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May 13, 2003


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.


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.

A. Current Incident

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.
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 another man.
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 time.]
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 have happened."
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 running.
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.

B. Prior Incidents

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."

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. ยง 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 ...

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