The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING A CERTIFICATE OF APPEALABILITY; DENYING PETITIONER'S MOTION FOR PLEADING; DENYING PETITIONER'S MOTION TO APPOINT COUNSEL AND/OR DISCOVERY PROCESS [Dkt. Nos. 70, 73.] RULING ON PENDING OBJECTION
Petitioner Albert Hayes ("Petitioner"), a state prisoner proceeding pro se and in forma pauperis, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(b)(1), Magistrate Judge Leo. S. Papas submitted a report and recommendation ("Report") recommending that the petition be denied in its entirety. Petitioner filed objections to the report and recommendation on June 1, 2009. The case was transferred to the undersigned judge on March 25, 2011. After a thorough review of the issues, the documents presented, and objections filed, the Court ADOPTS the Magistrate Judge's report and recommendation denying the petition for writ of habeas corpus. The Court also DENIES a certificate of appealability and DENIES Petitioner's motion for ruling on pending objection pleading as MOOT. Lastly, the Court DENIES Petitioner's motion to appoint counsel and/or discovery process as MOOT.
On December 4, 2003, Petitioner represented himself at trial and was convicted by jury of one count of forcible rape in violation of California Penal Code ("Penal Code") section 261(a)(2); one count of assault with intent to commit rape in violation of Penal Code section 220; and one count of assault by means likely to produce great bodily injury in violation of Penal Code section 245(a)(1). (Notice of Suppl. Lodgment 1 at 623-24, 626.) The jury also found true all prior conviction allegations. (Id. at 632-38.)
On March 15, 2004, Petitioner, represented by counsel at this time, filed a motion for a new trial based on a claim that the prosecution failed to make timely disclosure of notes of a police detective which were favorable to the defense. (Id. at 472-80.) On March 29, 2004, the trial court denied the motion. (Id. at 642.) The trial court sentenced Petitioner to state prison for twenty-five years and enhanced his sentence by fifteen years for his three prior serious felony convictions. (Id. at 653.)
Petitioner appealed his conviction to both the California Court of Appeal and the California Supreme Court. (Lodgments 1, 4.) Both of his appeals were denied on December 29, 2005 and April 12, 2006, respectively. (Lodgments 3, 5.) Petitioner then filed a petition for writ of habeas corpus in the California Court of Appeal on April 17, 2005, which was denied on May 18, 2005. (Suppl. Lodgments 5, 6.) He filed a petition for writ of habeas corpus in the California Supreme Court on June 13, 2005 which was denied on May 10, 2006. (Suppl. Lodgments 7, 8.) Petitioner filed another petition for writ of habeas corpus in the court of appeal on May 12, 2006. (Lodgment 9.) That petition was denied on July 7, 2006. (Lodgment 10.) He then filed a petition for writ of habeas corpus in the California Supreme Court on July 19, 2006. (Lodgment 11.) The California Supreme Court denied the petition on February 7, 2007. (Lodgment 12.)
On March 21, 2007, Petitioner filed the instant petition for writ of habeas corpus in this Court. (Dkt. No. 1.) On June 25, 2007, Respondent filed an answer. (Dkt. No. 25.) Petitioner filed a traverse on April 10, 2008. (Dkt. No. 42.) On April 10, 2008, the Magistrate Judge issued a report and recommendation denying the petition for writ of habeas corpus. (Dkt. No. 41.) Petitioner filed his objections to the Report on June 1, 2009. (Dkt. No. 65.) On March 25, 2011, the case was transferred to the undersigned judge. (Dkt. No. 71.) On May 10, 2011, Petitioner filed a motion for ruling on pending objections. (Dkt. No. 73.)
In his petition, he alleges three claims: (1) a violation of his due process rights for the prosecution's untimely disclosure of evidence; (2) a violation of his due process rights for the denial of participation in appellate review; and (3) ineffective assistance of counsel on appeal.
The following factual background is taken from the Court of Appeal opinion in People v. Hayes, unpublished opinion (Cal. Ct. App., 4th Dist., Div. 1, December 29, 2005). The Court presumes these factual determinations are correct pursuant to 28 U.S.C. § 2254(e)(1).
Patricia, a resident of Bell Hotel in downtown San Diego, testified that about 8:30 p.m. on March 21, 2003,*fn1 she was outside the hotel talking to a White male (Robert Rohena) and a Black male. Patricia had met Rohena before, but she had not previously met the other man. During the conversation, Patricia learned that the men had been roommates in room four of the Bell Hotel, but the Black male had just moved out of the hotel that day. After talking for about five to 10 minutes with the two men, Patricia walked down the street with the intention of panhandling for money to buy beer.
When she was about a block away from the hotel, she saw the Black male again and he asked her if she wanted to smoke some "crack." Patricia walked with him for about a block, but because she started "getting some really bad vibes from him," she told him she did not "want to do that with [him]." When they reached the corner of a fence near a freeway ramp, she started "feeling really like [she] was in danger." She wanted to leave the area, but the man grabbed her hand and told her to sit down. They started arguing, and when she refused to sit down he pulled her down by the arm and slammed her to the ground. She asked, "What the hell is going on?" He told her to "[s]hut the hell up." She was resisting him, and he hit her on the face with something hard that felt like a brick or a rock. She felt that she had better do what he said or he would "do something more" to hurt her.
Patricia asked if she could at least sit on a mattress that was leaning against the fence. The man pulled the mattress down to the ground and let her sit on it. He told her to pull down her pants. She complied, and the man had sexual intercourse with her. At one point during the rape, she saw someone standing by a fence on the other side of the street. She started screaming to get the person's attention. Her assailant told her to shut up and choked her until she "blanked out for a bit" and stopped yelling. After the man finished and stood up, Patricia pretended like nothing had happened because she "wanted to live." As they walked back down the street, the man stated, "You sure you don't want me to give you any money? I'll give you $100." Patricia responded, "I don't want your damn money." Prior to the rape, they had not discussed exchanging money for sex, and she did not smoke rock cocaine with him or acquire the drug from him.
The man left the area and Patricia returned to the Bell Hotel. As she walked back to the hotel, she had blood in her mouth and could feel her face swelling up. After Patricia arrived at her room and told her boyfriend what had happened, she and her boyfriend went to a hotel manager Diedre Grant's office. Patricia told Grant that she thought the person who attacked her was "that Black guy" who had just moved out of room number four. Grant showed Patricia a copy of Hayes's picture on his transit card, and Patricia stated that he was her attacker. Grant called 911. Grant testified that about 10:30 or 11:00 p.m. on March 21, Patricia and her boyfriend came to the manager's apartment. Patricia was a "bloody mess." She was bleeding from her nose and mouth, and her face was swollen and distorted. She was crying and hysterical and told Grant she had been raped by the "Black man in room four."
After reporting the rape, Patricia was transported by ambulance to the hospital. The examining nurse testified that Patricia had "massive facial trauma," consisting of abrasions and bruising on the entire left side of her face; a laceration on the left side of her tongue consistent with having been hit in the face with a hard object such as a brick; and a vaginal laceration consistent with nonconsensual intercourse.
DNA testing revealed a match between Hayes's DNA and semen found in Patricia's vagina.
Hayes's Defense Testifying on his own behalf, Hayes stated that on March 21, he was moving out of the Bell Hotel to the Center City Hotel because the Bell Hotel was plagued by drug users. Hayes testified he did not use drugs, and that he worked for an organization called Christ Missionary that solicited funds to assist the homeless and other individuals in need. At about 3:30 p.m. on March 21, Hayes left the Bell Hotel and went to a phone booth to call his sisters to ask them to come help transport his possessions to his new hotel room. After making the phone calls, at around 4:00 p.m. Hayes was walking back to the Bell Hotel when he saw Rohena walking up the street and Patricia coming out of the hotel.
Hayes, Rohena, and Patricia all arrived at the corner of 15th and K Streets by the Bell Hotel. Rohena had been Hayes's roommate in room four of the Bell Hotel. Hayes spoke with Rohena, telling him that he was moving out of the Bell Hotel. Patricia briefly participated in the conversation. All of a sudden Patricia, who smelled strongly of alcohol, started asking for money. Rohena promptly walked away into the Bell Hotel, and Hayes angrily told Patricia to get away from him and to clean herself up and get a job. Hayes testified that Patricia abused drugs and alcohol, panhandled for money, and was out all hours of the night. When Hayes told Patricia to get away from him, she walked away and went to a nearby liquor store. After Hayes's sisters and some friends helped him move to the Center City Hotel, Hayes returned to the Bell Hotel at around 7:00 p.m. to retrieve some property he had forgotten in his room. Between 7:00 and 7:30 p.m., he was standing outside the Bell Hotel talking to Rohena. He saw Patricia come around the corner from the other side of the hotel, where she was talking to other people, including a "black guy." Patricia came and spoke to Rohena. She then went and smoked rock cocaine with a "Black guy" who was a drug dealer and whose name was A.C., or A.P., or William. This was the last time Hayes saw Patricia on the night of March 21. Hayes testified that he never touched or hit Patricia, and he did not have sex with her.
After finishing his conversation with Rohena at around 7:30 p.m., Hayes left the area and took the trolley back to the Center City Hotel. He stayed in his room about 10 to 20 minutes, and then went to his sister's residence at another downtown hotel near First and Broadway, and stayed there about five or 10 minutes. Next, he took the bus and trolley to Chula Vista, arriving at the Christ Missionary shelter at about 8:00 p.m. From Chula Vista, he was transported in a van to northern San Diego county to solicit funds for the charity. He worked from about 8:30 p.m. until about 9:15 p.m., and arrived back at the Christ Missionary shelter at around 9:40 p.m. He then took the trolley and bus and returned to his sister's home at about 10:00 p.m. He ate dinner at his sister's home and stayed there the rest of the night.
Hayes called several witnesses, including his sister and work colleague, to corroborate his alibi defense and to confirm that the Bell Hotel was in an area rampant with prostitution and illegal drug usage. (Lodgment 3 at 2-6.)
A. Scope of Review of Magistrate Judge's Report and Recommendation
The district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). A district court may adopt those parts of a Magistrate Judge's report to which no specific objection is made, provided they are not clearly erroneous. Thomas v. Arn, 474 U.S. 140, 152-53 (1985).
B. Scope of Review of Federal Habeas Petition Pursuant to 28 U.S.C. § 225428 U.S.C. § 2254(a) provides:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a). As amended, the AEDPA now reads: (d) 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 ...