1) OVERRULING PETITIONER'S OBJECTIONS (Doc. No. 16); 2) ADOPTING THE REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE (Doc. No. 15); 3) DENYING PETITION FOR
WRIT OF HABEAS CORPUS (Doc. No. 1); 4) DENYING REQUEST FOR EVIDENTIARY HEARING
(Doc. No. 1); and 5) DENYING CERTIFICATE OF APPEALABILITY
ANTHONY J. BATTAGLIA, District Judge.
On October 3, 2012, Kyle Blake Greenspan ("Petitioner"), a state prisoner, proceeding with the assistance of counsel, filed a Petition for Writ of Habeas Corpus. (Doc. No. 1.) Petitioner seeks relief from his July 29, 2008 convictions of forcible rape and sexual battery in San Diego County Superior Court Case No. SCD210048. Petitioner served a three year prison sentence and is currently on a five year parole imposed by the Superior Court. As a result of his conviction, Petitioner is required to register as a sex offender pursuant California law. On April 17, 2013, Respondent filed an answer. (Doc. No. 10.) On June 21, 2013, Petitioner filed his Traverse. (Doc. No. 14.) On September 4, 2013, Magistrate Judge Skomal issued a Report and Recommendation ("R&R") recommending that the Petition be denied in its entirety. (Doc. No. 15.) On September 24, 2013, Petitioner timely filed his objections to the R&R. (Doc. No. 16.) For the reasons stated below, the Court ADOPTS Magistrate Judge Skomal's well-reasoned R&R and DENIES the Petition for Writ of Habeas Corpus.
A. Factual Background
The following facts are taken from the unpublished California Court of Appeal ("Court of Appeal") Opinion in People v. Greenspan, case no. D054840 (Cal.Ct.App. Mar. 9, 2011.) Petitioner does not dispute the accuracy of the court's factual summary. The Court presumes these factual determinations are correct pursuant to 28 U.S.C. § 2254(e)(1). See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (finding factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary).
R.A. was 23 years old at the time of trial and testified that she had known Greenspan from grade school, but in the years afterwards they had only brief, sporadic interactions, including once in 2004, when they kissed in a friend's college dormitory. In June 2007, they renewed contact and exchanged text messages and phone calls. In the early morning of July 7, 2007, he accepted her invitation to her apartment to watch a movie with her and her friends. He seemed drunk when he arrived and he drank beer there.
After the movie ended they went upstairs to her bedroom and sat on her bed reminiscing about grade school. At one point he playfully pushed her chest such that she lay on the bed, but she immediately came back up. He tried to kiss her but she turned her head. While he was still fully clothed, he pushed her on the bed, pressed his weight on her, hooked one of his arms around her shoulder and, with his other forearm, pushed down on her lower stomach while he kept trying to kiss her. He raped her. He ejaculated on her shirt. She ran to the bathroom, changed her shirt and ran downstairs crying. At the time of the incident she was five feet three inches tall and weighed 130 pounds.
R.A.'s crying woke up one of her roommates at approximately 3:30 a.m., and R.A. told her Greenspan had raped her, and he was asleep on her bed. The roommate told her to stay in the laundry room while she asked him to leave the house. The roommate testified that he was lying of R.A.'s bed wearing only his boxer shorts. She woke him up and repeatedly told him he needed to get dressed and leave. He kept asking "What did I do?" She reiterated that he had to leave. She walked him to the front porch and he asked her if R.A. thought he had raped her. The roommate responded, "Okay, good. So you do know what you did. You need to leave."
At approximately 4:00 a.m., while R.A. was still in the laundry room, she telephoned a girlfriend-who did not answer-so she telephoned that friend's boyfriend. He testified that R.A. was crying and sounded shaken up. His girlfriend spoke to R.A. and they immediately went to R.A.'s apartment, where she was crying and appeared "traumatized." They took her to the hospital, where she cried during an interview with a police officer. In a sexual assault response team (SART) exam, a forensic nurse examined her and determined that she had vaginal redness that was consistent with either consensual or nonconsensual sexual intercourse. The parties stipulated that tests done on R.A.'s shirt by the San Diego Police Department's Forensic Unit showed that sperm from the shirt matched Greenspan's DNA.
Greenspan was five feet eleven inches tall and weighed approxi-mately 195 pounds at the time of the incident. He testified at trial that after the movie he and R.A. talked in her bedroom. According to Greenspan, his sex with R.A. was consensual, he was not wearing a condom and ejaculated on her chest. She wiped herself with her shirt. He was shocked that night when R.A.'s roommate woke him and told him he had to leave. He asked the roommate whether R.A. thought he had raped her, denied doing so, and asked to speak to R.A. The roommate refused that request. He felt sad that he was blamed for making R.A. cry, and he telephoned her as he was walking from her residence, but she did not answer.
The parties stipulated that approximately one week after the incident, a detective helped R.A. make a pretext telephone call to Greenspan. The jury heard a recording of the call, in which Greenspan repeatedly apologized to R.A., at one point stating, "I am so sorry, I know that you don't think that's good enough or I guess I took it the wrong way and I didn't know." R.A. told him he had raped her and he replied that he did not feel she had pushed him away. R.A. told him she needed to hear him say why he was sorry and he replied, "Because I guess I took advantage of you and I am sorry and I didn't mean to hurt you in any way in that way because, you know, I would never hurt you." He continued, "I have two older sisters, I would never ever do that."
(Lodg. No. 7, at 2-4.)
The defense theory at trial was that the sexual encounter between Greenspan and R.A. was consensual. ( See Lodg. No. 2, Reporter's Transcript ("RT") vol. 2 at 289-335.)
B. Procedural Background
Petitioner was charged with rape (Cal. Penal Code § 261(a)(2)) and sexual battery (Cal. Penal Code § 243.4(a)). The trial began on July 23, 2008. Both sides rested after a little over two days of trial. The jury deliberated for approximately two hours before finding Petitioner guilty of both charges. (Lodg. No. 1, Clerk's Transcript ("CT") at 0001-0002; 0283-0296.) Defense counsel moved to dismiss, or in the alternative for a continuance of the sentencing to permit additional forensic investigation into potential grounds for a new trial. The court denied the dismissal motion but granted a 60-day continuance. (Lodg. No. 2, RT vol. 3 at 650-658.)
On November 20, 2008 the court reconvened and acknowledged a pending motion for new trial. By this time, Petitioner had replaced his trial counsel, Bradley C. Patton, with substitute retained counsel Catherine Denevi. (Lodg. No. 1, CT vol. 2 at 265.) New counsel moved to compel disclosure of juror identification information in order to investigate alleged misconduct. That motion was denied. (Lodg. No. 2, RT vol. 4 at 660-661.) On February 25, 2009, the court held a hearing for the motion for new trial which alleged instances of legal error, juror misconduct, and evidentiary challenges to the verdict. (Lodg. No. 1, CT vol. 2 at 174-219.) The court accepted as true all the affidavit representations of defense counsel's experts and private investigators as well as counsel's representations about what other witnesses would say. (Lodg. No. 2, RT vol. 5 at 670-682.) The court denied the motion after addressing each of the motion's grounds presented, assessed the significance or insignificance of each item of evidence, and evaluated the credibility of the witnesses and strength of the trial evidence. The judge concluded "while I think this is a very sad case, I don't think it is a miscarriage of justice." ( Id. at 682, 685: "I agree with probation, I probably would have put him on probation if that had been an option in this case.") The court imposed the lower term of three years on count one and the lower term of two years on count two, with the latter sentence stayed, for a total prison term of three years, plus payment of restitution, followed by a period of parole. ( Id. at 685-687.) The court further ordered that after his release, Petitioner would be required to register as a sex offender pursuant to Cal. Penal Code § 290. ( Id. at 687.)
Petitioner appealed his conviction, alleging trial error related to the court's handling of a juror's note, potential juror misconduct, and the giving of one jury instruction. (Lodge. No. 4 (Cal.Ct.App. Case No. D054840).) In February 2010, while his direct appeal remained pending, Petitioner also filed a Petition for Writ of Habeas Corpus in the California Court of Appeal. (Lodg. Nos. 12, 13, Case No. D056822.) "In that petition, Greenspan alleged ineffective assistance of trial counsel for failure to accurately convey a pre-trial offer, failure to investigate and present impeachment evidence in the form of R.A.'s post-incident conduct as depicted on a videotape, and failure to present character witnesses favorable to him." The court, at Petitioner's request, consolidated the habeas petition with the direct appeal. (Lodg. No. 13.) The Court of Appeal issued an order to show cause returnable in Superior Court in this matter and directed the Superior Court to hear and determine the matter. ( Id. )
On October 18, 2010, the Superior Court denied Petitioner's Habeas petition and rejected on the merits each of the three ineffective assistance of trial counsel alleged. (Lodg. No. 16 at 2 (Cal. Superior Court, Case No. HC20063).) On March 9, 2011, the appellate court decided Greenspan's direct appeal on the merits, affirming the judgment and denying him relief on any of his alleged trial errors. (Lodg. No. 7, slip op.) On April 19, 2011, Petitioner filed a Petition for Review to the California Supreme Court. In his Petition for Review, Petitioner presented only one issue: "Whether the Court of Appeal erred in affirming the exclusion under Evidence Code §§ 352 and 782, [of] photos of the complainant in a rape prosecution posted on her Facebook page showing her partying in Las Vegas days after she claimed she had been raped?" (Lodg. No. 9 (Cal. Supreme Ct., Case No. S192405).) The California Supreme Court denied the petition. (Lodg. No. 18.)
On October 3, 2012, Petitioner filed a federal Petition for Writ of Habeas Corpus challenging his state conviction on two grounds. Ground One alleges Petitioner was denied his right to confront and cross-examine the complaining witness, in violation of the Sixth and Fourteenth Amendment to the United States Constitution, by the trial court "excluding certain Facebook photos from the victim's Law Vegas trip a few days after the incident. Ground Two alleges ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendment for three alleged deficiencies: (1) trial counsel's failure to convey to Petitioner the prosecution's potential pre-trial offer to allow him to plead guilty to a reducible felony that did not require registration as a sex offender; (2) trial counsel's failure to investigate and present evidence of the complainant's conduct subsequent to the incident that contradicted her testimony at trial; and (3) trial counsel's failure to interview witness and present character witnesses on behalf of Petitioner. (Doc. No. 1.)
On April 17, 2013, Respondent filed an answer. (Doc. No. 10.) Petitioner filed his Traverse on June 21, 2013. (Doc. No. 14.) Magistrate Judge Skomal issued the R&R on September 4, 2013, recommending this Court deny the Petition in its entirety. (Doc. No. 15.) Petitioner filed timely objections to the R&R on September 24, 2013, challenging only the R&R's conclusion as to Ground One and part one of Ground Two. (Doc. No. 16.)
II. LEGAL STANDARDS
A. Review of the Report and Recommendation
Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) provide district judges' duties regarding a magistrate judge's report and recommendation. The district court judge should "make a de novo determination of those portions of the report to which the objection is made, " and "may accept, reject, or modify in whole or in part, the finding or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of timely objection(s), the Court "need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72(b), Advisory Committee Notes (1983); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
B. Habeas Corpus Relief
A federal court "shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") controls review of this Petition. See Lindh v. Murphy, 521 U.S. 320 (1997). Under AEDPA, a habeas petition will not be granted with respect to any claim adjudicated on the merits by the state court unless that adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d)(1-2); Early v. Packer, 537 U.S. 3, 8 (2002). In deciding a state prisoner's habeas petition, a federal court is not called upon to decide whether it agrees with the state ...