FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2002 judgment of conviction entered in the Sacramento County Superior Court following a jury trial on charges of felony assault (California Penal Code § 254(a)(1) - count one), forcible rape (California Penal Code § 261(a)(2) - count two), threatening a witness (California Penal Code § 136.1(c)(1) -count three), felony battery (California Penal Code § 24 (d) - count four), and making criminal threats (California Penal Code § 422 - count five). The jury also found that petitioner had inflicted great bodily injury in the commission of the assault (California Penal Code § 12022.7(e)). Petitioner seeks federal habeas relief on the grounds that his trial counsel rendered ineffective assistance and the evidence was insufficient to support his conviction on the rape charge. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
Petitioner appealed from his conviction to the California Court of Appeal for the Third Appellate District. On February 24, 2005, the judgment of conviction was affirmed. (Notice of Lodging Documents on March 18, 2010 (Doc. No. 27), Resp't's Lod. Doc. 8.)
Petitioner then filed a petition for review with the California Supreme Court. (Resp't's Lod. Doc. 9.) On May 11, 2005, the California Supreme Court denied the petition without prejudice "to any relief to which defendant might be entitled after this court determines in People v. Black, S126182, and People v. Towne, S125677, the effect of Blakely v. Washington (2004) U.S. [,] 124 S.Ct. 2531, on California law." (Resp't's Lod. Doc. 10.)
On November 10, 2005, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court. (Resp't's Lod. Doc. 11.) On January 17, 2006, the petition was denied on the merits. (Id.)
On April 3, 2006, petitioner filed a habeas petition in the California Supreme Court. (Resp't's Lod. Doc. 12.) On December 13, 2006, the California Supreme Court summarily denied that habeas petition. (Resp't's Lod. Doc. 16.)
On September 17, 2007, petitioner filed his federal habeas petition in this court. On August 13, 2008, petitioner filed an amended petition which is the operative petition in this federal habeas action.
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:
On June 11, 2000, Deputy Matthew Petersen of the Sacramento County Sheriff's Department went to the home of I.B., the victim's sister (the sister), in response to a report of an assault and rape that had occurred two nights earlier. The sister, who had lived in the United States for approximately 11 years and appeared fluent in English, translated for the victim, who did not speak English well. Deputy Petersen summarized the victim's statement. Through the sister, the victim told the officer that her boyfriend told her to come to his house on June 9 because he was upset with her. Her boyfriend had loaned her some money, which she had not completely repaid. She had changed her telephone number and was trying to break off the relationship. He told her she had to come to his house or he would go to her house and hurt her. The victim would not give Deputy Petersen her boyfriend's name during this interview because she was afraid her boyfriend would kill her.
The victim went to her boyfriend's house and, after several of his friends left, he became upset with her. He grabbed her head by the hair with both hands and head-butted her three times in the nose and forehead, causing her nose to bleed. He then struck her in the chest with closed fists and repeatedly kicked at her legs. The victim used body language demonstrating the head-butting and blow to her chest. Her boyfriend then told her to clean herself up because he wanted to have sex. She did as she was told and "let" him have sex with her because she was afraid he would hurt her if she did not comply. Thereafter, he attempted to have sex with her again but she was crying and told him "no." Deputy Petersen did not record what was said "word for word" but he wrote down that, after she said "no," "he did not force [her] to do it again." The victim left her boyfriend's house at 4:00 a.m. and returned home. The next day, the victim was in a lot of pain. She called her boyfriend and had him take her to the hospital. The doctor said her nose was fractured and to let it heal. She told the doctor she had received her injuries from a fall. Her boyfriend told her if she told the police what he had done or he got arrested, he would kill her or have somebody kill her.
The victim told Deputy Petersen her boyfriend had beat her approximately five times before but she had never made a police report. She did not want her boyfriend arrested because she was afraid he would hurt or kill her, but she wanted a police report so she could get a restraining order to keep him away. A female officer who was also present at the interview took photographs of the victim's body, depicting trauma to her face, and multiple bruises on her chest, arms and legs.
The parties stipulated the victim had seen doctors Robert Hayes, M.D., and Thomas Maclennan, M.D., at the Med-7 Urgent Care Center on June 10, 2000. She said she had walked into a truck and struck her nose. She denied having been punched with a fist. X-rays revealed she suffered a nasal bone fracture without major displacement.
On July 19, 2000, the victim called 911 to report that defendant had been threatening her. She told the dispatcher through a Russian translator that defendant was going to kill her. She said defendant had repeatedly threatened her, threatened to kill her and told her she would not be alive in the morning. She was afraid to leave her house and her child.
Sacramento City Police Officer Michael Avila responded to the victim's 911 call. One of the victim's several daughters (the older daughter), who was fluent in English, translated the interview for her mother. Through the older daughter, who was 16 years old at the time, the victim told the officer that defendant had loaned her money and physically "beat" and "raped" her on June 11 because she was unable to pay him back. "Beat" and "raped" were the exact words the older daughter used. The victim said she had reported the assault before but did not provide defendant's name at that time because she felt sorry for him, did not want to see him go to jail, and defendant told her he would forget about the $3,000 he loaned her if she did not report it to the police.
The victim told Officer Avila that defendant had called her earlier that day, demanded she pay him the $3,000, and threatened that no one would be able to help her and she would be dead by morning. She was afraid of defendant because of what he had done to her in the past. She said she did not want defendant arrested but wanted the officer to document the threatening call in case something happened to her. She cried during part of the interview.
On August 2, 2000, Detective Slabaugh conducted a 90-minute taped interview with the victim, which was later translated by a court-registered interpreter. During the interview, the victim said defendant beat her but that she had hesitated to report it because she felt pity for him and he had helped her a lot in the past. Defendant was pressuring her for the $3,000 she owed him and had threatened her life and the lives of her children if she did not pay. The victim told the detective that if defendant were arrested, things would be worse because he would be out of jail in a matter of hours and had a lot of connections, so this would be bad for her and her children. She told the detective that defendant had some very bad friends, kept a handgun in his home and that he and his friends would torment her and her children. When asked if she would testify against him, she said she would not because defendant had once gotten her out of jail and she did not think he was that scary.
On April 21, 2001, the victim called 911 to report that defendant had been threatening her again. She told the dispatcher that defendant or his friend had said that everything would end in blood. She was afraid to leave her children home by themselves and was scared.
That same day, Sacramento Police Officer Harry Sugawara interviewed the victim at her home in response to the report of threats she had received. The victim's younger daughter (younger daughter), was present and served as an interpreter for her mother. The younger daughter spoke fluent English and had no difficulty communicating with the officer. At that time, the younger daughter would have been 16 years old. Officer Sugawara testified that, through the younger daughter, the victim told him she had received a death threat indirectly from defendant, with whom she had been intimately involved for approximately three years. Defendant had assaulted her on numerous occasions and she did not want any further contact with him. The victim described several prior acts of violence, including assaults and an attempted stabbing. The victim had received a telephone call the night before from a mutual friend named "Alex" who told her that defendant was not through with her and that "he was going to kill her and rape her daughters."
The younger daughter was emotional on the witness stand. She testified that she had heard her mother say defendant had beaten her in the past. She had translated for her mother during interviews with officers on at least five different occasions, some of which had concerned the disappearance of her sister. She did not remember the content of the conversation she translated on April 21, 2001.
District Attorney Investigator James Ross interviewed both the victim and the sister on August 23, 2001. Regarding the June 9, 2000 incident, the sister told Ross that the victim had told her defendant grabbed her by the shoulders and head-butted her "a few times," causing her nose to bleed, when she was at defendant's home on "the date in question." This occurred after defendant's friend had left. Defendant had also hit her in the chest area with his hands. The victim told the sister that she and defendant went into the bathroom and washed the blood from her face and clothes, and defendant put ice on her face. The victim felt the police report was somewhat inaccurate in that it gave the impression she had washed parts of her body other than her face. The victim also said the report was inaccurate because defendant only head-butted her one time. The sister, however, said the victim had initially told her defendant head-butted her a few times. The sister also said the victim had told her that she had sex with defendant after the assault but that "she didn't particularly want to but she did anyway." The sister felt that maybe it was an attempt on defendant's part to be romantic. The victim did not use the word "rape." According to the sister, the victim cried while she told the sister what had happened.
The victim told the sister not to give the police defendant's name because she was afraid of defendant. After the report was given, the victim told the sister not to translate any more "because of the defendant and any kind of outcome that might arise out of, out of calling the police and prosecuting the matter." Defendant had called the sister approximately six months after the incident and told her he and the victim had only had an argument. The sister told him not to call her anymore. The sister told the investigator that she is "afraid" of defendant and did not want to come to court. She said there had been approximately four other instances in which defendant had assaulted the victim.
Through the sister, the victim told Ross that she was still in a relationship with defendant and felt that if he got probation, everything would be fine. Defendant had made a comment a few days earlier that had caused her some fear but it could have been a joke. The victim said she was afraid of defendant, both at the time of the assault and at the time of the interview, and described several other instances when defendant had assaulted her.
The victim unwillingly testified at trial, sometimes refusing to answer questions. She had repeatedly asked for the case to be dismissed. She testified that she had known defendant for four years. She was still romantically involved with defendant and had spent the night before her trial testimony with him. She said that on June 9, 2000, defendant had been jealous of her with respect to a male friend who had been visiting his house. When the friend left, he grabbed her shirt as she sat on the sofa. When she tried to get up, she grabbed his hands and his head struck her nose, causing it to bleed. She did not believe he had done that intentionally or she would not have stayed with him. Defendant apologized and she forgave him. At that point, they had consensual sex. Some of the bruises to her body were from when defendant grabbed her but others were a result of passionate sex.
The victim said she probably had another argument with defendant a few days later and that was why she called the police. She denied telling Deputy Petersen that she had been afraid to refuse sex with defendant or that defendant had threatened to kill her. She admitted she owed defendant $3,000 but denied that their argument on June 9 had been about this money. The victim also denied having told Officer Avila that defendant beat and raped her, and characterized the altercations with defendant as nothing more than "scandals" that had "been forgotten long ago."
The sister testified that she could not remember what she told Deputy Petersen or Investigator Ross but that some of Petersen's report was incorrect. She denied that the victim had told her she did not want to have sex with defendant and stated she did not understand the meaning of the word "force." She also stated she did not understand the meaning of the word "afraid." The sister appeared to have difficulty communicating in English during trial, although she admitted that she did not have such difficulties communicating earlier in the district attorney's office. She claimed this was due to being less relaxed and the use of different words. She also admitted she did not want to come to court to testify.
The older daughter testified that, although she had initially translated her mother's conversation with Officer Avila on July 19, 2000, she left and the younger sister finished translating the conversation. It was possible, however, that she was confusing the July 19, 2000 incident with the April 21, 2001 incident. The older daughter had no memory of the content of the conversation other than the fact that her mother and defendant had been in an argument and that, initially, her mother wanted defendant arrested because she was angry. The older daughter testified that her mother and defendant got into a lot of arguments and sometimes the police were called. She did recall an instance when she translated a conversation with the police wherein her mother said defendant had raped her. She believed she was 12 years old at the time. The older daughter was 16 years old in July 2000.
Linda Barnard, Ph.D., a licensed marriage and family therapist and expert in domestic violence and BWS, testified as an expert on BWS. She explained the cycle of domestic violence and dispelled various myths surrounding the victim's behavior. She had never interviewed defendant or the victim in this case and testified only generally regarding domestic violence, domestic rape and BWS. During her testimony, Barnard opined that the primary cause of domestic violence is the batterer's need for power and control over the victim. She explained that there are several myths surrounding domestic violence, including (1) it does not happen very often; (2) women routinely lie about being victims of domestic violence; (3) women stay in violent relationships because they like it; and (4) one can tell a batterer or a battered woman by looking at them. Barnard also explained several myths about domestic rape, including (1) it does not happen very often; (2) women routinely lie about being victims of domestic rape; (3) it most often happens in conjunction with domestic violence; and (4) it is less traumatic than stranger rape.
According to Barnard, the two primary reasons women stay in abusive relationships are fear and love, which includes the need for financial support, and concern about breaking up the family. Furthermore, it is not uncommon for women who report domestic violence to recant, take the blame for the abuse, or cease to cooperate with the prosecution.
Barnard discussed the cyclical pattern or stages of domestic violence: (1) the tension-building stage, where there may be arguing, name calling and shoving; (2) the acute episode phase, where there is an outbreak of physical or sexual violence and the victim fears for her life or personal safety; and (3) the honeymoon period, during which the batterer apologizes and promises never to do it again. This tends to increase the battered woman's dependency by reinforcing her tendency to deny the seriousness of the situation.
Barnard testified that there is usually a delay between the instance of domestic violence and the victim's report, and that only 10 to 20 percent of the victims report the instance at all. Victims reporting domestic rape most often do not call it "rape." One of the most common motivations for a victim to report domestic violence is that something different happened during the incident that made her more fearful or made her perceive an increased danger. As many as 77 percent of domestic violence and rape victims change their story, recant or become uncooperative at some point in the prosecution.
(Resp't's Lod. Doc. 8 (hereinafter Opinion) at 2-12.)
I. Standards of Review Applicable to Habeas Corpus Claims
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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 ...