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. 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).
On September 29, 2006, the Kern County District Attorney filed an information charging Petitioner with the following offenses: count one-rape (Cal. Penal Code*fn1 § 261(a)(2)); counts two and four-penetration with a foreign objection (§ 289(a)); count three-sodomy (§ 286(c)(2); count five-assault by means of force likely to produce great bodily injury (§ 245(a)(1); count six-torture (§ 206); and count seven-attempted murder (§§ 664/187(a)). Counts one through four included the following allegations: Petitioner committed the offenses during the course of a burglary (§ 667.61(d)(4) & (e)(2)); he inflicted great bodily injury on the victim (§§ 667.61(e)(3) & 12022.8); and he inflicted torture on the victim (§ 667.61(d)(3)). Counts five, six, and seven included an allegation that Petitioner inflicted great bodily injury on the victim. (§ 12022.7).
Following a jury trial, Petitioner was found guilty of counts one,
two, six and seven. The jury found Petitioner not guilty of counts
three and four, and guilty of the lesser included misdemeanor offenses
of battery and assault (§§ 243(a) & 240) on both counts.*fn2
As to counts one and two, the jury found the burglary special
allegations not true, but found the great bodily injury allegations
and the torture allegation true.
On July 24, 2008, Petitioner was sentenced to a determinate term of nine years for count seven, staying the great bodily injury enhancement. The court imposed a term of twenty-five years to life for count one, with a five-year enhancement for the great bodily injury allegation associated with count one. The court stayed punishment on counts two and six, and stayed the bodily injury enhancement as to count two.
Petitioner filed a timely notice of appeal. On February 1, 2010, the Court of Appeal, Fifth Appellate District affirmed the judgment.
On March 11, 2010, Petitioner filed a petition for review in the California Supreme Court. The petition was denied on April 14, 2010.
On December 17, 2010, Petitioner filed a petition for writ of habeas corpus in the Kern County Superior Court. On February 8, 2011, the petition was denied in a reasoned decision. On January 13, 2011, Petitioner filed a document entitled "Motion to File Amended Writ of Habeas Corpus," which the Superior Court rejected for lack of jurisdiction by March 11, 2011 order (citing In re Clark, 5 Cal.4th 750, 767 n.7 (1993) (the denial of a habeas petition is a non-appealable order); In re Hochberg, 2 Cal.3d 870, 876 (1970)).
On March 12, 2011, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, which was denied on August 24, 2011.
Petitioner filed the instant federal petition for writ of habeas corpus on September 23, 2011. Respondent filed an answer to the petition on December 19, 2011, and Petitioner filed a traverse on January 24, 2012.
[Petitioner] and K.I. were in a relationship for over two years before it ended. But [Petitioner] continued to call her and would show up uninvited at her home and office. One night, K.I. was asleep when she awoke to find [Petitioner] naked in her bed with her. K.I. had sex with [Petitioner] because she was afraid to refuse him.
A week later, on July 7, 2006, K.I. was at home ready to go to sleep when a man named Eddie called her. She had gone out with him several times recently and his phone number was entered into her cell phone. Eddie wanted to go out, but K.I. declined and went back to bed. She awoke to again find [Petitioner] naked on her bed. K.I. asked him to get dressed and leave.
[Petitioner] then asked K.I. who Eddie was and punched her in the face. He then pushed her back onto the bed, punched her repeatedly, threatened her, choked her, and kicked her to the point she thought she was going to die. [Petitioner] raped and sexually assaulted K.I. She eventually blacked out and, when she came to, she escaped and ran to the neighbors next door. K.I. was taken to the emergency room, where she was treated for multiple abrasions, a fractured rib, a collapsed lung, compressed spinal column, concussion syndrome, a facial fracture, and subconjunctival hematoma.
[Petitioner's] defense was that K.I.'s injuries were not as serious as she claimed and that she was the one who invited him to her apartment on the night of the assault. According to [Petitioner], the two went to bed, but he was not in the mood to have sex. The two fell asleep, and when she awoke, K.I. asked him what he was doing in her bed and ordered him to leave. K.I. took a swing at [Petitioner] before he hit her with his fists.
[Petitioner] acknowledged that he hit K.I. "[v]ery hard," for "[t]wo or three minutes," that he grabbed her by the throat, grabbed her by the hair, and yelled at her, but he denied that he threatened to kill her. He was then sorry for what he had done and looked for K.I.'s gun so that he could kill himself.
(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 Kern 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 merit 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 basis for the state court to deny relief." Richter, 131 S.Ct. at 784.
III. Ineffective Assistance of Counsel
In Ground One, Petitioner contends that trial counsel was ineffective for failing to order DNA testing of a toilet plunger during pre-trial discovery. Petitioner raised this claim in a petition for writ of habeas corpus filed in the Kern County Superior Court. The petition was denied in a reasoned decision and the California Supreme Court denied the claim without comment. Thus, this Court looks to the "last reasoned decision" of the Kern County Superior Court for purposes of AEDPA review. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); Ylst v. Nunnemaker, 501 U.S. at 803.
The Kern County Superior Court denied the claim as follows:
Petitioner contends his counsel, Douglas Moffat[,] was ineffective for failing to order DNA test[ing] to ensure that there was vaginal fluids on the foreign object. Petitioner and the victim, K.I. had been in a dating relationship. Things went smoothly for the first six months, but then the victim expressed intention to break off the relationship. On July 8, 2006, petitioner entered the victim's house uninvited and got into her bed. When asked to leave after being woken up from a sound sleep, petitioner became irate accusing her of wanting to have relations with another man named Eddie.
In fact, Eddie Sanchez did not go out with [the victim] that night because [the victim] wanted to go to sleep early. The evidence established that petitioner not only refused to leave, but repeatedly punched, kicked and choked the victim to unconsciousness, all the while raping and sodomizing her with his finger and penis.
The victim received numerous injuries as a result of petitioner's actions such as a punctured lung from broken ribs, a fractured skull, a fractured eye socket, and numerous abrasions. The victim's eyes  were swollen shut[.] The victim sought to defend herself by kneeing petitioner and hitting him with a nunchuku. The victim tried to escape at least twice. The petitioner pulled her by the hair and repeatedly punched her. According to the appellate opinion, petitioner stated he wanted the victim to know what it felt like to be raped and violated.
The petitioner admitted to digitally penetrating the victim with his finger, and raping her, although he could not ejaculate during a tape recorded interrogation.
The victim tried to barter with petitioner indicat[ing] that if he called an ambulance, she would attribute the injuries to two unidentified black males. Petitioner rejected this offer. The victim was able to escape and received assistance from the neighbor. Petitioner contends he does not remember what happened because he "lost his head: due to outrage [of] the victim's termination of the relationship.["]
Petitioner rendered his version of events to Det. David Marshall. He realized that he injured the victim badly, and wanted to kill himself, but was prevented from doing so by his sister.
To prevail on a claim of ineffective assistance of counsel, petitioner must show that counsel's conduct fell below professional norms causing prejudice. In the absence of such prejudice, it would be probable of a change in the outcome. Strickland v. Washington (1984) 466 U.S. 668, 694, People v. Pope (1979) 23 Cal.3d 412, 423.
Petitioner fails in this argument because DNA evidence would not exclude petitioner as the rapist. Tipor v. Superior Court (1997) 42 Cal.App.4th 1359, 1370. Where there has been a fair trial, petitioner does not receive DNA testing at state expense as [a] matter of right. District Attorney Third Judicial District v. Osborne (2009) 129 S.Ct. 2308, 2320. Upon a fair trial, the presumption of innocence disappears. Id. Petitioner admitted to digitally penetrating the victim with his finger and penis. There were copious amounts of blood in the bedroom resulting from petitioner's repeated assaults. His injuries were minimal ...