The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable George H. King, Chief United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on June 7, 2012. Respondent filed an Answer on June 29, 2012. Petitioner filed a Traverse on August 13, 2012, which alleged new, unexhausted claims.
On August 26, 2012, the Court issued an Order re Exhaustion, ordering Petitioner to file: (1) a document stating Petitioner's intent to delete and abandon all of his unexhausted claims; or (2) a document requesting dismissal of the entire proceeding without prejudice; or (3) a motion for a stay. On September 21, 2012, Petitioner filed a "Motion to Delete and Abandon All of Petitioner[']s Unexhausted Claims Asserted in Petitioner[']s Traverse," signifying Petitioner's intent to delete and abandon his unexhausted claims.*fn1
An Amended Information charged Petitioner with one count of rape of an incompetent person, "Jane Doe," in violation of California Penal Code section 261(a)(1) and one count of misdemeanor dependent adult abuse in violation of California Penal Code section 368(b)(1) (Clerk's Transcript ["C.T."] 95-96). The Information also alleged that Petitioner had served four prior prison terms within the meaning of California Penal Code section 667.5(b), and had suffered a prior conviction qualifying as a strike under California's Three Strikes Law, California Penal Code sections 667(b) - (i) and 1170.12(a) - (d) (C.T. 97-98).*fn2
A jury found Petitioner guilty of attempted rape of an incompetent person and misdemeanor dependent adult abuse (Reporter's Transcript ["R.T."] 468 - 471-1; C.T. 157-58, 166-67). The trial court found true three of the prior prison term allegations and the allegation of a strike-qualifying conviction (R.T. 479-82, 489; C.T. 168). Petitioner received a nine-year prison sentence (R.T. 530-34; C.T. 201-05).
The Court of Appeal affirmed the judgment, with directions to correct the abstract of judgment to show that the conviction was by jury, not by the court (Respondent's Lodgment 5; see People v. Duhart, 2011 WL 4063190 (Cal. App. Sept. 14, 2011). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 7). Petitioner filed a habeas corpus petition in the California Supreme Court, which that court also denied summarily (Respondent's Lodgments 8, 9, 10, 11).
SUMMARY OF TRIAL EVIDENCE
The prosecution's evidence showed the following:
On March 19, 2010, at approximately 10:00 p.m., Douglas Loreman, a municipal officer for the City of San Bernardino, observed an SUV in the parking lot of a public park (R.T. 101-02). The park closed at 8:00 p.m., and deputies routinely contacted persons parked there after the closing time (R.T. 102). Loreman and his partner, Deputy Wilson, pulled their patrol car behind the SUV and shined their spotlights on the vehicle (R.T. 103). The passenger side rear door of the SUV was open (R.T. 104).
Loreman first approached the driver's side of the SUV but saw no occupants on that side (R.T. 105). Loreman then went to the passenger side, where he saw Petitioner pulling up his pants (R.T. 105-06). Jane Doe was sitting up in the rear passenger seat putting on her clothing (R.T. 106). Jane appeared confused and had a blank expression on her face (R.T. 107). Loreman took Jane to the rear of the vehicle (id.). With a blank expression, Jane told Loreman: "He was raping me" (R.T. 108). Jane was almost emotionless (R.T. 110). She was "just like a complete blank, like somebody hit the delete button and there was nothing there" (R.T. 113). Jane provided her name and birthdate, but her responses were delayed (id.). She did not converse (R.T. 114). Loreman contacted the police department (R.T. 111-12).
Municipal officer Brian Wilson, Loreman's partner, testified that, when Loreman activated the patrol car spotlight, the rear passenger door of the SUV was wide open, and Wilson saw Petitioner lying down on the rear back seat making "several pelvic thrusts" resembling the motions of sexual intercourse (R.T. 127-28). Petitioner appeared to be on top of someone who appeared to have her leg around Petitioner (R.T. 127, 145, 147). Petitioner slid or jumped from the back seat and grabbed for his pants (R.T. 127). Petitioner was naked below the waist and his pants were around his ankles (R.T. 129). Wilson let Petitioner pull up his pants (id.).
Wilson saw Jane Doe lying on the rear seat, naked from the waist down (R.T. 130). Jane said: "He raped me" (R.T. 131). When the officers tried to get her name, Wilson could tell that Jane had some kind of mental deficiency (id.). Jane had a "kind of deer in the headlights look" and appeared bewildered (id.). Jane asked Wilson if he minded if she got dressed, which was not a normal reaction (R.T. 132). Wilson had difficulty getting Jane's name and date of birth (R.T. 133). She gave her first name, after a struggle, had difficulty spelling her last name, and was unable to give her birthdate (R.T. 133, 137). Jane appeared afraid, was slow in responding, did not know how to spell her last name, and did not know her date of birth (id.). It appeared to Wilson that Jane had developmental disabilities (R.T. 135).
Ann Rowney, forensic nurse and sexual assault nurse examiner, interviewed and examined Jane Doe after the assault (R.T. 239). Rowney initially thought Jane suffered from echophelia because Jane would repeat what Rowney said to her (R.T. 240). Rowney asked Jane the questions from the standard sexual assault questionnaire, but Jane would not answer the questions (R.T. 240-41). She would repeat the questions back to Rowney, but not answer them (R.T. 241). When Rowney asked whether "he put anything into [Jane's] vagina," Jane repeated the word vagina but did not answer (R.T. 242). When Rowney altered the question to use the term "private part" instead of "vagina," Jane still did not answer the question (id.). Rowney became concerned about Jane's developmental delays after approximately ten minutes (R.T. 247). Rowney decided she would not be able to get answers, and conducted the type of physical examination she uses on a person who is unconscious due to alcohol or some other sort of injury (R.T. 241, 243). During the examination, however, Rowney also asked Jane various questions concerning the incident, using language Rowney would use with a child (R.T. 273-78, 283-84, 288).
Jane's emotional state was "flat" (R.T. 248). She was not emotive, and did not cry, but was "very matter of fact" and "non-reactive" (R.T. 248-49). Rowney saw no evidence of injuries, and the physical examination was "non-conclusive" as to whether intercourse had occurred or whether intercourse had been consensual (R.T. 249-51).
Dr. Frey is a psychologist focusing on persons with developmental disabilities (R.T. 40-41, 53). An IQ score of 50-70 indicates "mild mental retardation," and a score of 71 to 84 signifies "borderline intellectual functioning" (R.T. 47). Jane Doe's verbal IQ was 58, her performance IQ was 62, and her full scale IQ was 56 (R.T. 55). Her score for social adaptive abilities, such as communication, daily living skills and socialization, was consistent with moderate retardation (R.T. 69-70).
Jane received social services at the Inland Regional Center operated by the State Department of Developmental Disabilities (R.T. 42, 60). Dr. Frey recorded that Jane needed a great deal of prompting to complete daily activities such as caring for herself and bathing (R.T. 62). Jane worked for three hours a day at a job she obtained through a program for persons with developmental disabilities (R.T. 63). However, she had problems counting money and making change (R.T. 71-72). In conversation, Jane was verbal, but sometimes had difficulty putting her thoughts into words (R.T. 64). She was pleasant and cooperative, but somewhat timid and seemed to lack self-confidence (R.T. 65). She answered many questions "I don't know" (id.). Jane read at a 1.4 grade level and her spelling was 2.0 (R.T. 68). Her composite score for adaptive behaviors was in the "high/moderate" level of delay, consistent with mild mental retardation (R.T. 69-70). On the adaptive skills test, on a scale of 1 to 100, Jane scored a 60 for daily living skills, 58 for socialization, 46 for adaptive behavior composite, and 29 for communication skills (R.T. 97-98). Dr. Frey concluded from his observations of Jane that she showed substantial handicaps in the areas of learning, communication, independent living skills and capacity for independence (R.T. 75-76). Dr. Frey agreed that Jane came across as someone who was mentally retarded (R.T. 73).
Dr. Frey did not discuss sex with Jane (R.T. 77). Asked whether, in his opinion, Jane can "consent to sexual intercourse," Dr. Frey said he did not know because he did not "assess her for competency in that manner" (R.T. 83). However, he testified that, in his opinion, mild retardation does not necessarily prevent a person from "consenting to sexual intercourse" (R.T. 84).
Craig Goldsberry worked for the San Bernardino City School District, teaching independent living skills, work skills and vocational skills to students with "moderate-severe" disabilities (R.T. 150). Goldsberry had known Jane Doe for three years, and she had been his student for two years (R.T. 158). Jane was mentally retarded (R.T. 163).
Jane worked in different departments at Valley College, doing routine janitorial or sorting type work (R.T. 170-73). She worked at the Children's Center setting out food and cleaning up (R.T. 174-75). She was never left in charge of children, because she would not know what to do in case of an emergency (R.T. 174). If she finished a job, she might not know what to do next (R.T. 173, 188-89). Jane found it difficult to make change, but she could take the bus to certain memorized stops (R.T. 170-71). Jane's disability was not one that would improve over time (R.T. 169).
Jane was given regular instruction in personal safety, but the personal safety lessons had to be repeated every day (R.T. 175-76). Asked what she would do if a stranger approached or she were asked to get into a car, she gave the correct answer ("no"), but "her actions were not consistent with that," and she needed constant reminders (R.T. 176). Jane was given instruction in hygiene, but she often came to school with an odor (R.T. 177). She would say that she understood personal care tasks in the abstract, but when she came to school staff could tell she was not following good hygiene habits (R.T. 177-78). Jane's hygiene was an ongoing issue (R.T. 178).
Jane was very cooperative, at times too cooperative, which was a concern (R.T. 167-68). Jane would always do what she was told, but later she would mention that she had not wanted to do it (R.T. 168). She would do things she may not have wanted to do just to "go along" (R.T. 180). The staff attempted to help Jane be more self-assertive (R.T. 168). Jane was a quiet student who did not speak up for herself without prompting (id.). It was common for her to go along with people without voicing her opinion, and she was observed being easily manipulated (R.T. 179). Goldsberry had concerns about Jane's ability to understand her health and hygiene needs and her ability to be independently responsible, issues which were "very difficult for her" (R.T. 180). In conversing with Jane, Goldsberry kept his conversation very "concrete" and "simple" (R.T. 182-83). It took Jane noticeably longer to respond to questions than it would a non-retarded person (R.T. 183-84).
Vicki Smith, the consumer service coordinator for the Inland Regional Center, was familiar with Jane Doe (R.T. 291, 296). Smith helped Jane obtain instruction in areas such as budgeting, shopping for groceries and maintaining hygiene (R.T. 301). Jane needed help with budgeting, scheduling medical appointments, shopping, and food preparation (R.T. 301-02). As long as Jane was in a supportive living environment, as opposed to a facility like a nursing home, she would need assistance in budgeting and shopping for food for the rest of her life (R.T. 308-09).
Jane responded to simple questions, but complex questions made her uncomfortable (R.T. 310). If she did not understand, she would "completely clam up, both physically and in conversation" (id.). Jane was hesitant to speak up or to speak ill of people (R.T. 312-13).
The Center offered a six-part series on sexuality designed for people suffering from mental retardation, among other things (R.T. 313-14). Jane might have been able to understand the material and reiterate it if questioned, but would only be able to apply approximately 25 percent of it, because of her retardation (R.T. 314).
Jane did not know why she was in court (R.T. 317). Jane said she just moved to a house with two little girls (R.T. 318). Jane liked to walk to a friend's house to watch television (id.). Jane said she liked to watch the news, but she did not know what she liked about the news (R.T. 319). Jane remembered taking a fitness class with her teacher, Mr. Goldsberry (id.). She said she took a class concerning a job, but did not know what kind of job she had done (R.T. 320). Prompted, she remembered working at the library dusting and cleaning tables, and working at the Children's Center setting and cleaning tables (R.T. 320-21). She said she worked in the kitchen at Valley College but did not know what she did there (R.T. 321). Asked whether she cleaned floors, she said no (id.). Asked whether she made food, she responded that she cleaned the pots (id.). She said she liked cleaning the pots but could not explain why (R.T. 321-22).
Jane said she remembered the night she was at the park (R.T. 322). Jane recalled walking with her 16 year old cousin DeeDee, whom Jane had known a long time (id.). Jane remembered when DeeDee was a baby, but did not respond when asked where babies came from (id.). Jane said she played with DeeDee when DeeDee was a baby, but did not know what kinds of things she did (R.T. 322-23).
Jane recalled getting into the car with Petitioner and going to the park (R.T. 323). Jane said Petitioner took off her clothes (R.T. 324). Jane first said Petitioner did not do anything else, but then said he took off his clothes (id.). Asked what Petitioner did after he took his clothes off, Jane said "I don't know" (id.).
Jane recalled talking to an officer about what had happened at the park (id.). However, asked again to relate what happened in the park after Petitioner took off his clothes, Jane said, "I don't know" (R.T. 325). She gave the same response when asked what happened in the car (id.).
Answering leading questions, Jane then said Petitioner was naked in the car and he did something to her ( id.). She said Petitioner was in the front seat, and Jane was in the back seat, but Petitioner did not move (id.). Asked what happened in the car, Jane again answered, "I don't know" (id.). She said she did not want to say the word (R.T. 326). Answering another leading question, Jane testified that "fuck" happened (id.). Jane said Petitioner was on top of her (R.T. 326-27). Asked what Petitioner did, Jane responded: "Rape?" (id.). Asked what that word meant, Jane said she did not know (R.T. 327). Jane said she remembered a class with Mr. Goldsberry where they may have used a word like rape, but when asked what rape was, Jane responded again, "I don't know" (id.).
On cross-examination, answering leading questions, Jane said she had taken a class with Mr. Goldsberry concerning the human body, and had learned that boys had a penis and girls did not, but girls had babies and boys did not (R.T. 329). Jane recalled a time when she started bleeding "in her private area," but when asked whether someone had explained that the bleeding would happen every month, she said, "I don't know" (R.T. 330). Asked whether she wanted to talk about that, she said "No" (id.).
Jane testified she remembered learning that babies happened when a boy and girl had sex (R.T. 331). She said someone at school told her sex was bad, but other friends told her it was not a bad thing (id.).
Asked about the events leading up to the offense, Jane said she recalled getting into Petitioner's car (R.T. 332). She did not ask to go to the park (id.). She said she did not kiss Petitioner, but remembered holding his hand (id.). She remembered taking off her clothes (R.T. 332-33). Answering leading questions, she said that when she took off her ...