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Jeffrey Mark Cole v. Anthony Hedgpeth

January 9, 2012

JEFFREY MARK COLE, PETITIONER,
v.
ANTHONY HEDGPETH, WARDEN RESPONDENT.



The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of twelve years after being convicted of three counts of lewd and lascivious act on a child under the age of fourteen.

Petitioner raises two claims in this federal habeas petition; specifically: (1) improper admission of evidence when he told the detective that he possessed drugs with the intent to sell ("Claim I"); and (2) improper admission of evidence that Petitioner used methamphetamine ("Claim II"). For the following reasons, the habeas petition should be denied.

II. FACTUAL BACKGROUND*fn1

[M], the victim in this case, was born in May 1990. He lived with his mother Denise, his father Lloyd, and his younger brother [D]. Lloyd worked as a heavy equipment operator with defendant who came over on weekends to socialize with the family. Defendant was nice to [M] and [D] and brought them gifts. Denise and Lloyd separated in 1999. Lloyd previously had been diagnosed with cirrhosis of the liver and died in 2002.

Denise had a good relationship with defendant and considered him a trusted friend. On April 22, 2003, she and her two sons moved into a house with defendant in Antelope, Sacramento County. On one occasion while the foursome were living in that house, [M] and defendant were watching a movie. They were sitting on the couch under a blanket and defendant's legs were draped over [M]'s lap. [M]'s hands were on the outside of the blanket and he accidentally touched defendant's penis. [M] was embarrassed, but defendant began rubbing [M]'s penis under the blanket. Although [M] was "shocked," he did not say anything to defendant.

After a short while, it became apparent the living arrangement did not work, so in July, Denise moved to a separate apartment with her two sons and defendant moved into his own apartment although he continued to call Denise's apartment.

One weekend while [M] was 13 years old, defendant came to visit his family and [M] asked if he could go to defendant's apartment. Defendant often bought [D] clothes and compact discs (CD) and [M] was hoping defendant would buy him a CD or a shirt, but when they went to Target, defendant only bought him snack food and drinks before going to his apartment.

After watching television and eating, [M] decided to go swimming, so he and defendant went to the pool and sat in the hot tub. Afterwards, they went back to defendant's apartment and [M] changed his clothes and put on boxer shorts, pajama bottoms and a t-shirt. Defendant also changed, wearing only shorts. They ordered a pay-per-view movie and began watching the movie, each one sitting on a different couch. About five minutes later, after [M] had moved to the floor, defendant moved beside him, pushed [M]'s pajama bottoms and boxers down and orally copulated him. [M] was shocked and scared.

During this first incident, [M] and defendant also laid together, facing each other so that their chests and penises were touching. [M] was moving back and forth partially by the motion of defendant's hands and partially by his own effort. [M] also touched defendant's penis with his hands and his mouth.

Afterwards, [M] went into the bathroom and then returned to the living room where he laid down on one of the couches. When defendant returned to the room, [M] pretended to be asleep, but defendant shook his shoulder and asked him if he was awake. Defendant sat on the floor and urged [M] to get down on the floor with him and began rubbing [M]'s knee until [M] eventually moved to the floor.

At some point, [M] realized he had no clothes on and that defendant was wearing only his underwear. [M] sat on defendant's chest and defendant put his mouth on [M]'s penis again. Touching [M]'s bottom and hips, defendant moved [M] back and forth until [M] ejaculated.

Afterwards, [M] dressed himself and things appeared to be normal as if nothing had happened, although [M] was in shock and began to "freak [ ] out." He asked to go home because he did not feel good but defendant told him it was too late, so [M] asked if they could go for a drive. While driving, defendant told [M] that what happened never had to happen again. [M] asked him if he had ever done that to anyone else and defendant told him no. They returned to the apartment and defendant went to sleep in his bedroom and [M] stayed on the couch unable to sleep.

The next morning, [M] and defendant had breakfast and played a video game. Later, defendant took [M] to Target where he bought him a CD and three shirts. This time, [M] felt wrong about taking things from defendant and blamed himself for what happened. He wanted to die.

The following day, [M] spoke to Anne Lyons, a school counselor who he trusted, and told her what defendant had done to him. Sergeant Bielcik of the Sacramento County Sheriff's Department interviewed defendant five times from December 9 through December 19, 2003. He denied molesting [M] in the first interview. However, during the fourth interview, he admitted that on September 27, 2003, [M] spent the night at his apartment and that when he woke up on the living room couch, [M] was orally copulating him. He told [M] not to do it again and later he saw [M] masturbating. Defendant was reluctant to relate this to Bielcik in prior interviews because he "didn't think this thing was going to go this far."

B. The Defense

Defendant, who was 40 years of age at the time of the trial, took the stand and denied ever molesting [M] or any other child. He testified that he had been married for two years and had been in the navy. He was a good friend of [M]'s father and promised him that he would look after his sons. As a result, defendant took the boys out of a gun and drug infested environment, gave them a home with a room of their own, and tried to look after them. Many of defendant's friends and relatives testified that he was generous with their children.

The night of September 27, 2003, when [M] asked to spend the night at defendant's apartment, they used the hot tub, [M] swam in the pool, and then they watched a movie he had rented, during which defendant fell asleep. When he awoke, his shorts were down and [M] was orally copulating him. Defendant jumped up, expressed shock, excused himself, went into the bathroom, and then went to his bedroom. A short time later, [M] entered his bedroom and asked to go for a drive. He did not want to go home but the situation was awkward. When they returned from the drive, defendant went back to bed but woke up a couple of hours later and heard the television in the living room. He got up to turn it off and saw [M] sitting on the floor masturbating.

(Slip Op. at p. 2-6.)

III. PROCEDURAL HISTORY

Defendant was charged with 14 counts of lewd and lascivious acts on a minor under the age of 14 years. (§ 288, subd. (a).) Counts one through six were alleged in connection with [M], counts seven to fourteen were alleged in connection with his younger brother,

[D].

Defendant was first tried by a jury that deadlocked during deliberations and a mistrial was declared. As a second trial, the jury found defendant guilty of counts four, five and six and not guilty of the remaining 11 counts. The trial court sentenced him to an aggregate prison term of 12 years by imposing the upper term of eight years on count 4 and two-year consecutive terms on both counts five and six.

(Slip. Op. at p. 6-7.)

Petitioner appealed his conviction and sentence. Among the issues raised in Petitioner's direct appeal were Claims I and II. Both of these Claims were denied by the state courts.

In September 2009, Petitioner filed a federal habeas petition. In his petition, Petitioner raised the following issues: (1) he was never read his rights and the conversation with the detective was later used at trial to convict Petitioner; (2) irrelevant evidence was admitted that he used methamphetamine during his first trial to "forget"; (3) evidence was improperly admitted that he possessed methamphetamine with intent to sell it; and (4) evidence that he told a detective that he possessed the drugs for sale exceeded the least adjudicated elements of being convicted of simple possession and was irrelevant to his trial. In his first federal habeas petition, Petitioner listed the "People of the State of California" as the respondent. On September 21, 2009, Magistrate Judge Drozd dismissed Petitioner's federal habeas petition with leave to amend because Petitioner improperly listed the People of the State of California as the Respondent.

Subsequently, Petitioner filed a first amended federal habeas petition in October 2009.

The first amended petition raised one issue; specifically that his conviction was obtained in violation against the privilege of self-incrimination. Respondent moved to dismiss the first amended habeas petition by asserting that this sole claim had not been presented to any other court. Subsequently, Petitioner filed a second amended habeas petition. Among the claims that Petitioner raised in that second amended habeas petition were Claims I and II as listed in supra Part I. Additionally, Petitioner raised two other issues; specifically that "the court's imposing an aggravated base term and two consecutive sentences [was] based on facts not pled by the government and not admitted," (see Pet'r's Second Am. Pet. at p. 4.) and that "imposing upper term and 2 consecutive terms must be set aside - no single aggravating factor was established."

(See id. at p. 5.) Petitioned moved to dismiss all four claims raised in the second amended habeas petition asserting that all four arguments were untimely. Ultimately, Respondent's motion to dismiss was granted in part and Petitioner's sentencing claims were dismissed as time- barred. Respondent was then ordered to answer Petitioner's remaining two Claims (specifically Claims I and II as previously described).

Respondent filed an answer addressing Claims I and II in September 2011.

IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS

An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1994); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)).

Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the state court proceedings unless the state court's adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted ...


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