United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS, Magistrate Judge.
Introduction and Summary
Petitioner was convicted of forcible sex crimes in October 2009, and was sentenced to ten years in prison. One claim was raised on appeal-that of insufficient evidence on the issue of forcible restraint. Petitioner thereupon embarked upon successive petitions in the state court system, raising one issue, then others, and then still more. The state courts issued rulings procedurally defaulting the latter claims. For the reasons set forth below, the petition should be denied on the merits in part and as procedurally defaulted in part.
Facts of the Conviction
The California Court of Appeal succinctly related the facts. Where necessary in the individual sections, the undersigned will delve further into the substantive facts.
The parties relate the entirety of the evidence at trial to support their disparate views on the victim's factual account. As the trier of fact has rendered its judgment on the issue of credibility in favor of the victim, which we may not revisit ( People v. Barnes (1986) 42 Cal.3d 284 , 303-304; People v. Mayberry (1975) 15 Cal.3d 143 , 150), we focus our own account of the facts on the victim's testimony relating to restraint.
In April 2008 the victim moved to a townhouse apartment. Defendant was one of her adjacent neighbors. Their back patios were accessible through sliding glass doors. The victim was five feet one inch tall. Defendant was several inches taller, worked out on a regular basis, and was a tae kwon do (martial art) instructor.FN1 The victim had very limited contact with defendant in the first three months that she lived there.
FN1. The parties do not refer us to any testimony about his exact height or weight; the probation report lists them as five feet seven inches and 167 pounds.
In late June 2008 the victim had her husband arrested for domestic violence. The following day, defendant kept attempting to speak with her. At 10:30 that night, there was a knock on her front door. When she answered, it was defendant, who told her she needed to go to her back patio and look at her car. They walked through their separate apartments; when they reached their patios, defendant pointed out that her tire was flat. She began to cry. He put his arm around her and shushed her, suggesting they go into her home to talk about it because he did not want his jealous wife to see him with her. Once inside, she explained about having her husband arrested. Defendant continued to hold and soothe her, and then began to kiss the top of her head. This made her feel very uncomfortable, but she assumed he was simply concerned for her. He told her that he watched out for her and would kill her husband if he saw him hanging around. In response to his question, she falsely told defendant her young son was awake in order to induce defendant to leave. Defendant asked if he could "bother" her "like this" every night. The victim told him no. He assured her that he would fix her tire by the morning, because he was sure that the air had simply been released from the tire and he had an air compressor. The tire was fixed in the morning. The incident left her feeling shaken.
Over the next week, the victim's other neighbor told her he had seen defendant looking in her windows when she was not home. When defendant made queries about the victim, the other neighbor told him to leave the victim alone because she was married. The abnormal interest on defendant's part disturbed the victim.
On July 3 the victim's in-laws had taken her children for the weekend. Returning home that afternoon, the victim heard knocking on her patio door. Going upstairs to look out the back window, she saw defendant on her patio. When she did not answer, defendant began to go back and forth between knocking on the sliding glass door and the front door. She called an old friend to come spend the night with her.
The following night, she was out with friends until 2:30 or 3:00 in the morning. When she woke up, she found that all the tires in the complex had been slashed during the night except for those on her car and defendant's. Later that day, she was on the patio when defendant came home. He started to tell her about the slashed tires and asked where she had been. She told him she had been out with friends, then went inside.
Returning home with friends on the following evening (July 5), the victim listened to a telephone message from the other neighbor, who told her defendant was "acting really strange" and asking questions about her. She drank wine on the back porch with the couple before they left. At her friends' urging, she was going to pack a bag and spend the night at her mother's home. She took the dog outside and smoked a cigarette.
Defendant came outside and told her he wanted to talk with her. She said no and took the dog back inside. Although she had attempted to latch the patio door, defendant was nonetheless able to follow her inside.
He told her she was beautiful and tried to put his arms around her. She grabbed her cordless phone, claiming that she thought there was a call. She pressed 911 and put the phone down, leaving the line open. The dispatch center received the call at about 1:30 a.m. Defendant directed her to turn on the radio so his wife would not hear anything; she complied because she was afraid he would otherwise do "something bad."
After unsuccessfully trying to kiss her mouth, defendant grabbed her right wrist and pulled her out of the dining room into the living room. He asked if they could go upstairs; she said that he should go home. He again began to try to kiss her, licking around her mouth as she kept it closed. He unhooked her bra, lifting it and her shirt above her breasts. He licked and bit her nipples. She was crying and kept telling him to go home. When she did not respond to his demand to go over to the couch, he grabbed her wrist and pulled her there. Unbuttoning her shorts, he yanked them down, pushed her onto the couch, and pulled down her underwear. As she lay there crying and imploring him to go home, defendant began orally copulating her. Defendant penetrated her vagina with his fingers. The victim began to scream. There was a knock on the front door, followed by a deputy sheriff identifying himself. The victim ran to the front door; defendant fled out the back. The deputies found him in his own apartment.
Procedural Facts and Issues
Petitioner's one issue appeal, insufficient evidence to prove restraint of the victim, was decided on December 8, 2010. Petitioner did seek review with the California Supreme Court, which was denied on February 16, 2011.
The first state habeas petition was filed on August 29, 2011. Although the claim was formally one for ineffective assistance of appellate counsel, this petition simply added specific grounds why the evidence was insufficient-allegedly not raised by appellate counsel. This petition was denied with citations to In re Swain , 34 Cal. 2d 300');"> 34 Cal. 2d 300 (1949) and In re Harris , 5 Cal.4th 813, 827, fn5 (1993), explained by the Superior Court that the petition was lacking in documentary support. This denial was followed by an appellate court petition on the same grounds, denied without citation on December 15, 2011. Petitioner filed a petition with the state supreme court on February 14, 2012 denied without citation on May 9, 2012.
Petitioner started over again (prior to his state supreme court denial) in the Superior Court alleging this time ineffective assistance of trial counsel claiming that counsel should have objected to petitioner's pretrial statements based on petitioner's need for an interpreter. Also included was a claim that petitioner was convicted on proof which did not meet the reasonable doubt standard (Claim 4 in the federal petition). Finally, trial counsel was faulted for not having performed a reasonable pre-trial investigation, and failure to retain an expert witness (whose potential testimony was not discussed) (Claims 3 and 5 in the federal petition).
In an explained decision, the Superior Court found on April 2, 2012, that this second petition in that court was successive, citing, among other cases, In re Robbins , 18 Cal.4th 770, 811-812 (1998), In re Clark , 5 Cal.4th 750, 774-775 (1993), and In re Harris , 5 Cal.4th 813, 813, 842 (1993). The claims were also denied, in the alternative, on the merits.
Shortly thereafter, petitioner filed this same petition in the Court of Appeal which was denied on April 26, 2012 without citation. Again, petitioner filed with the California Supreme Court on May 18, 2012 with the result that this second petition was denied with citations to Clark , 5 Cal.4th at 767-769, People v. Duvall , 9 Cal.4th 464, 474 (1995), Swain , 34 Cal. 2d at 304, and finally, In re Lindley , 29 Cal. 2d 709, 723 (1947). The citations, at the pages cited, stand for various and separate concepts: Clark-successive petitions; Duvall-commences with a discussion of habeas practice, point here is unclear to the undersigned; Swain-vague, conclusory allegations are insufficient; Lindley-trial court "record" errors not reviewable in habeas.
The issues raised in this petition are categorized as procedurally defaulted issues, and those two ...