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Michael Eugene Kincade v. Kathleen Allison

April 25, 2012


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


Petitioner, Michael Eugene Kincade, is a state prisoner proceeding with a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving an aggregate term of seventeen years in prison after a jury convicted him on one count of committing a lewd of lascivious act upon a child under the age of 14 (Cal. Penal Code § 288(a)). Petitioner raises four claims in this federal habeas petition; specifically: (1) California Evidence Code section 1108, which allows the introduction of propensity evidence when the defendant is charged with a sexual offense, is unconstsitutional ("Claim I"); (2) Petitioner's right to due process and a fair trial were violated as a result of the introduction of propensity evidence, evidence that Petitioner had committed a prior, uncharged sexual offense ("Claim II"); (3) the jury instructions relating to the prior sexual offense permitted a finding of guilt based on facts not proved beyond a reasonable doubt ("Claim III"); and, (4) the trial court violated Petitioner's rights by failing to give a sua sponte instruction to the jury on voluntary intoxication ("Claim IV"). Both Petitioner and Respondent consented to the jurisdiction of a United States Magistrate Judge in this case. Docket Nos. 5, 12. For the reasons stated herein, the federal habeas petition is denied.


On December 8, 2008, defendant was at home with his family. As was usual, he had taken Vicodin that morning and an Excedrin PM before bed. He had also consumed six 32-ounce bottles of beer and two or three 24-ounce cans of beer. Defendant drinks daily and this was not an unusual amount of beer for him to drink. He was "a little drunk" but not abnormally so and was not behaving in an unusual manner. On occasion when defendant drinks, he blacks out and does not remember what he has done.

At approximately 11:00 o'clock that night, 13-year-old M.C. went to bed on a couch in the living room, wearing her pajama pants, underwear, and a T-shirt. Sometime later, M.C. woke up. Defendant was standing next to her. Her pajama pants were off and then her underwear was taken off. Defendant then touched M.C.'s vagina. She cried and repeatedly told him to stop, but he did not. Defendant's wife Casey woke up around 12:15 a.m. and noticed defendant was not in bed. She yelled his name and jumped out of bed when he did not answer. While she was coming downstairs, defendant stopped touching M.C. and went to the kitchen, where Casey found him. He told Casey he was getting water.

Casey noticed M.C. was awake and went over to her. She could not see M.C.'s pajamas from under the blanket and this struck her as unusual. M.C. looked scared, and when Casey pulled the blanket off, M.C. did not have on her pajama pants or underwear. Casey asked M.C. where her clothes were and M.C. pointed to defendant. She told Casey defendant had taken off her pants and had touched her. Casey started yelling at defendant and left the home with M.C. and her half sister. They went to the store down the street. Defendant went to his brother Adam's house next door. He was upset about M.C.'s accusation. Adam called Casey to find out what was happening, and eventually convinced her to come back to the house. At the house, M.C. told Adam that defendant had touched her. She remained consistent about what defendant had done. When defendant challenged her to "say it out loud" she responded, "You did it." Adam told Casey to call the police, and Casey took the girls to Adam's house. Other than his anger at the situation, defendant's behavior was not unusual.

After his arrest and while in jail, defendant repeatedly called Casey. He demanded she not accept subpoenas and suggested she not show up to testify and not bring M.C. to testify, because if they did not testify there would be "no case." Defendant also assured Casey, and possibly M.C., that it would never happen again.FN2 Defendant and Casey also discussed family issues and problems Casey was having.

FN2. M.C.'s voice could not be positively identified on the phone recording.

Casey stated M.C. is not a child who makes up stories, and she had never made molestation accusations against anyone else. Adam also testified that M.C. is not the type of girl to make things up. Evidence was also admitted under section 1108 of a prior uncharged sexual offense. In May 2000 J.M. was 18 years old. She was coming home from a party when she met a young man, and the two went looking for methamphetamine. The young man had a friend who could get them drugs, so they went to that friend's apartment. The friend was not home, but defendant was. He came out of his apartment, said he was waiting for drugs, and offered to let them wait with him. J.M. waited with defendant in his apartment while the young man went down the street to use a telephone. Defendant expressed concern for J.M.'s safety since she was wandering around with a stranger. He offered to let her stay at his place for the night. Because of the expressed safety concerns, they did not answer the door when the young man returned. They talked for a while, watched a movie, and J.M. fell asleep.

When J.M. woke up, defendant was "spooning" her and fondling her chest and hips. She confronted him and he grabbed her, flipped her down, pressed her face into the cushions, and tried to remove her clothes. His hand was over her throat and he was suffocating her. J.M. passed out.

When J.M. regained consciousness, defendant was raping her. She could not get up because he was pinning her down. She tried to scream but he told her no one could hear her. She told him to stop, but he did not stop until he ejaculated. He then threatened to "get" her boyfriend once he was in jail. J.M. immediately went to the hospital and reported the rape. She had bruising on her chin and neck, and broken blood vessels in her face.


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. 1993); 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); Perry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000).

In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher

threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). "When it is clear, however, that the state court has not decided an issue, we review that question de novo." Reynoso v.Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S. 374, 377 (2005).


1. Claims I and II

In Claims I and II, Petitioner challenges the admission of propensity evidence at his trial. At trial, the prosecution introduced evidence that Petitioner had raped an eighteen-year-old girl in 2000, nearly eight years before, and unrelated to (other than the nature of the crime) the present offense. Petitioner was not charged with a crime at the time of the 2000 incident. Specifically, in Claim I Petitioner raises a constitutional challenge to California Evidence Code section 1108, which permits the use of propensity evidence in criminal trials where the defendant is charged with sexual misconduct. In Claim II, Petitioner directly challenges the constitutionality of the introduction of the propensity evidence at his trial.

Under the circumstances of this case, Petitioner is only entitled to relief if he shows that in upholding the introduction of the propensity evidence the California Court of Appeal contradicted or unreasonably applied clearly established federal law, as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d). In Estelle v. McGuire, 502 U.S. 62, 75 n. 5 (1991), the Supreme Court expressly refused to determine whether the introduction of prior crimes evidence to show propensity to commit a crime would violate the Due Process Clause.*fn2 See also Alberni v. McDaniel, 458 F.3d 860, 866 (9th Cir. 2006) ("Estelle expressly left this issue an 'open question'"). Because the Supreme Court has specifically declined to address whether the introduction of propensity evidence violates due process, Petitioner lacks the clearly established federal law necessary to support his claims. Id.; see also Mejia v. Garcia, 534 F.3d 1036, 1046-47 (9th Cir. 2008) (relying on Estelle and Alberni and concluding that the introduction of propensity evidence under California Evidence Code section 1108 does not provide a basis for federal habeas relief, even where the propensity evidence relates to an uncharged crime); Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (The Supreme Court "has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ."). He is not entitled to relief.

2. Claim III

In Claim III, Petitioner alleges that the jury instructions, specifically those related to the propensity evidence discussed above, unconstitutionally reduced the state's burden of proof. Petitioner challenges two jury instructions given at his trial, CALCRIM No. 375 and CALCRIM 1191. CALCRIM No. ...

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