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Carlos Barajas Ramirez v. James A. Yates

March 19, 2012

CARLOS BARAJAS RAMIREZ, PETITIONER,
v.
JAMES A. YATES, WARDEN RESPONDENT.



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

FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury of spousal rape, sodomy by force and corporal injury on a spouse. Petitioner received a sentence of seventeen years imprisonment. Petitioner raises numerous ineffective assistance of counsel claims in his federal habeas petition; specifically: (1) ineffectiveness for failing to impeach Petitioner's wife (Rosa) on her prior crimes ("Claim I"); (2) ineffectiveness for failing to establish Rosa's biasness and motive to lie ("Claim II"); (3) ineffectiveness for failing to impeach Rosa with other acts which reflected her dishonesty and manipulation ("Claim III"); (4) ineffectiveness for failing to impeach Rosa with her prior purportedly inconsistent statements of the assault ("Claim IV") (5) ineffectiveness for failing to impeach Rosa with dildo photos ("Claim V"); (6) ineffectiveness for failing to consult with a forensic expert on sexual assault, failing to subpoena records from Planned Parenthood, failing to contact people from an ambulance who might have seen the incident and failing to subpoena Rosa's psychiatric records ("Claim VI"); (7) ineffectiveness for failing to have Petitioner testify on his own behalf at trial ("Claim VII"); and (8) ineffectiveness for failing to present evidence of Petitioner's good character ("Claim VIII"). For the following reasons, the habeas petition should be denied.

II. FACTUAL BACKGROUND*fn1

Defendant and Rosa S. married in 1996, and have two children together. The two separated in 2002, when Rosa left with their children and went to live in a battered woman's shelter after defendant slapped her during a fight. He had struck her at least one time before that.

Although separated, Rosa and defendant resumed seeing each other anywhere from once a week to once a month, both to take care of matters pertaining to their children, but also to continue their sexual relationship. After their separation, defendant struck Rosa on at least two occasions and was verbally abusive. After a slapping incident on December 26, 2001, Rosa told police that he had assaulted her six prior times either by hitting her, throwing things at her, or pulling on her clothes or hair.

On June 12, 2003, Rosa was working a shift that ended at 10:00 or 11:00 p.m. Defendant called Rosa at approximately 6:00 p.m. and they argued about the children and about Rosa having told defendant's sister that she and defendant still had a sexual relationship. Defendant told Rosa that he was coming over and it was arranged that Rosa would meet him outside the store. When Rosa saw defendant's truck, a white Chevy pickup, she clocked out of work, got into her own car, and drove one block to where defendant was parked.

Defendant had parked on an empty street near a field. He and Rosa had met and had sex at that location before, and Rosa knew that one of the reasons defendant had come was to have sex. When Rosa got out of her car, it was about 8:00 p.m. and beginning to get dark. As Rosa approached defendant's truck, she was shaking. Defendant told her to get in the truck if she was cold. After Rosa got in the passenger side of the truck, she and defendant talked for a few minutes. At some point, defendant got out of the truck and approached Rosa on the passenger side. At this point, Rosa was halfway out of the truck, her body resting against the seat and her feet touching the ground. Defendant came up right next to her and began touching Rosa and unbuttoning their clothes. When his cell phone rang, defendant told Rosa that he wanted to have sex with her, but that she needed to "hurry up" because his girlfriend was calling and he needed to leave soon. He told Rosa that his girlfriend was pregnant and could not have sex with him because she was feeling sick.

Rosa became very upset hearing defendant talk about his pregnant girlfriend. She testified, "He made me feel like I'm nobody, like the worse person in the world. Like when you're with the person you love and they telling you to hurry up because my girlfriend is waiting for me, and . . . she cannot have sex with me so . . . I have it with you. That really hurt feelings." She told him she would not have sex with him and that he should go to his girlfriend. Defendant responded that he was not "asking" her, he was "telling" her they were going to have sex.

Defendant grabbed Rosa's hands and pulled her hair, forcing her to turn around and bend over the passenger seat. Rosa kept telling defendant, "No," but he kept repeating that he was not asking her. After forcing Rosa's face down on the passenger seat, defendant began pulling her pants down while grabbing her arms and pulling them behind her back so that she could not resist him. When Rosa tried to turn around and resist defendant, he slapped her several times. He then pulled his pants down and tried to penetrate Rosa's vagina with his penis, but was unable to do so because she kept moving to get away from him.

Still struggling with Rosa, defendant put his penis in her anus. Rosa had never had anal intercourse with defendant. When Rosa told him to stop because it hurt and said she wanted to get up, defendant started slapping her on the face, cutting her lip. During the sexual assault, defendant further injured Rosa by biting her waist and "butt cheek." He also left "hand marks" on Rosa's buttocks from spanking her hard, marks that remained there the next day, and on her wrists, arms, and legs. The marks on Rosa's legs were caused by defendant trying to force them apart. Defendant started to ejaculate inside Rosa's anus, and then pulled out and put his penis in her vagina. After he had ejaculated, defendant pushed Rosa away, pulled his zipper up, told her he was sorry, and got into his truck and left. Rosa pulled her pants up and went back to work to finish the last 10 minutes of her shift before going home. Rosa did not tell anyone at work what had happened because she felt embarrassed.

When she got home, Rosa took a bath because she was dirty and bleeding. It was painful for her to sit down due to the injuries she had sustained. She did not call the police because she still loved defendant and did not want to get him in trouble.

Rosa's vagina, anus, and legs were sore, and her vagina and anus were bleeding the next day. She had a previously scheduled appointment with Planned Parenthood at 9:00 a.m. that morning, which she kept. Rosa Silvia, a medical assistant at Planned Parenthood at the time, testified that Rosa appeared to be "shaken up" and "distraught" when she arrived. Not wanting to get defendant in trouble, Rosa initially claimed that she had hurt herself falling in the bathtub. After examining her, the staff did not believe she had injured herself, and began to question her about how she had gotten her injuries. She eventually told them about what defendant had done to her.

The Planned Parenthood staff contacted the police department. Officer Trisha Hart arrived and spoke to Rosa about her injuries. She observed that Rosa was having a difficult time sitting due to the pain she was in. Rosa informed Hart that defendant sexually assaulted her, including putting his penis in her anus and vagina. Rosa was taken to the hospital for a sexual assault examination that afternoon. Judy Herriman, a sexual assault nurse examiner for the Napa Solano Sexual Assault Response Team (SART), testified that Rosa had bruises and scratches on her breasts, legs, hips, wrists, lips, and face, as well as an abrasion in the vaginal area. The skin of her anus had been broke, fluid was oozing from that area, and there was some bruising "all the way around the anal opening." Herriman opined that the conditions observed were consistent with trauma caused by forcible sexual penetration of the anus. On cross-examination, Herriman acknowledged that consensual anal sex can also result in trauma, particularly if lubrication is not used. Swabs of Rosa's anus contained semen and her underwear contained visible blood. DNA testing of the swab established that defendant could not be excluded as the source of the male DNA found there. The prosecution's forensic DNA expert testified that only 1 in 820,000 Hispanics, 1 in 1.6 million Caucasians, and 1 in 21 million African-Americans had DNA that could be consistent with the male DNA in the sample.

Vacaville Police Officer Steve Howisey testified that he was employed as a police officer by the City of Suisun in June 2003. He assisted with Officer Hart's investigation of Rosa's rape complaint and interviewed defendant after his arrest. During the interview, defendant acknowledged meeting Rosa on the evening of June 12, 2003. Defendant told Howisey that Rosa performed oral sex on him, but that they did not have intercourse or engage in any other sexual contact. Defendant also told Howisey that prior to June 12, 2003, he had not had any sexual contact with Rosa for approximately three months.

Rosa testified that she did not see defendant at all for about the next one and one-half to two years following the incident. At that point, they began talking again and then secretly resumed a sexual relationship. They had anal sex together and also had sex in defendant's truck. They had sex in Rosa's car less than two weeks prior to her testimony at trial. Rosa was not sure whether she was still in love with defendant, but she felt a "need to be with him" and was fearful he would otherwise not let her see her children. On several occasions after the incident, defendant asked Rosa not to show up for court. He also asked her to lie for him, and Rosa said she would.

B. Defense Case

The defense rested without calling any witnesses. Defense counsel argued in closing that defendant and Rosa had "rough consensual sex" on the night in question. He pointed out that although Rosa had called the police when she had had arguments or problems with defendant in the past, she did not call the police after the alleged rape and did not call any friends to help her. He further maintained that Rosa's injuries were consistent with rough consensual sex. Counsel suggested that Rosa might have lied about the sex because she was mad at defendant over his girlfriend or embarrassed to tell the examining personal that she had consensual sex or saw the rape accusation as a way of regaining custody of her children.

(Slip Op. at p. 1-5.)

III. PROCEDURAL HISTORY

After Petitioner was convicted by a jury, he moved for a new trial. (See Clerk's Tr. at p. 368.) In the motion for a new trial, Petitioner listed the following items which he argued established that a new trial was necessary:

A) The failure to present evidence that Rosa had two motives to lie. One motive was to have Carlos Ramirez put in prison so that [Rosa] could get custody of their children. The second motive was for [Rosa] to establish her status as a victim of domestic violence so that she could get a green card in order to lawfully immigrate to the United States;

B) The failure to impeach [Rosa] with her criminal history and her character traits for dishonesty;

C) The failure to impeach [Rosa] with her inconsistent statements;

D) The failure to present evidence showing that [Rosa] has a history of making false complaints against Carlos Ramirez and other people;

E) The failure to bring out [Rosa]'s character traits for passive- aggressive behavior with the defendant. The evidence shows that [Rosa] had been both passive and aggressive toward the defendant. At times she has appeared to be meek in front of Carlos Ramirez, but this was a front according to her plan to frame him;

F) The failure to investigate by not doing the following: (a) filing a Welfare and Institutions Code section 827 motion for juvenile and Children's Protective Services ("CPS") contracts concerning Ms. [Rosa]; (b) serving a subpoena duces tecum for [Rosa]'s psychiatric records; (c) failing to contact attorney Holly Mattice and investigator Gene Borghello, who could have given Tejada much evidence to impeach Rosa with;

G) The failure to show that Carlos Ramirez does not have a criminal conviction record. (Clerk's Tr. at p. 372-73.)

The court denied Petitioner's motion for a new trial on November 2, 2007. In denying the motion for a new trial, the judge stated the following:

The defendant complains that the defendant's trial counsel was ineffective. He points out victim's motive to lie; that he did not impeach the victim with the prior alleged criminal history; that he did not impeach the victim with alleged prior inconsistent statements; that he did not how the victim's history of making false complaints.

The defense, in its declaration submitted by Mr. Borghello -- and that is the declarations of Rosa Ake, Alma Lopez, Maria Ruiz, Massie Zakeri, Erica Casillas, Loriana Lopez, Mary Rosenfield, and Eliza Cobos, Exhibits F, I, J, K, L, M, N, O, are submitted in support of a new trial application.

The Court notes the following: That the declaration submitted by defendant are investigative summaries of what the witnesses told him. These summaries are in the form of memos from the investigator to the defendant's first trial lawyer. The defense investigator repackages the memos into one large declaration. The decisional law is clear that this sort of single and multiple level hearsay is inadmissible in a new trial application. The declaration of the investigator contains very little competent evidence. A new trial motion, -- these are hearsay declarations and are not substantial competent evidence in a new trial motion. They are relevant insofar as what the attorney was aware of, so insofar as the examination of Mr. Tejada as to whether he received those, it is relevant as to that purpose. As to whether they're true or not, the declaration of Mr. Borghello is incompetent as to whether or not they're true.

The issue here is -- the challenged conduct essentially is whether to call certain witnesses. Such matters are matters of trial tactics.

And unless the decision results from the -- unless the decision results from the unreasonable failure to investigate, the Court cannot find that there was an unreasonable failure to investigate.

In fact, there was substantial police reports and documents and statements that were provided to Mr. Tejada, and Mr. Tejada explained on the stand why he did or did not decide to call witnesses.

In the Court's view, and as we've seen here, Mr. Tejada was faced with difficult tactical decisions. Calling certain witnesses clearly entailed certain risks. And I would respectfully disagree with Mr. Finkas that calling witnesses that are in the family context is a slam dunk; that they're slam-dunk evidence. I think that the witnesses that would have been called all had issues. And whether or not that would have been appropriate is, I think, is evaluating trial counsel's conduct in hindsight and that's second-guessing tactical decisions.

The Court also takes note of the following: Mr. Finkas indicates this was a credibility contest. I'm not sure that that is the case. And I do agree with Ms. Underwood as to every piece of physical evidence, including a sexual assault exam, the injuries sustained by Ms. [Rosa], the testimony of a SART nurse, the injuries that were sustained by blunt force trauma, and the DNA in Ms. [Rosa]'s rectum, which corroborates that the defendant had sodomy with Ms. [Rosa] even though he denied it to the police or in his statement. So the issue -- and the injuries were truly substantial and truly remarkable.

The DA brief touched on this, but I think it's worth restating. The victim had scratches on her wrist, swelling and bruising around and in her mouth, she had a cut on her lip, and red welts on both her right and left butt cheeks. The victim also had bruises on her legs. The victim had anal and rectal tears and bruises, and she had a vaginal abrasion. So -- which are substantial injuries. Again, this evidence, and uncontradicted evidence, that was facing Mr. Tejada as he was making his trial preparations. The Court does not find that counsel failed to act in a manner to be expected of reasonably competent attorneys acting as advocates.

And, in addition, the defendant has wholly failed to demonstrate that it's reasonably probable that a more favorable result would have been obtained in the absence of counsel's failings. The physical evidence in this case just jumps out. And I must say it is truly remarkable physical evidence that I think would be very difficult for the defendant to explain away, should he have taken the stand.

So, I do appreciate the submissions of Mr. Finkas and Ms. Underwood. The motion for new trial is denied.

(Reporter's Tr. at p. 429-32.)

Petitioner was sentenced in February 2008. Petitioner filed an appeal to the California Court of Appeal. (See Respondent's Lodged Doc. Ex. 3.) Petitioner did not raise any of the issues he raises in this federal habeas petition in that appeal. The California Court of Appeal denied that appeal on October 22, 2009. (See Slip Op.)

As his direct appeal was pending, Petitioner also filed a petition for writ of habeas corpus in the California Court of Appeal, First Appellate District (Case No. A123244), which raised the issues Petitioner raises in his federal habeas petition. The California Court of Appeal summarily denied this state habeas petition without discussion on October 22, 2009. (See Resp't's Lodged Doc. Ex. 14.) Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court which raised the ineffective assistance of counsel claims that Petitioner raises in his federal habeas petition. The California Supreme Court summarily denied the state habeas petition on January 13, 2010.

Petitioner filed the instant federal habeas petition in June 2010. Respondent answered the petition in October 2010. Petitioner filed a traverse in November 2010. Oral argument was held on March 5, 2012 and the arguments of counsel have been considered herein.

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 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 court provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether the state court was objectively unreasonable in its application of clearly established federal law. See Musladin v. Lamarque, 555 F.3d 830, 835 (9th Cir. 2009).

As a threshold matter, a court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").

V. ANALYSIS OF PETITIONER'S CLAIMS

A. Claim I

In Claim I, Petitioner argues that his trial counsel was ineffective for failing to impeach Rosa with evidence of her prior criminal acts. Petitioner argues that trial counsel should have impeached Rosa with the following: (1) in October 1998, Rosa stole various items from a Macy's in Fairfield, California; (2) in June 1999, Rosa stole a purse from the Leather Loft in Vacaville, California; (3) in April 2000, police responded to a report that Rosa had assaulted her children; (4) in May 2002, Rosa stole shoes from Mervyn's in Fairfield, California and a subsequent search of found stolen credit cards and driver's licenses on Rosa's person; (5) in September 2005, police investigated a report that Rosa had sexually abused her daughter.

The Sixth Amendment guarantees effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated the test for demonstrating ineffective assistance of counsel. First, the petitioner must show that considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. See id. at 688. Petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. See id.at 690. The federal court must then determine whether in light of all the circumstances, the identified acts or omissions were outside the range of professional competent assistance. See id. "[C]counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id.

Second, a petitioner must affirmatively prove prejudice. See id.at 693. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id.at 694. A reasonable probability is "a probability sufficient to undermine the confidence in the outcome." Id."The likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, __ U.S. __, 131 S.Ct 770, 792, 178 L.Ed.2d 624 (2011). A reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by defendant as a result of the alleged deficiencies . . . [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (citing Strickland, 466 U.S. at 697). When analyzing a claim for 10 ineffective assistance of counsel where a state court has issued a decision on the merits, a habeas court's ability to grant the writ is limited by two "highly deferential" standards. Premo v. Moore, __ U.S. __, 131 S.Ct. 733, 740, 178 L.Ed.2d 649 (2011). "When § 2254(d) applies the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. (internal quotation marks and citation omitted); see also Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) ("Under § 2254(d)'s 'unreasonable application' clause, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied Stricklandincorrectly. Rather, it is the habeas applicant's burden to show that the state court applied Strickland to the facts of his case in an objectively unreasonable manner.") (citations omitted).

Petitioner's trial counsel, Martin Tejada, testified at the motion for new trial hearing. In response to questioning, Tejada testified that he thought the facts of the various police reports were relatively benign, that bringing up such minor arrests would not help Petitioner and that the age of the relative incidents all entered into his decision to not impeach Rosa on these incidents. (See Reporter's Tr. at p. 380-84.) Trial counsel's strategy for impeaching a witness involves tactical decisions that are given great deference. See Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000). A petitioner pleading ineffective assistance of counsel due to counsel's failure to impeach a witness must demonstrate that, had the witness been impeached in the manner requested by petitioner, there would be a reasonable probability that the verdict would have been different. See United States v. Holmes, 229 F.3d 782, 789-90 (9th Cir. 2000).

Petitioner's trial counsel was aware of these prior arrests and made the tactical decision not to seek to impeach Rosa with these prior arrests at trial. Petitioner argues that Rosa's credibility was a key factor and that trial counsel's failure to impeach Rosa on her prior arrests fell below an objective standard of reasonableness. In Harrington, 131 S.Ct. 770, the Supreme Court explained the analysis a federal habeas court should undertake in analyzing a Strickland claim under AEDPA. Specifically, the Court stated:

The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different than asking whether defense counsel's performance fell below Strickland's standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA, though, it is a necessary premise that the two questions are different. For purposes of § 2254(d)(1), "an unreasonable application of federal law is different than an incorrect application of federal law." Williams, supra, at 410, 120 S.Ct. at 1495. A state court must be granted deference and latitude that are not in operation when the case involves review under the Strickland standard itself.

Harrington, 131 S.Ct. at 785. Thus, Petitioner has to show that the adjudication of this Claim in state court was unreasonable not only on whether counsel's performance fell below an objective standard of reasonableness, but also whether its decision on Strickland's prejudice prong was unreasonable.

Trial counsel's cross-examination of Rosa was perhaps lacking in several respects. Tejada could have impeached Rosa on whether she had previously been arrested for the items listed above such as shoplifting and burglary, but he chose not to do so for the reasons stated in the motion for new trial transcript.

While Petitioner's trial counsel could have perhaps done a better job impeaching Rosa, this does not necessary entitle Petitioner to federal habeas relief. Even assuming (without deciding) that the state court's adjudication of whether trial counsel's performance fell below an objective standard of reasonableness was unreasonable, Petitioner would still have to show that the state court's rejection of this Claim was unreasonable based on Strickland's prejudice prong as well. Accordingly, the Supreme Court has explained that "[a] state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Harrington, 131 S.Ct. at 785. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree" on the correctness of the state court's decision." Id. at 786 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

Even assuming arguendo that the decision that Petitioner's trial counsel's cross-examination of Rosa fell below an objective standard of reasonableness as it relates to Claim I, Petitioner still has not established that he is entitled to federal haebas relief on Claim I. Petitioner has failed to make a showing that the adjudication of Claim I on prejudice grounds was unreasonable for the following reasons.

As stated supra, in analyzing Petitioner's motion for a new trial, the judge cited to the physical evidence which implicated Petitioner in the charged crimes. Petitioner argues that the injuries that Rosa suffered were not substantial and that her injuries were relatively minor.

The evidence at trial included detailed testimony about Rosa's injuries. The SART nurse testified that: there was an approximate half inch diameter small red mark on the left [side of the body], and on the right hand side above the right breast there was a half inch diameter bruise, little darker bruising area. [Rosa] also had two bruises on the right leg and a scratch and bruise on the left upper thigh . . . . And on the back . . . there were marks on both of her hips and upper thighs just off of what would we term the buttocks that I marked, it was linear marks, four straight marks that were side by side in a pattern approximately two inches long each. They were welt-like, slightly raised, slightly reddened on both of her hips.

(Reporter's Tr. at p. 180-81.) The nurse also testified that Rosa's injuries to her anus included splits in her skin, bruising in the area all around the anal opening and fluid oozing from the area. (See id. at p. 186.) The nurse testified that this was indicative of trauma and that in her opinion the injuries that Rosa received to her anal area were forcible injuries.*fn2 (See id. at p. 186-87.) The nurse also testified that Rosa had a small scratch and bruise on her left wrist, facial bruising, swelling and a lip laceration. (See id. at 187-88.) The nurse stated that these injuries were consistent with what Rosa told her, namely that "slapping, being held down, and anal penetration, would all match the bruises, welts and abrasions that I observed on her body." (Id. at p. 188.).

The record also indicated that male semen DNA evidence found in and around the victim's anus was linked to Petitioner. The following colloquy took place during trial ...


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