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Timothy Leon Foy, Jr v. Raul Lopez

February 8, 2012

TIMOTHY LEON FOY, JR., PETITIONER,
v.
RAUL LOPEZ, RESPONDENT.



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

ORDER, FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner is a state prisoner and is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury of several sexual offenses, including forcible oral copulation and rape. The jury also found that Petitioner kidnapped the victim and that that movement substantially increased the risk of harm. Petitioner is currently serving a sentence of fifty-five years to life imprisonment for his crimes. Petitioner raises several claims in his federal habeas petition; specifically: (1) improper exclusion of impeachment evidence against a witness ("Claim I"); (2) Petitioner's right to a jury trial was violated when the court did not submit the issue of whether he committed the sex offenses on "different occasions" to the jury ("Claim II"); (3) improper admission of evidence when the court admitted evidence that Petitioner committed a sexual offense three months after the charged offense ("Claim III"); ineffective assistance of counsel ("Claim IV"); (5) violation of due process in imposing a restitution fine ("Claim V"); and (6) ineffective assistance of appellate counsel ("Claim VI"). For the following reasons, the habeas petition should be denied.

II. FACTUAL*fn1 AND PROCEDURAL BACKGROUND

The victim, O, testified that in June 2003 she was using marijuana and crack cocaine. At times she prostituted herself, and she had two subsequent convictions for prostitution, in 2004 and 2005. On June 14, 2003, O. called 911 to report that she had been raped, and that call was played at trial. She told the operator that a man held her hostage for a couple of hours, raped her, beat her, and hit her with a bottle, and she gave a description of the man. She said she had seen him once before, and "everybody called him Green Eyes." At trial, O. identified defendant as that man.

O. testified she had been walking home when defendant drove by and asked if she needed a ride; she said "Sure," and told him her home was a couple of blocks away. When he said he had to make a stop and turned around, she asked to get out and he slapped her in the eye. He stopped near Hagginwood Park and told her to get undressed and do what he said. Whenever she was too slow to comply with his demands, he hit her in the head with a glass bottle, or scratched and choked her neck; he also bit her on the bottom. Photographs of these injuries were introduced into evidence at trial. Defendant first asked for oral sex. Over the duration of her ordeal, he forced O. to have oral sex "[a]bout two or three times." He would have her go "back and forth" between oral sex and intercourse. O. also testified that defendant had intercourse with her while she was on her knees "[t]wo or three times." He also put a finger in her anus.

O. was taken to the UC Davis Medical Center, where she told peace officers that the man's nickname was "Green Eyes." O. told a sexual assault nurse how she had been attacked, and the nurse testified O.'s explanation was consistent with the nurse's physical examination. O. also told the nurse she had not had sex for five days before the attack.

In 2006, O. identified defendant's picture in a photographic lineup.

On cross-examination, O. testified she had seen defendant two to three times before, "when he was walking [.]" On that night she left home about 10:00 p.m. to go to the store, and she was walking back home when he picked her up. She had been using crack cocaine during that period, and had told the sexual assault nurse she had used it within 96 hours of her hospital examination.

O. answered "Yes" when she was asked, "Isn't it true back [on] June 14th of 2003 you were strolling?" But she apparently interpreted this question to ask whether she was a prostitute during that general time period, because when she was twice asked whether she had been working as a prostitute "that night," she denied it. O. admitted that she entered defendant's car voluntarily. Former Sacramento Police Officer Adam Levesque testified he had been patrolling Del Paso Heights on June 14, 2003, when he was called to a location near Hagginwood Park in response to a rape report. He found O. "crying and somewhat distraught" and she had visible injuries.

Retired Sacramento Police Detective Peter Willover learned in 2005 that the county DNA laboratory had matched samples from the attack on O. with defendant through the state DNA database. He prepared a photographic lineup and showed it to O., and she identified defendant, stating "that's Green Eyes, the one who raped me and beat me with a bottle." He showed defendant a picture of

O. and defendant denied ever having seen her. O. told detective Willover that since the rape she had seen defendant twice, once when he "tried to lure her into his vehicle again," and one other time.

DNA found on O's panties and in her vagina matched defendant's DNA, but some DNA on the panties was neither hers nor defendant's.

Another incident was presented to the jury to show defendant's propensity to commit forcible sex crimes.

A witness testified that on September 2, 2003, she saw a car driving the wrong way on Howe Avenue with its lights off and its horn honking, and it crashed into a rock. A woman was screaming inside, and a man "came out, walked around the car, and ripped the girl out" and began hitting her and dragging her by the hair toward some bushes. The woman was screaming, "no, no, no, no and just screaming at the top of her [lungs]." The man ran off. The woman panicked and her nylons were torn.

The victim in that incident, L., testified defendant was her "husband's brother's stepson" and she had seem him only once or twice in the 10-15 years before the 2003 incident. Defendant called her husband said he needed a ride. She picked defendant up around 1:00 a.m. (or maybe later than morning) and followed the directions he gave her. When he made some sort of sexual comment, she cut off the conversation. He began to choke her and told her to get into the backseat. Defendant managed to take her panties off. L. managed to drive off, with him still choking her, until she "went up to the rock" at a gas station. She struggled as he choked her, then pulled her hair and dragged her by some bushes. Eventually, he ran off.

The defense closing argument conceded defendant had sex with O., but argued someone else, either an angry customer or her pimp, may have beaten her. The defense argued that O. was a liar, that she had been "strolling" as a prostitute that night, and that she had lied about not having sex with anyone else recently, as evidenced by the third party DNA on her panties.

(Slip Op. at p. 2-5.)

Petitioner was convicted of three counts of forcible oral copulation, three counts of rape and one count of sexual penetration by force. Petitioner appealed to the California Court of Appeal and raised Claims I and II along with a claim that the evidence was insufficient to support more than two counts of forced oral copulation. The Court of Appeal agreed with Petitioner's argument that there was insufficient evidence to support a third forced oral copulation count. It reversed the conviction on that count so that Petitioner now has a fifty-five year to life imprisonment sentence. It affirmed the judgment in all other respects.

Petitioner then filed a petition for review which raised Claims I and II. The California Supreme Court summarily denied the petition for review in September 2009.

In February 2010, Petitioner filed a state habeas petition in the California Supreme Court. That state habeas petition raised Claims III, IV, V and VI. The California Supreme Court summarily denied the state habeas petition in July 2010.

Petitioner filed the instant federal habeas petition in August 2010. Respondent filed an answer in February 2011. Petitioner filed a traverse in March 2011.

III. 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 in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court. See 28 U.S.C. 2254(d). Where a state ...


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