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 proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Following a jury trial in the Fresno County Superior Court,
Petitioner was convicted of kidnapping (Cal. Penal Code*fn1
§ 207(a); Count 1); corporal injury (§ 273.5(a); Count 2);
and false imprisonment by violence (§ 236; Count 4).*fn2
The jury also found true that in connection with count two
Petitioner personally inflicted great bodily injury on the victim (§
12022.7(e)) and that he had served five prior prison terms (§
Petitioner filed a timely notice of appeal. On January 27, 2009, the California Court of Appeal, Fifth Appellate District affirmed the convictions on Counts 1 and 2, and dismissed Count 4. The case was remanded to the trial court to dismiss Count 4 and resentence Petitioner on Counts 1 and 2. On July 15, 2009, Petitioner was resentenced to 14 years, and 8 months on Counts 1 and 2, and Count 4 was dismissed.
Petitioner then sought review in the California Supreme Court. On April 29, 2009, the California Supreme Court denied the petition for review.
Petitioner filed the instant petition for writ of habeas corpus on October 5, 2009. On November 23, 2010, the Court granted Petitioner's motion to delete Claims 1 and 3 as unexhausted.
Respondent filed an answer to the petition on January 21, 2011, and Petitioner filed a traverse on February 14, 2011.
In the early hours of June 13, 2006, Jennifer Perez heard an unknown woman, later determined to be Attaway, screaming for help. Perez looked outside and saw Beard slam Attaway's head against a car door and punch her in the head, back, and breasts. Attaway fell to the ground. Then, Perez saw Beard kick Attaway in the head and stomach. Perez called 911. When Perez went outside, Beard drove away in a blue vehicle. Perez spoke with Attaway who was crying and appeared to be distressed. After talking to the 911 operator, Perez handed the phone to Attaway. Attaway told the operator that she had been beaten up by Beard, and that she had a prior relationship and a child with him. She said Beard had forced her into the car earlier, and when she jumped out, he followed her, hit her, and tried to choke her. Attaway suffered a number of injuries, including bruises, scrapes, and a perforated eardrum. She sought medication attention the day after the attack, with complaints of pain, nausea, vomiting, and dizziness. She told medical personnel her "significant other" had beaten her up. Beard was later arrested while driving a blue car.
Attaway proved to be a reluctant witness. She failed to show up at the first preliminary hearing, ignoring her subpoena. Although she testified at the second preliminary hearing, she claimed to have no memory of the assault. She remembered getting into the car with Beard, the nature and extent of her injuries and talking with Perez, but she recalled nothing about how she obtained her injuries. She did remember that Beard had threatened her after the assault, but failed to recall what she told investigating officers about the assault. Attaway did not testify at trial, despite numerous attempts to serve her with a subpoena. (Lod. Doc. 6 at 3.)
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Fresno County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008 (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
Where a petitioner files his federal habeas petition after the effective date of the Anti- Terrorism and Effective Death Penalty Act ("AEDPA"), he can prevail only if he can show that the state court's adjudication of his 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 the State court proceeding.
28 U.S.C. § 2254(d). "Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the earlier state court's decision "was contrary to" federal law then clearly established in the holdings of [the Supreme] Court." Harrington v. Richter, __ U.S. __, 131 S.Ct. 770, 785 (2011) (citing 28 U.S.C. § 2254(d)(1) and Williams v. Taylor, 539 U.S. 362, 412 (2000). Habeas relief is also available if the state court's decision "involved an unreasonable application" of clearly established federal law, or "was based on an unreasonable determination of the facts" in light of the record before the state court. Richter, 131 S.Ct. 785 (citing 28 U.S.C. § 2254(d)(1), (d)(2)). "[C]learly established ... as determined by" the Supreme Court "refers to the holdings, as opposed to the dicta, of th[at] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. at 412. Therefore, a "specific" legal rule may not be inferred from Supreme Court precedent, merely because such rule might be logical given that precedent. Rather, the Supreme Court case itself must have "squarely" established that specific legal rule. Richter, 131 S.Ct. at 786; Knowles v. Mirzayance, __ U.S. __, 129 S.Ct. 1411, 1419 (2009). Moreover, the Supreme Court itself must have applied the specific legal rule to the "context" in which the Petitioner's claim falls. Premo v. Moore, __ U.S. __, 131 S.Ct. 733, 737 (2011). Under § 2254(d)(1), review is limited to the record that was before the state court adjudicated the claim on the merits. Cullen v. Pinholster, __ U.S. __, 131 S.Ct. 1388, 1398 (2011). "A state court's determination that a claim lacks merits precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Richter, 131 S.Ct. at 786.
"Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceedings, § 2254(d)(2)." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Both subsections (d)(2) and (e)(1) of § 2254 apply to findings of historical or pure fact, not mixed questions of fact and law. SeeLambert v. Blodgett, 393 F.3d 943, 976-77 (2004).
Courts further review the last reasoned state court opinion. SeeYlst v. Nunnemaker, 501 U.S. 979, 803 (1991). However, "[w]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable ...