The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner, Alonzo Elmer Jackson, a state petitioner proceeding pro se, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Jackson is currently in the custody of the California Department of Corrections, incarcerated at the Ironwood State Prison, in Blythe, California. Respondent has filed an answer, and Jackson has filed a traverse.
Jackson was charged with the sexual assault of two women, J.O. and O.T. The following statement of the facts was taken verbatim from the decision of the California Court of Appeal, Third District:*fn1
The Sexual Assault of J.O.
In January 2002, J.O. was 18 years old and a participant in a training program with the Job Corps, living on the Job Corps campus in Sacramento. On January 20, 2002, she and another Job Corps participant, M.M., rode a Job Corps shuttle bus to the Florin Mall. After going to the mall, M.M. bought some type of strong alcohol, which both women drank before going back to the shuttle bus stop at around 8:00 p.m. The shuttle was running late.
While the women were waiting, a man drove up in a white Dodge Neon. M.M. approached the man and they spoke briefly. M.M. told J.O. the man said he was looking for his niece who was in the Job Corps program and he offered to give them a ride back to the Job Corps campus. The women accepted his offer. M.M. got into the front passenger seat and J.O. got into the back seat.
M.M. and the man flirted and conversed while J.O. looked out the window. M.M. suggested J.O. massage the man's shoulders and J.O. did so, although she felt uncomfortable. J.O. heard M.M. say something about spending the night with the man for money, but J.O. thought M.M. was joking. The man said he knew where there was a party and there was some discussion about going to it. J.O. told M.M. they should go back to the Job Corps.
After driving a couple of miles, the man pulled over on a residential street because M.M. said she needed to urinate. M.M. got out of the car and went over to a bush. The man climbed into the back seat of the car with J.O. He started to flirt with her and was "trying to feel [her] up[.]" J.O. kept asking where M.M. was and said they needed to get back to the Job Corps. The man got back into the driver's seat, reached over, pulled the door closed, and drove off. When J.O. asked him what he was doing, the man replied that he was going to rape her as it had always been a fantasy of his. He said he had a gun and gestured next to him, although J.O. did not see any weapon.
The man drove to a darker area where he stopped and moved quickly into the back seat. The man forcibly pushed J.O. down, got her pants off, licked her neck, and fondled her breasts and vagina. He put a condom on and put his penis inside her vagina for about two minutes. Afterwards the man handed J.O. a shirt and said something about washing the car windows. J.O. got out of the car and started running away. The man drove away. J.O. walked to a commercial street, found a pay phone and called Job Corps, telling the Job Corps' security officer she had just been raped.
Job Corps officials brought J.O. back to campus and called law enforcement. Sacramento Sheriff deputies arrived and took a statement from J.O., including a description of the rapist. J.O. drove with the officers to the area of the rape, but she could not find the location exactly. The officers took her to the hospital where she underwent a sexual assault medical exam.
The nurse practitioner at the hospital noticed bruising on J.O.'s neck and a small microscopic tear at the entry of her vaginal opening, injuries which were consistent with rape. The nurse collected blood, urine and hair samples from J.O. She took several swabs from J.O.'s body, including one from her neck where saliva might have been left by the rapist. The samples taken from J.O. were preserved and screened by a criminalist with the biology unit of the Sacramento County District Attorney's Laboratory of Forensic Services. Subsequent analysis of J.O.'s urine tested positive for chemicals associated with the drug Ecstasy, although J.O. denied she had ever taken Ecstasy that night or any prior night.
In June 2004, the Sacramento Sheriff's Department was notified a "cold hit" from the state's DNA database identified defendant as a suspect in J.O.'s case. At trial, reference to the cold hit was not allowed and Sheriff Detective Christopher Joachim testified before the jury that an "investigative lead" was received. Based on that information, Joachim compiled a photo lineup and met with J.O. J.O. identified defendant's photo as the most likely to be the rapist. She told Joachim she was pretty sure it was him. He had the right look, which she described as a dopey or sad look. J.O. identified defendant in court as the man who raped her.
*318 Joachim determined defendant's address and found a white Dodge Neon belonging to defendant parked by the apartment. Defendant was arrested the next day at his place of employment, the Good Guys store located on Florin Road. Joachim took four buccal swabs from defendant's cheek, mouth and gums for DNA analysis pursuant to an authorizing court order. When shown defendant's car, J.O. identified the Dodge Neon as identical to the car in which she was raped. A package of condoms was found in the trunk, as well as two bottles of lotion.
A criminalist expert in DNA extraction and analysis testified the neck swab taken from J.O. contained a mixture of DNA from two persons. The major contributor had a DNA profile that matched defendant's DNA profile at all 16 genetic markers that were tested. The minor contributor's profile was consistent with J.O.'s profile. The expert testified the major contributor's profile would be expected to occur randomly among unrelated individuals in one in 400 quintillion of the African--American population, one in 23 sextillion of the Caucasian population and one in 6 sextillion of the Hispanic population. Defendant is African--American.
The Sexual Assault of O.T.
On February 18, 2002, O.T. and her boyfriend, J.B., walked to a bus stop at 47th Street and Stockton Boulevard in Sacramento. J.B. left when a bus pulled up. When it turned out to be the wrong bus, O.T. was left waiting by herself. A man drove up and asked O.T. if she wanted a ride home. O.T. thought he looked familiar and the man acted like he knew her too. O.T. decided to go with him and got into the front passenger seat. O.T. gave the man directions to her mother's house.
The man initially drove towards O.T.'s mother's house, but then made a couple of turns unfamiliar to O.T. He told O.T. he was taking a shortcut. A short time later, he started to touch O.T., rubbing her breast and neck. O.T. brushed him away and told him she had a boyfriend. The man then stopped the car. O.T. tried to get out, but he grabbed her, locked the doors, and got on top of her. O.T. was unable to push him off.
The man kissed O.T.'s breast, neck and back. He inserted his fingers inside her vagina and tried to put his finger in her anus, but O.T. squirmed away. The man grabbed her hand and put it on his penis. O.T. pulled her arm away. The man then put his penis inside her vagina. O.T. was not sure if he ejaculated. He was not wearing a condom. Afterwards O.T. tried to put her clothes back on. The man drove to another location, stopped, and told her to get out. O.T. got out of the car. The man sped off before she could retrieve her sweatshirt.
O.T. went to a nearby phone booth and called the police. When they arrived, she gave them a description of the rapist and his car. Police searching for the rapist found O.T.'s sweatshirt in the road at the intersection of Emerson and Fruitridge Road.
O.T. was taken to the hospital where she was given a sexual assault medical exam. O.T. told the examining nurse practitioner that the rapist had put body lotion on his hand, chest, and penis. O.T. said the man had ejaculated on her thigh and she had wiped it off with a towel. The nurse detected suspected semen on O.T.'s chest, abdomen, and thigh. She collected samples from those areas. She also swabbed O.T.'s breast area for possible saliva as O.T. indicated the rapist's mouth had made contact there. The evidence collected from the sexual assault medical exam was preserved and inventoried at the Sacramento County District Attorney's Laboratory of Forensic Services. Subsequent testing of O.T.'s blood and urine samples detected the presence of marijuana consistent with use of the drug sometime in the previous day.
In February 2005, law enforcement received an "investigative lead" focusing attention on defendant as a suspect in O.T.'s rape case. Sacramento Police Detective Jimmy Vigon contacted O.T. and met with her on March 8, 2005 to show her a photo lineup. O.T. very quickly pointed to defendant's photograph and said, "That's him." Vigon went to the Sacramento County jail two days later and arrested defendant on additional charges involving O.T. O.T. identified defendant at trial as the man who raped her.
The prosecution's criminalist expert in DNA extraction and analysis testified she was able to develop a DNA profile from the samples collected from O.T.'s chest and thigh. The sperm portion of the chest sample came from a single source with a DNA profile that matched defendant's DNA profile at each of 16 genetic markers. The non-sperm portion of the chest sample was a mixture of at least three people. The expert determined the DNA profiles in the non-sperm mixture were consistent with the profiles for O.T., her boyfriend J.B., and defendant. The swab from O.T.'s thigh also contained a slight mixture; the major contributor was consistent with defendant's DNA profile and the minor contributor was consistent with O.T.'s profile. The expert gave the same random match probability for the samples matching defendant's DNA profile as he gave before in J.O.'s rape case.
It was stipulated in front of the jury at trial, that on September 20, 1989, defendant was convicted of felony assault with intent to commit rape in violation of section 220.
On July 10, 2006, the Sacramento County District Attorney filed an amended information charging Jackson with nine sex-crimes, involving two victims--J.O. and O.T. As to J.O.: kidnapping to commit rape--count 1; forcible rape--count 2; sexual battery--counts 3 and 4; and, attempted penetration of the anus--count 5. As to O.T.: kidnapping to commit rape--count 6; forcible rape--count 7; digital penetration of the vagina--count 8; and sexual battery--count 9.
The information further alleged that Jackson kidnapped his victims and that he committed offenses against more than one person within the meaning of California Penal Code §§ 667.61(e)(1) and (e)(5). The information also alleged that Jackson had been previously convicted of two serious felony offenses for purposes of Cal. Penal Code § 667(b)-(i)) and a third prior felony within the meaning of another repeat offender statute--Cal. Penal Code § 667(a)). Jackson pled not guilty to all the charges and denied the allegations.
On August 8, 2006, a jury found Jackson guilty of all counts, except for count five of which they found him not guilty. The jury also found that Jackson had kidnapped his victims and that he committed offenses against multiple victims. The jury also found true all of the alleged prior-conviction allegations.
The trial court sentenced Jackson to an indeterminate term of 160 years to life on counts two and seven, and concurrent, indeterminate terms of 30 years to life on each of counts three, four, eight and nine. Jackson was also sentenced to two terms of twenty-five years to life on counts one and six, but these sentences were stayed by the court under California Penal Code § 654.
Jackson appealed his conviction and on May 27, 2008, the California Court of Appeal, Third District, affirmed the judgment in a partially published opinion. On June 5, 2008, the Court of Appeal entered an order modifying the opinion without affecting the judgment. On June 30, 2008, Jackson filed a petition for review in the California Supreme Court which was denied on September 10, 2008.
On September 9, 2009, Jackson timely filed his Petition for Habeas Corpus in this Court. In his Petition, Jackson raises three grounds for relief: 1) the involuntary collection of his DNA while he was a prisoner at the California Men's Colony in 1993 violated the Fourth Amendment when it was used to identify him in these proceedings; 2) the prosecutor improperly excluded minority jurors on the basis of their race; and 3) the prosecutor committed two instances of prosecutorial misconduct. Respondent concedes that all of Jackson's grounds for relief are properly exhausted and does not claim that any of the grounds are procedurally barred.
In his first ground, Jackson claims that his Fourth Amendment Right against unreasonable searches and seizures was violated by the involuntary collection of a blood sample taken on January 27, 1993, while he was an inmate at the California Men's Colony in San Luis Obispo.*fn2 The sample was entered into California's DNA Databank and later used to identify him as the perpetrator of the crimes against J.O. and O.T.
Jackson's Fourth Amendment argument is foreclosed by the Supreme Court decision in Stone.*fn3 Under the holding in Stone, "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim," federal habeas corpus relief will not lie for a claim that evidence recovered through an illegal search or seizure was introduced at trial.*fn4 The Ninth Circuit has made it clear that all Stone requires is that the State provide a state prisoner a fair and full opportunity to litigate his Fourth Amendment claim.*fn5 "The relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided."*fn6 In this case, Jackson was provided a fair and full opportunity to present his claims. He raised the issue in a suppression motion, the trial judge held a hearing on the issue at which Jackson was allowed to present evidence and examine witnesses, and the trial court made a factual finding.*fn7
Even if Jackson's claim were not foreclosed by Stone, he would still not be entitled to relief. The Ninth Circuit has repeatedly held that such compulsory blood extractions from convicted felons do not violate the Fourth Amendment.*fn8 In the absence of a Supreme Court decision to the contrary, Jackson is ...