FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2002 conviction on charges of residential burglary, attempted murder, misdemeanor assault, and multiple sex offenses. This action is proceeding on petitioner's original petition filed December 5, 2005.
On July 29, 2001, [the victim], a mentally retarded 51-year-old woman, lived alone in her apartment. She had difficulty communicating, especially in stressful situations. [The victim] was also physically disabled by diabetes, which caused her to hobble and walk slowly due to pain and swelling in her legs.
The 21-year-old [petitioner] lived in a nearby apartment. He drank up to 25 cans of beer, smoked rock cocaine, and snorted methamphetamine that day. [Petitioner] forced his way inside [the victim]'s apartment around 11:00 p.m. Over the next several hours, [petitioner] physically and sexually assaulted her. The unlawful acts included rape, oral copulation, sodomy, and penetration with a foreign object. Toward the end of the ordeal, [petitioner] told [the victim], "[Y]ou better not say anything or I'll leave you dead." He grabbed a hammer from the bathroom shelf and hit [the victim] in the head up to five times, knocking her to the floor. She felt pain in her head and ear, and her face was bleeding. After [petitioner] strangled [the victim] with his hands, she played dead. He sat her on the floor of the bathroom, got dressed, tried to wipe the blood off himself and the hammer, and left about 7:00 a.m.
[The victim] went to the manager's apartment. She was shaking and crying with blood running down her face. [The victim] told the apartment manager than a man from apartment No. 2093 had beaten her with a hammer. [The victim] also said he hurt her "another way." The manager called 911.
The ambulance took [the victim] to the hospital where a member of the sexual assault response team examined her. The examination revealed lacerations on [the victim]'s face and ear, swelling on her lower jaw, bruising under her left eye, red marks on her neck consistent with strangulation, torn tissues around the anus, and diffuse redness and tenderness in the vaginal interior wall and external labial area. There was blood and feces on her nightgown.
[Petitioner] telephoned his girlfriend, Kimberly Gonzalez, around 8:30 a.m. He told her he was "in trouble" and "thought he had killed somebody." He asked to be picked up at a friend's apartment because the police were likely to be looking for him. He said he needed a ride to Mexico. Gonzalez called the sheriff's department, and [petitioner] was arrested a short time later.
[Petitioner] testified at his trial. [Petitioner] insisted that [the victim] had invited him into her apartment and that they engaged in consensual oral copulation and sexual intercourse. With respect to one of the acts of intercourse, [petitioner] described [the victim] getting down on the floor "like doggie style." He testified, "I knew what she wanted." [Petitioner] put his penis in her vagina from behind. He said he ejaculated outside [the victim]'s vagina, maybe on her back. [Petitioner] had described the same sex act to the detective who interviewed him after his arrest.
[Petitioner] acknowledged that he became angry with [the victim] when he was getting ready to leave, and hit her three or four times with a hammer. He admitted concealing his bloodstained clothing and offering to flee to Mexico. After his arrest and at the urging of the detective, [petitioner] wrote [the victim] a letter of apology.
People v. Franco, slip op. at 2-4.
I. Standards for a Writ of Habeas Corpus
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")
The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
A. Sufficiency of the Evidence
As the state court of appeals set forth in its decision on petitioner's direct appeal, petitioner was convicted on eight counts, as follows: "count one, forcible rape (Pen. Code, § 261, subd. (a)(2)); unspecified statutory references that follow are to the Penal Code); count two, forcible oral copulation (§ 288a, subd. (c)(2)); count three, forcible sodomy (§ 286, subd. (c)(2)); counts four and five, forcible penetration with a foreign object (§ 289, subd. (a)(1)); count six, misdemeanor assault (§ 240); count seven, attempted murder (§§ 187 & 664); and count eight, residential burglary (§ 459)." People v. Franco, slip op. at 1-2. In his first eight claims, petitioner contends, seriatim, that there was no evidence to support any of the counts on which he was convicted. The last reasoned state court rejection of these claims is the decision of the Sacramento County Superior Court denying a petition for writ of habeas corpus filed by petitioner in that court. See Lodged Document 6. The state superior court denied the claims as follows:
Petitioner first claims that the evidence was insufficient to support the verdicts on Counts One through Eight.
The claim fails on the merits. Petitioner admitted entering the victim's apartment and committing what he characterized as consensual sexual acts with her, and the jury heard overwhelming evidence to contradict petitioner's claim of consent, from the victim's description of the events and statements to the apartment manager and the sheriff's deputy, as well as from medical testimony regarding trauma to the victim's anus and genital area. The evidence also showed that petitioner had threatened to leave the victim dead if she said anything, grabbed a hammer from the bathroom shelf and hit the victim in the head up to five times with it, then strangled the victim with his hands; shortly thereafter, the victim was taken to a hospital, where medial personnel saw lacerations and bruising on her head and face, and red marks on her neck consistent with strangulation, all of which overwhelmingly showed both assault and attempted murder. And, evidence that petitioner entered the victim's apartment with the intent to have sex with the victim, thereby establishing burglary, was amply supported by petitioner's own testimony that the victim had invited him into the apartment wearing a nightgown and "acting like really easy," and physical evidence showing the violence inflicted upon her thereafter in connection with the sex acts. As such, the evidence was more than sufficient to support the verdicts in Counts One through Eight, requiring denial of this first claim (In re Bower (1985) 38 Cal.3d 865).
Lodged Document 6, In re the Matter of , v. Anibal O. Franco, Case No.: 04F09191, slip op. at 1-2.
When a challenge is brought alleging insufficient evidence, federal habeas corpus relief is available if it is found that upon the record evidence adduced at trial, viewed in the light more favorable to the prosecution, no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Under Jackson, the court must review the entire record when the sufficiency of the evidence is challenged on habeas. Adamson v. Ricketts, 758 F.2d 441, 448 n.11 (9th Cir. 1985), vacated on other grounds, 789 F.2d 722 (9th Cir. 1986) (en banc), rev'd, 483 U.S. 1 (1987). It is the province of the jury to 'resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. 307, 319. "The question is not whether we are personally convinced beyond a reasonable doubt. It is whether rational jurors could reach the conclusion that these jurors reached." Roehler v. Borg, 945 F.2d 303, 306 (9th Cir. 1991). Under Jackson, the federal habeas court determines sufficiency of the evidence in reference to the substantive elements of the criminal offense as defined by state law. Jackson, 443 U.S. 307, 324 n.16.
The court has reviewed the record. After completion of said review, the court finds that the evidence tendered at trial was sufficient to support petitioner's conviction on each of the eight counts. The state court's rejection of this claim was neither contrary to nor an unreasonable application of applicable principles of clearly established federal law. These claims should be denied.
B. Introduction of Petitioner's Statements to Police
Petitioner's ninth claim is that his Fifth Amendment privilege against self- incrimination was violated by introduction of statements made by petitioner to police after he had invoked his rights to remain silent and to an attorney. In his twelfth claim, petitioner claims, inter alia, that his attorney was ineffective in failing to move to suppress these statements. The last reasoned state court rejection of these claims is the decision of the Sacramento County Superior Court on petitioner's petition for writ of habeas corpus, which denied the claims as follows:
Petitioner next claims that his rights under Miranda v. Arizona (1966) 384 U.S. 436 were violated, and that his trial attorney was ineffective in failing to move to suppress. He claims that after he invoked his Fifth Amendment privilege, the police did not stop his interrogation. He claims that he was asked if he wished to speak with the police, was asked "no? you don't want to speak with us?," then he asked for clarification, was told he had the right to speak with police and was asked if he wanted to do so, and he said "oh well, yes." He also claims that other parts of his statement that followed were coerced, when the officer told him that he needed to be honest and tell the truth. He claims his statements in the interview were introduced at trial, and was prejudicial.
Petitioner fails to attach a copy of trial transcript showing exactly what was admitted at trial. Nor does he attache a copy of a complete transcript of the interview, for the court to assess at this time. As such, the ...