FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner without counsel proceeding with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2007 judgment of conviction entered against him in the Shasta County Superior Court for threatening to commit a crime that would result in death or great bodily injury. He seeks relief on the grounds that: (1) his trial counsel rendered ineffective assistance, and (2) his right to due process was violated when his state habeas corpus petition was decided by the same Superior Court judge who presided over his trial. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
Defendant Dennis Wayne Mize pleaded no contest to threatening to commit a crime that would result in death or great bodily injury. (Pen.Code, § 422.)*fn2 He admitted three prior serious felony allegations (§ 667, subd. (a)) and a strike allegation (§§ 667, subds.(b)-(I), 1170.12). In exchange, counts of assault by force likely to produce great bodily injury (§ 245, subd. (a)(1)) and obstructing a peace officer (§ 148, subd. (a)(1)) were dismissed, along with several enhancing allegations. Defendant was sentenced to state prison for 19 years. The trial court issued a certificate of probable cause.
On appeal, defendant contends his motion to dismiss for lack of venue in Shasta County was erroneously denied. We shall affirm the judgment.
Facts*fn3 Suzanne Rodriguez testified for the prosecution that she had an argument with defendant, her boyfriend, on an afternoon in June 2006. She "thought it would be better that we took off and went somewhere." They purchased gasoline, packed a blanket, a 12-pack of beer, and some tomato juice and left their residence in Redding, which is in Shasta County, and drove toward Weaverville, which is in Trinity County. Defendant was the driver. No one else was in the car.
Shortly after leaving Redding, defendant and Rodriguez found themselves on a winding two-lane road that ascended a mountain where there were no houses, lots of trees, and very little traffic. Rodriguez and possibly defendant were drinking during the trip. Defendant got upset at Rodriguez because she had taken too long to return to the car from the gas station. He started hitting her on the left side of her body while he drove and she sat in the passenger seat. Her lip was injured, her nose started bleeding, and her entire left side was bruised. Blood spilled from her face onto the paneling of the passenger door. She asked defendant to stop the car so she could get out.
Both defendant and Rodriguez had to use the restroom, so defendant pulled off the road onto a little dirt roadway. Rodriguez got out of the car, used the restroom, and then started to walk back to the road. Defendant stopped her, put his hands around her neck, and started to choke her. She fell to the ground; he kicked her and told her to get back into the car or he would kill her. She returned to the car because she was afraid.
Defendant discontinued the trip to Weaverville. He turned the car around and they descended back down the winding road toward Redding. It was still light outside. Rodriguez, who was scared, put her arms up in the air and tried to get the attention of an oncoming motorist. A couple in an oncoming car looked right at them. Defendant immediately pulled over into a turnabout. Rodriguez got out of the car and flagged down a truck. The truck driver assisted Rodriguez by calling an ambulance and the police. She recalled that it was dusk when she flagged down the passerby. Around 8:35 p.m., Deputy Nelson responded to a call on Highway 299 westbound. He arrived on the scene a few minutes later. At the venue hearing, it was stipulated that the scene is in Shasta County, 19.4 miles from the Trinity County line, and 4.4 miles from the Shasta County courthouse.
Contrary to Rodriguez's testimony that she and defendant were alone, Kelly Bohannan testified for the defense that he and his sister, Candi Kenyon, were passengers during the trip. Bohannan was seated behind defendant, and Kenyon was seated behind Rodriguez.
Bohannan estimated that after they left the house, they drove for 35 to 40 minutes, passed Whiskeytown Lake, and then drove another 30 to 40 miles. He was uncertain where they were or how long they had driven because "most of the time [he] was passed out." However, he claimed that it was "good and dark" before they turned the car around. He claimed that Rodriguez had been drinking before the trip began and continued drinking as they drove. She was antagonistic and belligerent, and she continually bickered at defendant. Defendant, who was driving, never struck her.
At some point during the drive, defendant stopped the car for a bathroom break. Bohannan remembered crossing a bridge and seeing a sign that said Weaverville was six, seven, or eight miles away. At the stop, Rodriguez got out of the car and walked out of sight. Bohannan heard Rodriguez screaming and yelling, believed he heard her fall down a hill, and then saw her tangled up in her clothes and the surrounding bushes. Defendant helped her back up the hill.
Bohannan saw Rodriguez stagger to the roadway and saw a truck coming in their direction. Defendant ran over to Rodriguez and tackled her to get her out of the truck's way. Bohannan noticed that Rodriguez was bleeding from her nose and was complaining of pain in her ribs and shoulder. Believing Rodriguez may need medical attention, the group headed back toward Redding. Rodriguez continued to complain that she was hurt; she asked for another beer and drank it. Bohannan fell asleep again and did not recall anything until they got to his mother's house. Bohannan entered the house, got something to eat, and went to sleep. Bohannan testified that in November 2006 he was arrested and placed in the Shasta County jail. At one point during his jail term, he and defendant were in the same pod and spent most of their days together. Bohannan claimed that defendant did not talk about his case.
Bohannan added that he and defendant were in jail at the same time again in July 2007. Bohannan slept most of the time and did not talk to defendant.
Bohannan's sister, Candi Kenyon, testified for the defense that she was in the car when the group took the trip to Weaverville. She recalled that they left a little before dark, around 7:00 p.m., drove down Swasey Drive, and then went west about 30 miles on Highway 299. During the trip, Rodriguez was argumentative, was hitting defendant, and wanted out of the car; Kenyon tried to persuade Rodriguez to desist. Kenyon never saw defendant hit or threaten Rodriguez.
When the car stopped, Rodriguez got out of the car and ran up and down the road. Defendant tried to get her back inside the car. When she reentered the car, Kenyon noticed that Rodriguez's face and nose were bleeding because she had been falling down. The group turned around and headed back toward Redding. Rodriguez continued to hit defendant, but Kenyon did not see defendant retaliate. After passing Whiskeytown Lake, defendant stopped and let Rodriguez out of the car and the group continued back to Redding and Kenyon's mother's house. Kenyon left the house for a while; when she returned, law enforcement was there. Some time thereafter, Kenyon and a defense investigator traveled westbound on Highway 299 in an attempt to locate the area in which defendant had turned the car around. Kenyon identified an area past a bridge where a sign indicated that Weaverville was seven miles away. The investigator testified that the sign is located in Trinity County, over 20 miles from the Shasta County line.
During the venue hearing, the trial court examined letters defendant had written to Rodriguez's cat, Gracie, following a court order that he have no contact with Rodriguez. In one letter, defendant wrote that the group had pulled over "at the Weaverville ten mile sign." In another letter, he referred to an area just past the Weaverville ten mile sign. In yet another letter, he stated, "[a]t Swazey [sic] Drive I pulled over, took off my shirt and poured beer on her and waved [sic] her face which hurt her nose." Defendant wrote that it was his "hope to get this domestic case dropped in Shasta County because [he] doubt[ed] that Trinity County will even pick it up." In a final letter, defendant wrote, "[a]s long as Suzie [Rodriguez] recalls that we passed the 'Weaverville ten miles' sign, Shasta County will have to 'dismiss with prejudice,' which means the DA cannot refile it."
The trial court found by a preponderance of the evidence that at least a portion of the assaultive behavior occurred inside the car. The finding was based upon Rodriguez's testimony and the physical evidence of blood inside the car. The court found that the testimony of Bohannan and Kenyon was "less than fully credible." The motion to dismiss for lack of venue was denied.
A. Standards for a Writ of Habeas Corpus
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the 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.
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)).
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle ...