The opinion of the court was delivered by: Marsha J. Pechman United States District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
This matter comes before the Court on Donny DeShawn Smith's petition for a writ of habeas corpus. (Dkt. No. 1.) Having reviewed the petition, answer (Dkt. No. 11), the reply (Dkt. No. 13) and the balance of the record, the Court DENIES the petition.
Petitioner Smith is a state prisoner currently residing at the Florence Correctional Center in Arizona. He seeks relief under 28 U.S.C § 2254 from his 2006 conviction for two counts of lewd and lascivious acts upon a child under the age of fourteen, by use of force or violence and one count of rape by use of force, violence, or menace. On direct review, the California Court of Appeal (Third Appellate District) described the facts of the case as follows:
The events underlying defendant's convictions took place shortly after Christmas in 2004 while the victim was temporarily residing with defendant and his wife, Stevenia, the victim's half-sister. The holidays had been a turbulent time for the victim. Her mother was in jail. Her father worked out of town over the Christmas holidays and, angry that the victim had run away and been defiant, told her he was not going to buy her anything for Christmas. She spent Christmas at a friend's house. By December 30 one of her half-sisters took her to Stevenia's apartment, because Stevenia was strict and would not allow her to go out unsupervised.
The victim did not want to stay with Stevenia and pleaded with her father to stay at his home, which was down the street. The victim's desire for release from a strict sister, suggesting a motive to fabricate a rape claim, her character for honesty, and her recent sexual history became the central themes of the defense case. The victim was an easy target in this regard. She had a reputation for lying, and she lied on the witness stand. She was a thief and a truant. She admitted she had sexual intercourse with one of her brother's friends, although she could not remember where, what position they were in, or any pertinent details about the encounter other than that it occurred somewhere between one and three months before the assault. She was rude to the judge, the prosecutor, defense counsel, and the court reporter, and she often repeated how the proceedings irritated her.
She mocked her father and resented being forced to stay with Stevenia.
Her account of the events of December 30 was not altogether consistent.
On the day of the incident, she begged her father to allow her to come home. He refused. Stevenia left for work. The victim remained at the apartment with defendant, his three children, the victim's brother Baby Joe, and Baby Joe's girlfriend Jackie. While Baby Joe played video games and the other watched, the victim fell asleep on the couch. Sometime later, defendant told her to move to defendant's bedroom and sleep on the bed with her 10- or 11-month old niece.
Baby Joe continued playing video games in a bedroom adjacent to defendant's bedroom. The doors to the two rooms remained open. Defendant went into his room. The victim's various accounts of what happened differ in material respects. When she first appeared in the room with Baby Joe and Jackie, she looked like she had just awakened and said nothing. She left the room and when she returned, she started crying. With prompting, she said defendant pulled her pants down. When Jackie called the victim's father for her, the victim told him defendant raped her. Her father called 911 and took her to the hospital for a medical examination. She told her father defendant penetrated her. She told the nurse practitioner that defendant's penis touched her private parts and that he was "feeling on" her. She told an investigator that defendant lay down next to and behind her, touched her breasts, pushed her onto her stomach, got on top of her, pulled down her pants, and penetrated her twice. She tried to resist by pushing him away with her elbows. Two weeks later, she told an interviewer she and defendant were both lying on their sides and defendant was behind her during the rape.
At trial, the victim could no longer remember whether defendant was on top of her or in what position she was when he penetrated her. She denied pushing him away with her elbows. She claimed she bore no animosity toward defendant and had referred to him as her brother. She admitted leaving the baby on the bed when she left the room after she was raped.
Neither Baby Joe nor Jackie heard any noise in defendant's bedroom.
Jackie told an investigator that the night of the incident, defendant had been gone for about 15 minutes before the victim came into the room and broke down crying. At trial she said he was only gone five minutes before the victim appeared.
Though her account of the sexual assault had gaps and inconsistencies, the medical examination corroborated the victim's story. During the genital examination, a pediatric nurse practitioner found three acute tears, ranging from superficial to intermediate, and two of the three lacerations were bleeding. She opined the lacerations were caused by blunt force trauma, consistent with penetration by a penis. Wiping with toilet paper would not have caused these injuries. She explained that because there was no evidence of healing, she believed the injuries had occurred within the previous 8 hours, although they could have been inflicted up to 72 hours before the examination. She found no sperm on the vaginal swabs she took during the examination.
A prosecution expert on DNA analysis examined two penile swabs taken from defendant at the jail and obtained DNA from cells that are found in body cavities such as the mouth, vagina, and male urethra. On the first swab, she obtained a full DNA profile matching defendant and a partial profile of a female. Information from six of fifteen genetic locations matched the victim exactly, and the statistical probability of such a match was one in eight billion African-Americans. The expert excluded defendant's wife Stevenia as a contributor of genetic material on both swabs.
The DNA expert also tested the boxer shorts defendant was wearing when arrested. She developed a full DNA profile that matched the victim exactly and must have come from a body fluid other than saliva.
The defense expert on serology and DNA testing posited several different scenarios under which the victim's genetic material could have been transferred to defendant's boxer shorts and penis. As defendant summarizes on appeal, the victim "could have scratched her labial area, then touched the bed with her hand, after which appellant's boxer shorts could have come into contact with that sport and transferred a few [cells] onto his penis; or appellant's hand could have touched [the victim's] contaminated hand and then touched his own boxers and penis; and/or [the victim's] genetic material on her hand could have come from wiping her nose or from her tears or saliva." He conceded, however, that the "original source would have to be wet, and the transfer [from hand or vagina to bed to defendant] would have to occur within a relatively short period of time."
(Lod. Doc. 5 (brackets in original).) On January 11, 2006, a jury found Mr. Smith guilty of two counts of lewd acts by force upon a child under the age of fourteen (Cal. Penal Code § 288(b)(1); counts 1 and 2) and one count of rape by use of force, violence, or menace (Cal Penal Code § 261(a)(2); count 3). (CT 759-60.) On March 3, 2006, the trial court sentenced Mr. Smith to a six-year term for the ...