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Jason Jermell Jake v. Mike Mcdonald

September 5, 2012

JASON JERMELL JAKE, PETITIONER,
v.
MIKE MCDONALD, RESPONDENT.



FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on April 25, 2007 in the Sacramento County Superior Court on a charge of raping a person incapable of giving consent. Petitioner seeks federal habeas relief on the grounds that the trial court violated his rights under the Confrontation Clause by admitting testimony from a hospital nurse about an examination report that was prepared by another nurse who was deceased by the time of petitioner's trial, and that his trial counsel rendered ineffective assistance. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for federal habeas corpus relief be denied.

BACKGROUND

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

Seventy-eight-year-old G. has dementia. In 2003, G.'s niece moved her into a Sacramento board and care home called Manna House, which was owned by defendant's grandmother and run by defendant's mother. Defendant lived at Manna House in his own room and worked there as a patient caregiver.

In January 2006, defendant's mother called G.'s niece and told her G. was "'bleeding from her anus.'" A hospital examination revealed G. was bleeding from two lacerations in her vaginal area. According to one of the nurse practitioners who reviewed G.'s case, the degree of vaginal tearing was "very significant" and suggested a "fair amount of force or significant amount of force." She had not seen this degree of tearing in any of the 1,000 examinations she had conducted and believed that a "normal functioning person" would be unable to tolerate this type of pain.

A police interview of G. proved inconclusive. When a detective tried to speak with G., she would respond with a blank stare and would answer some questions only after long pauses. She did state she knew a "young," "nice gentleman" who was 74 years old named Perry. When the detective asked whether Perry touched her private parts, G. responded, "'did not touch.'" She also responded that Perry "'puts his penis in me when he washes me.'" Police could not find anyone named Perry associated with Manna House. Defendant's DNA, however, matched DNA from sperm found inside G.'s vagina. Defendant was arrested for raping G. and when arrested told his mother he was sorry for what he had done.

In jail, defendant made telephone calls that were tape recorded by jail personnel. In those telephone conversations, defendant admitted "having sex" with G., believed that the DNA could have come from "nobody else," and explained he "pulled out" before he ejaculated and the sex "kind of tore her."

Doc. No. 25-1 at 1-3.

ANALYSIS

I. Standards of Review

Applicable to Habeas Corpus Claims An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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 ...


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