The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on October 23, 2008, in the Sacramento County Superior Court for possession of a sharp instrument while incarcerated in a penal institution for which he was sentenced to a prison term of 25 years to life.
The relevant facts of petitioner's crime were summarized in the unpublished opinion of the California Court of Appeal, Third Appellate District, as follows:
The prosecution charged defendant with possessing and carrying upon his person a dirk, dagger or sharp instrument, to wit, a metal rod sharpened to a point measuring approximately seven inches long, on January 12, 2007, while confined in a penal institution (§ 4502). [footnote omitted.] The complaint also alleged for sentencing purposes (§§ 667, subd. (b)-(i), 1170.12) two prior serious felony convictions-a 1999 robbery and a 2004 attempted murder (while incarcerated). The prior convictions were bifurcated.
The prosecutor moved in limine to exclude any defense of duress or necessity. Defense counsel said he did not see necessity as a defense at that point. The trial court opined necessity seemed inapplicable, but the court would not curtail the defense from presenting its case.
At trial, a correctional officer testified that, on January 12, 2007, after a search of defendant's cell and person, defendant was placed on a "contraband watch" or "potty watch," the purpose of which was to determine if defendant had hidden contraband in his rectum. Defendant was dressed in special clothing and monitored for at least five hours, until he had a bowel movement, a search of which revealed a wrapped object-a seven-inch blade and handle wrapped in paper towels and cellophane. [footnote omitted.]
Defendant's cellmate, Manuel Perez, testified as a defense witness, that the weapon was his (Perez's). Perez and defendant were members of the same prison gang, but Perez held a position of authority as "squad leader." If a subordinate disobeys an order, and Perez finds the disobedience a threat to the gang, Perez will stab or try to kill the subordinate.
On the day in question, Perez learned his cell was going to be searched by the correctional officers. Because Perez had already hidden gang paperwork in his own rectum, he ordered defendant to hide the wrapped weapon in defendant's rectum. Defendant initially refused. Perez, who also had a razor, threatened to stab defendant. Defendant hid the wrapped weapon in his rectum, and Perez flushed the razor down the toilet. The gang paperwork in Perez's rectum was discovered when he was placed on contraband watch. Perez said he dropped out of the gang shortly after this incident (partly because he expected to be stabbed for losing the gang paperwork if he returned to the cellblock where his gang was housed) and was testifying "Because I feel responsible for Mr. Ortiz being busted with my piece. I, basically, don't believe it should be him on that defendant's chair. I believe it should be me." Perez's expected release date is around 2025 or 2028.
Defendant testified at trial that he is incarcerated for armed robbery; he did have the weapon in his rectum, but it belonged to Manuel Perez, defendant's cellmate of several months. Both were members of the same prison gang, but Perez had a position of authority. Defendant had been a gang member for eight years, since he entered prison.
Defendant testified that, on the day in question,
Perez knew their cell was about to be searched and told defendant to "hoop" the wrapped knife, i.e., to hide it in defendant's rectum. Defendant said no. Perez told him again. Defendant again said no. Perez threatened defendant with a razor, and defendant gave in.
Defendant testified that when he initially refused to conceal the weapon, Perez "could of [sic] tore me up right then and there, but he didn't. And then when I refused again, that's when he-that's when-that's when he was right there, and I'm facing that, and I can't-I have to break it down, so I had to go with it."
Defendant testified: "Q When you were inserting that weapon, did you feel that you had a choice?
"A I didn't have a choice. "Q Did you feel that if you-if you refused that you would get be [sic] stabbed or killed?
"A I know I was going to get stabbed or killed." Within the gang structure, Perez was a "squad leader" with authority to order defendant to do things. It was against the gang's "bylaws" for defendant to refuse Perez's order to hide the weapon. The gang adapted its military-type structure from the marines. It would have been inappropriate for defendant to ignore Perez's command, "Because everything we do as an organization behind the walls is based on security measures.... If [weapons and gang paperwork] get into the hand of our enemies, of the administration, the canines, which is the correctional officers, we have serious repercussions" from the gang, most likely "getting whacked."
There was conflicting evidence as to whether defendant or Perez related Perez's threat to defendant when they later quit the gang and were "debriefed" about gang activities by correctional officers.
The trial court was not asked to and did not instruct on necessity as a defense. The court did instruct on duress as a defense, as follows:
"The defendant is not guilty of possession of a weapon in a penal institution if he acted under duress. The defendant acted under duress if, because of threat or menace, he believed his life would be in immediate danger if he refused a demand or request to commit the crime. The demand or request may have been expressed or implied.
"The defendant's belief that his life was in immediate danger must have been reasonable. When deciding whether the defendant's belief was reasonable, consider all the circumstances as they were known to and appeared to the defendant, and consider what a ...