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Collie George Downer v. Matthew Cate

July 19, 2011


The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge, District of Alaska


Petitioner Collie George Downer, a state prisoner appearing pro se, filed a Petition for Habeas Corpus Relief under 28 U.S.C. § 2254. Downer is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the La Palma Correctional Center, Elroy, Arizona. Respondent has answered, and Downer has replied.


In March 2004 Downer was convicted by a jury in the San Francisco Superior Court of three counts (1-3) of forcible sexual penetration with a foreign object (Cal. Penal Code § 289(a)(1)), three counts (4-6) of forcible oral copulation (Cal. Penal Code § 288a(c)), two counts (7-8) of forcible rape (Cal. Penal Code § 261(a)(2)), and two counts (9-10) of unlawful sexual intercourse with a minor (Cal. Penal Code § 261.5(c)). The trial court sentenced Downer to a total of forty years in state prison, consisting of the upper term of eight years on Count 7, plus consecutive upper terms of eight years each on Counts 1, 2, 6, and 8. Downer timely appealed his conviction and sentence to the California Court of Appeal, First District, which affirmed his conviction and sentence in an unpublished decision.*fn2 The Supreme Court granted certiorari, vacated the judgment, and remanded the case to the California Court of Appeal for further consideration in light of Cunningham v. California, 549 U.S. 270 (2007).*fn3 On remand, in an unpublished decision, the California Court of Appeal reaffirmed Downer's conviction but vacated Downer's sentence and remanded the case to the trial court for re-sentencing.*fn4 Prior to the time he was re-sentenced by the trial court, Downer filed a Petition for Habeas Corpus Relief under 28 U.S.C. § 2254 in this Court, which was dismissed as premature without prejudice.*fn5 On re-sentencing, the trial court reimposed the same sentence as it initially imposed. On appeal, the California Court of Appeal affirmed Downer's conviction and sentence in an unpublished decision on May 12, 2009,*fn6 and the California Supreme Court denied review on July 22, 2009.

While his appeal was pending, Downer filed a petition for habeas corpus relief in the San Francisco County Superior Court, which was denied in a reasoned, unreported decision on October 21, 2008. The California Court of Appeal denied his subsequent petition to that court on November 20, 2008, on procedural grounds: "[t]he court will not consider repeated applications for habeas corpus presenting claims previously rejected by the court," citing In re Clark (1993) 5 Cal. 4th 750, 767.*fn7 The California Supreme Court summarily denied his petition without opinion or citation to authority on February 18, 2009.*fn8 Downer timely filed his Petition in this Court on May 26, 2009.

The facts underlying Downer's conviction and sentence are well known to the parties and are extensively set forth in detail in Downer I. Therefore, except to the extent necessary to understand this decision, this Court will not repeat those facts.


In his Petition, Downer raises six grounds: (1) the trial court's preclusion of cross- examination of the victim constituted a denial of his Sixth Amendment right to confrontation; (2) newly discovered evidence establishes actual judicial bias by the trial judge; (3) the trial court's preclusion of cross-examination of the victim regarding her prior psychiatric history and the introduction of related evidence constituted a denial of his right to confrontation under the Sixth Amendment; (4) prosecutorial misconduct by eliciting, failing to correct, and arguing false testimony; (5) the trial court failed to conduct an in camera review of the potentially exculpatory psychiatric history of the victim; and (6) the imposition of an upper-term sentence violated Blakely-Apprendi.*fn9 Respondent does not assert any affirmative defense.*fn10


Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn11 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn12 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn13 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn14 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn15 The Supreme

Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing that the state court determination was incorrect.*fn16 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn17 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn18 Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*fn19

In applying this standard, this Court reviews the last reasoned decision by the state court.*fn20 State appellate court decisions that affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn21 Under California's unique habeas procedure, a defendant who is denied habeas relief in the superior court files a new original petition for relief in the court of appeal. If denied relief by the court of appeal, the defendant has the option of either filing a new original petition for habeas relief or a petition for review of the court of appeal's denial in the California Supreme Court.*fn22 This is considered as the functional equivalent of the appeal process.*fn23 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn24 This presumption applies to state trial courts and appellate courts alike.*fn25


A. Evidentiary Hearing and Related Requests

In his Petition, Downer has requested appointment of counsel and an evidentiary hearing.

Related to the evidentiary hearing, Downer has requested sufficient funds to secure investigation and expert assistance, authority to issue subpoenas, and the right to conduct discovery. Downer's request for appointment of counsel was previously denied.*fn26

Downer misunderstands the function of a federal court in a habeas proceeding.

Ordinarily, a federal habeas proceeding is decided on the complete state-court record and a federal evidentiary hearing is required only if the trier of fact in the state proceeding has not developed the relevant facts after a full hearing.*fn27 The Supreme Court made clear in Pinholster that "review under [28 U.S.C.] § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits."*fn28 Although under Pinholster an evidentiary hearing in a federal habeas proceeding is not absolutely precluded, Pinholster also made clear that the discretion to grant a request for an evidentiary hearing is cabined by § 2254(e)(2),*fn29 which provides:

If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-

(A) the claim relies on-

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

Downer's request in this case does not meet that standard.

The appropriate place to develop the facts necessary to support a petition for federal habeas relief is in the state court. It does not appear from the record that the state courts precluded Downer from developing the factual basis for his claim.*fn30 Downer has not identified any factual conflict that would require this Court to hold an evidentiary hearing to resolve.

B. Merits

Grounds 1 and 3: Sixth Amendment ...

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