The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1) ) AND DIRECTING THE CLERK TO ENTER JUDGMENT FOR RESPONDENT
ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Petitioner is a state prisoner proceeding pro se and in forma pauperis 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 to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in writings signed by the parties or their representatives and filed by Petitioner on August 23, 2010 (doc. 5), and by Respondent on December 21, 1910 (doc. 10). Pending before the Court is the petition, which was filed on August 4, 2010. On February 7, 2011, Respondent filed and served an answer with documentation of state court proceedings. No traverse was filed.
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam). Petitioner claims that in the course of the proceedings resulting in his conviction, he suffered violations of his Constitutional rights. Further, the challenged judgment was rendered by the Fresno County Superior Court (FCSC), which is located within the territorial jurisdiction of this Court. 28 U.S.C. §§ 84(b), 2254(a), 2241(a), (d).
Respondent filed an answer on behalf of Respondent Randy Grounds, Warden of the Correctional Training Facility (CTF) at Soledad, California, where Petitioner has been incarcerated at all pertinent times during this proceeding. Petitioner has thus named as Respondent a person who had custody of the Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules). See, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
Accordingly, this Court has jurisdiction over the subject matter of this action and over Respondent Grounds.
Following a jury trial in FCSC cases F07903293 and F07904634, Petitioner was convicted of attempting to dissuade a witness in violation of Cal. Pen. Code § 136.1(a)(2), corporal injury to a former cohabitant with a prior conviction in violation of Cal. Pen. Code 273.5(e), criminal threats in violation of Cal. Pen. Code § 422, and misdemeanor contempt of court in violation of Cal. Pen. Code § 166(c)(1). He was sentenced to an indeterminate term of twenty-five years to life plus ten years for two prior serious felony convictions pursuant to Cal. Pen. Code § 667. (LD *fn1 4, 1, 9.)
Petitioner appealed the judgment to the California Court of Appeal, Fifth Appellate District (CCA) in case number F054388. (LD 4.) In an unpublished opinion filed on April 29, 2009, the CCA affirmed the judgment. (LD 4.)
Petitioner sought review in the California Supreme Court (CASC) in case number S173469. (LD 5.) On July 8, 2009, the CASC denied the petition for review without any statement of reasoning or authority. (LD 6.)
Petitioner did not file any habeas corpus petitions in the state courts with respect to the judgment.
Petitioner filed his petition in this proceeding on August 4, 2010.
In a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct; the petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. 28 U.S.C. § 2254(e)(1); Sanders v. Lamarque, 357 F.3d 943, 947-48 (9th Cir. 2004). The following factual summary is taken from the opinion of the California Court of Appeal, Fifth Appellate District, in People v. Rojas, case number F054388. See, Galvan v. Alaska Dep't. Of Corrections, 397 F.3d 1198, 1199 n.1 (9th Cir. 2005) (setting forth a factual summary from the state appellate court's decision).
Appellant and Loretta B. had been friends for many years, and they began dating at the end of 2003. In March 2006, they started to live together, but they broke up in September 2006 because of appellant's violence toward her, and they no longer lived together. On October 13, 2006, the court issued a protective order involving a domestic violence incident between appellant and Loretta, and ordered appellant not to come within 100 yards of Loretta, and not to harass, threaten, batter, stop, or stalk her.
Around 7:00 p.m. on January 19, 2007, Loretta went to a party at a home near Shields and Blackstone Avenues in Fresno. There were about nine or 10 women there when she arrived. Appellant and four men arrived at the house between 10:00 p.m. and 11:00 p.m. Loretta did not know that appellant was going to be there.
Appellant smelled of alcohol and appeared intoxicated. Loretta tried to make small talk but he became verbally abusive toward her, acted jealous, accused her of cheating on him, and called her all kinds of names. Around 12:30 a.m. on January 20, 2007, Loretta decided to leave and walked out of the house. Appellant followed Loretta, called her a bitch, and said he was going to kill her. One of appellant's friends called out that they should get back in the house because the police would come. FN2
FN2. The friend's warning may have referred to the existence of the protective order against appellant.
Loretta told appellant to leave her alone. She crossed the street and tried to walk away from him. Appellant grabbed her hair and began hitting and kicking her. Appellant repeatedly punched her face with both open and closed fists, and Loretta put up her hands to protect herself. Loretta thought the people at the party saw appellant hit her, but they did not help because they were his friends.
Loretta ran down the street and headed towards a liquor store, but she briefly stopped to take off her high-heeled boots so she could run faster. She ran into the alley behind the liquor store, and appellant caught up with her. He called her a bitch and said he was going to kill her. Appellant repeatedly hit her with closed fists, and kicked and stomped her on the head, face, and hands. At some point, appellant grabbed her purse and scattered the contents and her cellphone on the street. Loretta tried to run but she tripped and fell to the ground, and he continued to kick her. Loretta was screaming and crying for help, and thought appellant was going to kill her.
Loretta managed to get up, she kicked appellant in the ankle, and she ran out of the alley and toward an office building that was next to a canal. She ran behind the office building but appellant caught her, and repeatedly punched her head, face, back, and side. Appellant said he was going to kill her and throw her into the canal.
Appellant stopped hitting Loretta, and she ran into the street, cried for help, and was almost hit by a car. Appellant ran right behind her and kept calling her a bitch. She ran back toward the office building and appellant followed her.
The dispatch Around 12:30 a.m., Cristomo Luna was in his house on Glen Avenue when he heard screaming. He looked outside and saw a man hitting a woman. The man was holding a pair of boots and the woman was barefoot. The woman seemed to be following the man. The man did not want her to follow him and threw both boots at the woman. The woman fell down and the man punched the woman in the face. The man and woman kept walking and fighting. They crossed the street to the liquor store and went toward the trash cans. Luna could not see them, but he could hear the woman screaming and crying, and the sounds of someone being hit against the trash cans.
Luna decided to call the police because the man was hitting the woman so much that he was afraid he would kill her.
At approximately 12:57 a.m., Fresno Police Officer Douglas Zavala responded to the dispatch, and saw appellant and Loretta walking on the sidewalk, side by side, about 100 yards away from the liquor store. He immediately noticed that Loretta had facial injuries, a bloody lip, and scrapes on her hands, legs, and knees. Loretta was scared, crying and very upset.
Zavala placed appellant in handcuffs and had him sit on the curb. Appellant did not appear to have any injuries, and he seemed calm and relaxed. Loretta was standing next to appellant and she was still crying and upset. Appellant and Loretta were speaking in Spanish to each other. Zavala asked them what was going on. Either appellant or Loretta replied that Loretta got into a fight with some females. Zavala told them that witnesses called in the disturbance and said that it involved a man and a woman, and he wanted to know what actually happened. Zavala did not receive a response. Zavala testified he never told Loretta that she would be arrested if she did not tell the truth.
Loretta testified appellant stopped the assault about two or three minutes before the police arrived. Loretta testified that after he was handcuffed, appellant spoke to her in Spanish, told her to say that some girls jumped her, or he would send someone to hurt her. Loretta testified she decided to lie to the officer because she was afraid appellant would get out of jail and beat her again. Loretta testified she told the officer about the girls, but the officer advised her not to lie because there were witnesses who saw appellant beat her. Loretta claimed the officer also said that he knew appellant did it because he had bloody fists and knuckles, and the officer threatened to take her into custody if she lied. Loretta decided she wasn't going to jail and said that appellant assaulted her.
Officer Peter Ressler arrived at the scene, observed appellant sitting on the curb in handcuffs, and believed he was trying to communicate with Loretta. Ressler escorted Loretta across the street so they could talk without appellant hearing them. Loretta was still crying and upset, and she was not sure whether she wanted to press charges against appellant. Loretta never told Ressler that she was involved in a fight with several females, and she did not mention any threats from appellant or that he threatened to kill her, or that she ran into the street and was almost hit by a car. Ressler testified he never told Loretta that he knew appellant beat her because his hands were bruised and bloody, and he never threatened Loretta with any consequences if she did not say that appellant hit her.
Officer Zavala found Loretta's purse and cellphone behind the liquor store and returned the items to her. Ressler called for an ambulance at Loretta's request and she was taken to the hospital. Loretta testified she suffered bruises and swelling on her face, palms, hands, arms, wrists, and back, two black eyes, scrapes on her knees, and lumps on her head. She was bleeding from her face, lip, and nose, and had a cracked tooth. Ressler placed appellant in his patrol car and advised him of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Appellant repeatedly said he did not violate the restraining order, he had just been walking by the house, and Loretta was beaten by some girls. Appellant appeared under the influence because his eyes were bloodshot and watery, he smelled of alcohol, and he acted belligerent. Appellant was taken to jail around 2:00 a.m.
Appellant's telephone calls to Loretta After appellant was taken to jail, he placed several calls to Loretta on her cellphone, and she accepted all the calls even though a recorded message informed her that the calls were placed from the jail. Loretta was very angry at appellant but she accepted the calls to see what he had to say. The calls were tape-recorded, and the recordings and transcripts were introduced at trial.FN3
FN3. As we will discuss in issue IV, post, the prosecution relied upon the telephone calls as evidence of appellant's consciousness of guilt through his attempts to fabricate evidence and discourage someone from testifying.
Appellant made his first call at 3:11 a.m. on January 20, 2007, while Loretta was being treated at the hospital. Appellant repeatedly asked "What the fuck did you do," and Loretta said she did nothing. Appellant said, "What the fuck am I in here for then," and asked if he was going home. Loretta said he was being mean. Appellant replied, "I'm being mean (mocking tone) ... I swear to God bitch watch ..." Loretta hung up.
At 3:36 a.m., appellant again called her at the hospital, asked if she was going to court, and she said no. Loretta said it was the third time he asked if she was pressing charges and she kept saying no. Appellant spoke to her in Spanish and asked, "why did you tell them it was me," and "why didn't you say we went to the party" and "you got in a fight." Loretta said no and appellant cursed her. Appellant said she better protect him: "When I get out though you need to be out my way though. You feel me?"
At 3:40 a.m., appellant called Loretta again, and asked why she was "hating on me," which meant she was jealous. Loretta said she was not "hating" on him but she was going to go to court. Appellant said she better go because "it's your best opportunity go to court ... I mean well fuck you better go."
At 9:04 a.m., appellant called Loretta and she was out of the hospital. Appellant said he was very sorry and he loved her. Loretta said she hadn't been fooling around and he needed to let it go. Appellant said okay, and asked if she was going to court. Loretta said no. Appellant asked if she gave a statement at the hospital, and Loretta said someone else saw her and called the police. Appellant asked if she needed something, meaning money. Loretta testified the offer was unusual because she never asked him for money whereas he usually asked her for money. Appellant told her to come down to the jail to get some from him, but she did not do so.
At 9:19 a.m., appellant called again, said it was his fault, he was sorry, and to just forget about it. Appellant said he knew he "fucked up" when he saw her face. Loretta said someone else called the police so there were witnesses. Appellant again switched to Spanish, and asked if she said that he hit her. Loretta said the police knew he hit her. Appellant asked if she gave her apartment address and Loretta said yes. Appellant said the police would look for her and asked what she was going to do. Loretta said she would find a place in Madera because she did not need to be around this.
As the call continued, appellant told Loretta, "I'm going to say that I didn't do anything and the case will be lost. If you don't go the case will be dismissed, if you do go (unintelligible) you know how much they are going to give me right?" Loretta asked how much, and appellant said a lot. Appellant again spoke in Spanish and told Loretta to write to him but not to sign her name. Appellant said they were going to "look for you fiercely," and "hopefully they don't find you." Appellant said: "I hope they won't find you, don't get there," but she should say that she "got in a fight with those bitches." Loretta said the police seemed to know what happened. Appellant asked who told the police about the restraining order. Loretta said she did not tell the police.
Appellant again told Loretta not to go to court, but asked what she would say if called. Loretta said she would say nothing happened because they would "put your ass away." Appellant said he was sorry, he loved her, and he should have listened to the others when they said to get back into the house. Appellant said that it was "the worse I've done to you. I think that's it. I don't want to fucking hit you like that no more." Loretta said she had never been beaten like that by anyone, and she didn't know why she put up with him. Appellant repeatedly said he was sorry and he loved her.
At 3:57 p.m. on January 22, 2007, appellant was still in jail and called his nephew, Oscar, and said he got into a domestic violence case with Loretta and he "fucked her up." Appellant spoke in Spanish, and asked Oscar to call her because his court date was coming up and they were going to look for her. Oscar placed a three-way call to Loretta.
Loretta accepted the call and spoke to Oscar, she could not hear appellant's voice, and Oscar relayed appellant's messages to her. Appellant wanted to know if she was alright, and whether they had called her for court. Loretta said she was not alright. Appellant told her not to go to court, they would look for ...