The opinion of the court was delivered by: Susan Illston, United States District Judge
The petition for writ of habeas corpus has been denied. Accordingly, judgment is entered in favor of respondent and against petitioner Floyd Darn.
IT IS SO ORDERED AND ADJUDGED.
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS
This matter is now before the court for consideration of the merits of Floyd Darn's pro se petition for writ of habeas corpus concerning his 1999 rape conviction. For the reasons discussed below, the petition will be denied.
On October 8, 1999, a jury convicted Floyd Darn of rape (Cal. Pen. Code § 261). In a separate court trial, the trial court found that Darn suffered two prior serious felony convictions. On May 12, 2000, the trial court sentenced Darn to serve 25 years to life in prison.
In a written opinion the California Court of Appeal affirmed the conviction but remanded for re-sentencing to impose a mandatory term of 35 years to life in prison pursuant to the provisions of California Penal Code § 667(a)(1). The California Supreme Court denied Darn's petition for review.
Darn then filed this action, seeking a federal writ of habeas corpus. His habeas petition raises four claims: (1) that the trial court's refusal to allow impeachment of a witness based upon a false statement in prior testimony violated Darn's Fifth and Sixth Amendment rights to present a defense and to confront and cross examine witnesses, as well as the Due Process Clause of the Fourteenth Amendment; (2) that the prosecutor made an improper comment during closing argument concerning Darn's failure to testify which violated the rule in Griffin v. California and Darn's rights under the Fifth Amendment of the U.S. Constitution; (3) that the trial court violated Darn's right to due process under the Fourteenth Amendment when it admitted evidence of prior acts of sexual assault in reliance on California Evidence Code § 1108, for the purposes of showing propensity; and (4) that the trial court violated Darn's right to due process when it gave certain jury instructions on the admission and weight of the prior acts evidence. See Petitioner's Writ of Habeas Corpus, p. 7-8.
This case involves an incident of sexual assault by Darn. Below is a summary of the facts as stated in the California Court of Appeal opinion.
In 1989, Darn married Janet Bell. At the time, Bell
had a four year-old daughter, who was referred to at
trial as D.H., and a three year-old son named
Christopher. Darn and Bell had two additional children
together. While she was growing up, D.H. had a close
relationship with Darn, who she considered to be her
father. However, as D.H. grew older, she distanced
herself from Darn because she thought he was overly
protective. D.H. did not have romantic feelings about
Darn and Bell divorced in 1997. In May 1998, Bell
allowed Darn to live in her home temporarily while he
looked for work. Darn slept on the living room couch.
During this period, Bell and Darn had sexual relations
on two occasions. However, Bell told Darn she did not
intend to reconcile with him and that she was seeing
On September 3, 1998, Bell twice rejected Darn's
sexual advances and Darn became angry. Then, at around
11:00 or 11:30 p.m., Bell went to work and Darn stayed
at the house with the children. Darn played cards with
D.H. and Christopher. During that time he consumed
about one-half a bottle of gin. At around 2:00 a.m.,
D.H. went to bed. Her sister was asleep in another bed
in the same room. [D.H. was fourteen years old at the
D.H. fell asleep but awoke when she felt Darn lying
on her back. Darn put his hand over D.H.'s mouth and
said, "Don't say nothing." D.H. struggled to get up
but Darn forced her down with the weight of his body.
He lifted her skirt, and vaginally raped her. The
intercourse was painful and lasted two or three
minutes. Then, D.H. heard the sound of keys at the
front door. Darn told D.H., "Don't say nothing or I'll
kill you" and then ran to Bell's bedroom.
Bell only worked a few hours of her shift on
September 4 because she was not feeling well. When she
arrived at home and opened the front door, she heard
movement that sounded like footsteps. Bell went to
D.H.'s room and found her daughter sitting up in bed
crying. Her skirt was up around her shoulders. Bell
went to her own bedroom and found Darn lying on her
bed under D.H.'s bed cover. Bell removed the cover and
found Darn was naked. Bell hit Darn and asked what he
had done to D.H. Darn pushed Bell and stated: "Hold
on Janet . . . it's your fault, if you had a man
— if you had have had sex with me this wouldn't
Bell gathered her children and took them to her
car. Darn followed asking Bell to listen to him and
repeating that it was not his fault. Bell drove her
children to her brother's house. On the way there,
D.H. told Bell that her "boody" hurt. A police officer
came to Bell's brother's house but D.H. was too upset
to give him any information. The officer then went to
Bell's house. Darn was not there but came back to the
house approximately 25 minutes later. Darn told the
officer, "I'm the guy you're looking for. I am not
Early in the morning of September 4, Kevin Binder, a
physician's assistant at Highland Hospital, performed
a sexual assault examination on D.H. D.H. reported
that Darn assaulted her and that he threatened to kill
her. Binder observed a vaginal tear in the posterior
fourchette, an injury that was consistent with
nonconsensual sex. D.H. did not complain of vaginal
pain during the examination.
While Darn was in jail, he sent letters to D.H. and
to Bell apologizing for what had happened. In his
letter to Bell, Darn wrote: "I can't begin to explain
what went on in my head that night. It really shameful
. . . for me. I should have used my head instead of
let my weakness."
During the period that Darn was in custody at Santa
Rita, a proximately 50 collect calls were made from
the jail to Bell's house. Bell testified that she had
accepted two of those calls from Darn. D.H. testified
that she had one telephone conversation with Darn
while he was in jail. Darn told her that she should
testify that she "wanted it" and that Darn "didn't do
nothing." D.H. denied accepting any other collect
calls from Darn, but testified that she did accept
calls from a neighbor friend named Demellow, who was
also in custody at Santa Rita.
Darn was charged with rape (Cal. Pen. Code §
261) and with having three prior serious felony
convictions (two for first degree burglary and one for
robbery) within the meaning of California Penal Code
§ 667, subdivisions (a) and (e)(2), and California
Penal Code § 1170.12, subdivision (c)(2)(A).
Cal. Ct. App. Opinion, p. 1-4.
The defense theory was that Darn and D.H. had engaged in consensual sex, fell asleep in Bell's living room, and awoke when they heard Bell at the front door. Defense counsel conceded during her opening statement that sexual conduct had occurred but maintained that it was not forcible.
The prosecution introduced evidence that Darn committed a sexual assault on Michelle Hardy in 1992. This evidence was introduced under California Evidence Code §§ 1101 and 1108. Defense counsel objected to the admission of such evidence on the grounds that it was not sufficiently similar to the charged offense, that it was not a sexual assault within the meaning of California Evidence Code § 1108, and that it was more prejudicial than probative. Reporter's Transcript ("RT") 9/27/99 24-27; RT 9/30/99 2-6, 10-13. The trial court admitted the evidence over the objection. RT 9/30/99 13-15.
The prosecution presented the following evidence at trial. Michelle Hardy was friends with Janet Bell, and lived in the same apartment complex as Bell and Darn. Hardy testified that, on July 6, 1992, around midnight, Darn broke into her apartment through a kitchen window, sat on Hardy's bed and asked her to "hold him." Darn pushed Hardy down on the bed and began kissing and fondling her breasts. He placed his hands between her legs. Hardy cried and told Darn to stop, but he placed his hand over her mouth, told her to shut up, and threatened to hit her. Darn only stopped after Hardy's daughter began crying outside her bedroom door. RT 83, 275-293, 307-308, 313, 321.
Hardy told Bell about the incident shortly after it happened. Darn was present at the time and did not deny Hardy's accusation. Instead, he told Bell it was her fault because she had "stopped caring" for him. RT 83-89, 124-125, 294-303, 314-315.
Before the presentation of the evidence, and again at the close of evidence the trial court instructed the jury pursuant to the 1999 revised version of CALJIC No. 2.50.01. RT 272-274, 463-466. Specifically, the court instructed the jury that (RT 273, 465):
"If you find that the defendant committed a prior
sexual offense, you may, but are not required to,
infer that the defendant had this disposition to
commit the same or similar type sexual offenses. If
you find that the defendant had this disposition, you
may, but are not required to, infer that he was likely
to commit and did commit the crime of which he is
accused. However, if you find by a preponderance of
the evidence that the defendant committed a prior
sexual offense, that is not sufficient by itself to
prove beyond a reasonable doubt that he committed the
charged crime. The weight and significance of the
evidence, if any, are for you to decide."
JURISDICTION AND VENUE
This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in Alameda County, California, which is located within this judicial district. 28 U.S.C. § 2241(d).
This court may entertain a petition for 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 petition 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 ...