The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
ORDER: ) (1) ADOPTING IN FULL REPORT ) AND RECOMMENDATION, (Doc. ) No. 25); )) (2) REJECTING PETITIONER'S ) OBJECTIONS, (Doc. No. 27); ) (3) DENYING AND DISMISSING ) PETITION FOR WRIT OF HABEAS ) CORPUS, (Doc. No. 1); AND ) (4) DENYING CERTIFICATE OF ) APPEALABILITY, (Doc. No. 29)
On February 15, 2012, Petitioner Larry Eugene Wilson, Jr. ("Petitioner"), a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("the Petition"). (Doc. No. 1.) The Petition challenged his conviction in San Diego Superior Court Case No. SCD201574, to four counts of forcible rape, one count of forcible sodomy, and one count of kidnapping for the purposes of rape ("aggravated kidnapping"). (Id.) Respondent filed an answer to the Petition on May 22, 2012. (Doc. No. 13.) On February 6, 2013, Magistrate Judge Barbara L. Major issued a report and recommendation ("R&R"), recommending that the Court deny the Petition. (Doc. No. 25.) Petitioner filed timely objections to the R&R on March 1, 21013, (Doc. No. 27), followed by a motion/request for issuance of a certificate of appealability on March 15, 2013, (Doc. No. 29). Respondent did not file objections or otherwise respond to Petitioner's objections. For the reasons set forth below, the Court ADOPTS the R&R in full, (Doc. No. 25), DENIES the Petition, (Doc. No. 1), and DENIES Petitioner's request for a certificate of appealability, (Doc. No. 29)
The following facts come from the California Court of Appeal opinion in People v. Wilson, Appeal No. D052986, and are presumed correct pursuant to 28 U.S.C. § 2254(e)(1).*fn1
On July 10, 1999, victim Stacey W. and her friends went to Canes Bar and Grill in Mission Beach. While at Canes, Stacey socialized with her friends and drank alcohol. At about 1:45 a.m., Stacey escorted one of her friends out of Canes and into a taxi. As she walked back to the bar to find the rest of her friends, Stacey heard a man say "excuse me" or "Stacey" from inside a parked car. Realizing that she did not know the man, Stacey turned to walk away. As she walked away, the man grabbed Stacey and forced her into the passenger side of the car. Stacey identified Wilson as the man who grabbed her.
Once Stacey was inside the car, Wilson punched her in the face and threatened to kill her. Wilson began driving and eventually stopped the car in a secluded parking lot. Wilson then pinned Stacey down, tore off her underwear and repeatedly penetrated her vagina and anus with his penis. Wilson then resumed driving, stopped the car in another parking lot and again repeatedly penetrated Stacey's vagina with his penis.
After Wilson once again resumed driving, he told Stacey that he planned to kill her because she had seen his face. Stacey falsely responded that Wilson should not kill her because she had a two-year-old son at home who needed his mother. At that point, Wilson's demeanor changed, and he demanded that Stacey remove her jewelry. After Stacey complied with Wilson's demand, he pulled over to the side of the road, let Stacey out of the car and drove away. Stacey flagged down a passing limousine and told the driver she had been raped. The driver took Stacey to her apartment.
When Stacey arrived at her apartment, her roommate called the police. An ambulance transported Stacey to Villa View Community Hospital where forensic nurse examiner Claire Nelli conducted a sexual assault examination. Nelli noted bruising on Stacey's leg and face. A vaginal examination revealed substantial abrasion, bruising, and other trauma. Nelli also collected physical evidence from Stacey's body.
In 2002, the San Diego Police Department Crime Laboratory analyzed and extracted DNA evidence from vaginal swabs taken during Stacey's sexual assault examination. In 2006, the crime lab was informed of a match between Wilson, a subject in Kansas' DNA database, and the unknown DNA sample taken from Stacey's vaginal swab. A San Diego Police Department criminalist confirmed the match.
Wilson was arrested and charged with four counts of forcible rape, one count of forcible sodomy, and one count of kidnapping for the purpose of rape. The charging information also alleged as to the forcible rape and forcible sodomy counts that Wilson kidnapped and substantially increased the risk of harm to Stacey. A jury convicted Wilson on all counts and found all special allegations true. The court sentenced Wilson to a total term of 58-years-to-life in prison. (Lodgment 5 at 2-3.)
On October 17, 2008, Petitioner appealed his conviction, arguing that the admission of Claire Nelli's expert testimony, which stated that the victim's injuries were consistent with non-consensual sexual intercourse, was reversible error. (Lodgment 2 at 12.) The California Court of Appeal filed an opinion affirming the judgment of the trial court on April 8, 2009. (Lodgment 5 at 6.) Petitioner thereafter filed a petition for review in the California Supreme Court reasserting the same claim. (Lodgment 6.) On June 17, 2009, the California Supreme Court summarily denied the petition. (Lodgment 7.) On February 19, 2010, Petitioner filed his initial state habeas petition in the California Court of Appeal, (Lodgment 8), which denied the petition without prejudice and directed Petitioner to refile his petition in the San Diego County Superior Court, (Lodgment 9).
Petitioner then filed his petition in the San Diego County Superior Court, wherein he argued that the prosecution of his case was barred by the statute of limitations and that both his trial and appellate counsel were ineffective. (Lodgment 10 at 1, 10.) On June 3, 2010, the Superior Court denied the petition, finding that the prosecution of Petitioner's case was not barred by the statute of limitations, Petitioner's sentence of "fifty-eight years to life" was proper pursuant to Penal Code § 667.61(d)(2), and Petitioner's ineffective assistance of counsel claim based on his trial and appellate counsel's failure to assert the statute of limitations defense without merit. (Lodgment 11 at 3, 4.) On July 23, 2010, Petitioner filed his habeas petition in the California Court of Appeal asserting the same claims. (Lodgment 12.) The Appellate Court denied the petition on August 24, 2010. (Lodgment 13.) On August 1, 2011, Petitioner filed a habeas petition in the California Supreme Court asserting three grounds for relief: (1) the prosecution had not proved every element of aggravated kidnapping (Count 6) beyond a reasonable doubt; (2) the prosecution relied on an invalid statute of limitations in violation of the Ex Post Facto Clause; and (3) Petitioner's trial and appellate counsel were ineffective. (Lodgment 19.) The California Supreme Court summarily denied the petition on December 14, 2011. (Lodgment 20.)
Petitioner filed the instant Petition on February 15, 2012, raising three independent grounds for relief: (1) his constitutional due process rights were violated because there was insufficient evidence to prove the required specific intent required to sustain a conviction for aggravated kidnapping (Count 6); (2) his conviction on Count 1 through 5 for forcible rape and forcible sodomy violated the Ex Post ...