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Archie Lee Parks Jr v. Brenda M. Cash

July 5, 2011

ARCHIE LEE PARKS JR.,
PETITIONER,
v.
BRENDA M. CASH, RESPONDENT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]

Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

RELEVANT HISTORY

Following a jury trial, Petitioner was found guilty of one count of assault with intent to commit rape (Cal. Penal Code*fn1 § 261(a)(2)). It was also found true that Petitioner had two prior serious felony convictions (§ 667(a)), had two prior serious or violent felony convictions within the meaning of the "Three Strikes" law (§§ 667(b)-(I), 1170.12(a)), and had a prior sex offense conviction (§ 667.6(a)).

On September 26, 2008, Petitioner was sentenced to twenty-five years to life plus an additional ten years for one count of assault with intent to commit rape (§ 261(a)(2)) with prior conviction enhancements (§§ 667(a)(1), 667.6(a).

Petitioner filed a timely notice of appeal. On February 2, 2010, the California Court of Appeal, Fifth Appellate District affirmed the judgment.

On June 17, 2010, Petitioner filed a habeas corpus petition in the California Supreme Court. The petition was denied on January 19, 2011.

Petitioner filed the instant federal petition for writ of habeas corpus on March 18, 2011. Respondent filed an answer to the petition on May 20, 2011. Petitioner did not file a traverse.

STATEMENT OF FACTS*fn2

On December 7, 2006, [Petitioner] and Michelle F. were patients at the Psychiatric Assessment Center for Treatment (PACT) unit, which was part of University Medical Center. The PACT unit provided assessment, stabilization, and referral services on an emergency basis to persons with mental health concerns. Admission to the unit did not necessarily mean the person admitted was mentally ill. Michelle, who was 25 years old at the time of trial, is developmentally delayed and emotionally disturbed, and operates socially at a 10-or 12-year old level. On December 7, 2006, Michelle was sitting in the TV room in the PACT unit watching TV when [Petitioner] pulled a chair next to her, sat down, leaned in close to her, and gave her a bracelet. She felt uncomfortable, and got up and went to the bathroom. The bathroom did not lock; only one person was allowed in it at a time. As Michelle was washing her hands, [Petitioner] entered the bathroom and turned off the light; he took of his pants and touched her wait and breasts. He unbuckled Michelle's pants and pulled them down a few inches. He pushed her onto the floor, then knelt with one knee on each side of her knees. He put his penis near her private parts. While he was kneeling over her, he said, "I want to hurt you." She kneed him in the stomach and ran out of the bathroom. She told the people at the front desk and the security guards she had been raped, because that was what [Petitioner] was trying to do. A PACT unit nurse and an investigator for the district attorney's office testified Michelle told them she had been raped; two security guards, a mental health clinician from the PACT unit, and a deputy sheriff testified Michelle reported only that [Petitioner] hurt her, touched her, tried to have sex with her, or forced himself on her.

A nurse conducted a sexual assault forensic examination of Michelle. She found a suction injury on the side of Michelle's neck. She took a swab of it to test any saliva present. The parties stipulated that the DNA found on the swab was [Petitioner's]. No sperm was found in the vaginal swabs.

The court admitted the testimony of D.C., who testified that in 1991, when she was 15 years old, she was spending the night with [Petitioner's] sister and [Petitioner] or his brother provided her with alcohol. She got drunk and passed out. She woke up later and went to the bathroom; while she was in the hallway, [Petitioner] pulled her into a bedroom, pushed her onto the bed, pulled down her underwear, and had sexual intercourse with her against her will. The court also admitted evidence that [Petitioner] had a prior conviction of sexual penetration by a foreign object, specifically a finger (§ 289). (Ex. A, at 2-3.)

DISCUSSION

I. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The ...


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