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February 10, 2004.

JEROME BRYANT, Petitioner,
TOM CAREY, Respondent

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

Petitioner is a California prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After an initial review, the Court ordered respondent to show cause why the petition should not be granted. Respondent has filed an answer accompanied by a memorandum and exhibits contending that the petition should be denied. Petitioner has not filed a traverse.


  The California Court of Appeal summarized the facts of the case as follows:
For present purposes, it is sufficient to state that the victim, 15-year-old Christina, passed out in petitioner's car after consuming alcoholic beverages purchased by petitioner. She had met petitioner that evening at a party in a motel. When she awoke, the car was parked; the car seat had been reclined; her clothes had been removed, except for her bra and panties; and petitioner was on top of her. He was wearing only his boxer shorts and his penis was touching the outside of her vagina. Christina thought that petitioner's penis entered her vagina "[a] little bit"
Christina screamed and tried to push petitioner off of her. At some point, petitioner ripped off her underwear. He put his hand on Christina's throat and told her to "shut the fuck up."
  Petitioner eventually got off Christina. He told her that he would give her money if she did not report him to the police. Christina did not accept any money from petitioner. Page 2
Petitioner drove Christina back to the motel where she was staying with her 18-year-old girlfriend Come. Christina told Come that petitioner had raped her and Come called the police.
See People v. Bryant, No. A096649, slip op. at 1-2 (Cal. Ct. App. Aug. 30, 2002) (Respt. Exh. 4) (hereinafter "Slip Op.").

  A jury convicted petitioner of attempted rape by intoxication and misdemeanor battery, and found that petitioner had a prior conviction. The trial court sentenced petitioner to five years in state prison. The California Court of Appeal affirmed on appeal, denying the two claims discussed herein. The Supreme Court of California denied the petition for review in a one-line opinion.


 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); Rose v. Hodges, 423 U.S. 19, 21 (1975).

  A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed 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." 28 U.S.C. § 2254(d); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). Habeas relief is warranted only if the constitutional error at issue had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Penry v. Johnson, 121 S.Ct. 1910, 1920 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). A federal court must presume the correctness of the state court's factual findings. 28 U.S.C. § 2254(e)(1). Page 3

 B. Legal Claims

  1. CALJIC No. 2.71.5

  Petitioner claims that the trial court violated his right to due process by issuing the following California model jury instruction regarding evidence of a defendant's adoptive admissions:
If you should find from the evidence that there was an occasion when the defendant, one, under conditions which reasonably afforded him an opportunity to reply, two, made false, evasive or contradictory statements in the face or an accusation expressed directly to him, charging him with the crimes for which this defendant is now on trial or tending to connect him with its commission, and three, that he heard the accusation and understood its nature, then the circumstance of his conduct on that occasion may be considered against him as indicating and admission that the accusation thus made was true. Evidence of an accusatory statement is not received for the purpose of proving its truth, but only as it supplies meaning to the conduct of the accused in the face of it. Unless you find that the defendant's conduct at the time indicated an admission that the accusatory statement was true, you must entirely disregard that statement.
CALJIC No. 2.71.5. The day after the rape, petitioner was interviewed by Detective Eubanks. Petitioner initially denied having sex with the victim. Eubanks continued the interview, and he lied to petitioner about the existence of DNA evidence on the victim's body, about having spoken to friends of petitioner, about petitioner's pubic hairs being found on the victim's underpants, and about petitioner receiving better treatment if he admitted his crime. Petitioner subsequently admitted to sexual contact with the victim. At trial, Eubanks admitted that he lied to petitioner during the interview. Eubanks explained that this was an interrogation technique designed to test the truth of petitioner's initial statement that he did not have sex with the victim.

  Petitioner argues that CALJIC 2.71.5 should not have allowed the jury to consider his adoptive admissions in response to the lies Eubanks told during the interrogation. Petitioner states that the jury should not have been allowed to use petitioner's adoptive admissions to evaluate petitioner's credibility "while treating [Eubanks's] falsehoods with impunity." Petitioner cites no Supreme Court or precedent, or any other authority, and this Court is aware of none, which prohibits as a matter of due process the use of adoptive admissions made in response to false statements by a police officer. Supreme Court Page 4 precedents is required for habeas relief to be granted pursuant to 28 U.S.C. § 2254(d)(1). Williams (Terry) v. Taylor, 529 U.S. 362, 412 (2000) (holding that federal habeas relief must be based on the decisions of United States Supreme Court).

  In any event, the general rule regarding jury instructions is that to obtain federal collateral relief for errors in the jury charge, a petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). The instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. Id. In the context of this case, the instruction did not render the trial unfair. As the California Court of Appeal correctly stated, the truth of Eubanks's statements was not relevant. The only relevance of Eubanks's statements was that petitioner believed them to be true and responded to those statements by changing his initial story, and admitting that he had sex with the victim Because petitioner believed Eubanks was telling the truth, the jury could reasonably infer from his responses to Eubanks's statements that petitioner's initial claims of innocence were untrue. Petitioner argues that the jury could have been "confused" by the instruction, but the instruction itself specifically informed the jury that it could not consider Eubanks's statements for their truth. In any case, even if the jury had considered whether Eubanks's ...

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