FINDINGS AND RECOMMENDATIONS
Petitioner Glenn Holsome, a state prisoner proceeding with appointed counsel*fn1, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner attacks his conviction in the San Joaquin County Superior Court, case number SF079647A, for spousal rape and false imprisonment by violence.
Petitioner claims that the trial court erred:
A. By allowing admission of propensity evidence; and
B. By informing the jury petitioner allegedly had a prior conviction for rape and was an alleged habitual sexual offender.
Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's petition for habeas corpus relief be denied.
III. FACTUAL AND PROCEDURAL BACKGROUND
In 1997, the victim and defendant were married. Defendant started drinking in November 1999 and became verbally abusive. In December 1999, the victim learned that defendant had hepatitis A, B and C, some of which had been sexually transmitted, and made defendant use a condom. Their sex life changed and the victim no longer trusted defendant because of his promiscuity and diseases. In May 2000, defendant moved out and the victim changed the locks.
On June 2, 2000, the victim allowed defendant to return on the conditions that he use the spare bedroom and agree that there would be no sexual intercourse. He was not given a key. From June 2 through June 9, the victim and defendant did not engage in sexual intercourse.
In the evening on June 9, 2000, the victim and defendant were drinking. At approximately 7:00 p.m., the victim's sister called. The victim's sister was shocked that defendant answered the phone; the victim had not told her sister that defendant had been allowed to move back in. Defendant eavesdropped on the conversation and became irate, calling the victim a "dirty bitch." Later in the evening, defendant, intoxicated, grabbed the victim, telling her "Bitch, I'm going to fuck you all night long." He pulled her into the bedroom. She resisted at first but he said he was going to kill her. He pushed her onto the bed, forcibly removed her pants and panties and climbed on top of her. After putting on a condom so that she would "not be able to prove" it, he raped the victim, ignoring her pleas to stop. He had penetrated her first with his hand. He told her that he had disabled the telephone to prevent her from calling the police. He rolled over onto the bed, keeping his arm over the victim which prevented her from leaving. About one hour later, when the victim believed defendant had fallen asleep, she got up and went to the front door, planning to escape wearing only a T-shirt. Defendant stopped her as she unlocked the door. He slapped her and pushed her down to the floor. She fell into a ceramic planter and plant, damaging the plant and injuring her buttocks. Defendant pulled her up stating, "Bitch, I'm going to kill you." He pushed her onto the bed where he again raped her despite her protestations. He also penetrated her with his hand. He rolled over onto the bed, placing his hand on her which prevented her from leaving. She got up a couple of hours later. Defendant's arm was no longer preventing her from leaving. She rattled some dishes in the kitchen to make sure he was still asleep. She then left.
The victim called the police on her cell phone about 6:00 a.m. on June 10, 2000, and met police at a grocery store. An officer described the victim as very scared, nervous and upset. At the victim's apartment, an officer found dirt on the floor from a planter near the front door. The plant in the planter looked damaged. The bed linens had a reddish spot, possibly blood. A condom wrapper was found on the dresser.
The victim sustained a large bruise on her buttocks. She had a half-inch long tear of the posterior fourchette of her vagina which was caused by friction and consistent with a sexual assault.
The victim admitted on cross-examination that she had a bank account with defendant's name on it to which his monthly Social Security check was directly deposited. After defendant's arrest and incarceration, one check had been deposited into the account.
The prosecution introduced defendant's prior acts of domestic violence. In May 2000, defendant spit in the victim's face and pulled out the telephone cords. The victim used her cell phone to call the police. She did not want to press charges but wanted defendant to leave. The police removed defendant from the house. Defendant told an officer that the phone cords were his and that he did not think there was a problem if he ripped them out of the wall. In July 1996, defendant physically abused his then girlfriend with whom he lived. She sustained an injured jaw. Defendant explained to an officer that he hit her because she had been with three men behind the apartment complex, engaging in oral copulation with one of them.
Defendant was also convicted in May 1986 for felony domestic violence (§ 273.5).
The defense presented the testimony of the victim's father and son and defendant's mother, niece and sister-in-law. According to the victim's father, the victim was untruthful the majority of the time and, on one occasion, told her father that she planned to butt her head against the wall, call the police and tell them that defendant was responsible.
The victim's son introduced defendant to the victim. The son met defendant in jail. In 1996, the three of them got high on crack cocaine in a motel room. The son said the victim had not been a very honest person. The victim had a restraining order for the last two years against her son. In 1999, the son pleaded guilty to terrorist threats either against the victim or defendant. In 1987, the son was convicted of felony battery upon a spouse. In 1985, the son was convicted of selling marijuana. In 1981, he was convicted of burglary.
Defendant's mother described the victim as a liar. Defendant's mother claimed that the victim had planned to "put[ ] [defendant] away" for Father's Day because she did not want him anymore and wanted to be free. Defendant's niece had overheard the victim say that she planned to get rid of defendant by putting ...