a petition for writ of habeas corpus (F060066) in the state appellate court. The petition was denied on May 13, 2010.
On May 24, 2010, Petitioner filed a petition for review in the California Supreme Court. The court denied the petition on July 7, 2010.
Petitioner filed the instant petition for writ of habeas corpus on September 16, 2010. Respondent filed an answer to the petition on February 11, 2011. Petitioner did not file a traverse.
McVay testified that he was working as a floor officer on Thanksgiving Day in 2004. He noticed that appellant was trying to gain access to the prison yard. However, appellant was not eligible for the yard that day. McVay asked another officer to call appellant back to the control building over the intercom system. Appellant was agitated. McVay told appellant to return to his cell. Appellant refused. McVay decided to verbally counsel appellant in a private setting. He and another officer took appellant to a holding cell in the program office. The other officer had to return to the yard so McVay informed his lieutenant that he had placed appellant in the holding cell and went to find another officer to assist him. McVay asked the first correctional officer that he encountered, Jeffrey Smith, to assist him and Smith agreed.
McVay and Smith stood outside the holding cell. McVay spoke to appellant for approximately five minutes. Smith told appellant to turn and face the back of the cell. McVay stepped to the right of the cage and Smith unlocked the door. The door swung all the way back against the adjoining cell. Appellant was directed to back out of the cell. Just as appellant reached the outside of the cell, he turned and punched McVay with his left fist on the side of McVay's face. The blow struck McVay between his right eyebrow and cheekbone. As the officers forced appellant to the ground, all three men fell to the floor. Appellant attempted to break free and McVay sprayed him in the face with pepper spray. Appellant was subdued, handcuffed and taken to be decontaminated.
McVay reported to the lieutenant that he was hurt and was told to go to the facility hospital. A nurse provided him with an ice pack. She directed him to seek outside medical attention. That evening, McVay noticed that he had a black eye and a bruised ankle. McVay saw a doctor five days later. He did not return to full duty until June 2005. The vision in his right eye is still blurry.
Smith testified that after appellant cleared the cell area, he grabbed appellant's left arm. Appellant took one step toward McVay and jerked his arm out of Smith's grasp. Smith saw appellant swing his arm toward McVay. Smith did not see if appellant's fist made contact with McVay's body. However, Smith heard a sound that was consistent with a fist striking someone. It sounded like a thud similar to the sound of a thump on a watermelon.
A prison nurse testified that she examined appellant shortly after the incident. Appellant did not complain about any injuries other than burning eyes. She did not notice any injuries other than redness in his eyes.
Appellant testified on his own behalf. He admitted numerous felony convictions and acknowledged that he was serving a life sentence under the Three Strikes Law when the incident occurred. Appellant admitted that he was not supposed to be on the yard on Thanksgiving Day. He said that McVay handcuffed him and left him in a holding cell for 10 to 15 minutes. McVay returned to the holding cell with Smith. His handcuffs were removed and he exited the holding cell. McVay told him to get against the wall and put his hands up. Appellant complied. McVay asked him why he was messing up his program and then repeatedly hit him on the side of his body. Appellant did not respond, but just fell to the ground. McVay kicked him while he was lying on the ground. McVay put his pepper spray ...