The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER ADOPTING REPORT AND RECOMMENDATION DENYING WRIT OF HABEAS CORPUS
On April 30, 2008, Petitioner, Christopher Adame, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner contends a violation of his federal constitutional rights occurred when the trial court admitted the previous testimony of an unavailable witness, and that his rights were violated by ineffective assistance of counsel. (Id.) On June 19, 2008, Respondent answered. (Doc. No. 8.) On July 23, 2008, the Petitioner filed a traverse. (Doc. No. 9.) On July 25, 2008, the Magistrate Judge issued a Report and Recommendation. (Doc. No. 10.) On August 25, 2008, Petitioner filed objections to the Report and Recommendation. (Doc. No. 11.) This Court considered these documents and all the supporting documents submitted by the parties. For the reasons set forth below, the Court DENIES the petition.
On June 7, 2004, the San Diego County District Attorney's Office filed a consolidated information in Case Nos. SCD176307 and SCD180441, charging Petitioner with the following counts:
(1) forcible rape, in violation of California Penal Code § 261(a)(2); (2) forcible oral copulation, in violation of California Penal Code § 288a(c); (3) false imprisonment by violence, menace, fraud, and deceit, in violation of California Penal Code §§ 236, 237(a); (4) robbery in violation of California Penal Code § 211; (5) receiving stolen property, in violation of California Penal Code § 496(a); (6) forcible rape, in violation California Penal Code § 261(a)(2); (7) forcible oral copulation, in violation of California Penal Code § 288a(c); (8) robbery, in violation of California Penal Code § 211; (9) false imprisonment by violence, menace, fraud, and deceit, in violation of California Penal Code §§ 236, 237(a); (10) receiving stolen property, in violation of California Penal Code § 496(a); and (11) soliciting an act of prostitution, in violation of California Penal Code § 647(b). (Clerk's Transcript ("CT") at 6-10.)
On September 15, 2004, a jury found Petitioner guilty of all counts except for counts nine and ten, which the People subsequently dismissed. (CT at 391-411.) The trial court sentenced Petitioner to 74 years, 8 months, to life. (CT at 411.)
Petitioner filed an appeal in the California Court of Appeal, Fourth Appellate District, Division One. (Lodgment No. 3.) In his appeal Petitioner argued: (1) the trial court erred in admitting the preliminary hearing testimony of witness Pamela because the people failed to establish that they had exercised due diligence in attempting to secure her presence at trial; (2) the trial court erred in failing to suppress evidence police found after they unconstitutionally seized and searched his car; (3) his trial counsel was ineffective when he failed to raise certain arguments in support of a motion to suppress evidence; (4) the applicable statute of limitations required reversal of his conviction for receiving stolen property; and (5) his felony false imprisonment convictions must be reversed because felony false imprisonment is a lesser included offense of forcible rape and forcible oral copulation. (Id.) On November 3, 2006, the Court of Appeal affirmed unanimously affirmed the judgment in an unpublished opinion. (Lodgment No. 6.)
Petitioner sought review from the Supreme Court of California arguing that: (1) the trial court erred in admitting Pamela's preliminary hearing testimony at trial because the People failed to establish that they had exercised due diligence in attempting to secure her presence at trial; (2) the trial court erred in failing to suppress evidence police found after they unconstitutionally seized and searched his car; (3) his trial counsel was ineffective because he failed to raise certain arguments in support of a motion to suppress evidence. (Lodgment No. 7.) On February 14, 2007, the California Supreme Court summarily denied the petition for review. (Lodgment No. 8.) Following the California Supreme Court's denial, Petitioner filed a federal petition on April 30, 2008. (Doc. No. 1.)
This Court gives deference to state court findings of fact, presuming them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence.
28 U.S.C. § 2254(e)(1). The California Court of Appeal summarized the facts and trial history as follows:
The Offenses Against Erin
On the evening of May 27, 2003, Erin was working as a prostitute on El Cajon Boulevard in the City of San Diego. Petitioner approached her and asked her if she was "working." Erin indicated that she was, and got into his car. Petitioner drove to a parking lot in Mission Valley.
Petitioner agreed to pay Erin $60 to have sex. When Erin asked for the money, Petitioner responded that he would give it to her in a minute. Petitioner told her to get in the back seat, and she did so. Petitioner then got in the back seat and pulled out a knife from a pocket on the seat back. Petitioner held the knife to Erin's throat and told her to give him her money. Erin complied. Petitioner demanded that Erin give him a "blow job" and also demanded that she have vaginal intercourse with him. Erin complied with these demands as well. After Petitioner finished sexually assaulting Erin, he ordered out of the car and drove away.
The Offenses Against Pamela On the evening of June 8, 2003, Pamela was sitting at a bus stop on El Cajon Boulevard, working as prostitute. Petitioner approached her in his car and told her that he wanted her to orally copulate him. Pamela and Petitioner agreed on a price for her services, and Pamela got into the car. Petitioner drove to an underground parking garage in Mission Valley. After they arrived at the garage, Pamela asked to be paid. Petitioner hesitated, then grabbed a knife and told her to "shut up and suck his dick." Petitioner held the knife to Pamela's face while she orally copulated him. After "a few minutes," Petitioner told Pamela to take off her jeans, but Pamela refused. Petitioner ordered Pamela out of the car, and again ordered her to take off her jeans. Pamela got out of the car and took off her jeans. Petitioner then raped Pamela by penetrating her vaginally from behind with his penis. Pamela was crying during the rape. After approximately 10 minutes, Petitioner stopped raping Pamela, and she left the area on foot. Petitioner drove away.
The Offense Against Roxanne In July 2003, Roxanne was working as a prostitute on El Cajon Boulevard. Petitioner approached Roxanne while driving his car, and nodded at her. Roxanne got into Petitioner's car. Petitioner drove to an underground parking structure in Mission Valley. Once they arrived at the parking garage, Petitioner and Roxanne discussed prices for vaginal sex and for oral copulation. Roxanne told Petitioner that oral copulation would cost $50 and that sexual intercourse would cost $100. Petitioner told Roxanne that he wanted to have intercourse.
Petitioner and Roxanne got in the back seat of the car and had vaginal intercourse. While they were having sex, they heard a woman's voice coming from outside of the car. Petitioner pulled out a knife from a pocket in the car, held it to Roxanne's neck, and ordered Roxanne out of the car. Roxanne complied, but inadvertently left her purse in the car. She asked Petitioner for the purse, but he drove away.
The Offense Against Stephanie In February 2001, Stephanie was working as a prostitute in Oceanside. Petitioner approached Stephanie, and she got into his car. Petitioner and Stephanie agreed on a price for sex. Petitioner then drove to a residential neighborhood and parked. Petitioner and Stephanie got in the back seat of his car. Petitioner started to become a "little bit too physical," and Stephanie became frightened. She got out of the car, without her purse. When she asked Petitioner for her purse, Petitioner held the purse out of the car and told Stephanie to come and get it. Petitioner drove off without allowing Stephanie to retrieve the purse. Stephanie's military identification card was in her purse.
The Defense Petitioner testified and admitted to having contact with all of the women. Petitioner said he had consensual intercourse with both Erin and Roxanne, but claimed that he had disagreements with each of them regarding their fees, afterward. Petitioner admitted that he had used a knife during each of these two incidents to force the women out of the car.
Petitioner testified that he paid Pamela for oral sex. After he paid her, Petitioner received a call from his girlfriend on his cellular telephone. Petitioner's girlfriend said she was annoyed with him for being late. Petitioner decided that he no longer wanted to have oral sex with Pamela and demanded that Pamela return his money. When she refused, he grabbed the money from her breast area, took her purse, and threw the purse from the car. When Pamela went to retrieve the purse, Petitioner drove off. Petitioner admitted that he had picked up Stephanie, intending to pay her to have sex with him. However, after Stephanie got into Petitioner's car, he became concerned that she might be a minor. Petitioner asked her if she could prove that she was an adult. After examining her identification, Petitioner realized that she was only 16. He asked Stephanie to get out of his car. Stephanie became angry and got out of the car. She left her identification card behind. Petitioner later put Stephanie's identification card in the trunk of his car.
In September 2003, Adame filed a motion to suppress evidence, which he claimed had been illegally obtained as a result of a police inventory search of his car in July 2003. Adame claimed the warrantless search of his car was unconstitutional because it was performed in order to obtain evidence of a crime, rather than to conduct an inventory of the car's contents. In the alternative, Adame claimed the People had failed to establish that the inventory search was conducted pursuant to standardized procedures. The People filed an opposition in which they argued that a warrantless evidentiary search of a car is proper whenever police have probable cause to believe the car contains evidence of a crime or is itself an instrumentality of a crime. The People argued that the police has such probable cause in this case. Alternatively, the People contended that the search was a proper inventory search. Finally, the People maintained that although a search warrant was not required, police obtained a warrant on July 23, 2003 to authorize an additional search of the car. Thus, even if the initial search of Adame's car was unlawful, all of the evidence seized from Adame's car would have inevitably been discovered.
During Adame's preliminary hearing, the People offered testimony of San Diego Police Detective Sharon McFalls, San Diego Police Sergeant Kenneth Stewart, and San Diego Police Officer Stephen Shebloski, regarding the circumstances of the seizure and searches of Adame's car. Detective McFalls testified that on May 27, 2003, Erin told police that she had been sexually assaulted in a car whose license plates matched a car registered to Adame. Erin also provided police with a physical description of the car. Roxanne told police on July 17, 2003 that a man had robber her of ...