The opinion of the court was delivered by: Hon. Barry Ted Moskowitz United States District Judge
ORDER: (1) ADOPTING THE FINDINGS AND MAGISTRATE JUDGE AND OVERRULING OBJECTIONS THERETO; JAMES E. TILTON, Secretary, (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND CONCLUSIONS OF (3) ISSUING A CERTIFICATE OF APPEALABILITY
Petitioner is a California prisoner proceeding with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for kidnapping for rape and assault with intent to commit rape. Petitioner claims that his Fourteenth Amendment rights to due process and a fair trial were violated because there was insufficient evidence of his intent to rape the victim (claim one), and because it was not harmless error to introduce evidence which had been seized in violation of the Fourth Amendment (claim two).
Presently before the Court is a Report and Recommendation ("R&R") submitted by United States Magistrate Judge Ruben B. Brooks, which recommends denying the Petition. (Doc. No. 12.) The Magistrate Judge found that habeas relief is unavailable because the state court's adjudication of claim one was objectively reasonable within the meaning of 28 U.S.C. § 2254(d), and because claim two is not cognizable on federal habeas under the doctrine announced in Stone v. Powell, 428 U.S. 465 (1976), but that even if claim two were cognizable, the state appellate court did not apply harmless error review in an objectively unreasonable manner. Petitioner has filed Objections to the R&R. (Doc. No. 14.)
The Court has reviewed the R&R pursuant to 28 U.S.C. § 636(b)(1), which provides that: "A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1) (West Supp. 2006). For the following reasons, the Court adopts the findings and conclusions of the Magistrate Judge as set forth below and overrules the objections thereto, denies habeas relief, and issues a Certificate of Appealability.
Petitioner was initially convicted of kidnapping, kidnapping for rape, assault with intent to commit rape, and false imprisonment by violence following a jury trial based on evidence that he impersonated a security officer in order to lure an eighteen year-old woman into his van where he attempted to rape her. Upon his arrest the police seized videotapes showing him sexually assaulting his ex-wife while she was asleep or unconscious. His motion to suppress the videotapes was denied, and he pled guilty to rape of an unconscious person, oral copulation of an unconscious person and three counts of object rape of an unconscious person. A stipulation describing the contents of the videotapes was introduced at the trial in the van incident for the purpose of showing Petitioner's propensity to commit rape. The convictions arising from the incident involving Petitioner's ex-wife were overturned after the appellate court found that the videotapes, which provided the only evidence to support those convictions, had been illegally seized. The court also overturned the convictions for kidnapping and false imprisonment arising from the van incident, finding them to be lesser included offenses of kidnapping for rape and assault with intent to commit rape. The appellate court refused to overturn the convictions for kidnapping for rape and assault with intent to commit rape, finding that the introduction at trial of the stipulation describing the contents of the videotapes was harmless error.
Petitioner contends in claim 1 that his Fourteenth Amendment rights were violated because there was insufficient evidence adduced at trial that he intended to rape the victim in the van incident. (Pet. at 6-9.) The Magistrate Judge found that under the standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979), sufficient evidence existed in the record to support the jury's finding that Petitioner had the intent to rape the victim, and, applying the deferential standard of review set forth in 28 U.S.C. § 2254(d), concluded that the state appellate court's determination to that effect was neither contrary to, nor involved an unreasonable application of, clearly established federal law as set forth in Jackson. (R&R at 13-22.) The evidence supporting intent to rape identified in the R&R included the victim's testimony that Petitioner impersonated a security guard to get her into the van where he forced her to lie on her back, pinned her arms down and straddled her, coupled with the evidence of Petitioner's prior sexual offenses against his ex-wife which showed his propensity to commit rape. (R&R at 20-22.)
Petitioner first objects to the application of 28 U.S.C. § 2254(d) to the state appellate court opinion, contending that the state court's failure to make mention of the federal standard of review set forth in Jackson requires a de novo review of the claim. (Obj. at 2-3.) Petitioner contends the Magistrate Judge erred in relying on Early v. Packer, 537 U.S. 3 (2003) for the proposition that section 2254(d) applies even when the state court does not specifically reference the federal standard of review. The Magistrate Judge concluded that section 2254(d) applied to the state court opinion despite the fact that it did not mention the Jackson standard or federal law, based on the statement in Packer that a state court need not even be aware of relevant United States Supreme Court's cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Packer, 537 U.S. at 8. The Ninth Circuit has characterized that statement in Packer as dictum. Sims v. Rowland, 414 F.3d 1148, 1152 n.2 (9th Cir. 2005). However, Petitioner's contention that this Court is free to disregard the deferential standard of review set forth in section 2254(d) is foreclosed by Juan H. v. Allen, 408 F.3d 1262 (9th Cir. 2005), which applied section 2254(d) to a California appellate court opinion which also failed to reference federal law and applied a nearly identical standard of review as the one applied by the state appellate court here. Compare id. at 1275 n.12 with Lodgment No. 9, People v. Majors, No. D037968, slip op. at 18. The Court therefore overrules this objection.
Petitioner next objects to the Magistrate Judge's application of 2254(d), focusing on a concluding statement in the R&R that "all that is required" under Jackson is that intent to commit rape is one rational interpretation of the evidence presented at trial. (Obj. at 3, citing R&R at 22, ln. 14-16.) The Magistrate Judge correctly identified the scope of review of an insufficiency of the evidence claim under Jackson and section 2254(d), and correctly applied those standards to the state appellate court opinion. (R&R at 14-22.) The phrase used in the R&R's conclusion as to that review, that all that is required under Jackson is that one rational interpretation of the evidence supports intent to commit rape, is an incorrect statement of the application of section 2254(d) and Jackson to a claim of insufficiency of the evidence. The correct standard is, viewing the evidence in the light most favorable to supporting the verdict, and giving deference to the state courts findings of fact, whether no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Juan H., 408 F.3d at 1276. That was in fact the standard applied by the Magistrate Judge. (R&R at 22, ln. 4-13.)
The Magistrate Judge correctly found that even if the evidence was sufficient to show that Petitioner had the intent to commit some other type of sexual assault, as he contends, the evidence was also sufficient to establish that he had the intent to commit rape. The Court overrules the objection to the standard of review used in the R&R. The Court also overrules Petitioner's objection to the Magistrate Judge's finding there was sufficient evidence that he had the intent to rape the victim. The Magistrate Judge correctly found that the victim's testimony, coupled with evidence that Petitioner had a propensity to commit rape as shown by the prior rape of his ex-wife, constituted sufficient evidence of intent to commit rape. (R&R at 18-22.) The Court adopts the findings and conclusions of the Magistrate Judge with respect to claim 1, and denies habeas relief for the reasons set forth in the R&R.
Petitioner contends in claim 2 that the admission of evidence that he raped his ex-wife in order to show his propensity to commit rape violated his Fourteenth Amendment rights to due process and a fair trial. (Pet. at 10.) He contends habeas relief is available in this Court because the evidence was seized in violation of his Fourth Amendment rights, and because the state appellate court erred in finding the admission of the evidence harmless. (Id.)
When Petitioner was arrested following the van incident, videotapes were found in his home which showed him sexually assaulting his ex-wife while she was either asleep or unconscious. After his motion to suppress the videotapes was denied, he pled guilty to rape of an unconscious person, oral copulation of an unconscious person, and three counts of rape with a foreign object on an unconscious person, and proceeded to trial on charges related to the van incident. The trial court found that the videotapes were admissible as propensity evidence in the trial on the charges arising from the van incident, but granted a defense motion to limit the scope of the evidence after finding that the ...