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Michael D. Nunley v. M. D. Mcdonald

April 9, 2012

MICHAEL D. NUNLEY, PETITIONER,
v.
M. D. MCDONALD, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner without counsel seeking an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2009 judgment of conviction entered against him in the Butte County Superior Court on charges of forcible rape, sexual battery, failure to register as a sex offender, and escape while felony charges were pending.*fn1 He seeks habeas relief on the grounds that: (1) his trial counsel rendered ineffective assistance, and (2) the trial court violated his constitutional rights when it ordered his prior counsel to testify against him at trial. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

I. Factual and Procedural Background*fn2

A jury found defendant Michael Dean Nunley II guilty of rape of an incompetent person, forcible rape, sexual battery, failure to register as a sex offender, and escape while felony charges are pending. The trial court found that he had a prior strike conviction. Defendant was sentenced to state prison for 26 years 8 months. Sentence on the rape of an incompetent person was stayed pursuant to Penal Code*fn3 section 654.

The recent amendments to section 4019 do not operate to modify defendant's entitlement to credit, as he was committed for a violent felony. (§§ 667.5, subd. (c)(3), 4019, subds. (b), (c); Stats.2009, 3d Ex.Sess., ch. 28, § 50.)

On appeal, defendant contends: (1) the trial court committed evidentiary error and his trial counsel rendered ineffective assistance when the court ordered his former attorney to testify against him during the prosecution rebuttal case; and (2) he was improperly convicted of two counts arising from a single act of intercourse; thus, either the rape of an incompetent person or the forcible rape charge must be reversed. The People concede the latter point. We shall reverse the rape of an incompetent person charge and affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

Rape And Sexual Battery Charges The victim in these charges was A.F. who was 25 years old at the time of trial. She resided in an apartment in Chico. A. F.'s living expenses were paid by her payee, Morag Shanks. A.F. does not have a driver's license. She is aware of what sex is and has had consensual sex with a former boyfriend.

A clinical psychologist examined A.F. in April 2002. He determined that she had a verbal IQ of 69, a performance score of 55, and a vocabulary score of 3. The last score placed A.F. in the bottom one percentile for her age group. On the Peabody picture test, A.F. scored similar to a six-year-seven-month-old child. A.F. recognized that she has a "learning disability" because, as she explained, "when I was seven years old, I got ran over by a car and ran over half of my brain."

On July 6, 2008, A.F. went to her friend Jenny's house. She was planning to spend the night in Oroville at the house of Jenny's uncle, Jason "Jake" Valentine. Later, at Valentine's house, A.F. met defendant, who asked A.F. and Jenny to clean his motor home. Thereafter, defendant, Valentine, Jenny, A. F., and her ex-boyfriend, Ted, all went to defendant's motor home in Gridley. A .F. and Jenny cleaned the residence while the men sat outside and talked.

Later, back at Valentine's house, Ted and Valentine got into an argument. Ted left in a huff, and Valentine told A.F. that she could not spend the night at his house. Jenny attempted to telephone her father (Valentine's brother) to see if A.F. could spend the night at his house. Defendant then asked A.F. if she wanted a ride. After A.F. indicated that she did not know defendant, he told her it would be okay and she got into his car. Defendant drove A.F. back to his motor home. Along the way, she told him to take her to Jenny's house or to Ted's house, but he said, "no" and drove to Gridley. At his motor home, defendant told A.F. that she could sleep in his bed and that he would not bother her. Without removing her clothes or glasses, she lay down on the bed and pulled the sheet over her.

Defendant entered the room, pulled off the sheet, held A. F.'s hands to her side, lifted up her shirt, put his mouth on her breasts, pulled down her shorts and underwear, and placed his penis in her vagina. The penetration was painful and she was scared. He moved his body up and down on top of her. She told him to stop and said that she would tell her boyfriend and call the police. Defendant then offered A.F. $50 for having sold her body. After protesting that she did not do that sort of thing, she told him to take her to the residence of an ex-boyfriend, Mike. Defendant told her not to tell anyone what he had done or he would "do something else" to her. Around 3:00 a.m., defendant dropped off A.F. at Mike's house where she fell asleep on the couch. When she awoke she called the police. A.F. identified defendant at trial as the person who had raped her.

A registered nurse examined A.F. at Oroville Hospital. Her vagina had bruising, redness, and discoloration. There were also some "heavy vaginal white secretions." A. F.'s cervix showed redness and was oozing blood. The nurse took swabs of A. F.'s breasts. Later that day, the nurse examined defendant. She determined that he had visible genital warts.

Butte County Sheriff's Deputy Robert Allen spoke with defendant at his motor home in Gridley. Defendant said that "he'd been residing at [the Gridley address] for approximately three weeks on and off."

Defendant was arrested and booked into jail. He gave a police interview that was played for the jury. Defendant told Detective Tom Dryden that while he was at Valentine's house, he offered to pay Jenny to clean his motor home. Later, Valentine got mad at Jenny and told her to leave his house. Jenny obtained permission from her father to have A.F. stay at their residence. Valentine asked defendant to drive A.F. to Jenny's residence, and he agreed. However, defendant could not find Jenny's residence, so he dropped off A.F. at some apartments by the fire department. Defendant claimed that he did not have sex with A.F. In fact, he claimed he "can't have sex," evidently due to his genital warts. DNA test results later revealed that defendant's genetic profile was on the swabs taken from A. F.'s breasts.

At trial defendant testified that he asked a friend's niece (Jenny) and her friend (A.F.) to clean his motor home in Gridley. While the women were cleaning the motor home, A. F.'s boyfriend Ted "grabbed Jenny on the butt." Thereafter, Jenny told A.F. what Ted had done. A few minutes later, A.F. stood in front of defendant and allowed him to lick both of her breasts.

In rebuttal testimony, Detective Dryden said during his interview in July 2008, defendant never mentioned that A.F. had given him permission to touch or suck on her breasts. Dryden asked defendant seven times whether he had touched A.F. On a number of occasions, defendant said he never had sex with her. At least once or twice, he said that he had never touched her.

A.F. testified that she did not see or hear anything about Ted touching Jenny's butt. She also did not give defendant permission to touch or suck on her breasts.

Defendant's former counsel, Danny Brace, testified that it is his practice to share criminal discovery with his clients. In December 2008, Brace shared some DNA evidence with defendant.

Resp.'s Lodg. Doc. No. 5 (hereinafter ...


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