The opinion of the court was delivered by: Fred Van Sickle Senior United States District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
THIS MATTER comes before the Court without oral argument based upon Christopher David Miers' petition for a writ of habeas corpus. He is representing himself. His custodian is represented by Janie Shank McLean.
At the time his petition was filed, Christopher David Miers (hereinafter "Petitioner") was in custody at Avenal State Prison pursuant to his May 9, 2003, conviction in California's Butte County Superior Court, for forcible rape, rape of an unconscious person, and three counts of unlawful sexual intercourse with minors. (Ct. Rec. 1 at 2). The court sentenced Petitioner to an upper term of eight years for the forcible rape, plus two years for the rape of an unconscious person, and an additional consecutive eight month sentence for each of the three unlawful sexual intercourse convictions. (Ct. Rec. 15 at 2). Petitioner challenges his sentence.
The California Court of Appeal, Third Appellate District, described the facts of this case as follows:
Counts 2 & 4: Rape and Unlawful Intercourse with Sophine R. Sophine R. met defendant in April 1999, when she was 14 years old. A group of people, including defendant and Sophine, were at the residence of Sophine's friend, Angie. After a time, the group went to defendant's house. Someone provided alcohol. Sophine did not remember how much she drank, but she was 'pretty drunk' when she went to defendant's bedroom and lay on the bed. He joined her, first lying next to her, and then on top of her. When he began rubbing himself on her, she told him she was a virgin and she was not going to have sex with him. However, at some point, she passed out.
When Sophine awoke the next morning, her pants were unzipped and her vaginal area was bleeding and hurting. She accused defendant of having sex with her. He said he did not remember, but if he did have sex with her, he was sorry. She forgave him.
Early the next month, Sophine was again at Angie's house when defendant came by. He and Sophine left together and went to his house where they had sex, although it was painful for her and she told him so. He told her to 'work at' the soreness and it would get better. The following month they had sex again, this time in the back seat of his car.
Sophine discovered she was pregnant. She bickered with defendant because he wanted her to have an abortion but she refused.
After four or five months without seeing each other, defendant telephoned Sophine about 3:00 a.m. one morning. They met down the street from her house, where they had sex in a van.
In December 1999 or January 2000, defendant and Sophine talked about her getting an abortion. Defendant told Sophine not to tell the hospital that he was the baby's father because he could 'get in trouble,' since she 'was under age.'
Sophine had defendant's baby in the spring of 2000. Defendant paid child support, and DNA tests confirmed his paternity.
Count 3: Unlawful Intercourse with Shannon G.
Shannon G. had a year-long sexual relationship with defendant, beginning in 1998 when she was 13 years old. Their first sexual intercourse occurred at defendant's mother's apartment in Oroville. Additional acts occurred at the apartment of Shannon's friend, at a Department of Forestry fire station, and at defendant's residence. Shannon did not have a place to stay, so she did 'whatever [defendant] wanted' in order to stay with him. Although at trial she testified that the sex acts were consensual, she was a very reluctant witness, and she had previously told a police detective that defendant had sex with her against her will. He would come up behind her, push her shoulders in an attempt to push her to the ground, begin to disrobe her, and make statements like, 'C'mon, c'mon.'
Count 5: Rape of Kerry C.
In October 1999, 16-year-old Kerry C. cut school with two friends. They went to defendant's house where Kerry met him for the first time. A few days later, she returned to his house. They sat on a recliner and kissed. When she asked to use the bathroom, he directed her past the nearest bathroom to another bathroom at the rear of the house, off of a bedroom. She walked toward the bathroom but she did not get that far.
Defendant followed Kerry and pushed her down onto the bed, on her back. He got on top of her, holding her hands by her head. He said, 'let me,' and tried to remove her pants. She tried unsuccessfully to get away from him. They both fell off of the bed and onto the floor. He put his hand down her pants and put his fingers inside her; she told him to stop and he said, 'Just let me.' He tore and removed her pants, and then began to have intercourse with her, despite her oral protests and resistance. Exhibits at trial included the torn pants and photographs of bruises she received on her chest and legs.
When interviewed by a police detective, defendant denied having a sexual relationship with Kerry. He told the officer he was nervous when underage girls 'showed up,' because he could get into trouble with them. A blood sample taken from defendant matched the DNA in the semen found on Kerry's pants.
Genevieve S. testified as the victim of an uncharged offense under Evidence Code section 1108. In November 1997, when she was 14 years old and defendant was 18 years old, she had sex with him at a Butte County residence.
The defense rested without presenting any evidence or testimony.
People v. Miers, No. C045764, 2005 Cal. App. LEXIS 10736, *2-6 (Cal. App. 3d Dist. Nov. 21, 2005) (unpublished).*fn1
On May 9, 2003, following a jury trial, Petitioner was convicted of forcible rape, rape of an unconscious person, and three counts unlawful sexual intercourse. (Ct. Rec. 1 at 2). On December 16, 2003, the trial court sentenced Petitioner to state prison for twelve years, consisting of the upper term of eight years for forcible rape, two years for rape of an unconscious person, and eight months for each of three counts of unlawful sexual intercourse. (Ct. Rec. 15 at 2). Petitioner appealed from his conviction and sentence to the California Court of Appeal, Third Appellate District. (Ct. Rec. 1 at 3). The California Court of Appeal affirmed Petitioner's judgment and sentence. (Id.). Petitioner thereafter sought review by the California Supreme Court. (Id.). The California Supreme Court denied Petitioner's request for review on January 25, 2006. (Id.). On January 10, 2007, Petitioner filed a petition for writ of habeas corpus, requesting federal review. (Ct. Rec. 1). Respondent's answer was filed on July 5, 2007. (Ct. Rec. 15). Petitioner did not file a traverse.
1. Petitioner's two rape convictions should be reversed because the trial court failed to sua sponte instruct on the two rapes' lesser included offense of unlawful sexual intercourse, resulting in a violation of Petitioner's rights, and, alternatively, counsel's failure to request the jury instruction constituted ineffective assistance of counsel under the Sixth Amendment;
2. Petitioner's rights to effective assistance of counsel, due process, and equal protection were violated because Petitioner's counsel was not provided with a copy of the trial transcript for preparation of a new trial motion, and, alternatively, Petitioner's ...