The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Clifford K. McDonough, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. McDonough is currently in the custody of the California Department of Rehabilitation and Community Supervision, incarcerated at the California State Prison, Corcoran. Respondent has answered, and McDonough has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
McDonough was convicted by a jury of second degree murder (Cal. Penal Code § 187), corporal injury with great bodily injury (Cal. Penal Code §§ 273.5(a), 12022(e)), and misdemeanor battery (Cal. Penal Code § 242). In December 2008 the Nevada County Superior Court sentenced McDonough to an aggregate prison term of twenty-one years to life on the two felony convictions, with a concurrent prison term of six months on the misdemeanor battery conviction. The California Court of Appeal, Third Appellate District, affirmed McDonough's conviction and sentence in an unpublished decision,*fn1 and the California Supreme Court denied review on September 22, 2010. McDonough timely filed his Petition for relief in this Court on July 7, 2011.
The facts underlying McDonough's conviction as recited by the California Court of Appeal:
Defendant and Cindy McDonough married in 2005, but separated about a year later at Cindy's insistence. After separating, defendant and Cindy had sexual relations on rare occasion. In November 2006, Cindy filed for divorce.
In August 2007, Cindy met Donald Sullivan, her neighbor. They became friends, and later, more than that.
On October 22, 2007, the day of the incident at issue, defendant visited Cindy and asked about getting back together (the two were still technically married at this point). Cindy declined defendant's overture.
Defendant asked Cindy if she had slept with Sullivan. Cindy untruthfully replied "no," but noted that Sullivan "cared for [her] a lot." This angered defendant and he said he "wanted to kick someone's ass."
Defendant then asked Cindy for a ride home. After going to get her shoes, she returned to find that defendant had "disappeared."
Cindy went to Sullivan's to get her cell phone so she could call defendant. Defendant, Sullivan, and Sullivan's friend, Peter "Zach" Walsh, were there. Defendant told Cindy to give him "a f[uck]ing minute." Cindy went outside. After not hearing any arguing or fighting, she returned home.
Walsh testified that an angry defendant accused Sullivan of sleeping with Cindy, whom defendant referred to as his "ex-wife." Sullivan calmly denied the accusation, but defendant continued on, threatening both Sullivan and Walsh.
After about a half-hour of varying tirades, defendant calmed down. He and Sullivan shook hands, and decided to have a drink together. After a shot or two of Scotch, defendant and Sullivan began to "play wrestle" on the floor. Both men were "smiling and laughing."
At this point, Walsh left and walked to another neighbor's house, smoking a cigarette while outside there. When Walsh returned to Sullivan's and approached his front door, defendant charged out, kicking the door open. Shirtless and clenching his fist, defendant said to Walsh, "You want some of this? You want some of this? I just beat the holy crap out of [Sullivan]. You want some of this?" Looking past defendant, Walsh saw Sullivan lying on the floor and said: "Oh, my God. What have you done?" Walsh started to walk inside to help Sullivan, but defendant spun him around and punched him in the nose. Defendant landed two more blows, knocking Walsh onto a sofa.
From his position on the sofa, Walsh could see Sullivan, whose face was "blown up" at least twice its normal size, and who was "gasping" or "gurgling" for breath while lying motionless. Defendant turned his attention back to Sullivan, screaming, "And for you, you son of a bitch, I told you to stay away from my wife." Then, lifting his foot as high as he could, defendant stomped on Sullivan's face at least three or four times. Again, Sullivan did not move.
During the stomping, Walsh fled and summoned aid.
In the meantime, defendant, "very drunk" and "very angry," appeared at Cindy's, demanding a ride home. He was "yelling and screaming" that Sullivan had told him that Cindy and Sullivan had "slept" together. Defendant then hit Cindy about six times in the face, kicked her in the stomach, ribs and legs, and began choking her, demanding to "know why" she had "slept" with Sullivan. Cindy escaped to a neighbor's.
Another neighbor went to check on Sullivan and saw him lying on his back, his face so bloody as to be almost unrecognizable. Sullivan's only movements were involuntary twitchings and he was gurgling for air. Sullivan stopped breathing and subsequently died at the hospital after being stabilized initially.
Defendant was apprehended in the area that evening after a short pursuit. He was taken to a hospital's emergency room, where the nurse noted he appeared intoxicated; he was treated for minor injuries arising out of the incident (a small, superficial laceration on his head and a tender jaw).
An autopsy and an imaging study disclosed that Sullivan had a fractured eye socket, nose, and hyoid bone (high in the neck); two fractures of the lower jawbone; at least 10 rib fractures; and three vertebral fractures. Some of these injuries, especially to the thick lower jawbone, the ribs, and the vertebrae, required a "significant amount of force." This considerable force also caused a "severe brain injury." The cause of death was multiple blunt force trauma.
Sullivan's blood contained methamphetamine and alcohol.
Defendant testified that Sullivan informed him that he was "sleeping with Cindy" and that defendant should "just leave town." Defendant then agreed to (the larger) Sullivan's request to have some drinks.
Later, defendant remarked nastily to Sullivan "about what kind of a man shakes a man's hand and then sleeps with his wife." Sullivan pushed defendant, defendant returned the favor, and then Sullivan decked defendant. Defendant proceeded ...