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Kenneth A. Frank v. James A. Yates

June 13, 2012

KENNETH A. FRANK,
PETITIONER,
v.
JAMES A. YATES, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a judgment of the Superior Court of California, County of Kern, following his conviction by jury trial on December 20, 1989, of two counts of rape by means of an intoxicating or anesthetic substance in violation of Cal. Penal Code § 261(3). (See Petition at 2.) Prior to sentencing, Petitioner absconded. Sixteen years later, Petitioner was arrested in Israel and extradited to the United States. On December 3, 2007, Petitioner was sentenced to twelve years in prison. (See Petition at 2.)

Petitioner appealed. On January 22, 2009, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), affirmed Petitioner's judgment in a reasoned decision. (See Lodged Doc. No. 7.) Petitioner then filed a petition for review in the California Supreme Court.

(See Lodged Doc. No. 8.) The petition was summarily denied on April 15, 2009. (See Lodged Doc. No. 9.)

Petitioner next filed a petition for writ of habeas corpus in the Kern County Superior Court on April 23, 2010. (See Lodged Doc. No. 10.) On June 23, 2010, the superior court denied the petition in a reasoned opinion. (See Lodged Doc. No.11.) Petitioner then filed a petition in this Court on July 6, 2010, in case no. 1:10-CV-01212 GSA HC. On August 3, 2010, the Court dismissed the petition without prejudice for failure to exhaust state remedies; however, one of the claims was dismissed for failure to state a federal question. Petitioner then filed a habeas petition in the Fifth DCA, but the petition was summarily denied. (See Lodged Doc. Nos. 12, 13.) He then filed a habeas petition in the California Supreme Court, but the petition was denied without comment. (See Lodged Doc. Nos. 14, 15.)

On July 11, 2011, Petitioner filed the instant federal habeas petition. On December 20, 2011, the Court dismissed Petitioner's first ground as successive to the claim the Court had dismissed in the previously-filed federal petition. On April 3, 2012, Respondent filed an answer to the petition. On April 27, 2012, Petitioner filed a traverse.

STATEMENT OF FACTS*fn1

Count 1.

"On Friday, February 7, 1986, Dr. Ilene P., a clinical psychologist and teacher at a local college, went to Todd's Bar. There she saw Frank whom she recognized as a physician she had met at a reception for a local judge and whom she had spoken to on business matters. She approached Frank, joined him, and had two drinks. When she declined his invitation to go to a movie, Frank decided to accompany her to temple. Frank then took Dr. P. to a meeting at the medical center where he worked. After dinner, Dr. P. accepted Frank's invitation to watch a video at his apartment but made it clear she was not interested in sex. They arrived at his apartment about 11:30 p.m.

"Dr. P. declined Frank's offer of wine but accepted some Cafe Vienna. She expressed distaste at its sweetness. Frank twice urged her to drink the whole cup which she eventually did. Shortly thereafter, Dr. P. became very drowsy and fell asleep on the couch while watching the video. She remembered the two of them leaving his apartment about 1:30 a.m. but was not fully conscious until 6 p.m. on Saturday, when she was awakened by the ringing of the telephone and, to her surprise, found herself naked in bed with Frank. Frank left shortly thereafter and Dr. P., too groggy to work as planned, slept until 7 a.m. the next morning, Sunday.

"Dr. P. cancelled a date for hiking with Frank but agreed to have breakfast with him and told him she suspected she had been drugged or gotten food poisoning. Throughout the day Dr. P. continued to feel tired, nauseous, and 'headachy.' In the late afternoon, Frank told her that they had had sexual relations and that he put a drug in her coffee thinking it would relax her.

"The following morning, Dr. P. could not recall the name of the drug Frank had mentioned. She called his office; he told her it was Ativan. She submitted to a urine and blood test that afternoon; the test was negative for Ativan.

"Dr. P. subsequently recalled several things that happened between 1:30 a.m. and 6 p.m. on Saturday: She recalled being in a shower with Frank and being in bed with him. She also remembered Frank lying on top of her with his penis in her vagina.

"When police investigated Dr. P.'s complaint, Frank admitted being with her but denied any use of drugs. He admitted using Cafe Vienna with tranquilizers to quiet his dogs and put them to sleep. Cafe Vienna was seized from Frank's apartment with his consent, but tested negative for Ativan. There were no dogs in the apartment.

Count 2.

"On October 12, 1985, Ms. Beverly R., a student at San Joaquin Valley College, and a female friend went to a local bar for a glass of wine. About 2:20 a.m. they went to another bar where the friend introduced Ms. R. to Frank and his brother. Shortly thereafter Frank agreed to drive Ms. R. home but stopped first at his apartment 'to get something.' At Frank's suggestion, they smoked a pipeful of marijuana. When Ms. R. commenced coughing, Frank fixed her a drink that tasted like coffee but was very sweet and which he told her contained cognac.

"A half hour later Ms. R. began to feel dizzy; she told Frank she was ill and wanted to go home. Frank asked her how much she weighed; she told him. Her vision became blurred and she fell over, striking her head on the arm of the couch. She felt herself being carried toward the bedroom. She then lost consciousness. It was about 4 a.m. on October 13.

"Ms. R. was shaken awake by Frank at 7 a.m. on October 14. She was in bed with him, naked; the sheets were covered with menstrual blood; she had vaginal pain; and semen was running down her legs. She was unable to recall anything that happened during the 27-hour period between the time she passed out and the time Frank awakened her.

"Ms. R. asked Frank if they had had intercourse, and he told her that they had and that she enjoyed it. He said he had given her a drug called Ativan to put her mind to sleep.

"A month after the incident, Ms. R. went to a doctor to make sure she did not have venereal disease but did not report the incident to police until three months after the incident because she was afraid of Frank. She testified that he had threatened her.

"Ativan, the drug Frank told both victims they had ingested, is normally prescribed for anxiety or insomnia. A large dose can cause an extended period of unconsciousness. Alcohol adds to this effect. Ativan's half life in the human body is about 18 hours. A sensitive blood or urine test should be able to detect the residue from a large dose of Ativan taken two and a half days earlier." (Frank, supra, 48 Cal.3d at pp. 636-638.)

Frank was charged with two counts of rape in violation of Penal Code section 261, subdivision (3).FN2 He initially posted bail and then he was released on his own recognizance (OR). He remained out of custody for the entirety of the three-year case and appeared at all court proceedings.

FN2. At the time of the proceedings, Penal Code section 261 provided in pertinent part: "'Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: [¶] (3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, administered by or with the privity of the accused.'" (Frank, supra, 48 Cal.3d at p. 635.)

On January 17, 1990, Frank failed to appear for the scheduled sentencing hearing. The court revoked his OR release and issued a bench warrant. The court never sentenced Frank and he remained at large. As we will discuss post, the court reporters' notes for his trial were never transcribed.

Frank's Arrest

In July 2006, Frank was arrested in Tel Aviv, Israel, living under the name of "Yonatan Efrat." The record is silent as to how Frank was found. It was later determined that he traveled to Israel under a legal passport, changed his name through the Israeli judicial process, practiced medicine there, married, and fathered a child. Frank was extradited to the United States and returned to Kern County on July 31, 2007. The court granted Mr. Simrin's motion to be relieved and appointed the public defender to represent Frank. (See Lodged Doc. No. 7.)

DISCUSSION

I. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of Kern County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 2241(d).

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997; Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

II. Standard of Review

Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner can show that the ...


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