GREGORY G. HOLLOWS, Magistrate Judge.
Petitioner is a parolee proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the constitutionality of his 2010 conviction and resulting sentence for rape of an intoxicated person (Cal. Penal Code § 261(a)(3)). Petitioner contends that the trial court violated his constitutional rights because insufficient evidence supported his conviction in violation of the Fourteenth Amendment and that, in two regards, he received ineffective assistance of counsel in violation of the Sixth Amendment. Upon careful consideration of the record and the applicable law, and for the reasons set forth below, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
I. Procedural Background
On February 5, 2010, petitioner was convicted of rape of an unconscious person (Cal. Penal Code § 261(a)(4)) and rape of an intoxicated person (Cal. Penal Code § 261(a)(3)). Lod. Doc. 1, 188. Petitioner was sentenced to state prison for six years on each count. Id . Petitioner appealed his sentence to the California Court of Appeal, Third Appellate District. Lod. Doc. 5. On July 20, 2011, the California Court of Appeal affirmed but modified the judgment by vacating the sentence for and dismissing the count of rape of an unconscious person (Cal. Penal Code § 261(a)(4)). ECF No. 12, 27-32. Petitioner filed a petition for review, which the California Supreme Court denied on September 28, 2011. Lod. Docs. 10-11.
On October 5, 2012, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court. Lod. Doc. 12. On October 24, 2012, the petition was denied. Lod. Doc. 13. On October 25, 2012, petitioner filed a motion for reconsideration. Lod. Doc. 14. On November 7, 2012, the court stayed further action in petitioner's case, pending the outcome of other cases raising similar issues. Lod. Doc. 15. Petitioner did not seek further review of his state collateral proceedings.
On January 2, 2013, petitioner filed his federal habeas corpus petition. ECF No. 1.
II. Factual Background
The facts of the case were summarized by the California Court of Appeal as follows:
In January 2009, the 22-year-old victim moved to Sacramento to complete an internship offered through her college. The university arranged for the victim to live with three women in an apartment at a complex located in Natomas. About a week after the victim moved in, she met the 26-year-old defendant at the complex gym. Defendant lived in the complex with his mother. The victim thought defendant was nice, but she had a boyfriend and tried to avoid defendant. After running into defendant a number of times, the victim exchanged phone numbers with him. They quickly became friends and visited at their respective apartments. The victim met defendant's mother. Defendant told the victim that he had children and asked if the victim had any. She explained that she was a virgin and was saving herself for marriage.
On January 20, 2009, the victim invited defendant to a party at her apartment. Later, at defendant's apartment, they kissed for the first time. Defendant wanted oral sex but she refused. Defendant digitally penetrated her vagina but when he tried to take off her shorts, she said "no" and he stopped. T he next day, defendant ignored the victim; she felt used. The victim suggested they not contact one another.
On January 22, 2009, defendant was very apologetic. The victim agreed to remain friends.
One night, defendant took her to a bar located in Natomas. They had a drink and then returned to his apartment. They kissed and defendant performed oral sex on the victim. Then the victim decided to leave, explaining she just wanted to be friends. Angry, defendant called her by his former girlfriend's name and accused the victim of "cheating on him" and sleeping with other men. Defendant invited the victim to join him in self-mutilation by cutting. The victim stayed until defendant calmed down and then she left. The next day, the victim told defendant that she did not want to talk to him anymore.
The victim explained to the jury that she was not an experienced drinker, having been drinking for only a year and even then, had not engaged in a lot of drinking. At some point, she had mentioned to defendant that the only times he tried anything was after they had been drinking and she could not understand why. The victim returned to her college town for a few days and learned that her boyfriend had been seeing other women. The victim returned to Sacramento on January 31, 2009. That evening or very soon thereafter, defendant made dinner for her and they talked. The victim told defendant about her boyfriend's behavior and that she did not think it was a good idea to have a physical relationship with defendant, explaining that she just wanted to be friends. The victim believed that defendant respected her wish to be just friends because they continued to be friendly and there was no physical contact.
About 8:00 p.m. on Friday, February 6, 2009, the victim got off work early. She planned an evening out with her roommates and had one beer at home with one of her roommates. The victim's roommates then changed their minds about going out. Defendant sent the victim text messages and offered to take her out and she agreed. She explained to defendant that they were going out as friends and defendant stated he knew. They went to the Press Club. Defendant bought her a Long Island Iced Tea and he had a beer. He did not finish his beer because he "was driving." After she finished her Long Island, defendant had her finish his beer. She went to the women's restroom. She apparently took too long because defendant was angry when she came out. She kissed him on the cheek to calm him down and received a hug from him. Defendant bought the victim another Long Island. When she finished it, she felt "really drunk" and "could barely walk." She slipped and fell, hurting her knee. A bouncer helped her to a couch. Her knee really hurt and she could "barely keep [her] eyes open, " having never previously been that intoxicated.
About 10:30 a.m. on February 7, 2009, the victim woke up. She was in defendant's bed. The victim testified that she blacked out and did not remember anything after being placed on the couch in the bar. She did not remember leaving the club, getting into the car, the drive home, or how she got inside defendant's bedroom. She did not want to go to defendant's apartment. She discovered that she was naked from the waist down, that her dress and shirt had been pulled down, and that her bra was undone. She found a dried, white, crusty substance on her mouth. She "freak[ed] out" and asked defendant repeatedly if he had had sexual intercourse with her. After denying it four or five times, defendant finally admitted they had had sex. The victim started crying and defendant laughed, saying that he was just joking. She wanted to know the truth. He confirmed that he had sexual intercourse with her but he did not want her to be mad.
The victim denied that she ever consented to sexual intercourse with defendant that night, denied rubbing his groin at the Press Club, and denied referring to him there as her "boyfriend." She did not recall removing her clothing or defendant removing them for her or having sexual intercourse with him. She did not recall smiling at defendant in his bedroom and had no recollection of a condom on defendant or her helping him remove it. The victim explained she would never have removed a condom in any event because she was not using birth control and was also concerned about sexually transmitted diseases.
The victim left defendant's apartment crying and feeling upset. She had to be at work that day at 11:00 a.m. She returned to her apartment, changed her clothes and went to work. When her coworkers saw that she was upset, they asked what was wrong. The victim lied and told them that she had "broken up" with her boyfriend. At one point, the victim vomited in the restroom.
After work, the victim went to the UC Davis Medical Center and reported that she had been raped. An officer was called and a sexual assault exam was conducted by a nurse practitioner.
Sacramento Police Officer Roderick Byron responded to the medical center that night and interviewed the victim for 30 to 45 minutes. The victim's report of the incident was consistent with her trial testimony. Officer Byron had the victim call defendant and the call was tape-recorded. Defendant admitted having had sexual intercourse with the victim, apologized, and said he felt "terrible." During this conversation, defendant claimed he wore a condom but that she pulled it off. When the victim asked defendant why he did not wait until she wanted sex and was sober, defendant responded that he could not "really ever see that happening."
Nurse Practitioner Elaine Green conducted the forensic examination. The victim provided a history that was consistent with her trial testimony. Crying, the victim told Green that she (the victim) could not remember anything from the time she was helped to a couch in a bar until she woke up in defendant's bed the next morning. Green noted abrasions on the victim's knee and lower lip and a small tear on her anal opening. The victim complained of vaginal pain but did not recall engaging in any sexual acts. Green found seminal fluid on the victim's left forearm and non-motile sperm in the victim's vagina. Green opined that her findings were consistent with the victim's report.
On February 12, 2009, Sacramento Sexual Assault Detective Chris Bernacchi met with the victim to take her complete statement. Her statement was consistent with her trial testimony. Detective Bernacchi had the victim make a "pretext" call to defendant that was tape-recorded. The victim asked defendant why he thought sex was permissible when she had clearly stated that she wanted no physical contact. Defendant responded, "Nothing made [him] feel like it was okay." Defendant also responded, "I don't know" and then said, "I don't think it's okay" and "I don't know why I did it." The victim repeatedly stated that he had raped her while she was "unconscious" and defendant simply responded "I'm sorry" and that he felt "terrible every day of [his] life" and that he had made "a bad choice the other night."
On March 19, 2009, Detective Bernacchi interviewed defendant over the phone and tape-recorded the conversation. Defendant claimed he and the victim were intoxicated and that he believed the sex was consensual. Defendant claimed that at the bar, the victim called him her "boyfriend" and groped him. He denied that he tried to get the victim drunk. He admitted that when they got to his apartment, the victim appeared to have passed out but he claimed that he thought she was "just playin' games" or "pretending to be asleep" because "she was like... cracking like these little smiles." When he pulled on her stockings, she said, "no, Joe, no, " while at the same time cracking smiles, positioning her body in an inviting manner, and responding favorably to his actions. He removed her clothes, not she, and admitted that she said "no." He claimed he only had vaginal intercourse with her. He did not know whether the victim was drunk but admitted that she never verbally consented to sexual intercourse. When Detective Bernacchi asked defendant how he felt about the victim's accusation that he had raped her, defendant responded, "Yeah. I uh-well, I uh-I-I do almost feel, you know, by definition, I mean, yeah, I feel like that's pretty much what I did." When Detective Bernacchi advised that the district attorney's office would decide whether to bring criminal charges, defendant responded, "I-I can definitely see them filing charges. I mean I was honest and yeah, I mean I fuckin' raped her, dude, you know what I mean? Like, down to definition...."
Defendant did not testify at trial. His mother testified that she heard defendant and the victim return about 1:00 a.m. Later, the mother heard soft giggling and a moan and also saw the victim walk to the hall bathroom without stumbling or tripping. The mother heard the victim leave the next morning and there had been no raised voices.
People v. Martinez, 2011 WL 2892002, *1-4 (Cal.App.3rd 2011); ECF No. 12, 27-29.
Petitioner seeks a writ of habeas corpus on three grounds. He argues that the trial court violated his Fourteenth Amendment rights because insufficient evidence supported his conviction. Petitioner also makes two arguments that he received ineffective assistance of counsel in violation of the Sixth Amendment. Only one of petitioner's ineffective assistance claims was presented to the California Supreme Court on direct appeal. That claim states that petitioner's right to effective assistance of counsel was violated because his trial counsel failed to move to exclude Detective Chris Bernacchi's statement made during a conversation with petitioner regarding the actions and abilities of intoxicated persons. The other claim, which was not presented on direct appeal, is that his trial counsel was biased because he formerly worked as a prosecutor, creating an impermissible conflict of interest.
A. Standards for a Writ of Habeas Corpus
The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). An application for a writ of habeas corpus 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, ___ U.S. ___ , 131 S.Ct. 13, ...