The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [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 Kings County Superior Court, Petitioner was convicted of rape, making a criminal threat, and possession of methamphetamine. In a bifurcated court trial, Petitioner was found to have four prior prison terms. Petitioner was sentenced to a total term of thirteen years and four months in prison.
Petitioner filed a timely notice of appeal. On November 30, 2010, the California Court of Appeal, Fifth Appellate District affirmed the judgment in full.
On December 30, 2010, Petitioner filed a petition for review in the California Supreme Court. The petition was denied on February 16, 2011.
Petitioner filed the instant federal petition for writ of habeas corpus on August 11, 2011. On November 15, 2011, Respondent filed an answer to the petition. Petitioner did not file a traverse.
In September 2008, [Petitioner] was staying with his aunt, whose household , in addition to [Petitioner], included the aunt's then 17-year-old daughter I.A., three other children, an adult daughter, and her children. The home had one bathroom that was situated between two of the three bedrooms. The aunt and her three children slept in one room, and the adult daughter and her children slept in another bedroom. The third bedroom was not being used for sleeping at the time. Alvarez slept in the living room. The bathroom was located between the aunt's bedroom and the unused bedroom.
Late on September 29, I.A. awoke and went to use the bathroom. While she was seated on the toilet, Alvarez entered the bathroom. She told him to leave, but he refused. She got up from the toilet and started to pull up her pants. Alvarez grabbed her and told her to spread her legs. As she struggled to get away, [Petitioner] pushed apart I.A.'s legs and forced his penis into her vagina. After [Petitioner] released her and left the bathroom, I.A. returned to bed, without waking her mother or sister. The next morning, September 30, I.A. showered and went to school, but did not feel good. She started to cry in her second class of the day and asked to leave to get some air, but otherwise made it through the rest of the school day. When she got home, she washed her clothes from the night before.
She saw [Petitioner] at dinner time. He told her that if she told anyone she would "see what would happen." I.A. started to cry and went to her bedroom. Her mother, the aunt, asked her what was wrong. Eventually, I.A. told her mother what had happened the night before but did not provide any details. The mother asked [Petitioner] what he had done. He at first said he had done nothing, but then began gathering his belongings and left the house. He told the mother, "I am so sorry aunt." The mother called her sister-in-law and I.A.'s father. Both came to the house. Each talked with I.A., who was crying and who had locked herself in the bedroom. The family ultimately called the police.
When the police interviewed I.A., she told them what [Petitioner] had done. The police obtained a phone number for [Petitioner] and called him. They asked him to come to the station. [Petitioner] refused and told the officer calling that he knew what this was all about and that it was "bullshit." [Petitioner] said he needed "to handle his business first" and "get high." When [Petitioner] was ultimately arrested, he had 3.43 grams of methamphetamine in his pocket.
(Ex. A, to Answer, at 2-3.)
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 Kings 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 ...