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Evans v. Sisto

March 6, 2009


The opinion of the court was delivered by: Alfred T. Goodwin United States Circuit Judge Sitting by designation


Petitioner Jerry Evans, proceeding pro se, is before this Court on his writ of habeas corpus. Respondent D.K. Sisto filed an answer to Evans' petition ("Answer") on December 3, 2007. Petitioner has filed a Traverse. This Court has jurisdiction under 28 U.S.C. § 2254. For the reasons stated below, the petition is DENIED.

Petitioner is currently confined at the California State Prison at Solano after being sentenced by the Superior Court of Shasta County, CA. After a bench trial, Evans was found guilty, inter alia, of residential burglary, forcible oral copulation, and spousal rape, on October 15, 2003. On December 19, 2003, the court sentenced Evans to 25 years to life in prison. After exhausting his available state court appeals, petitioner then brought this petition. Evans alleges that there was insufficient evidence to support his burglary convictions, that his sentence of 25 years to life violates the Eighth Amendment, and that he was denied effective assistance of counsel. The procedural and factual background, followed by an analysis of each claim, is presented below.


On August 28, 2002, the Shasta County District Attorney's Office charged petitioner with ten counts of violating various sections of the California Penal Code as follows: Counts One and Two, residential burglary in violation of § 459; Count Three, assault with a firearm in violation of § 245(a)(2); Count Four, false imprisonment in violation of § 236; Count Five, criminal threat in violation of § 422, Count Six, kidnapping in violation of § 207; Count Seven, kidnapping for the purpose of spousal rape in violation of § 209(b)(1); Count Eight, spousal rape in violation of § 262(a)(1); Count Nine, forcible oral copulation in violation of § 288a(c)(2); Counts Ten and Eleven, child abuse in violation of § 273a(a); and Count Twelve, damage of a telephone line in violation of § 59. In addition, the Information alleged because of certain special allegations, petitioner was subject to sentencing enhancements mandating a 15-years-to-life and 25-years-to-life sentence for certain counts. Respondent's Lodged Document ("LD") 8 at 4.

On October 6, 2003, petitioner waived his right to a trial by jury. LD 8; Clerk's Transcript ("CT") 66. On October 15, 2003, after a one week trial, the court found Evans guilty on Counts 1-9, not guilty on Counts 10-11, and guilty on Count Twelve. The court found the firearm use enhancements to be true on all counts alleged except Count Three, and the special allegation sentencing enhancements relating to Counts 8-9 to be true. LD 8; CT 374-75.

On December 19, 2003, the court denied petitioner's motion for a new trial and rejected his claim that the proposed sentence constituted cruel and unusual punishment. The court did strike its previous finding that Counts 8-9 were committed in the course of a burglary and that the transportation of the victim substantially increased the risk of harm. LD 8; CT 430-431. Petitioner was sentenced that day to 25 years to life in California state prison. On December 22, 2003, petitioner filed his timely notice of appeal. On June 29, 2005, the Court of Appeal, Third Appellate District, affirmed his conviction. LD 3.

On July 11, 2005, petitioner appealed and filed a petition for review before the California Supreme Court, claiming that his burglary convictions were not supported by evidence, and his sentence constituted cruel and unusual punishment. LD 4. On September 7, 2005, the California Supreme Court summarily denied his petition. LD 5.

On May 27, 2007, petitioner filed a petition for writ of habeas corpus with the California Supreme Court, claiming ineffective assistance of counsel. LD 6. On August 8, 2007, the California Supreme Court again summarily denied his petition. LD 7. Petitioner exhausted all available state court remedies as to the claims filed in the current petition before this Court.


This court has before it the statement of facts taken from the unpublished opinion of the Third District Court of Appeal (Lodged Doc. 3, dated June 29, 2005), which carries a statutory, rebuttable presumption of correctness. See 28 U.S.C. § 2254(e)(1).

The facts, as drawn from the Third District Court of Appeal's opinion ("LD 3"), are as follows. Petitioner and the victim, his wife Sandra Evans, married in September 1997. Their relationship was troubled from the beginning and marked by frequent, violent fights. About six months into the relationship, petitioner began taking medication to treat his bipolar disorder. In April 2002, the victim told petitioner she wanted to end the marriage, and petitioner responded by attempting suicide. He was taken to a hospital and mental health facility. After he was released, he tried contacting the victim for a reconciliation, and threatened suicide again. The victim called 911 and petitioner returned to the mental health facility. The victim subsequently obtained and served a restraining order against petitioner and began divorce proceedings. She also changed the locks on the house, which the victim had previously owned, but had converted to a joint tenancy with petitioner in 1998.

On May 5, 2002, the victim received a phone call, from petitioner, on her cell phone with the caller ID display showing the call was being made from her home phone. She told him to leave the house. When she returned, she found a kitchen knife and knotted towel under the mattress. Several days later, petitioner admitted he had left the items there and planned to tie her up that day.

On May 10, 2002, the victim failed to keep a previously scheduled appointment with friend Tonya Odell. Odell drove to the victim's house and saw that the door had been kicked in, and victim's two-year-old daughter, Natalee, was walking in the house unattended. The victim's 12-year-old daughter, Kailee, was sleeping and there was a note next to her, written by the victim, directing Kailee to call her grandmother. Odell and a co-worker with her called the police. The incomplete divorce proceedings were still pending.

At trial, the victim testified about the events that occurred the previous evening. Around 2:30 a.m. on May 10, the victim was awakened by petitioner, who was pointing a handgun at her and had rope in his hand. He threatened to kill her and the children if she did not do as he said, and then tied her to the bed, while he was walking around the house drinking and smoking methamphetamine. He talked to victim about killing himself and told her he wanted them to have sex "one last time." Around 5 a.m., he took the victim out of the house because he feared the police would appear. The victim left a note for Kailee and then left with petitioner, fearing for her own and life and that of her children if she didn't.

Petitioner had the victim drive without telling her their destination, and during the trip, he kept his handgun in his lap with the barrel facing up. He told her he wanted to have sex with her and said he would let her go back to her children if she allowed him to. He continued to drink and smoke methamphetamine while in the car. After driving for several hours, they stopped at a hotel in Susanville. Petitioner wrapped the handgun in a blanket and took it upstairs with them, where he and the victim had sex. Petitioner kept the handgun within reach at all times. The victim then asked if she could go home, but petitioner insisted that they stay and talk.

An hour later, they began to drive back to victim's home. Petitioner placed the handgun in the trunk at the victim's request. When they arrived at her home, the police were waiting. The officers searched petitioner's bag, which contained ropes, duct tape, side cutters, a screwdriver, and prescription medication bottles. Officers also found a loaded rifle in petitioner's car trunk, in addition to petitioner's handgun. Police also found that the telephone lines to the house had been unplugged.

Petitioner was interviewed shortly after his arrest. The interview was videotaped and reviewed by the court during the trial. In the interview, petitioner admitted going to the victim's house at around 1:45 a.m. on May 10 with some rope, a rifle, and a screwdriver. He admitted being angry at the victim and breaking into her home and cutting her phone lines. He also admitted tying the victim up, forcing her to leave the home, and generally confirmed the ...

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