FINDINGS AND RECOMMENDATIONS
Bassel Baroudi, a state prisoner represented by counsel, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his 2005 convictions in the Sacramento County Superior Court, case number C050605, for which he is currently serving 14 years in prison.
On August 22, 2005, Baroudi was convicted by jury of one count of attempting to rape Heather M. (count one), two counts of attempted digital penetration of Heather M. (counts two and three), one count of felony sexual battery as to each Heather M. and Jessica W. (counts four and seven), one count of assaulting Heather M. with intent to commit rape (count five), and one count of raping Jessica W. (count six). LD 14 at 492-98. The trial court imposed an aggregate sentence of 14 years in prison, consisting of a four year term for count five, four consecutive one year terms for each of counts two, three, four, and seven, and a consecutive term of six years for count six. LD 14 at 510-11.
On direct review in case number C050605, the California Court of Appeal, Third District, affirmed the convictions and sentence in a reasoned opinion. People v. Baroudi, No. C050605 (Cal. Ct. App. 3rd Dist. March 28, 2007); Lodged Document ("LD") 4. On June 13, 2007, the California Supreme Court denied review of a petition for review. LD 5, 6.
Petitioner claimed ineffective assistance of counsel in a petition for writ of habeas corpus filed to the trial court. LD 9. The Sacramento County Superior court held an evidentiary hearing and then denied relief. LD 8. Petitioner raised the same ineffective assistance claims to the California Court of Appeal and California Supreme Court; each court denied them without comment. LD 11, 13.
Petitioner filed this action on May 25, 2009. Respondent's answer and petitioner's traverse are also before the court and the matter is submitted for decision.
The following statement of facts is that of the California Court of Appeal on direct review. Petitioner is the defendant referred to therein.
On December 2, 2002, Heather attended a Sacramento Sheriff's Department Christmas party at the Arabian Nights restaurant. She was conservatively dressed in a black turtleneck dress that covered her down to below her knees. During the party, defendant spoke to Heather after he approached the table where she was sitting. Defendant told Heather the owner of the restaurant was hiring, and Heather said she was looking for work. Defendant gave Heather his business card. Heather told defendant she was a single mother. Heather was happy she might get a job, but she did not flirt with defendant and did not express any interest in him.
At the end of the party, Heather asked an employee where the restroom was. The employee pointed it out. Defendant asked if he could help her find it, but Heather declined the help. Defendant followed her anyway. Heather thanked defendant outside the restroom and went in.
When Heather came out of the stall, defendant was in the women's restroom. She told him to leave and went to a sink, trying to ignore him. Defendant came up behind her and pushed her over onto the counter with his body weight on her. He lifted her dress and pulled down her pantyhose. Defendant reached up Heather's dress and touched her breasts, as well as reaching around and touching her vagina with his hand. Defendant also touched Heather's anal area with his hand. Looking in the mirror, Heather saw defendant's erect penis. Defendant attempted to insert his penis into Heather's vagina. During the attack, Heather resisted, trying to wiggle away from defendant. She finally pushed away and left the restroom.
On October 9, 2003, Jessica was an employee at the Thunder Valley Casino when she received an assignment to drive defendant, a patron of the casino, to his car in Citrus Heights. During the drive, defendant and Jessica talked about her job, her son, her age, and her marital status. Defendant asked if Jessica was interested in driving for his friend's limousine company. He gave her a business card.
When they arrived at defendant's car, defendant asked Jessica to follow him to his house so he could get money to give her a tip. Defendant parked the car in the garage and went through the house to meet Jessica at the front door. Defendant opened the front door, grabbed Jessica by the arm, and pulled her into the house. He led her into a family room area and sat her down on a futon. Defendant left the room, saying he was going to get money. Jessica did not leave because she was "in shock."
Defendant returned to the room and put about 22 one-dollar coins in Jessica's cupped hands. He asked her if she was nervous, and she replied that she was. Defendant asked her to stay, but Jessica said she could not. Defendant put his hand down Jessica's shirt and touched her breast. Jessica told defendant "no," but defendant rearranged the futon to make it go flat into a bed. He pushed her back onto the bed, unbuckled her belt, and stood to unfastened his own pants. When he stood, Jessica refastened her belt. Defendant again unbuckled Jessica's belt and unfastened her pants. He exposed his penis and pulled her pants down to her knees. When he was unable to insert his penis into her vagina, he pulled her pants off one leg, spread her legs, and penetrated her vagina with his penis. Defendant repeatedly asked if it was okay, and Jessica continued to say "no." After defendant ejaculated, he let Jessica go to the bathroom. After using the bathroom, Jessica left defendant's house.
I. Standards for a Writ of Habeas Corpus
Federal habeas corpus relief is not available for any claim decided on the merits in 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 the State court proceeding.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that 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 412; see also Lockyer v. Andrada, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")
The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Under AEDPA, a state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
1. Grounds One through Three
In Grounds one through three, petitioner claims trial counsel rendered ineffective assistance. In particular, petitioner complains that trial counsel failed to investigate his medical conditions, including "diabetes, heart condition, and other disabilities that rendered him virtually incapable of committing the acts as alleged" (ground one); failed to investigate and present the testimony of two witnesses present at the restaurant on the night of the attempted rape of Jessica (ground two); and failed to investigate until sentencing the evidence that petitioner had "a good character for law-abidingness and non-violence" (ground three). Pet. at 5-6.
The last reasoned state court opinion rejecting petitioner's claims of ineffective assistance was that of the California Superior Court on state habeas corpus.*fn1 Following an evidentiary hearing on the matter, the trial judge explained his reasoning for rejecting the habeas corpus petition as follows:
... I first address the question of incompetence in the failure to call two witnesses that were brought here for the purposes of this hearing that Mr. Cozens did not call at trial.
The court specifically finds that that within itself did not fall below the standard of care in that there was sufficient testimony brought before this jury by other witnesses in terms of the general substance and content that those witnesses would have testified to had they been called. That is to say, there were other witnesses that covered those areas and certainly there's no incompetence in the failure to call them.
Really what happened here is that Mr. Baroudi wishes to hang his hat, so to speak, in terms of the failure of Mr. Cozens to bring forth medical evidence during the course of trial that would have resulted in a meritorious defense for him. That is not to say it need not result in an acquittal, but it would have been something that would have been meritorious.
The first consideration I note is that there were different opinions by all three medical doctors in terms of whether or not Mr. Baroudi could or could not have had an erection with or without Viagra and with or without self-stimulation.
And I'm going to deal first with the last case, that's the Jessica
[W.] incident where the argument is that he was surprised because had this self-stimulation on the part of this victim been presented it would have been a substantial factor on the question of consent. Well, the Court feels it may or may not have been a factor because there have been numerous rape cases where victims have actively participated in rape situations out of fear. And while the argument is no force was used, obviously the jury believed that her participation occurred because of fear and, as such, there was a finding of guilt in terms of rape as to this victim.
During the course of this in terms of whether he could or could not have had stimulation, you know, I don't know if you really want to argue that, because during the course of his testimony here he didn't testify at trial, he indicated it took two or three minutes of self-stimulation by this victim for him to receive the type of erection where he could have penetration. Indeed there was penetration in terms of the trace evidence being linked to him.
In this case, there's no indication that he was impotent. He said -- my understanding it was during that period of time or that specific time he used Viagra or did not use Viagra, his defense was consent, not the lack of obtaining and erection [sic]. And really factually it becomes a question in terms of whether or not that would have added anything to the equation.
I'm going to move on to... the '02 incident with [Heather M.:] his defense was he wasn't there. Short and sweat [sic]. There's a conflict in the evidence in terms of whether he was there or whether he was not there. Some folks say he's around the bathroom. Other folks said he wasn't.
And what came out in terms of from the medical some says he could have had an erection without stimulation, others say he could not or may not have had an erection but certainly what came out during his testimony is from someone stimulating him he could have had one in two to three minutes.
So the question is if you believe he was by the -- that bathroom door at least that long, could he have self-stimulated himself to obtain an erection that this victim indicated she saw at one point in the mirror.
Now we talk about degrees. And I'm not talking about whether he had a real hard erection, whether he had a lengthy erection or whether he had one in between, because all these medical experts did not feel he was impotent to the point where he could have no erection at all, it was just a question of degree.
And from human experience it is known dealing with whatever partners that you have, you can have intercourse with a very soft erection depending on if the two humans are compatible to that. You don't necessarily have to have hard -- real hard erection to have sex.
And basically it's in the eyes of the beholder anyway; that's what they said, and what I believe and I think that's what the evidence showed.
So then it becomes a question, did these doctors rule out that he was impotent to the point where he could have no erection at all and significantly undercut the testimony of not only this victim and this other victim to the deprive him of a meritorious defense [?] And of course the burden of proof rests upon the person who brings the writ. The Court makes the specific finding on this record that the -- Mr. Baroudi has not made -- met his burden of proof on the question of attorney's incompetence.
Habeas corpus petitions asserting ineffective assistance of counsel are governed by the clearly established federal law of Strickland v. Washington, 466 U.S. 668, 686, (1984). See Baylor v. Estelle, 94 F.3d 1321, 1323 (9th Cir. 1996). Ineffective assistance of counsel exists where "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686. In order to make a state a cognizable claim under Strickland, petitioner must show, first, that counsel performed deficiently, and second, that prejudice resulted from counsel's deficient performance. Id. at 688.
"Surmounting Strickland's high bar is never an easy task." Harrington v. Richter, 131 S. Ct. 770, 787 (2011) (citing Padilla v. Kentucky, 130 S. Ct. 1473, 1485 (2010)). Establishing an unreasonable application of Strickland by a state court is all the more difficult: "the question is not whether counsel's actions were reasonable[;] [t]he question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard. Richter, 131 S. Ct. at 788 (internal quotations and citations omitted). In ...