The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER: 1) REJECTING PETITIONER'S OBJECTIONS (Doc. No. 39); 2) ADOPTING REPORT AND RECOMMENDATION (Doc. No. 36); and PETITION FOR WRIT OF HABEAS CORPUS (Doc. No. 27). 3) DENYING SECOND AMENDED
Petitioner Ricardo Ponce ("petitioner"), a state prisoner proceeding through counsel, has filed a petition for writ of habeas corpus pursuant to Title 28 U.S.C. § 2254 challenging his March, 2000 conviction for forcible rape. (Doc. No. 1.) This matter was referred to United States Magistrate Judge William McCurine pursuant to 28 U.S.C. § 636(b)(1)(B). On August 29, 2007, Magistrate Judge McCurine issued a Report and Recommendation ("Report") recommending the Court deny the petition for writ of habeas corpus. Respondent filed objections to the Report on September 14, 2007.*fn1 (Doc. No. 37.) Petitioner filed objections to the Report on September 28, 2007. (Doc. No. 39.)
Following de novo review of petitioner's claims, the Court finds Magistrate Judge McCurine's Report to be thorough, complete, and an accurate analysis of the legal issues presented in the petition. For the reasons explained below, the Court: (1) adopts in full Magistrate Judge McCurine's Report; (2) rejects the petitioner's objections; and (3) denies the second amended petition for writ of habeas corpus.
The Court hereby incorporates by reference the magistrate judge's accurate recitation of the facts as determined by the California Court of Appeal. (Report at 5-6.) As the magistrate judge correctly noted, the Court presumes state court findings of fact to be correct. 28 U.S.C. § 2254(e)(1). To summarize, petitioner entered the home of his former fiancée, Leidy M., at approximately 4:00 a.m. on October 23, 1995. Leidy permitted petitioner to stay until her mother left the house, but then asked him to leave and reiterated her desire to end their relationship. Petitioner grabbed Leidy by the arms and legs and carried her to the bedroom against her will. He tied her hands behind her back with a sock, held her down, and raped her. In addition to testimony regarding the rape of Leidy M., the jury also heard testimony regarding two prior assaults by petitioner in 1991, the rape of Lupe C. and the attempted rape of Luz A.
On November 22, 1999, the San Diego County District Attorney's Office filed an Amended Information charging petitioner with one count of forcible rape in violation of California Penal Code Section 261(a)(2). The Amended Information also alleged the rape was committed by binding and tying the victim within the meaning of California Penal Code Section 667.61(b)(c)(e)(6), and contained special sentence-enhancing allegations that petitioner qualified as a habitual sexual offender (Cal. Penal Code § 667.71), had previously been in prison from prior sexual offense convictions in 1991 and 1992, and those prior convictions qualified as serious felonies (Cal. Penal Code § 667(a)) under California's Three Strikes Law (Cal. Penal Code § 1170.12). (Lodgment 1 at 7-8.)
On December 6, 2000, the jury found all special allegations were true and found petitioner guilty of rape. (Id. at 213-14.) The state court sentenced petitioner to a prison term of 85 years to life on March 17, 2000. (Id. at 219.) Petitioner appealed, and the California Court of Appeal affirmed his conviction in an unpublished written opinion of September 5, 2003. (Lodgment 3.) The Supreme Court of California denied review on November 14, 2003. (Lodgment 4.)
Petitioner, proceeding through counsel, filed his original petition for writ of habeas corpus on February 8, 2005. (Doc. No. 1.) Petitioner claimed (1) he was denied his Fifth, Sixth, and Fourteenth Amendment rights when he was prevented from testifying in his own defense by the trial court's ruling that the prosecution would be permitted to cross examine him about his prior sexual offenses, and (2) the admission of evidence of prior sexual offenses to show his propensity to commit such acts violated his Fourteenth Amendment right to due process of law.
Respondent filed an answer on May 11, 2005. On June 29, 2005, Magistrate Judge Leo S. Papas found claim one of the petition had not been exhausted in state court. (Doc. No. 12.) On August 2, 2005, petitioner moved to dismiss the unexhausted claim without prejudice and requested the Court stay proceedings while petitioner returned to state court to exhaust his claim. (Doc. No. 14.) Magistrate Judge Papas granted petitioner's motion for stay and abeyance on August 4, 2005. (Doc. No. 15.)
On August 25, 2005, petitioner filed a petition for writ of habeas corpus in the California Supreme Court, alleging the violation of his federal constitutional rights by the trial court's ruling regarding the scope of cross-examination. (Lodgment 10.) The Supreme Court of California denied review on June 14, 2006. (Lodgment 11.)
Returning to federal court, petitioner filed his first amended petition nunc pro tunc to July 19, 2006 (Doc. No. 21), and his second amended petition nunc pro tunc to November 16, 2006 (Doc. No. 27). Respondents filed an answer on January 31, 2007, which addressed the merits of both claims and asserted claim one had been procedurally defaulted. (Doc. No. 29) Petitioner moved to strike the answer, arguing the affirmative defense of procedural default had been waived. (Doc. No. 31.) The Court denied the motion on March 9, 2007, and ...