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April 1, 2003


The opinion of the court was delivered by: Charles R. Breyer, United States District Judge.


Petitioner Jose Rodriguez Garcia was convicted by a jury in the Superior Court of the State of California in and for the County of Santa Clara of forcible rape, forcible sodomy, two counts of penetration by a foreign object, felony sexual battery, and possession of cocaine. The first four counts carried allegations of kidnaping pursuant to the "one strike law." He was sentenced to an indeterminate term of 25 years to life for the forcible rape count, a consecutive sentence of 2 years was imposed on the possession of cocaine count. The mid-term of six years was imposed on the remaining counts to run concurrently to the twenty-seven years to life sentence. Petitioner unsuccessfully appealed his conviction to the California Court of Appeal and the Supreme Court of California, which on February 21, 2001 denied review of a petition allegedly raising the same claims raised here.

Petitioner then filed the instant pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on August 6, 2002, the court found that the petition stated several cognizable claims of improper admission of evidence and instructional error under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent filed an answer to the order to show cause. Petitioner did not file a traverse.


The California Court of Appeal summarized the facts of the case as follows:

At approximately 4:40 a.m. on October 4, 1998, Perla Doe was walking to work on Plum Street in San Jose when defendant approached on a bicycle and grabbed her. Perla screamed and struggled to get away. Defendant grabbed Perla's neck, ordered her to walk, and forced her into an alley. Defendant threatened to kill his victim if she failed to walk.
Perla's screams awakened a neighbor, Elvia U. Elvia looked out her window and saw a man and woman struggling on the sidewalk. As the woman pushed the man off of her, the man grabbed her with a headlock. The man then forced the woman into the alley. Elvia called 911.
From the alley, Perla was taken into a carport. Defendant forced her between two cars and asked her to take off her shirt and bra. Defendant removed her pants. Defendant pushed Perla to the ground and tried to have intercourse with her. Not having an erection, defendant only penetrated "a bit."
Defendant then asked Perla to orally copulate him. She refused. When defendant placed his penis in Perla's mouth and threatened to kill her, she complied. While being orally copulated, defendant inserted his fingers into Perla's vagina and anus "a little bit."
Officer James Lisius responded to the 911 call placed by Elvia. When he arrived, he saw a bicycle on Plum Street. After speaking with another officer, Lisius drove into the alley behind Plum Street with his headlights on and a spotlight in hand. When he heard a scream, he left his car, ran towards a carport from which he saw a suspect fleeing, and chased after the man. After losing sight of the man a couple of times, Lisius saw defendant in a stooped position against a wall. Lisius concluded that it was the same person he had been chasing because he wore the same dark jacket and was breathing hard. When Lisius took him into custody defendant's pants were unzipped, and his shirt was not tucked in correctly in front.
The police brought Perla to where defendant was detained for possible identification. When she first saw defendant, she did not think he was her assailant. However, as she got closer to him she decided he was the man who attacked her.
Perla was taken to the hospital for a sexual assault examination. During the physical examination, no tears, bruising or other injuries were found on the victim's vagina or rectum. Scratches to the face, an abrasion of the right elbow, and a missing clump of hair were observed.
Tests were also performed on the physical evidence taken from defendant. Fingernail scrapings from defendant's SART kit tested presumptively positive for blood. No sperm were found on a penile swab taken from defendant. However, high levels of amylase, which indicates the possible presence of saliva, were detected form the penile swab. DNA testing was not performed on the blood or amylase to determine whether either came from Perla.
In a search incident to his arrest, a small bag of cocaine was found in defendant's pocket. A blood sample that was taken from defendant at the time of his arrest showed the presence of cocaine and .09 percent alcohol.
Defendant presented no evidence. Defense counsel argued that the prosecution had not proved that defendant was the person who committed the assault against Perla. Counsel asserted that, at most, the prosecution had only proven attempted rape and attempted penetration with a foreign object.
People v. Garcia, No. H020041, slip op. at 2-3 (Cal. Ct. App. Dec. 14, 2000) (Resp't Ex. A).


A. Standard of Review

This court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C § 2254(a).

The writ may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's 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." Id. sec; 2254(d).

"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.

An unreasonable application of federal law is different from an incorrect application of federal law. Id. at 410. "[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.

B. Legal Claims

Petitioner raised three claims for relief: (1) the trial court erroneously admitted fingernail scrapings for which a proper chain of custody was not shown; (2) the trial court erroneously gave solely oral jury instructions; and (3) the trial ...

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