The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Danny Greg Uecker, a state prisoner appearing pro se, filed a Petition for Habeas Corpus under 28 U.S.C. § 2254. Uecker is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Pleasant Valley State Prison. Respondent has answered. Uecker has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In January 2008 following a jury trial, Uecker was convicted in the Shasta County Superior Court of two counts of Stalking under California Penal Code § 646.9(a). The trial court sentenced Uecker under the "three-strikes" law, Cal Penal. Code §§ 667(a), 1170.12, to consecutive terms of twenty-five years to life, for an aggregate sentence of fifty years to life. The California Court of Appeal, Third Appellate District, affirmed Uecker's conviction and sentence in a published decision,*fn1 and the California Supreme Court denied review on July 15, 2009. On November 19, 2009, Uecker filed a petition for habeas relief in the Shasta County Superior Court, which denied his petition in an unreported, reasoned decision on December 11, 2009. On March 5, 2010, Uecker filed a second petition for habeas relief in the Shasta County Superior Court, which was denied on April 2, 2010. On February 24, 2010, Uecker filed a petition for habeas relief in the California Supreme Court, which was summarily denied without opinion or citation to authority on September 22, 2010. Uecker timely filed his Petition for relief in the Northern District on August 8, 2010, which transferred the matter to this Court. Uecker filed his Amended Petition in this Court on September 23, 2010.
The factual and procedural background underlying Uecker's conviction were summarized by the Court of Appeal.
M. is a service representative at the Social Security Administration in Shasta County. Her first encounter with [Uecker] was at her work parking lot around the end of May or beginning of June 2006 when she noticed him sitting by her white Mustang between noon and 1:00 p.m. [Uecker] was on his bicycle, parked three to four feet from her car. M. commented that bicycling was good exercise. Thereafter, [Uecker] would be beside M.'s car every day when she would go to lunch, even when her lunch hour varied. They would exchange greetings, and [Uecker] sometimes would try to engage M. in further conversation. On occasion M. would oblige, but she always would say she had to get back to work because she was running late. She was polite to [Uecker] because her job taught her to treat human beings with kindness and respond to their conversation. This pattern continued week after week, month after month.
About the same time [Uecker] starting hanging around M.'s car, he started leaving notes for her on her car. The first note included his telephone number and read as follows: "'If you want to go riding bicycles, give me a call.'" M. ripped up the note and threw it away because she "wasn't interested."
In September, M. started parking on the street because she no longer needed the shade the original parking spot provided and somebody else had started parking in her spot. [Uecker] approached her at her new spot and asked whether she was trying to "'get away from [him].'" She said "'[n]o.'" He continued showing up at her new parking spot, leaving her notes and trying to engage her in conversation. One of these notes read as follows: "'I'm not a homeless guy. I have a job. I have a roof over my head. I want to go out with you.'" She threw it away and did not talk to him about the note. His behavior was beginning to concern M., and she decided she needed to "prepare for stuff" "if he got crazy or something." She bought mace and started taking "evasive" actions by moving her car.
But [Uecker] persisted. His next note was a Christmas card that read as follows: "[M.], [¶] I hope you have a nice holiday season! I know how we met is a little rare, and I look like a transient on the side of the road but I can assure you I do have a full time job and a roof over my head. [Smiley face.] Listen, no strings attached, if ever you want to call sometime just to talk, I'm open for it, if you haven't lost my number? Its [sic] really nice talking to you as an attractive, mature lady! I'm not looking for anything super serious but I wouldn't mind the companionship on a cold, rainy day, sipping hot chocolate. [Smiley face.] [¶] Danny [¶] P.S. Nice car. [Smiley face.] I like it better than the Mustang." (Capitalization omitted.)
M., who had bought a Toyota Camry a week before, was concerned and terrified [Uecker] knew her every move. She went inside her workplace and talked with the administrative secretary for management, Nancy Patterson, and told her the following: "'Something's not right. This man just doesn't go away. And I don't know what to do anymore. I thought I could handle it on my own.'" M. had now become so fearful of [Uecker] she stopped going out in the evenings and shopping and had her girlfriend stay with her a few times.
The next day, M. was so scared she parked in another location that was 10 feet from her work's exit. As she was walking out of work, [Uecker] approached her on his bicycle and asked if she got his Christmas card. She thanked him but "[f]irm[ly]" said she was "not interested" because she was "seeing someone" and asked whether his statement about her being a mature woman implied she was old. [Uecker] said "no," "got mad," and asked why she had been flirting with him. She said she had not been and was simply responding to his conversation. She then announced she had to go pick up her son, and [Uecker] left.
The following day, M. took a much later than normal lunch because her son was very ill. She did not see [Uecker] but received the following note: "[M.], [¶] I'm not on my bike anymore. The weather is too cold, wet or unpredictable. [¶] I'm in a small brown truck w/ a camper shell. I still spend my lunch hour here because its [sic] quiet. I don't like to keep leaving notes on your car. Would much rather talk to you. [Smiley face.] [¶] Ok so you're not mature! You're an immature trouble making brat! Now what? [Smiley face.] [¶] What's a guy gotta do to get a call from a beautiful woman? I'll be here tomorrow if you want to see me. You sure have some funny lunch hours. [Smiley face.] [¶] Dan."
When M. read this note, she "really freaked out." She "started to realize that this is more than just someone interested in dating, that this guy is just watching [her] every move." She "started parking way down the road" so [Uecker] would not be able to see her car, had people walk her to her car, and alerted the guard at her workplace. As with the last note, M. gave it to Patterson. M. did not call the police herself because office protocol required her to go through management.
Patterson spoke to her manager, Linde Ballentine, about the situation, and Ballentine called M. into her office. M. told Ballentine [Uecker] had been leaving notes on her car, "he was now scaring her with some of the things in the notes, [and] that she didn't know how to interpret them." M. was crying on and off, was shaky, and had to sit down several times.
The following day, December 19, Ballentine saw [Uecker] in his truck eating lunch. He was positioned "with a good view of the entry to the parking lot where the cars come in" and of the "employee entrance." Management then contacted law enforcement.
J. is a part-time real estate agent in Shasta County who began her career in November 2006. To generate business, she posted real estate advertisements with her photograph and phone number in local newspapers and magazines.
At the end of November or early December 2006, J. received a phone message from "Danny" saying he was looking for a "livable shack in the boonies for less than 60,000 dollars." J. returned his call, and when she had found a couple of houses that might work, she asked for his last name so she could mail the information to him. [Uecker] said it was "Eucker."
[Uecker] then began calling J. a couple of times a day both on her cellular phone and her office line. She thought his messages were "a little too comfortable and playful." He joked about his friends coming over and "rid[ing her] horses" after she mentioned she liked the country and had horses. He told her she had a "really cool voice" and he could "'[p]robably talk to [her] all day.'" That message left her with a "haunting and violating feeling." In reference to a listing of property she had found him in "[n]ot the greatest area," he asked if she ever went to check the places out and hinted she should take him there. She had no intention of doing so because she "wanted to make sure [she] was coming back." She pressed him for information to help him qualify for a loan, but he never provided any and simply wanted more listings.
During the second week of phone calls, [Uecker] left a message stating he had something to tell J. He then laughed and said, "'Oh, no, never mind. If you're curious enough, you'll call back.'" When J. did not call back, [Uecker] called her a couple of days later and asked if she had received his message. When she said she had, [Uecker] asked her, "'Do you like surprises?'" J. responded that she was "'[n]ot particularly fond of them.'"
By now, J. was questioning [Uecker's] credibility. He had said a friend had referred him to her, which she knew was a lie because [Uecker] was her first client.
J. decided to check Megan's Law database to see if [Uecker] was listed. When she tried Danny "Eucker" nothing came up. When she tried Danny "Uecker" she saw [Uecker's] picture with his residence address listed as a hotel. J. drove by the hotel several times to look at the trucks parked there, since [Uecker] had told her he drove a truck. She "wanted to get a visual of every truck in there, so in case he pulled up behind [her, she] would know" and "wouldn't get caught off guard."
At some point after she learned defendant was a "sex offender," [Uecker] left a message for her saying he wanted to come by the office. J. responded by parking her car "far out in the parking lot backwards, so it wouldn't look like a real estate car," putting her hair in a knot, wearing sweats, and "frump[ing] on in." She asked co-workers to let her know if anybody came to the door looking for her.
A couple of days after their last phone contact, [Uecker] left the following "irate" message: "'I guess that's what you realtors do, you just drop us.'" J. responded with the following message: "'I'm a little offended that, you know, you would speak to me that way because I had been trying to help. Every step of the way. And didn't really appreciate that.'" She falsely told him she was quitting the residential real estate business to focus on commercial real estate and she would send him to someone who could help him. Thereafter, J. decided not to host open houses and asked her manager whether she could put someone else's photograph in the advertisements.
[Uecker] called J. back about three times after her last message. The first two messages were lengthy and extremely apologetic. In one, [Uecker] said the following: "'I started this with you, [J.], because you didn't treat me like everybody else-some other realtors. So, with all due respect, I'd like to finish this with you. But I want to handle this with you-I want you to handle this or at least handle my issues, anyway.'" The message scared her. In another, [Uecker] said the following: "'I'm sorry. I shouldn't have yelled at you like that. I had some words with a buddy at work. It wasn't your fault, but I want you to finish what you've started here with me. I know you're doing the commercial thing, but I want you to finish what you started with me.'" J.'s reaction to the second message was, "this guy is like talking to a girlfriend or something . . . [i]t . . . just . . . didn't s[i]t well, either." The third said, "'Hey, I just want, you know, out of Dodge and by now, you probably know why.'"
J. reported [Uecker's] conduct to law enforcement on December 13, 2006. She was afraid of defendant and felt trapped by him.
In all, [Uecker] called her about 30 times over a three-week period, and of those calls, 6 to 10 were direct conversations.
[Uecker] was arrested on December 21, 2006.
Defendant's Conversations With His Cellmate Almeda From June 2007 to August 2007, [Uecker] and Richard Almeda shared a cell in the Shasta County Jail. During their time together, [Uecker] told Almeda about his past crimes.
[Uecker] said he had raped 20 women, favoring petite, small women with long brown hair. He preferred women with long hair because "he could wrap their hair around his arm and pull on it backwards." He would get into the victims' lives by drawing them in "under false pretenses." He wanted to buy a cabin in the country when he was released so he could take his young victims there. [Uecker] then described specific acts he had committed.
While in the Army as a teenager, he spent time in prison for beating a woman while trying to take her purse. While in the Army stationed in Germany, he raped a petite woman with long brown hair named K.G. who was a bartender at a "rec club" he frequented. He waited until closing time when K.G. was the only one there, snuck up behind her, forced her into the office, and "started breaking her down mentally" by telling her she could not get away and that he was going to do what he wanted. He then raped her on the couch in the office. [Uecker] was convicted by court martial of assault and battery for this incident.
In 1991 when [Uecker] was approximately 26 years old, he assaulted a petite woman with long black hair named S.A. he met at a gas station. He impersonated an undercover police officer and reprimanded her for swerving. When she drove off, he followed her in his car and flashed his lights to induce her to pull over. His plan was to get her into his truck, tie her up with bungee cords, and rape her. He slapped her in the face, causing her to "fl[y] into [a] ditch." When he tried to get her into his truck, two people in a car stopped by the side of the road, and S.A. called out for help. [Uecker] drove away but eventually was apprehended. As a result of this conduct, defendant was convicted of attempted kidnapping.
Within a few months of attacking S.A., [Uecker] raped R.P. He saw an advertisement for baby-sitting services and thought the babysitter might be "what he was looking for," i.e., someone with "a nice face, a nice butt and nice, long hair." Using the ruse of baby-sitting, [Uecker] induced R.P. to come to his trailer. After 20 to 30 minutes of small talk, he announced there were "no kids" and that she was "'here for [him.]'" She put up a struggle, but he was able to rape her three times using "pre-arranged" ropes that were tied to the bed. He also made her wash her hair to "show[ ] her that he [w]as in control over her." As a result of this conduct, [Uecker] was convicted of three felony offenses including forcible rape.
[Uecker] told Almeda he was in custody for stalking a woman who worked at the Social Security office. Laughing, [Uecker] said he wanted to take her on a bike ride on the Sacramento River trail because it was secluded with a lot of bushes and trees.
[Uecker] told Almeda that in the one or two years preceding his arrest in the stalking case, he would go to stores like Winco and follow young women around. He started up a conversation with one store clerk so he could "get close to her" and ultimately rape her.
He once worked for Liddell Construction and made friends with a young lady with long black hair working at the front desk because he wanted to rape her.
After Almeda moved out of [Uecker's] "pod" in August, [Uecker] sent him three letters, which he kept. In one letter dated September 12, 2007, [Uecker] said he was "'thinking about [his] girls all the time and [Almeda was] nowhere to talk to'" and put a "smiley face" next to that sentence. Almeda took that to be a reference to [Uecker's] prior victims. In another letter, [Uecker] referred to a lady with long hair in the Burlington department store advertisement who reminded him of S.A., the one who got away. He also wrote that he might take a look at the phone book tonight "'just for old times['] sake,'" ending the sentence with a "'smiley face. " In the past, [Uecker] had told Almeda he clipped pictures of young women out of phone books and fantasized about raping them.
Prior--Acts Evidence From Victims And Percipient Witness J.T. was in the Army stationed in Germany from 1982 to 1983 when she was 19 years old. At the time, she had long brown hair. About 9 p.m. one night when she was inside the entrance to the gate at the opening to the base, [Uecker] jumped out from behind a building, punched her in the face, and ripped out her hair "very hard." She screamed "over and over," ...