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Benjamin Flournoy v. Larry Small

December 3, 2010

BENJAMIN FLOURNOY,
PETITIONER,
v.
LARRY SMALL, WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

Order Adopting Report and Recommendation; Denying Petition for Writ of Habeas Corpus; Granting in Part Motion for Certificate of Appealability

Petitioner Benjamin Flournoy, a California state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his February 27, 2006 conviction for assault with intent to commit rape and forcible rape in San Diego County Superior Court Case No. SCD186632. On June 14, 2010, Magistrate Judge Porter filed a report and recommendation ("R&R"), recommending the Court deny the petition. Flournoy filed objections on July 8, 2010 and supplemental objections on August 4, 2010.

Upon review, for the reasons explained herein, the Court rejects Flournoy's objections to Magistrate Judge Porter's well-reasoned R&R, and denies the Petition.

Factual Background

The factual background is set forth in full in the R&R and need not be repeated herein.*fn1

The Court will provide a short summary. Flournoy met the victim, L.M., in late October of 2003 while L.M. was waiting for a bus at the corner of Ninth Street and Broadway in downtown San Diego. Flournoy and L.M. met again at the same corner the following day. Flournoy wrote his telephone number on a piece of paper and put it among L.M.'s books, where she later found it.

L.M. called Flournoy a few days later and agreed to meet him downtown. While they walked around downtown, L.M. allowed Flournoy to hold her hand but would not allow him to kiss her.

On October 30, 2003, Flournoy called L.M. and invited her to come watch a basketball game at his apartment. They met at First Street and Broadway and went to Flournoy's apartment at J Street Inn. L.M. brought a duffel bag with some school books. Flournoy's studio apartment was furnished with a bed and a small futon. Flournoy and L.M. sat on the futon and watched television. Flournoy then went to the bathroom, changed into his pajamas, and went to bed because he had to get up early the next morning. L.M. continued to watch television, and missed her last bus. Because she did not have money for a cab, L.M. decided to wait until she could catch a bus, and laid down on the futon. Because the futon was too small, around 2:00 a.m., L.M. laid down fully clothed on top of the covers on Flournoy's bed. When she got cold, L.M. climbed under the covers and fell asleep.

L.M. was awakened by Flournoy on top of her. Her shorts were around her ankles and her shirt and sweatshirt were pulled up. Flournoy then raped her. L.M. was ultimately able to get Flournoy off her and left his apartment crying. She was eventually able to catch a bus back home.

Once at home, without showering or changing clothes, L.M. went to Mercy Hospital because her ovaries had been hurting for several days. Once at the Hospital, L.M. told a nurse and a doctor she had been raped in an alley behind her apartment by someone she did not know. L.M. told police the same story when they arrived at the hospital. Upon physical exam, registered nurse Shirley Odum found abrasions to L.M.'s genitals consistent with blunt-force trauma but could not determine if they were from consensual or nonconsensual intercourse.

L.M. told a friend that Flournoy raped her. L.M. also told her aunt she had been raped but initially did not identify her attacker. L.M. later told her aunt what happened at Flournoy's apartment. L.M. eventually called San Diego Police Detective Mike Holden and told him Flournoy raped her.

When Detective Holden contacted Flournoy, Flournoy denied knowing L.M. Flournoy voluntarily provided a DNA sample, which matched DNA recovered from the swab taken of L.M.'s breast. Flournoy's DNA also matched two sperm cells recovered from a swab of L.M.'s external genital area. Detective Holden obtained a search warrant for Flournoy's apartment, and found several items of L.M.'s personal property.

At trial, two witnesses testified that Flournoy, at the time of the rape, had a sofa in his apartment which was large enough for a grown man to stretch out on. Witness Jessica Gomez, a former friend of both L.M. and Flournoy's sister, testified that L.M. told her she took off all her clothes except her bra and underwear before climbing into bed with Flournoy. A forensic nurse testified, based upon her review of the reports from L.M.'s examination, that the abrasions L.M. suffered were "minor" and consistent with consensual intercourse. Defense counsel argued, during closing, that Flournoy reasonably misinterpreted L.M.'s acts as consent to have intercourse.

Procedural History

The San Diego County District Attorney charged Flournoy with one count of forcible rape and one count of assault with intent to commit rape. [Lodgment No. 1, Vol. 1, at 1-2.] The information also alleged Flournoy had suffered three serious felony prior convictions and three "strike" prior convictions. [Id., at 2-3.]

Following a jury trial, Flournoy was convicted of both counts. Flournoy admitted he had suffered the prior convictions as alleged in the information. [Lodgment No. 3, Vol. 8, at 1219-21.] The trial court sentenced Flournoy to twenty-five years to life, and to five years for each of the serious felony prior convictions. [Lodgment No. 3, Vol. 9, at 1252.]

Flournoy appealed to the California Court of Appeal, which affirmed the conviction in an unpublished written opinion. [Lodgment Nos. 5 and 6; Lodgment No. 1, App. A.] Flournoy filed a petition for review in the California Supreme Court, which was denied without citation to authority. [Pet. Exh. C.] Flournoy then filed a petition for a writ of habeas corpus with the ...


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