The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER DENYING THE HABEAS PETITION
On June 17, 2009, Francisco Cabrera, ("Petitioner") a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus challenging his California convictions and sentence pursuant to 28 U.S.C. § 2254. (Doc. No. 6.) On June 17, 2009, Petitioner also filed a motion for appointment of counsel. (Doc. No. 3.) On July 6, 2009, the Court dismissed the habeas petition without prejudice, and Petitioner filed an amended petition on August 10, 2009. (Doc. Nos. 4, 6.) On October 23, 2009, Respondent filed an answer, and Petitioner filed a traverse on January 4, 2010. (Doc. Nos. 9, 11.) On January 7, 2010, the magistrate judge issued a report and recommendation to deny the petition. (Doc. No. 12.) On January 28, 2010, Petitioner filed an objection to the report and recommendation. (Doc. No. 14.)
After due consideration, the Court denies the petition for habeas corpus.
Federal habeas courts presume the correctness of a state court's determination of factual issues unless Petitioner "rebut[s] the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1) (2006). The parties do not challenge the accuracy of the California Court of Appeal's summary of the underlying facts adduced at trial, although Petitioner disputes his guilt of the rape. The court of appeal summarized the underlying facts as follows:
Appellant and defendant Francisco Cabrera and Claudia T. began a romantic relationship in 2003. Because Claudia discovered appellant was seeing another woman, Claudia attempted to end the relationship in November 2004 and again in January 2005. Claudia was afraid of appellant, and in February and March 2005 she took measures to prevent appellant from finding her, including storing her car at a friend's house because she was afraid appellant might see her in it.
On March 23, 2005, appellant found Claudia at a car wash in San Diego. After climbing inside Claudia's car and talking to Claudia for a while, appellant forced Claudia into the passenger seat and drove Claudia's car to a motel in Tijuana. During the trip to Tijuana, appellant threatened to stab Claudia; and when they reached the motel, appellant forced Claudia to go into a room and undress. Appellant undressed and lay down on top of Claudia. Claudia told appellant to stop; however, while appellant was on top of Claudia, he partially inserted his penis in her vagina. Claudia screamed and appellant stopped. Because Claudia wanted to get appellant off her, she began "sweet-talking" appellant and told him they could get back together. Appellant eventually drove Claudia back to the car wash, and on two additional occasions Claudia met appellant. According to Claudia, she met with appellant because she wanted to convince him that she no longer loved him and that she wanted to end their relationship. Her efforts at ending the relationship peacefully were not successful.
On April 1, 2005, Claudia went to the Chula Vista police and reported the events of March 23, 2005. At that point Claudia was afraid of appellant and was planning to move. In addition to reporting the assault of March 23, Claudia reported appellant was constantly calling her and driving by the house where she was staying.
On the morning of April 6, 2005, Claudia found appellant sitting in the back seat of her car. When Claudia started screaming, appellant got out of the car, grabbed Claudia, twisted her shirt collar, punched her in the chin and forced her into her car. Neighbors who witnessed the incident called police. Appellant and Claudia struggled in the car, and appellant started driving in a somewhat circuitous route toward the San Ysidro border crossing. The car was stopped at the border by police officers. Appellant attempted to flee on foot and was apprehended. As appellant was booked into jail, a police officer asked him whether he had taken Claudia against her will. Appellant replied: "Yes, but I didn't know it was kidnapping for an adult."
The district attorney filed an information against appellant, alleging he was guilty of forcible rape, two counts of kidnapping, making a criminal threat, carjacking and inflicting corporal punishment on a roommate. The information further alleged appellant had a prior record which included convictions for domestic violence.
Prior to the preliminary hearing, appellant called Claudia from jail and apologized. Appellant stated: "Look, forgive me. I love you a whole lot. What I did, I did it because I love you a whole lot and I wanted ... to fix the whole, the, the situation with us. I don't know what to do. .... [T]hey want to give me ten years. I want you to help me in court." Appellant then asked Claudia to testify that she had just been mad at him. Appellant's call was recorded and at trial the prosecution played it for the jury.
At the preliminary hearing and at trial, Claudia in fact altered her previous recapitulation of the events of March 23. At the preliminary hearing, Claudia acknowledged she initially told police officers appellant raped her, but testified the sex was consensual and that at the time she spoke to police officers, she was just mad at appellant.
At the conclusion of the preliminary hearing, the magistrate declined to bind appellant over on the rape allegation, but did bind appellant over on all the remaining allegations of the information. The magistrate stated: "I'm not making a factual finding. I just think I wouldn't want to stand in front of a jury and say that she was raped if I were a prosecutor. Who knows what the truth really is? Only two of them were in the room, and only they know. So I'm not making a factual finding as to that."
"But I am saying that the evidence is insufficient for me to not even a threshold amount of believability as far as I'm concerned that she was raped. But maybe she was. I don't know.... She could have been."
Following the preliminary hearing, the district attorney refiled the information and again included the rape allegation. Appellant moved under Penal Code section 995 to dismiss the rape allegation, and the trial court denied his motion.*fn1 Prior to trial appellant did not challenge the trial court's ruling on his motion. (Lodg. 10 at 2-5.)
At trial the victim again testified that Petitioner did not rape her and that she had been mad at him when she filed the police report. (Lodg. 10 at 4.) This testimony was impeached through police officers' testimony regarding her prior statements to them. (Lodg. 10 at 4.) Furthermore, the jury heard the recording of a phone call Petitioner made from jail to the victim prior to his preliminary hearing asking for help in avoiding prison. (Lodg. 10 at 4.) The trial court also disallowed a claim of right defense to the carjacking charge, and allowed two of Petitioner's former girlfriends to testify regarding prior episodes of domestic abuse involving Petitioner.*fn2 On October 17, 2005, a jury convicted Petitioner of forcible rape, two counts of kidnaping, making a criminal threat, car jacking, and corporal injury on a roommate. (Lodg. 2, Vol. 1, CT at 158-65; Vol. 2, CT at 321.) On January 6, 2006, the trial court sentenced Petitioner to fifteen years to life on the rape conviction plus a five year consecutive sentence on the carjacking conviction. (Lodg. 10 at 5-6.) The trial court did not impose a term on one of the kidnapping convictions because it was used to enhance the rape sentence. (Lodg. 10 at 5-6.) The court also imposed sentence on the remaining counts, but stayed each of these sentences. (Lodg. 10 at 5-6.)
Petitioner filed a direct appeal in the California Court of Appeal, Fourth Appellate District, alleging: (1) the trial court erred by allowing the district attorney to refile the rape charge after it was dismissed at the preliminary hearing; (2) the trial court erred by prohibiting Petitioner from presenting a claim of right defense to the car jacking charge; (3) the trial court erred by imposing a four-year term on the corporal punishment count; and (4) California Evidence Code section 1109 is unconstitutional. (Lodg. 7.) On June 25, 2007, the court of appeal filed a published opinion, ordering the sentence on Petitioner's corporal punishment count to be reduced and stayed, and in all other respects affirming the trial court's judgments.*fn3 (Lodg. 10 at 2, 15.) On August 6, 2007, Petitioner filed a petition for review in the California Supreme Court regarding the remaining claims denied by the court of appeal. (Lodg. 11.) On October 12, 2007, the supreme court summarily denied these claims. (Lodg. 12.)
On February 5, 2008, Petitioner filed a petition for writ of habeas corpus in the San Diego County Superior Court alleging: (1) the trial court erred by allowing the district attorney to refile the rape charge after it was dismissed at the preliminary hearing; (2) the failure to impose a sentence on one of the kidnaping counts result in an unauthorized sentence; and (3) the trial court erred when it prohibited Petitioner from presenting a claim of right defense to the carjacking charge. (Lodg. 13.) On April 2, 2008, the court denied the petition because Petitioner's claims had either been presented on appeal or could have been presented on appeal. (Lodg. 14 at 2.) On June 5, 2008, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal alleging the same three claims presented to the superior court and additional claims of prosecutorial error and ineffective assistance of trial and appellate counsel. (Lodg. 15.) On July 29, 2009, the court of appeal denied the petition on all grounds because Petitioner's claims were either repetitive, could have been presented on direct appeal, or were ...