United States District Court, E.D. California
KENDALL J. NEWMAN, Magistrate Judge.
Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both parties consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c).
Petitioner challenges his 2007 conviction on charges of robbery of an inhabited house and assault with a deadly weapon. The jury also found true that petitioner used a gun. Petitioner was sentenced to 16 years in state prison. Petitioner claims that he received ineffective assistance of trial and appellate counsel, and was denied the right to cross-examine witnesses, in violation of the Sixth Amendment; and that his Eighth Amendment rights were violated because his sentence is illegal and cruel and unusual. After careful review of the record, this court concludes that the petition is denied.
II. Procedural History
On April 3, 2007, petitioner was convicted in Sacramento County Superior Court of first degree robbery of an inhabited house in concert, and assault with a deadly weapon, and the jury found true that one of the principals was armed with a firearm, and that petitioner personally used a gun. (ECF No. 1 at 23.) He was sentenced to a term of sixteen years in state prison. (ECF No. 1 at 1.)
Petitioner filed an appeal, and on October 20, 2009, the California Court of Appeal, Third Appellate District, affirmed the conviction. (ECF No. 1 at 81-95.) On appeal, petitioner raised an insufficiency of the evidence claim, and four claims that the trial court erred by refusing to instruct on grand theft as a lesser included offense of robbery; by conducting a hearing on aggravating factors; by not awarding presentence credits; and by making clerical errors in petitioner's abstract of judgment. (ECF No. 1 at 82.)
Petitioner did not file a petition for review in the California Supreme Court.
On June 21, 2010,  petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court, raising the five claims contained in the federal petition. On August 22, 2010, the superior court denied the ineffective assistance of counsel claims on the merits, but found that petitioner failed to raise his remaining claims on appeal, citing In re Harris , 5 Cal.4th 813, 833 (1993). (ECF No. 1 at 100.) The superior court found that the remaining claims failed to state a prima facie claim for relief, citing People v. Duvall , 9 Cal.4th 464, 474 (1995). (ECF No. 1 at 100.) Finally, the superior court found that petitioner's sentence was within the permitted range provided by the California Penal Code, that it was not disproportionate, and did not violate the Eighth Amendment. (ECF No. 1 at 100-101.)
On September 9, 2010. petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District, raising the same five claims. On September 16, 2010, the petition was denied without comment. (ECF No. 1 at 103.)
On September 23, 2010, petitioner raised the same five claims in a petition for writ of habeas corpus filed in the California Supreme Court, which was denied without comment on April 20, 2011. (ECF No. 1 at 105.)
Petitioner filed the federal petition on August 5, 2011. (ECF No. 1.)
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:
Tillman was married to the victim, K., for three to four years. Their marriage ended in July 2005, but the two still talked and spent time together at K.'s house.
Around 10:30 p.m. on December 9, 2005, Tillman telephoned K. and asked to come over. K. agreed. When Tillman arrived, K. locked the door behind them. The two then "got into a little argument like [they] always d[id], " and K. went back into the bedroom "to get away from the arguing."
While K. was in the back of the house, Tillman called to him from the hallway bathroom, asking for toilet paper. As K. entered the bathroom, he was "jumped" and beaten by three perpetrators - one white man (whose name K. later learned was Gino) and two Hispanic men (one of whom was Munguia). Gino "was doing most of the beating" and the Hispanic men "were holding [K.] down." K. asked Tillman to make them stop. Whenever he tried to speak with her, "she would hit him and tell him to shut up."
The perpetrators dragged K. to the living room and continued to beat him. They retrieved three firearms K. had in the house, including a loaded.357 revolver. Gino had the revolver, and the Hispanic men had the two other firearms. Tillman knew about the revolver because K. had shown it to her "a long time before this had happened." Gino reentered the living room and "constantly" pointed the revolver at K., "pistol whipped" him in the forehead, cut his neck with a knife, and continued beating him while the Hispanic men held him down. Tillman "was sitting there watching it happen." She and the two Hispanic men used a sheet to cover up a window inside the house so nobody could see inside. Tillman also cut the telephone line.
The perpetrators moved K. to a chair in the dining room while they searched through his belongings for four to five hours. Tillman sat on a chair across from K. One of the perpetrators brought K.'s wallet to Tillman, and she took two credit cards out of it.
Eventually, "they" told K. to sit on the couch, and K. complied. Munguia held the rifle "for a little while." About 15 minutes later, "it got real quiet, " and K. left for his neighbor's house to call police. On his way out, he noticed his PT Cruiser and red truck were missing.
Sheriff deputies arrived at the house around 5:00 a.m. on December 10. They conducted an in-field showup, where K. identified Tillman as his ex-wife who "assaulted him and kept him in his house" and Munguia as one of the Hispanic men who was in his house who "had assaulted him." Tillman had blood on her hands and Munguia had even more on his hands.
About six weeks after the incident, K. and Tillman resumed their relationship. He visits her while she is incarcerated, puts money on her books, and has paid for her legal defense.
At trial, K. testified to a version of events somewhat favorable to Tillman, including that Tillman did not hit him and did not help in putting up the sheets. He was impeached by contradictory statements he gave to police on the morning of the attack. K. did, however, testify that at no point during the attack did Tillman appear frightened or in fear of her life and it never seemed as though she was being held hostage.
Tillman testified on her own behalf. On the night and morning K. was attacked, she was under the influence of methamphetamine. She, Munguia, another Hispanic male, and Gino went to K.'s house to retrieve her belongings. She went in first, K. locked the front door, and she later let the others in. When Tillman was in the bathroom, Gino attacked K. Gino and one of the Hispanic men dragged defendant to the living room. Gino "seemed to just be in control of everything, " and Tillman thought he was the "scariest thing... ever." Tillman was frightened and "didn't know ...