The opinion of the court was delivered by: Thelton E. Henderson, United States District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
This matter is now before the court for consideration of the merits of the pro se petition for writ of habeas corpus filed by Donald Paul Glass. For the reasons discussed below, the court will deny the petition.
Following a jury trial in Santa Clara County Superior Court, Donald Paul Glass was convicted of kidnapping, rape, infliction of corporal injury on a cohabitant, possession of a controlled substance, and use of a controlled substance. The jury also found true an allegation that the kidnap was of a rape victim, which made Glass ineligible for probation and subject to a life prison term. Cal. Ct. App. Opinion, p. 2. Glass was sentenced to fifteen years to life in state prison on January 30, 1998.
He filed an appeal and a petition for writ of habeas corpus. The California Court of Appeal affirmed his conviction and denied his petition. The California Supreme Court denied his petition for review.
Glass then filed this action, seeking a writ of habeas corpus. He raised two claims in his petition: ineffective assistance of counsel in that counsel failed to oppose introduction of expert witness evidence and a due process violation based on the admission of the same expert's testimony. The court issued an order to show cause why the petition should not be granted. Respondent filed an answer in which he argued the lack of merit in the ineffective assistance claim and argued that the due process claim was procedurally barred. Petitioner did not file a traverse and the deadline to do so passed. The matter is now ready for the court's consideration.
The evidence presented at trial was described in the California Court of Appeal's opinion (with which Glass agrees, see Petition For Review, p. 4) and is summarized below:
At about 3:00 or 4:00 a.m. on May 25, 1996, Donald Glass went to the home of Donna Parker, a friend of his girlfriend — victim Randi C. — and forcibly removed Randi from the home. Glass called from outside for Randi to open the door; Parker opened the front door as Randi stood in the bedroom doorway. Glass approached Randi, grabbed her wrist and asked her to come outside and talk. They went outside and talked about difficulties in their relationship. When Randi refused to accompany Glass to his van, Glass grabbed her, picked her up, threw her over his shoulder and carried her away. Although he said he was not going to hurt her, she screamed and cried for help and for him to let her go. Randi broke free and fell to the grass; Glass picked her up and carried her to the van as Randi continued to resist.
Parker called 9-1-1 and called Randi's mother to report what had happened after Glass took Randi from her home. A neighbor heard a woman screaming and saw "someone put something into the passenger side of a van parked about four houses from her. This person closed the door, ran around the van, entered the driver's seat, and hurriedly drove away." Resp. Exh. C, California Court of Appeal Opinion ("Cal. Ct. App. Opinion"), p. 5.
Glass put Randi in the passenger seat of the van and threatened to kill her if she tried to escape. Glass drove her about ten miles to his home and threatened her. He held her elbow in a manner which immobilized her arm as they walked up the front steps of the home. "In the room they previously shared, Randi sat on the bed while defendant paced and accused her [of] having an affair with Donna. He also told Randi he loved her, he did not mean to hurt her, and they were meant to be together. Randi did not respond but sat crying." Cal. Ct. App. opinion, p. 6. Glass lay down on the bed, closed his eyes, and snored. Randi wanted to leave but was frightened to crawl over him to get out of the bed, did not have her shoes or a car, and did not think the area was safe at that time. The telephone rang; it was Parker calling. Glass hung up the phone after saying he did not need her kind of help.
Glass then started kissing and touching Randi on her shoulders and back. Randi did not want Glass touching her; she tried to move away and was crying. Glass put his hands down Randi's pants and tried to remove them. He unbuttoned and unzipped her jeans, unsnapped her body suit and either removed her underpants or pushed them aside. He touched her breasts and digitally manipulated her vaginal area. He was interrupted by a ringing telephone. Randi's mother, Deanna, was calling and Glass passed the telephone to Randi. Deanna testified that Randi was crying and sobbing hysterically as they talked. Deanna called the police after Randi indicated she wanted that done. After the call, and while Randi was in a fetal position on her side and indicating she did not want Glass to approach, Glass ...