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 [ECF No. 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).
Following a jury trial, Petitioner was convicted of assault with a deadly weapon (Cal. Penal Code*fn1 § 245(a)(1)); making a criminal threat (§ 422); false imprisonment by violence (§ 236); and first degree burglary while a person who was not an accomplice was present (§§ 459, 460(a), 667.5(c)(21)). The jury found true that he was personally armed with a deadly and dangerous weapon during the commission of the offenses.
Petitioner was sentenced to a total term of five years imprisonment.
Petitioner filed a timely notice of appeal. On August 1, 2012, the California Court of Appeal, Fifth Appellate District affirmed the judgment.
On October 31, 2012, the California Supreme Court denied review.
Petitioner filed the instant federal petition for writ of habeas corpus on December 6, 2012. Respondent filed an answer to the petition on March 14, 2013. Petitioner filed a traverse on April 11, 2013.
Mary Thompson testified that at approximately 11:40 p.m. on June 25,2010, she was asleep on the sofa at her house. Mary recently had had surgery to remove one of her intestines and had taken a pain pill earlier in the evening.
[N.1] Her husband had gone to the store. Because May had trouble getting up and down, her husband told her that he would not lock the front door. Mary testified her security door and wooden door were both closed and it was dark inside the house. Mary heard a knock on the door, which she did not respond to. She heard the security door open and then the wooden door was kicked open. [Petitioner] entered the house and closed the door behind him. Mary asked him, "Why you kick my door open and come in? I didn't tell you to come in my house." [Petitioner] told Mary she did not tell him what to do. [Petitioner] told her to get off the sofa. When she did not, [Petitioner] moved toward her, grabbed her clothing in the area of her collar, pulled her up, and took her in the direction of the dining room. Mary was in pain and was scared. In the dining room, [Petitioner] told her, "I'm hungry. You fix me something to eat." She told him she did not have hot water. [Petitioner] responded, "Well, I'm hungry. I don't know how you going to fix it . . . . [If] you're moving . . . I'll stab your bitch ass." Mary noticed a towel in [Petitioner's] left hand. She noticed the towel was covering a knife and testified that she felt her life was going to end. [Petitioner] hit Mary. [Petitioner] said he had some noddles in his pocket. She told him they could go across the street to her neighbor who could "fit it." Mary testified that she made this statement because it was a way she could escape.
[N.1] For clarity, we will refer to Mary Thompson, and her son, Terrell Thompson, by their first names. We intend no disrespect by this informality. (Hogan v. Country Villa Health Services (2007) 148 Cal.App.4th 259, 263, fn. 1.)
Mary recognized [Petitioner]. She testified that she knew him because his mother used to live on her block. He was not a child when she knew him, he was over 18. She testified that she did not know him "that well"; she never invited him over to her house, she never cooked food for him, and she had not "[sat] and talk[ed] or [had] coffee with him." She did not invite him over on June 25, 2010, and did not give him permission to come into her home.
Once outside, [Petitioner] stood close behind Mary with the knife by his side. He again told her, "if you try anything . . . I'm going to stab your bitch ass." Mary testified that he told her this twice while they were inside the house and once outside. Mary saw Alex Ceballos, who lived across the street, and told [Petitioner], "[M]y neighbor right here will fix the noodles for you." Mary and [Petitioner] walked to Ceballos's yard. Ceballos stood up on the porch and Mary told him that [Petitioner] had a knife in his hand. Ceballos told her to come up on his porch, which she did. Ceballos picked up a brick from the ground, exchanged words with [Petitioner] and [Petitioner] ran away. Mary then heard glass breaking. The sound came from the area of her back window.
Ceballos testified that he had known Mary for about 20 years and that she lived in the house across the street. He testified that, on June 25, around 11:45 p.m., he was sitting on his front porch. He heard glass breaking and some yelling coming from the back of Mary's house across the street. Ceballos saw a man. The man said he was going to "stick that bitch." Ceballos called the police. He reported that he saw a large, African-American male, who seemed drunk, breaking windows at his neighbor's house. He did not go over to the yard because the man was large and appeared "yoked up."
Ceballos testified he saw the man go in Mary's front door. About five minutes later, he saw Mary cross the street to his house with an African-American man that he described as "a big guy." The man was walking behind Mary and she appeared to be scared. The man said he was going to "stick her." Ceballos saw something shiny in [Petitioner's] hands, but was uncertain if it was a pair of scissors or a knife. Ceballos picked up a brick. The man left, going toward the empty lot located by Mary's house, and then went toward the Sahara Motel.
The police arrived and Mary and Ceballos told Officer Escareno and Officer Marquez what happened. Escareno provided updates to assisting patrol units that a male, who was possibly armed, had gone to the Sahara Motel. After receiving an update from another officer, Escareno and Marquez told Ceballos and Mary they would be back and took off running to the Sahara Motel. At the Sahara Motel, they saw [Petitioner] handcuffed and face down on the floor. Approximately a foot away from [Petitioner's] left shoulder, was a towel with a knife under it. When Escareno arrested [Petitioner], he detected a strong odor of alcohol on him. Escareno then obtained statements from Mary and Ceballos, who were at their individual residences. Once back to her house, Mary noticed a glass window was broken, but did not provide the police with this information.
On July 26, 2010, the district attorney charged [Petitioner] in count 1, assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)); in count 2, kidnapping (Pen. Code, § 207, subd. (a)); in count 3, making a criminal threat (Pen. Code, § 422); in count 4, false imprisonment by violence (Pen. Code, § 236); and in count 5, first degree residential burglary while a person who was not an accomplice was present (Pen. Code, §§ 459, 460, subd. (a), 667.5, subd.
(c)(21)). The information further alleged that as to counts 2 through 5, [Petitioner] personally used a deadly and dangerous weapon, a knife. (Pen. Code § 12022, subd. (b)(1).) On August 5, 2010, [Petitioner] pled not guilty to all counts. On December 20, 2010, a jury found [Petitioner] guilty as charged in counts 1, 3, 4, and 5 and not guilty as charged in count 2. The jury found true that [Petitioner] was personally armed with a deadly and dangerous weapon as to the commission of the crimes as charged in counts 3, 4, and 5.
On April 22, 2011, [Petitioner] filed a motion for new trial based on newly discovered evidence. (Pen. Code, § 1181, subd. (8).) The evidence was of a declaration from Terrell Thompson, Mary's son, which stated, among other things, that [Petitioner] used to stay at the Thompson residence when he was younger and that, on June 25, 2010, the day the crimes were committed, [Petitioner] spent the morning and afternoon "hanging out" on the Thompsons' front porch. Terrell declared that [Petitioner] wanted to drink alcohol and had gone to the store to buy some, that no one wanted to stay at the house and drink with [Petitioner], and that he (Terrell) left the house around sunset.
On May 20, 2011, [Petitioner's] motion for new trial was denied. The trial court found that a different result was not probable on retrial because Terrell did not witness the events that took place that evening and his testimony merely impeached Mary's testimony on the "narrow issue" as to whether [Petitioner] was an invited guest. [Petitioner] was then sentenced to five years in prison. He received 378 days of custody ...