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Colado v. Allison

United States District Court, Ninth Circuit

May 8, 2013

CECILIA MEDINA COLADO Petitioner,
v.
K. ALLISON, Warden Respondent.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

MARILYN L. HUFF, District Judge.

On November 23, 2011, Cecilia Medina Colado ("Petitioner"), a California state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his conviction. (Doc. No. 1.) On April 25, 2012, Petitioner filed an amended habeas petition. (Doc. No. 23.) On August 15, 2012, K. Allison ("Respondent") filed an answer to Petitioner's amended petition. (Doc. No. 27.) On October 15, 2012, Petitioner filed a traverse. (Doc. No. 31.) On October 26, 2012, the magistrate judge issued a report and recommendation to deny the petition.[1] (Doc. No. 32.) Petitioner filed objections to the report and recommendation on February 27, 2013. For the following reasons, the Court denies the petition for writ of habeas corpus.

BACKGROUND

Petitioner seeks relief from his October 2009 California state court conviction for committing lewd acts upon a child. (Doc. No. 23.) The following facts are taken from the California Court of Appeal's February 5, 2009, decision affirming Petitioner's conviction and sentence. (Lodgment No. 6.) The facts are presumed to be correct pursuant to 28 U.S.C. § 2254(e)(1).

Lesly S. was 11 years old and in the sixth grade at the time of trial. Lesly's parents were divorced and she split her time living with each of them. Lesly's grandmother, Ofelia, lived in her mother's house. Ofelia's room was a converted garage that had its own bathroom. When Lesly was in the second grade, Colado, Ofelia's boyfriend, moved into the converted garage to live with Ofelia. Colado did things to Lesly in Ofelia's room that made her uncomfortable, such as kissing her mouth, trying to put his tongue into her mouth, putting his penis in her butt, and putting his finger up her front private parts. Lesly did not tell anyone what was happening.
When Lesly was in the third grade she told her school friends, Geovanna and Rosetta, that she had a "secret" and made them promise not to tell anyone. Lesly said that her grandmother's boyfriend was "raping [her] or something like that." Lesly also shared the secret with her cousin and close friend, Alison, who was two years older than her. Although Alison wanted Lesly to tell Lesly's mother the secret, Lesly did not because she was too scared. Ultimately, Lesly's mother learned about the allegations.
About 20 days after the last touching incident, Dr. Joyce Adams conducted a physical examination of Lesly, but found no evidence of sexual abuse. In April 2008, Laurie Fortin, a forensic interviewer with a child advocacy center, interviewed Lesly.
An information charged Colado with six counts of committing a lewd act with a child between the dates of December 1, 2005, and April 11, 2008, namely: touching Lesly's buttocks with his penis (counts 1 & 2); touching Lesly's vagina with his hand (counts 3 & 4); and kissing Lesly (counts 5 & 6). As to counts 1 through 4, Colado was alleged to have had substantial sexual conduct with his victim, who was a child under 14 years of age.
At trial, the jury heard testimony from Lesly, and from Geovanna, Rosetta and Alison regarding Lesly's out-of-court statements. The People played a DVD of Fortin's interview with Lesly for the jury, and each juror received a transcript of the interview. During the interview, Lesly told Fortin that Colado "abused" her by putting his penis in her butt, putting his finger inside her, and kissing her on the mouth. At trial, Fortin testified that although she had interviewed Lesly, it was not her job to determine whether a child was telling the truth or whether a suspect should be charged with a crime. She generally explained that not all abused children appear traumatized, and that children often delay or fail to disclose abuse.
Colado testified in his own defense. He claimed that Ofelia never left him alone in the room with Lesly, and denied touching Lesly with his penis or kissing her on the mouth. Ofelia also claimed that she never left Lesly alone with Colado. She stated that Lesly displayed some jealousy toward Colado, such as stating "no, no, she is my grandmother" when Colado wanted to hold Ofelia. Colado's ex-wife and adult daughter testified that Colado never behaved inappropriately toward children.
The jury found Colado guilty as charged on all counts, and found he had substantial sexual conduct with Lesly as alleged in counts 1 through 4. The trial court sentenced him to eight years in prison on count 1. He received five consecutive two-year terms on counts 2 through 6, for a total prison term of 18 years.

(Lodgment No. 3 at 2-4.)

The California Court of Appeal affirmed Petitioner's conviction on July 1, 2011. (Id. at 1.) Petitioner directly appealed his conviction to the California Supreme Court. (Lodgment No. 2.) The Supreme Court denied his petition for review on September 14, 2011. (Lodgment No. 1 at 6.)

Petitioner then unsuccessfully pursued collateral relief in the California Supreme Court. (Lodgment No. 1.) On November 23, 2011, Petitioner filed his federal petition for writ of habeas corpus. (Doc. No. 1.) Petitioner also concurrently filed a second habeas petition with the California Supreme Court in order to exhaust a third claim, which he had mistakenly raised on state law grounds. The California Supreme Court denied Petitioner's second habeas petition. (Doc. No. 22 at 4.)

In his federal petition, Petitioner alleges three claims for relief. (Doc. No. 23 at 6-8.) Petitioner alleges claims for a violation of his confrontation rights based on the admission of Lesly's out-of-court statements; a violation of his due process rights based on insufficient evidence to support his conviction; and a violation of his due process rights ...


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