The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITION FOR WRIT OF HABEAS CORPUS PROCEDURAL HISTORY
Tyrone Rogers filed a Petition for Writ of Habeas Corpus on November 14, 2006 challenging his prison sentence.*fn1 (Petition, at 11.) On January 13, 2004, a San Diego County Superior Court judge found Petitioner guilty on one count of rape by foreign object of an unconscious victim under California Penal Code §289(d) and one count of attempted rape of an unconscious person under Penal Code §261(a)(4), 664. (Lodgment 1, at 40; Lodgment 2, vol. 2, at 156.) Petitioner appealed his conviction, which the California Court of Appeal denied in part on September 12, 2005. (Lodgment 6.) Rogers argued the trial court erroneously denied his Faretta motion, the admission of evidence as to his prior convictions under California Evidence Code §1108 violated his due process and equal protection rights, the proof of prior convictions by the preponderance of evidence violated his due process right to proof of guilt beyond reasonable doubt, the evidence in support of his prior convictions was insufficient, and his sentence of 25 years to life under the three strikes law was cruel and unusual. (Lodgment 6, at 2.) The Court of Appeal upheld the conviction and sentence except the imposition of one of two five-year enhancements under Penal Code §667(a). The court remanded with directions to amend. (Lodgment 6, at 36.) The California Supreme Court denied review on November 16, 2005. (Lodgment 7, Lodgment 8.)
Petitioner argues on habeas corpus that the trial court erroneously denied his Faretta motion, the admission of evidence as to his prior convictions under California Evidence Code §1108 violated his due process and equal protection rights, and the proof of prior offenses by the preponderance of evidence violated his due process right to proof of guilt beyond reasonable doubt. (Petition, at 6-8.) Respondent filed an answer to the Petition on February 6, 2007. (Document 5-2.) Petitioner filed a traverse on February 28, 2007. (Document 7.) The Magistrate Judge filed a Report and Recommendation to deny the Petition on April 19, 2007. (Document 1, at 15.) This Court adopts the Report and Recommendation and denies the Petition.
FACTS The 2003 Offenses*fn2
Rogers temporarily shared a townhouse in July 2003 with his former girlfriend, LouAnne Stewart. LouAnne slept in the master bedroom downstairs and Petitioner slept in a spare bedroom downstairs. Tom Nichols also lived in the townhouse and slept in the living room upstairs. Petitioner agreed to move out of the house by the end of July.
On July 14, LouAnne watched movies with Nichols. She consumed alcohol and at 11:30 P.M. she went downstairs to her bedroom to do paperwork. Around 11:45 P.M. Rogers entered LouAnne's bedroom and asked whether she wanted to watch a movie with him. She declined and he went to his bedroom.
At 1:30 A.M. LouAnne put on her nightgown and took clonazepam, a prescription anti-anxiety pill. She fell asleep. At about 3:00 A.M., LouAnne awoke and found Petitioner lying on top of her. Her legs were spread apart, her nightgown was pushed up, and Petitioner was raping her. She shouted: "You're raping me. Ty, you're raping me." Rogers replied, "Shhh.Don't say anything." She tried to push him off her. When she threatened to call the police, Rogers got up and was naked. LouAnne tried to call 911 from her bedroom telephone but it did not work because Rogers had unplugged it. She tried to use her cellular phone but its battery was missing. As she left her bedroom to use the upstairs telephone, Rogers walked ahead of her. Nichols, who woke up to the sound of unusual noises, saw Rogers walk out of LouAnne's bedroom, naked. Nichols heard her scream that Rogers had raped her.
The police arrested Petitioner. He admitted he had digitally penetrated LouAnne and had unplugged her bedroom telephone to prevent her from calling the police. An information charged Rogers with one count of rape by a foreign object of an unconscious victim and one count of attempted rape of an unconscious person. It further alleged Petitioner had two prior serious felony convictions within the meaning of California Penal Code §667(a)(1) and the three strikes law, §667(b)-(i), 1170.2.
Rogers testified in his defense that his sexual activity with LouAnne was consensual. He admitted he digitally penetrated her. He also admitted his prior serious felony convictions. In rebuttal, LouAnne denied she consented to any sexual activity with Petitioner.
A jury convicted Petitioner in 1994 on two counts of first degree burglary of a residence for sexual purposes under California Penal Code §459. (Lodgment 1, at 2-3; Lodgment 2, vol. 1, at 3; Lodgment 2, vol. 3, at 15; Lodgment 2, vol. 2, at 157.) At trial in 2004, Ruth S. testified that at 5 A.M. on August 6, 1994 she saw Petitioner kneeling beside her bed, touching her leg. She screamed and her boyfriend chased Rogers out of their apartment. Ruth later found a condom in her bedroom that did not belong to her or her boyfriend.
Donna K. testified at Petitioner's trial in 2004 that at 3:20 A.M. on August 13, 1994 she awoke to find Petitioner kneeling beside her bed. She asked Rogers what he was doing. He replied that he had been drinking and had accepted a dare. She told him to leave and led him to the front door. On leaving, Rogers told her: "Well, it's too bad that you weren't up for it." Donna replied: "Excuse me?" Rogers clarified: "For a little lovin'."
At an In Limine hearing on January 9, 2004, counsel for Petitioner objected to the court receiving evidence of Petitioner's prior sex offenses that occurred in 1994. (Lodgment 2, vol.1, at 2-3.) Counsel objected on grounds the evidence was "highly prejudicial under Evidence Code 352" and would be "terribly inflammatory against [his] client." (Id.) He argued the two prior offenses were remote and dissimilar to the current allegation. (Id.) The judge accepted the evidence because he found it to be relevant under California Evidence Code §1108 and because the pattern of behavior in the prior offenses was similar to the conduct in question. (Id., at 3, 4-5.) Therefore, he found the evidence was not overly prejudicial. (Id., at 4.)
At a Marsden Hearing on January 12, 2004, Petitioner asked the trial judge to relieve counsel. People v. Marsden, 2 Cal.3d 118 (1970). (Lodgment 2, vol.3, at 8-20.) The court asked: "Why do you want [counsel] relieved?" (Id., at 11.) Petitioner responded: "I don't really want him-your honor, I actually wanted to, ah, -a continuance." (Id.) After further discussion on the admissibility of evidence that Petitioner wanted to introduce (Id., at 13), and before the judge had made any ruling or suggestion as to the status of counsel, Petitioner admitted: ".maybe I should talk to my counsel about it. I know you haven't dismissed him or anything. I -- it's still -- I still feel if I had a month, I would be comfortable. Or two weeks." (Id., at 14.)
When the court informed Petitioner that trial was to commence that day, Petitioner asked: "So you're not dismissing my counsel." (Id., at 17.) The court responded that there was no basis to do so. (Id.) Petitioner then asked: "What if I decide to go pro per? You have to grant that." (Id.) The court agreed, and Petitioner then stated that he wanted "to go pro per." (Id.) The judge responded that "[t]his is not a stall contest, sir. You have given me no reason to relieve [counsel].And if you say you want to go pro per, you have the right to do that.But not-not to delay the trial for that purpose." (Id.) Petitioner asked: "I mean, how do I go pro per if I don't have.preliminaries in front of me?" (Id., 17-18.) The court declined to postpone trial and determined Petitioner's Faretta motion was a stall tactic. (Id., at 20.) After a recess, the court resolved Petitioner's request by inquiring, in light of the court's decision to deny a continuance, whether Petitioner wanted to proceed pro per. "There was a possible request by Mr. Rogers to represent himself. ...