The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Following a jury trial in the California Superior Court for the County of Kings, Petitioner was convicted of forced rape in concert (Cal. Penal Code*fn1 §§ 264.1/261(a)(2); two counts of forced rape (§ 261(a)(2)); two counts of rape of an intoxicated person (§ 261(a)(3); oral copulation by force (§ 288a(c)(2); oral copulation of an intoxicated person (§ 261(a)(3); sodomy of an intoxicated person (§ 286(I); felony unauthorized recording (§ 632(a); and vehicle theft (Cal. Veh. Code § 10851). Petitioner was also found to have served a prior prison term within the meaning of section 667.5(b). (CT 136-142, 160-164, 166-174.)
On March 6, 2007, Petitioner was sentenced to an aggregate term of twenty years and four months in state prison. (CT 575-576, 578, 583-584.)
Petitioner filed a timely notice of appeal. OnMarch 11, 2008, the California Court of Appeal, Fifth Appellate District affirmed the judgment in all respects. (Lodged Doc. No. 1.)
On June 11, 2008, the California Supreme Court denied review.
Petitioner filed the instant federal petition for writ of habeas corpus on June 16, 2009. (Court Doc. 1.) Respondent filed a timely answer to the petition November 25, 2009. Petitioner did not file a traverse. (Court Doc. 17.)
On July 6, 2006, Lindsay and her friend, Virginia, resided in a house at the Lemoore Naval Station. Lindsay and her husband, a member of the military, were separated and in the process of obtaining a dissolution.
On the morning of July 6, Lindsay took an anti-depressant called Lexapro. Lindsay and Virginia planned to celebrate the latter's birthday that evening by going to dinner and then visiting some local bars. At 7:00 p.m., Lindsay, Virginia, and the latter's friend, Michael, went to Applebee's Restaurant in Hanford. Virginia's boyfriend, Jonathan, was deployed on a ship in San Diego, and he allowed Virginia and Lindsay to use his pickup truck for transportation during his absence. The trio met two of Virginia's sisters and several friends at the restaurant. The group shared a large margarita and ate some appetizers. Lindsay said she did not feel the effects of the alcohol at the time she left Applebee's.
After finishing at Applebee's, Lindsay, Virginia, and Michael went to the Secrets bar in Hanford, where they drank and socialized. Lindsay consumed two or three strong drinks. Lindsay went outside the bar to smoke a cigarette and encountered appellant and co-defendant Asher, who were walking down the street. They asked Lindsay to recommend a bar in the area. She recommended the Bastille Bar and said she would be there later in the evening. However, she did not exchange names or telephone numbers with the two men.
After spending 30 to 45 minutes at Secrets, Lindsay, Virginia, and Michael went to the Bastille Bar to hear a live band. Lindsay testified she was feeling a "little drunk" at this point. Lindsay assumed she and her friends arrived at 8:30 or 9:00 p.m., stayed at the Bastille Bar for several hours, and continued drinking. Virginia thought they stayed until between midnight and 1:20 a.m. Michael thought they left at 11:30 p.m.
During their time at the Bastille, Lindsay saw and socialized with appellant and Asher. Lindsay said she was "drunk" at this point. Lindsay said appellant was flirtatious at the Bastille and kissed her at one point. She admitted flirting back with appellant. At trial, Virginia recalled seeing Lindsay flirt with appellant at the Bastille but said the flirting was not sexual. However, Virginia told Dennis Reed, an investigator with the Kings County District Attorney's Office, that Lindsay and appellant touched each other a lot when they talked. At one point in the evening, appellant picked up Lindsay and twirled her around. She responded by wrapping her legs around appellant's waist. At trial, Virginia said she did not hear any sexual discussions between Lindsay and appellant at the Bastille. However, Virginia told Investigator Reed that Lindsay laughed along when appellant made some sexual jokes. Michael said he saw Lindsay talking with appellant at the Bastille but did not see any flirting.
The group decided to go home when Virginia became intoxicated. Lindsay asked whether she could invite appellant and co-defendant back to their home for more drinking and talking and Virginia agreed. Lindsay stopped drinking about 30 minutes before the group left the Bastille. She obtained a cellular telephone number for the defendants and someone put the number into Virginia's cell phone. The group left the Bastille at about 1:20 a.m. Lindsay testified that she acted as the designated driver that evening and stated: "We were all pretty drunk." Virginia and Michael said she was not intoxicated and drove well on the way home from the Bastille.
Lindsay, Virginia, and Michael drove to a gas station in the pickup truck and appellant and co-defendant purchased some beer and followed them in a separate vehicle. Appellant and co-defendant parked their vehicle in a guest parking area at the Naval Air Station because they did not have a permit to park on the base. Appellant and co-defendant then got into Moser's truck and they all entered the base together. Once they arrived at the residence of Lindsay and Virginia, Lindsay placed the truck keys in her purse and set the purse on the kitchen counter.
Lindsay and the others began to drink beer and Lindsay thought she consumed five or six beers. After about an hour of visiting, Virginia and Michael went to Virginia's bedroom to go to sleep. Virginia did not see the two guests again until appellant entered her bedroom to ask to borrow her cell phone.FN4 Michael remembered appellant entering the bedroom twice that night. On the first occasion, appellant offered Michael a beer but Michael declined. On the second occasion, appellant asked to borrow Virginia's cell phone because he could not get a signal on his own cell phone. Michael remembered appellant saying that Lindsay had given appellant and co-defendant permission to sleep on the couch.
FN4. At some point in the evening, Virginia went to get some water and heard loud music playing on the television in the living room. Virginia turned off the television since Lindsay was not in the room. Virginia said Lindsay usually turned off the television if she was not watching it. Virginia also noticed that Lindsay had closed her bedroom door, something she never did. Virginia said appellant entered her bedroom about 10 to 15 minutes after she turned off the television set. He asked to borrow her cell phone so he could call his boss. Appellant told Virginia that Lindsay had said it was okay for them to sleep on the couch and offered to take them to their truck so they could get to work at 6:00 a.m. Appellant said he needed to call his boss but his phone was not working and that is why he asked to borrow Virginia's. According to Virginia, he took her cell phone out of the room, returned the instrument about five minutes later, and thanked Virginia. Shortly after appellant returned Virginia's phone, she heard the sound of a departing vehicle.
Lindsay, appellant, and co-defendant remained in the living room and began to watch a movie on the television. Lindsay felt drunk and left the room briefly. When she returned, appellant asked her to finish her beer and Lindsay complied. About 10 minutes later, Lindsay's condition deteriorated and she began to feel heavy. Appellant began kissing Lindsay on her neck and mouth. Lindsay kissed appellant back at first. When co-defendant also began to kiss Lindsay on the neck, she became uncomfortable and pulled away. Lindsay said she began to feel heavier and heavier and felt like she could not move. Appellant and co-defendant pulled her shirt up and kissed her breasts. Lindsay said she was confused and could not understand what was happening to her.
Appellant and co-defendant eventually stood Lindsay up and took her to her bedroom. Lindsay felt incapable of speaking. The two men removed her clothing, lay on the bed with her, and kissed her neck, breasts, and face. The two men told her she was sexy and good looking and undressed down to their boxer shorts. Lindsay said she was unbalanced, confused, and felt unable to talk or move. She also said she could not talk or hold her head up.
Appellant began to have genital intercourse with Lindsay. Lindsay was lying underneath appellant on her stomach. At trial, she had difficulty remembering details of the sexual offenses and the order in which they occurred. Lindsay said appellant and co-defendant both made her orally copulate them. Each man grabbed her head and pushed it toward his penis. Lindsay resisted by pulling her head back and closing her mouth. She said she never did suck on their penises. According to Lindsay, the men kept saying, " 'Open your mouth, baby, open your mouth.' " During the sexual assault, appellant had sex with Lindsay when she was on her back. At one point, appellant turned to co-defendant and said it was his turn. Co-defendant then had sexual intercourse with Lindsay.
During the events in her bedroom, Lindsay saw appellant hold up his cell phone and point it at Lindsay and himself. She thought appellant was using the phone to take pictures of the various sexual acts. Lindsay said she never permitted the men to photograph or videotape her. Lindsay eventually told the men she did not want to have sex with them. The men responded by telling her that she did want to have sex with them. Although Lindsay disagreed and tried to get up, the men would lay her back down on the bed. At some point, appellant was having sex with Lindsay while she lay on her stomach. Appellant pulled his penis out of her and reinserted it into her rectum. Lindsay said she felt pain when this occurred but was unable to speak. She also said appellant's penis remained in her rectum for about five seconds before he reinserted it into her vagina. At trial, Lindsay thought the rectal penetration could have been an accident. She previously told District Attorney Investigator Reed, "'He just missed and sort of entered the wrong hole.' "
Co-defendant left the bedroom and returned with some condoms. Lindsay said they resembled the condoms she carried in her purse. Appellant and co-defendant put on the condoms, had sexual intercourse with her, and made her orally copulate them. Lindsay recalled the men orally copulating her two times apiece and having sexual intercourse with her two times each. The men eventually dressed, left the bedroom, and had a conversation that she could not understand. Appellant returned alone and again had sexual intercourse with Lindsay. During the entire encounter, Lindsay felt very heavy and unable to move. After the last act of intercourse, appellant entered the bedroom between two and four times to check on Lindsay. Lindsay said she was just starting to feel like she could move again when appellant reentered the bedroom alone. Lindsay tried to get up and get dressed. Appellant asked her, " 'What are you doing?' " Appellant wrapped Lindsay in a comforter, laid her down on the bed, and told her, " 'It's okay. It's okay. Just go to sleep.' " During this same time, appellant told Lindsay she agreed to have sex with them. She responded by saying she did not agree to it.
A few minutes after appellant left the bedroom for the last time, Lindsay heard the tires of a vehicle squealing in her driveway. Lindsay had never told the two men they could take the truck keys out of her purse and Virginia never gave the men permission to borrow the truck. Lindsay got up, dressed herself, entered Virginia's bedroom, and said they needed to call 911 because the men had stolen the truck and raped her. Lindsay called 911 and reported that two men had just raped her and taken their truck. Lindsay estimated an hour elapsed between the time they entered the bedroom and the time the two men left the house.
Alan Bohannon, a 911 dispatcher at the Naval Air Station, received the emergency call from Lindsay at 2:38 a.m. on July 7, 2006. He transferred the call to Fresno County authorities but remained on the phone line. The prosecution played the recording of the 911 call for the jury.
Brian Alexander, a Navy military police officer, received a call about a stolen vehicle at about 2:40 a.m. on July 7, 2006. Upon receiving the call, the base shut down to incoming and outgoing traffic. Alexander stopped appellant and co-defendant at the gate and confiscated their cell phones. The military police took the two men into custody. John Gillett, another Navy military police officer, responded to Lindsay's residence at about 2:38 a.m. When Gillett arrived, he found Lindsay curled up in a fetal position. She was crying and shaking. Lindsay told Gillett she had been raped and their truck had been taken. She also explained she was intoxicated and did not realize what was happening at first. Lindsay showed Gillett a picture of appellant on her MySpace page and said, " 'It was this guy right here.' "
Alison Caldwell, an investigator with Naval Criminal Investigative Services (NCIS), processed the crime scene. Caldwell also met with appellant and co-defendant at the NCIS office on the base, photographed co-defendant, and took custody of appellant and co-defendant's cell phones. Caldwell found recorded images of Lindsay and appellant on one of the cell phones. Caldwell was not certain which phone was taken from which person. Caldwell turned over the cell phones to District Attorney Investigator Reed on July 13, 2006. On July 14, Reed gave the phones to Kings County Computer Forensic Analyst Marlene Dunn for technical examination.
Marlene Dunn accessed both phones on July 17, 2006 and looked for recorded photographic evidence. Dunn made a compact disc (CD) of 14 photographic images that she downloaded from one of the cell phones. Dunn was also able to access three video clips from that same phone .FN5 That cell phone also contained a number under the heading "Girls" and that number was reflected on the "recent dialed" and "received calls" lists of the phone. Dunn could not determine whether this cell phone dialed Virginia's phone number or was dialed by it. The prosecution presented no evidence of any image or video files in the other cell phone.
FN5. The prosecution played the video clips during trial. During the clips, a man repeatedly urged Lindsay to put "it" in her mouth and said it will be over after she is done. He said, "It'll be over after you're done. No. Stop. You want it to be done right?" "Put it in your mouth real quick and it'll be all over."
Sexual Assault Examiner Patti Driscoll examined Lindsay at 6:05 a .m. on July 7, 2006. Driscoll found disrupted tissue in Lindsay's vaginal area and a reddened area around her cervical opening. Driscoll said the condition of Lindsay's tissue was consistent with sexual assault because tissue disruption is less likely when intercourse is consensual and the participants are aroused. Driscoll noted that Lindsay's rectal area was very tender and said she was unable to examine the interior portion because of Lindsay's pain. In Driscoll's opinion, Lindsay was tender as a result of the reported anal penetration. Driscoll took a blood sample from Lindsay at 7:55 a.m. on July 7.
In August 2006, co-defendant sent Lindsay a letter and pleaded with her to "tell the truth" and say the events of July 6 and 7 were "consensual." Co-defendant included a picture of his daughter and a sonogram of his unborn son with the letter and Lindsay was upset by the correspondence.
On August 24, 2006, District Attorney Investigator Reed interviewed Lindsay and Virginia. Lindsay told Reed she was having a difficult time remembering and that details came to her over time. Lindsay told Reed she took some Lexapro FN6 and "probably" had something to drink before going out on the evening of July 6. She also said she shared a daiquiri at the restaurant. Lindsay also said she had two drinks at the first bar, one or two light beers at the Bastille, and more than three beers once the group returned home. She also told Reed the group stopped at Taco Bell before going back to the base. Lindsay described appellant's penetration of her anus by saying, " 'He just missed and sort of entered the wrong hole.' "
FN6. Bill Posey, a toxicologist with Central Valley Toxicology in Clovis, California, testified that Lexapro is an antidepressant that "has a potential of having an additive central nervous depressant effects when mixed with alcohol." In Posey's view, Lexapro taken with alcohol has the potential for increasing the effect of alcohol on an individual. However he noted "most of the studies have indicated that the additive effect is not a profound one. There are warnings against using the drug with alcohol."
Bill Posey, a toxicologist with Central Valley Toxicology, testified he received Lindsay's blood sample from NCIS on August 28, 2006. That sample had been drawn by Nurse Driscoll. Posey tested the blood sample from the sexual assault evidence collection kit. He did not detect any drugs or alcohol in the sample. In addition to conducting a standard drug and alcohol screen, Posey looked for chemicals that have a sedative effect when combined with alcohol. Posey said one such substance, gamma-hydroxybutyrate (GHB), can extend the effects of alcohol but typically leaves the blood stream in six hours, depending upon the dosage. Responding to a hypothetical question, Posey said a person who had several drinks between 7:00 p.m. and 1:00 a.m. and then consumed five or six light beers over the next hour would experience a rapid onset of sedation if the last beer contained GHB. He said such a person would feel sluggish or even totally comatose. Posey further testified that GHB metabolizes quickly so that every 13 minutes the individual would feel half of the effects of the drug. Such a person would be expected to come out of the state of sedation very quickly.
On October 30, 2006, Lindsay viewed the photographic CD and three video clips at the District Attorney's office. Lindsay explained that the image of people on a bed depicted appellant and her in her room. Lindsay also said the three video clips showed the sexual acts that appellant and co-defendant committed and included her moaning sounds. The prosecution played the video clips for the jury. The first clip depicted appellant putting his penis in Lindsay's mouth. The second clip depicted Lindsay and appellant's penis. Lindsay left the courtroom in tears when the prosecution played the third video clip.
The parties stipulated that appellant was convicted of four counts of statutory rape (§ 261.5, subd. (c)) in Solano County on April 16, 2002.
NCIS Special Agent Irene Howard testified she met with Lindsay on the morning of July 7, 2006, and escorted her to her medical examination. She also interviewed Lindsay. Lindsay told Howard she had five or six beers before going to the restaurant on July 6. Lindsay also said that appellant " 'began grabbing' " on her and kissing her once they were back at her place on the base. Lindsay told Howard she " 'didn't have any problem with that.' " Lindsay also told Howard she took a Lexapro pill at about 5:00 p.m. on July 6.
With respect to appellant's anal penetration, Lindsay told Howard, "[h]e just missed and sort of entered the wrong hole.' " Lindsay further told Howard that she screamed during the sexual encounter and ran to her roommate's bedroom following the encounter. Lindsay said appellant was the individual who picked her up and carried her to the bedroom. She said co-defendant just watched them. Lindsay told Howard she wanted to scream but it seemed like there was no sound coming out of her mouth. Lindsay said she screamed when appellant's penis penetrated her anus and appellant told her, " 'It's all right, baby, just hold still.' "
Officer Gillett said he spoke to Lindsay about the MySpace page featuring appellant's picture. Lindsay said she and appellant visited their respective MySpace pages that evening and appellant asked her to add him to her "friends" list.
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Kings County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997; Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
Where a petitioner files his federal habeas petition after the effective date of the Anti- Terrorism and Effective Death Penalty Act ("AEDPA"), he can prevail only if he can show that the state court's adjudication of his 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 ...