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Fanady v. Evans

December 11, 2008

NICHOLAS E. FANADY, PETITIONER,
v.
MICHAEL S. EVANS, WARDEN RESPONDENT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

[Doc. 1]

Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is represented by Philip M. Brooks, Esq.

BACKGROUND

Following a jury trial in the California Superior Court for the County of Fresno, Petitioner was convicted of nine counts of committing a lewd act on a child (Cal. Pen. Code*fn1 §288(a)), two counts of oral copulation (§ 288a(c)(1)), one count of attempted sexual penetration (§§ 289(j), 664), and one count of an attempted lewd act on a child (§§ 288(a), 664). Petitioner was sentenced to an indeterminate term of seventy-five years to life. (3 CT at 636-640.)

The judgment was affirmed by the California Court of Appeal, Fifth Appellate District.) The California Supreme Court summarily denied review on April 11, 2007.

Petitioner filed the instant federal petition for writ of habeas corpus on July 9, 2008. (Court Doc. 1.) Respondent filed an answer to the petition on September 19, 2008, and Petitioner filed a traverse on October 15, 2008. (Court Docs. 16, 19.)

STATEMENT OF FACTS*fn2

In 1995, W.V. encountered defendant when he was nine or ten years old. W.V. was at Woodward Park with family and friends. The first time he saw defendant, defendant exposed himself. Later that day, W .V. wandered off by himself and defendant followed him. Defendant talked to him and led him into the restroom. Defendant pulled down his shorts and asked W.V. if he wanted to touch defendant's penis. Defendant grabbed W. V.'s hand and put it on defendant's penis and moved W. V.'s hand back and forth. While doing this, defendant's other hand was on W. V.'s testicles. Defendant took off W. V.'s pants and touched W. V.'s penis. Defendant put his mouth on W. V.'s penis. Defendant stopped when someone entered the restroom. Defendant pulled up W. V.'s pants and his own pants and walked out. (Count 1-lewd and lascivious act of placing victim's hand on defendant's penis; count 2-lewd and lascivious act of rubbing victim's testicles; count 3-lewd and lascivious act of putting victim's penis in his mouth; count 4-oral copulation, an alternative count to count 3; these counts were charged under Pen.Code [footnote] § 288, subd. (a), except count 4, which comes under § 288a, subd. (c)(1).)

W. V.'s second encounter with defendant was in the summer of 1995. W.V. saw defendant walking and W.V. tried to hide. W.V. stayed with his parents for awhile and then went to play with his brother. Defendant found W.V. W. V.'s brother left. Defendant led W.V. into a hollowed-out place between some branches. Defendant massaged W. V .'s penis and testicles. He pulled down W. V.'s pants and felt his penis and testicles. Defendant put his mouth on W. V.'s penis. (Count 5-lewd and lascivious act of placing victim's penis in his mouth; count 6-oral copulation, an alternative count to count 5; count 7-rubbing victim's testicles; these charges were under § 288, subd. (a), except count 6, which comes under § 288a, subd. (c)(1).)

W.V. saw defendant at the park by the amphitheater in 1996. Defendant pulled down W. V.'s pants. Defendant felt W. V.'s testicles and then orally copulated him. Defendant masturbated until he ejaculated. He asked W.V. if he wanted a birthday gift. (Count 8-lewd and lascivious act under § 288, subd. (a).)

The last encounter W.V. had with defendant was in 1997. W.V. was at the park. Defendant walked W.V. to the restroom, expressing his feelings for him. In the restroom, defendant touched W. V.'s private parts over his clothes. The clothes came off and defendant kissed W.V. all over. Defendant pulled W.V. close and touched their penises together. He then orally copulated W.V. Defendant also attempted to put his finger in W. V.'s anus, but W.V. prevented him from doing this. (Count 9-lewd and lascivious act of pressing their exposed penises together; count 11-lewd and lascivious act of orally copulating victim; count 12-attempted sexual penetration when defendant attempted to put his finger in the victim's anus; these charges were under § 288, subd. (a), except count 12, which comes under §§ 264/289, subd. (j).)*fn3

W.V. did not have the courage to tell anyone what happened until he learned of defendant's arrest in 2004 for incidents occurring in 2000 and 2004.

In 2000, D.P. was 11 years old and living with his mother in Fresno. Defendant was a local television broadcaster. D.P. saw defendant on television. On a televised newscast, defendant remarked he had not seen one of the new golden dollar coins that were in circulation. D.P. wanted to bring a coin to the station to give to defendant. D.P. and his mother drove to the television station to give the coin to defendant. Defendant came out to the reception area and D.P. gave him the coin. Defendant then took D.P. and his mother on a short tour of the station. Defendant gave D.P. some items from the station to take home with him. He invited D.P. to come back to the station and have lunch with him.

D. P.'s mother made an appointment for D.P. to return to the station. She dropped D.P. off at the station. Defendant took D.P. out to lunch and brought him back to the station for a broadcast. When they were finished, defendant drove D.P. home.

Defendant telephoned D. P., e-mailed him, and mailed him letters. He invited D.P. on a fishing trip at a location near his house. D. P.'s mother agreed to the fishing trip and on May 20, 2000, defendant arrived at D.P.'s home to take him fishing.

D.P. and defendant fished. Defendant then asked D.P. if he had ever gone skinny-dipping. D.P. did not know what skinny-dipping was. Defendant described it to him. Defendant said to D. P., "let's try it." D.P. agreed. D.P. and defendant took off their clothes and got into the water. Defendant put his arm around D.P. and glided D.P. through the water. D.P. felt defendant's chest touch his back. D.P. also felt defendant's penis touch his lower back, "just above his crack." D.P. did not know if defendant's penis touched him intentionally or accidentally. D.P. got out of the water and said he was not comfortable. When D.P. got out of the water, D.P. had an erection. Defendant noticed the erection and said to D.P. that he had a "stiffy." D.P. was embarrassed. Defendant also told D.P. that he had a nice body. (Count 13, lewd and lascivious act, ยง 288, subd. (a).)D.P. and defendant got dressed and went farther down the river to a tree house defendant said he built with a boy named Jimmy ...


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