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PAREN HASMUKHBHAI PATEL v. G. SWARTHOUT

December 1, 2010

PAREN HASMUKHBHAI PATEL,
PETITIONER,
v.
G. SWARTHOUT, RESPONDENT.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

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FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are petitioner's amended petition for a writ of habeas corpus (Doc. 10), respondent's answer (Doc. 21), and petitioner's reply (Doc. 25).

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I. BACKGROUND

A. Facts*fn1

The state court recited the following facts, and petitioner has not offered any clear and convincing evidence to rebut the presumption that these facts are correct:

Defendant and the victim began living together in the victim's apartment in September 2007. In early December 2007, the victim moved out of her apartment and began "jump[ing] back and forth" between two motels. Defendant stayed with her in both motels.

On January 1, 2008, defendant and the victim got into an argument in the victim's motel room. After the victim refused defendant's request to watch his friend's son while he went out, defendant "just flipped," "grabb[ing]" her, "slapping [her] in the head," "hitting [her]," and "kicking [her]" after she fell to the ground. During the fight, he "pulled the phone out of the wall."

In March 2008, defendant was charged with domestic violence and cutting a utility line. The complaint also alleged two prior convictions (which defendant later admitted).

At the outset of the trial in August 2008, the prosecutor moved to admit evidence of defendant's prior conviction for robbery for purposes of impeachment if defendant testified. The court granted that motion. The prosecutor then moved to exclude any reference to the victim's parole status and the fact that she was in custody. Defense counsel opposed that motion, arguing that the victim's prior conviction for domestic violence was "going to be at issue" because the victim was going to testify as a witness. Defense counsel also argued that the fact the victim was on parole for that offense and was in custody on a parole violation was "just as relevant . . . as the original offense itself" because "[i]t shows that she continues to violate the law, and . . . we don't want [her] to have" a "[f]alse aura of lawfulness." The prosecutor conceded the victim's prior conviction would be admissible for impeachment purposes, but argued her parole status did not "go to credibility, and it's prejudicial to the people." The trial court agreed evidence of the victim's parole and custodial status was inadmissible "propensity evidence" and granted the motion over defense counsel's objection, subject to an application to revisit the issue outside of the jury's presence.

The prosecutor then requested that the court instruct the jury that the victim's prior conviction could be "used only for the purpose of evaluating her truthfulness, her credibility as a witness, and not as evidence of propensity," since it appeared defendant would not be testifying and therefore would not be claiming self-defense. The court agreed to instruct the jury accordingly when the evidence of the victim's prior conviction was elicited and at the conclusion of the case. Defense counsel did not object and did not argue that the victim's prior conviction should be admitted for a purpose other than impeachment.

The prosecutor moved, pursuant to Evidence Code section 1109, to admit evidence of defendant's prior acts of domestic violence against the victim -- specifically, the victim's testimony that defendant had assaulted her about 15 times in the month before the charged incident. Defense counsel offered no opposition, and the court granted the motion.

During the victim's testimony, the prosecutor elicited evidence that defendant had assaulted her about 15 times during their relationship, beginning near the end of December 2007. She then testified about the fight on January 1, 2008. In the course of examining the victim, the prosecutor elicited testimony that she was an alcoholic and had used methamphetamine off and on during her relationship with ...


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