The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY [Doc. 1]
Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is represented by Allen R. Bloom, Esq.
Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge. Local Rule 305(b).
Following a jury trial in the Tulare County Superior Court, Petitioner was convicted of attempted murder (Cal. Penal Code*fn1 § 187(a)), assault with a deadly weapon (§ 245(a)(1), spousal rape (§ 262(a)(1)), two counts of forcible oral copulation (§ 288a(c)(2)), two counts of anal and genital penetration with a foreign object (§ 289(a)(1), domestic violence (§ 273.5(a)), criminal threats (§ 422), and false imprisonment by violence (§ 236). The jury found true enhancements that Petitioner inflicted great bodily (§§ 667.61(a), (b), 12022.7(a), 12022.8(a)), and inflicted great bodily injury under circumstances of domestic violence (§ 12022.7(e)), and that he suffered a prior serious felony conviction, robbery (§§ 211, 667(a)(1), (b)-(i), 1170.12(a)-(d)).
Petitioner was sentenced to a determinate term of sixty-eight years in prison, a consecutive to a term of fifty-five years to life, and a consecutive to a term of four years to life.
The California Court of Appeal, Fifth Appellate District affirmed the judgment.
The California Supreme Court denied review on July 9, 2008.
On October 5, 2009, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal contending that his competency to stand trial should have been decided by a jury instead of the judge, citing Cunningham v. California, 549 U.S. 270 (2007). The court denied the petition, without prejudice, because Petitioner failed to show that he exhausted his remedy by first presenting his petition to the superior court.
On February 24, 2010, Petitioner filed a petition for writ of habeas corpus in the Tulare County Superior Court. The petition was denied in a reasoned decision on March 1, 2010.
On May 11, 2010, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Fifth Appellate District. The petition was denied on June 10, 2010.
Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court on August 30, 2010. The petition was summarily denied on March 23, 2011.
Petitioner filed the instant petition for writ of habeas corpus on October 7, 2009. Respondent filed an answer on August 26, 2011, and Petitioner filed a traverse on September 26, 2011.
On September 4, 2004, at approximately 3 a.m., Tulare County Sheriff's Deputy Javier Guerrero was dispatched to a call by Petitioner's wife, Janice Fleming, regarding an assault with a deadly weapon on Road 124 in Cutler. Janice reported that she was bleeding heavily from the head because Petitioner hit her several times with a weight before falling asleep on the couch.
When Deputy Guerrero arrived at the residence, Janice was still on the telephone with 911 dispatch. The front door was unlocked and he entered the house through the rear. Janice was lying on her back on the kitchen floor, naked and covered in blood from head to toe. Petitioner was sleeping on the couch in the living room and was also naked. Janice asked for help.
Janice had a six inch laceration on her forehead, and she was covered in blood from head to toe with bruising on her eyebrow area, chest, and left forearm. (RT 128.)*fn3 Petitioner had a one inch abrasion on his forehead, and he had blood on his body. (RT 127, 165-167.)
Janice told Guerrero that Petitioner came to the house around midnight, kicked in the front door and went into her bedroom. (RT 129.) He was angry because she had obtained a restraining order against him. (RT 130.) When Janice told him he could not be there, Petitioner said he did not care what they did to him. (Id.) Janice told Guerrero that Petitioner "'did everything but rape me.'" (RT 129, 131.) At one point, Petitioner left the house but later returned. Janice struck Petitioner in the head with a weight. Petitioner grabbed the weight from her, and repeatedly hit her head and body, threatening to kill her and himself. (RT 131.) Petitioner then went to the living room and fell asleep and Janice called 911. (RT 129-132.)
Deputy Guerrero found a zucchini rolled in a towel on a bed, and blood was on the bedspread. (RT 138.) A second zucchini was found on the floor of the laundry room. (RT 158.) There was also a bloodied dumbbell inside a trash can near the rear door. (RT 140, 151.)
Emergency Room Nurse Marlena Schimpf treated Janice just after 4 a.m. at the Kaweah Delta Hospital. (RT 170-171.) Janice told the nurse that Petitioner hit her with "weights and other unknown objects" and he had "penetrated [her] but he couldn't keep it up." (RT 172-173.) She had multiple lacerations to her head and body, bruises on her chest, wrists, and all over her body, and blood stains from head to toe. (RT 173.)
Registered Nurse Mary Stanton conducted a sexual assault examination on Janice. (RT 391, 395.) Janice told the nurse that Petitioner "attempted to penetrate her vagina with his penis several times." (RT 401-402.) Janice also said that Petitioner threatened to penetrate her anus with his penis, a zucchini and a flashlight, and attempted to penetrate her vagina with a zucchini and flashlight. (RT 402.) Petitioner forced his penis in her mouth, orally copulated her genitals, and penetrated her anus with his fingers. (RT 402.) Janice was never rendered unconscious during the incident. (RT 398-399.)
Nurse Stanton found swelling, bruising, and redness in Janice's genital area. (RT 414-415.) Abrasions and redness were found inside the labia minora and it was "very swollen and edematous on the right side." (RT 419.) The injuries were "[c]onsistent with forced entry of a penis" and forced entry of fingers and a zucchini. (RT 419-420, 422.) The injuries were consistent with Janice's report of the incident. (RT 424-425.)
At trial, Janice testified that she had been married to Petitioner since 1987. Petitioner was a Vietnam veteran and was being treated with a variety of psychiatric medications. (RT 190, 258-261.) Janice testified to a different version of the incident at trial. She testified that she was not sure how she was injured because she hit a wall and a metal stool on her service porch. (RT 180.) She claimed that Petitioner fell on top of her and that was the only contact he had with her. (RT 181.) She claimed they were both naked because they had just returned from swimming and they slipped at the house which caused her injuries. (RT 181.) She claimed to have called 911 because Petitioner passed out on the couch after taking his ...