The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER SUBSTITUTING CONNIE GIPSON, WARDEN, AS RESPONDENT FINDINGS AND RECOMMENDATIONS TO DECLINE TO CONSIDER NEW CLAIMS AND TO DENY THE FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS (DOC. 14) FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER'S REQUEST FOR AN EVIDENTIARY HEARING FINDINGS AND RECOMMENDATIONS TO DIRECT THE ENTRY OF JUDGMENT FOR RESPONDENT AND DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before the Court is the first amended petition (FAP), which was filed on July 13, 2011. Respondent filed an answer to the FAP with supporting documents on September 7, 2011. On October 20, 2011, Petitioner filed a traverse.
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam). Petitioner claims that in the course of the proceedings resulting in his conviction and sentence, he suffered violations of his constitutional rights. The challenged judgment was rendered by the Madera County Superior Court (MCSC), which is located within the territorial jurisdiction of this Court. 28 U.S.C. §§ 84(b), 2254(a), 2241(a), (d).
An answer was filed on behalf of Respondent M. McDonald, Warden, who at the time the petition and answer were filed was the warden of the High Desert State Prison at Susanville, California, where Petitioner was incarcerated at the time the petitions were filed. Petitioner thus named as a respondent a person who had custody of the Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules). See, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
Accordingly, this Court has jurisdiction over the subject matter of this action and over the person of Respondent.
II. Order to Substitute Respondent
Fed. R. Civ. P. 25(d) provides that an action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending; rather, the officer's successor is automatically substituted as a party. The rule further provides that a court may at any time order substitution, but the absence of such an order does not affect the substitution.
Petitioner initially named as Respondent Mike McDonald, who at the time the petition was filed was the warden of the High Desert State Prison. However, Petitioner filed a change of address after the FAP was filed to reflect that his present custodial institution is the California State Prison at Corcoran, California (CSP-COR). The official website of the California Department of Corrections and Rehabilitation (CDCR) reflects that Connie Gipson is presently acting as the warden of CSP-COR. *fn1
Accordingly, it is ORDERED that Connie Gipson, Warden, is SUBSTITUTED as Respondent.
In case number MCR017637 in the MCSC, Petitioner was convicted of having committed sexual offenses against his stepdaughters. As to stepdaughter D, Petitioner was convicted of having committed two counts of aggravated sexual assault in violation of Cal. Pen. Code § 269(a)(1) [counts 1 and 2], and one count of attempted lewd acts in violation of Cal. Pen. Code §§ 664 and 288(a) [count 4]; he was acquitted of a third count of aggravated sexual assault against D [count 3]. As to stepdaughter R, Petitioner was convicted of two counts of forcible lewd acts in violation of Cal. Pen. Code § 288(b) [counts 5 and 6]. The jury also found that Petitioner committed an offense against more than one victim within the meaning of Cal. Pen. Code § 667.61. The trial court imposed four consecutive terms of fifteen years to life for counts 1, 2, 5, and 6, plus three years for count 4, the attempt conviction. (Ans., doc. 20, 6-7; doc. 20-1, 2, 8.)
Petitioner appealed his conviction to the Court of Appeal of the State of California, Fifth Appellate District (CCA), which remanded the case for re-sentencing on counts 5 and 6 but affirmed the judgment in all other respects. (LD 1, 27.) *fn2
Petitioner's petition for review of the CCA's decision was denied by the California Supreme Court (CSC) without a statement of reasons or citation of authority. (LD 5-6.) No post-conviction collateral actions were filed in state court. (Doc. 20, 6:12.)
In a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct; the petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. 28 U.S.C. § 2254(e)(1); Sanders v. Lamarque, 357 F.3d 943, 947-48 (9th Cir. 2004). This presumption applies to a statement of facts drawn from a state appellate court's decision. Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009). The following statement of facts is taken from the decision of the CCA filed on September 25, 2008, in People v. Baltierra, case number F052609:
Defendant was born in March 1974, and married Christi in June 2001. The victims, D. and R., were Christi's daughters. D. was born in March 1991 and R. was born in November 1992. The victims also had two little brothers.
In June 2003, defendant, Christi, and the children moved in with Daniel Pool (hereafter, "Pool" or "Uncle Dan"). Pool lived out in the country, and the children called him Uncle Dan. It was during the time they were living with Pool that defendant sexually abused the victims. At defendant's trial, four witnesses testified for the prosecution.
At trial, D. recalled three specific incidents of sexual abuse. One night defendant took her into the orchards outside Pool's house. He told her they were going to shoot rabbits. But once they were there, defendant placed D. on the ground and put his finger inside her vagina. He then got on top of her and put his penis inside her vagina. D. cried and struggled to get away but defendant "just kept going." When he was done, defendant pulled up D.'s pants and then his own before they walked back to the house.
Another night, defendant came into the victims' bedroom while they were sleeping. Defendant got on top of D., pulled down her pants, and put his penis inside her vagina. D. recalled that R. woke up and defendant told her to go back to sleep. D. cried and tried to get free, but defendant "just kept going and going until he was done." When he was done, defendant pulled up his pants and left the room.
The last incident D. could recall took place around Thanksgiving. D. testified that she thought it was Thanksgiving "Because that morning my uncle put in the turkey in the oven." Defendant came to her room and gave her a beer to drink. He then touched her and put his penis inside her vagina.
When asked how many times these encounters with defendant occurred, D. testified, "Whenever he was drinking or smoking pot." Her mother was asleep when they happened.
The first person D. told about what was happening was Uncle Dan. It was Thanksgiving morning. Uncle Dan asked her why she was crying and why defendant had been in her room. D. did not tell anybody sooner because she was scared her mother would not believe her. D. explained her mother "takes the man before her children."
No one besides defendant ever touched D. inappropriately.
D. claimed that defendant physically disciplined her by getting a belt and hitting her on the back. He also did this to one of her brothers.
Even before the first incident of abuse, D. thought defendant was "a nasty man" and "had a feeling something bad was going to happen."
When D. lived in the house with her mother and defendant, defendant spoke Spanish. D. understood and spoke Spanish and was able to communicate with defendant.
On cross-examination, D. confirmed that, during an interview, she estimated that defendant had sex with her 30 to 35 times and that this was true. It would happen every Friday and Saturday night when defendant would get drunk and come into her room. Her mother was always in the house when this happened.
D. also acknowledged that when she was asked during the interview how her mother and defendant met, she said they met when her mother forced her to watch her having sex with 20 men, two at a time. Defendant was one of the 20 men. D. maintained that this was true.
D. further verified that when she was asked during the interview how she knew defendant was done having sex with her during the incident in the orchards, she answered, "he shot his sperm inside me."
Before talking to Uncle Dan, D. never told any school officials about defendant's abuse because she was afraid she and her siblings would be taken away from her mother and Uncle Dan, and she wanted them to stay together.
D. admitted she wanted defendant out of her life and her family's life from the time she met him.
On redirect examination, D. testified she did not dislike defendant so much that she would be willing to lie to get rid of him.
At trial, R. recalled that defendant touched her in three different rooms in Uncle Dan's house. The first incident she could recall occurred in defendant's room. Defendant pulled her pants down, laid her on the bed, and started trying to put his penis inside her vagina.
R. could not get up because defendant was bigger than she was and he would push her back down on the bed.
The second incident R. could recall occurred in the bathroom. Defendant laid her down on a towel on the bathroom floor and tried to put his penis inside her vagina. His penis went in "[a] little." He stopped when
R. heard her uncle asking where she was.
R. recalled that defendant also assaulted her in the living room. R. testified that defendant bent her over the arm of a couch and "did it from behind ... [h]e stuck his [penis] into my vagina."
R. also claimed that one night she witnessed defendant sexually assaulting her sister, D. According to R. defendant came into their bedroom through the window. He went to the bed, pulled down D.'s pants, and stuck his penis inside her. R. told him to stop or she would tell her uncle. He stopped and left the bedroom through the door.
R. never told her mother because her mother would not have believed her, "Because she's like that." R. did not think any of her teachers would believe her either.
R. confirmed that defendant spoke Spanish. She understood it and was able to communicate with defendant when she lived with him.
On cross-examination, R. acknowledged that in August 2004, about eight months after she was placed in foster care, she told a social worker that Pool also molested her and that this was true. According to R., she had tried to tell her teachers, but they had not believed her.
R. confirmed that she told law enforcement officials that her mother met defendant while they were playing basketball at a school.
R. also acknowledged that she told Uncle Dan that defendant molested her. When she talked to Uncle Dan, he told her "almost all Mexicans fuck their own children."
R. acknowledged that when describing defendant's acts to an interviewer, she made statements including, "I put it tight so he doesn't stick it in," "he just stuck the head in," and "Every time he tries to shoot the load in me, he can't."
On redirect examination, R. verified that it was her testimony that both defendant and Pool molested her.
Pool testified he saw defendant go into D.'s room early one morning. Defendant had two beers with him. When D. came out of the room, Pool asked her what was going on, but she did not say anything. Pool then asked what defendant was doing bringing beers into her room. D. replied that defendant was just talking to her, but Pool could smell beer on her breath. D. eventually disclosed that she was being molested. Pool told D. she needed to tell her mother. Pool was present when D. spoke to her mother, who became upset. Pool then called the sheriff's department and they came out and spoke with D.
Pool denied that he ever threatened defendant. Pool did not speak Spanish and never spoke to defendant. Pool often saw defendant drinking in the house.
Pool recalled that on the occasion he saw defendant go into D.'s room, he was preparing food, including a turkey, for Christmas dinner.
Pool never saw defendant whip any of the children with a belt.
Pool acknowledged that he was aware that R. had in the past accused him of touching her inappropriately. To his knowledge, the allegations were investigated. He did not know what happened with those allegations. The allegations were made sometime before Christi, defendant, and the children moved into his home. Pool was never charged with any crimes.
On cross-examination, Pool testified that he contacted the sheriff's department the same night D. told him about defendant. His recollection was that D. told him on Christmas Eve.
Pool denied that R.'s allegations against him were true. When asked if he said "almost all Mexicans fuck their own children," Pool responded, "That's a lie, sir." According to Pool, the victims "always had problems of telling stories."
Pool further testified on cross-examination that he was gone a lot, mostly on the weekends, and never witnessed defendant touch D. or R. inappropriately. Pool also denied that he ever physically disciplined D.
On redirect examination, Pool explained that he allowed Christi and her family to live with him despite R.'s prior allegations because they were begging him for a place to stay. Pool was upset the night he called the sheriff's department, "Because it didn't seem like their mother wanted to do anything, and I was so upset that these kinds of things would happen in my house."
Detective Karl Hancock with the sheriff's department was assigned to the case involving D. and R. He went to Pool's home to investigate their allegations. Detective Hancock described Pool's home and the surrounding area. On cross-examination, Detective Hancock testified he was present during the separate "C-SART [(Child Sexual Abuse Response Team)]" interviews of D. and R. During her interview, D. did not make any statements about an incident of sexual activity occurring on Thanksgiving. Rather, she indicated it was Christmas Eve. Detective Hancock confirmed that D. stated defendant met her mother when her mother forced D. to watch her have sex with 20 men. D. also reported that she had around 30 sexual encounters with defendant. In her interview, R. stated that defendant had or attempted to have sex with her about 20 times. ...