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Lopez v. Allison

United States District Court, E.D. California

July 8, 2014

DANIEL LOPEZ, Petitioner,
v.
KATHLEEN ALLISON, Warden, Respondent.

FINDINGS AND RECOMMENDATIONS TO DISMISS STATE LAW CLAIMS AND DENY THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1), ENTER JUDGMENT FOR RESPONDENT, AND DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY

SHEILA K. OBERTO, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before the Court is the petition, which was filed on August 12, 2011. Respondent filed an answer to the petition with supporting documents from the state court record on October 18, 2011. Although the time for filing a traverse has passed, no traverse has been filed.

I. Jurisdiction

Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy , 521 U.S. 320, 327 (1997); Furman v. Wood , 190 F.3d 1002, 1004 (9th Cir. 1999).

The challenged judgment was rendered by the Superior Court of the State of California, County of Tulare (TCSC), which is located within the territorial jurisdiction of this Court. 28 U.S.C. §§ 84(b), 2254(a), 2241(a), (d). Petitioner claims that in the course of the proceedings resulting in his conviction, he suffered violations of his constitutional rights. Accordingly, the Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 2254(a) and 2241(c)(3), which authorize a district court to entertain a habeas corpus petition by a person in custody pursuant to a state court judgement on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. Williams v. Taylor , 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran , 562 U.S. ___, ___, 131 S.Ct. 13, 16 (2010) (per curiam).

An answer was filed on behalf of Respondent Kathleen Allison, who, pursuant to the judgment, had custody of Petitioner at the California Substance Abuse Treatment Facility at Corcoran, California (CSATF), Petitioner's institution of confinement when the petition and answer were filed. (Doc. 11.) Petitioner thus named as a respondent a person who had custody of Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules). See, Stanley v. California Supreme Court , 21 F.3d 359, 360 (9th Cir. 1994). Accordingly, the Court concludes that it has jurisdiction over the person of the Respondent.

II. Background

A. Procedural Summary

Petitioner was charged with three counts of sexual intercourse or sodomy with a child ten years of age or younger in violation of Cal. Penal. Code § 288.7(a) (counts 1, 3, 5); twelve counts of lewd or lascivious acts by force or fear upon a child under fourteen years of age in violation of Cal. Pen. Code § 288(b)(1) (counts 2, 4, 6, 8, 10, 12, 13-18); three counts of oral copulation or sexual penetration with a child ten years of age or younger in violation of Cal. Pen. Code § 288.7(b) (counts 7, 9, 11); and two counts of willfully inflicting upon a child cruel or inhuman corporal punishment in violation of Cal. Pen. Code § 273d(a) (counts 19 and 20). The information further alleged that as to counts 2, 4, 6, 8, 10, 12, and 13 through 15, Petitioner had substantial sexual contact with a child under fourteen years of age within the meaning of Cal. Pen. Code § 1203.066(a)(8). A jury found Petitioner guilty on all counts and found the special allegations true. The trial court sentenced Petitioner to an aggregate determinate term of eleven years, plus an indeterminate term of twenty-five years to life. (LD 4, 2.)[1]

Petitioner appealed to the Court of Appeal of the State of California, Fifth Appellate District (CCA) and then sought review of the CCA's affirmance of the judgment in the California Supreme Court (CSC), which denied review on March 16, 2011, without any statement of reasoning or citation of authority. (LD 4, 6-8.)

B. Factual Summary

In a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct; the petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. 28 U.S.C. § 2254(e)(1); Sanders v. Lamarque , 357 F.3d 943, 947-48 (9th Cir. 2004). This presumption applies to a statement of facts drawn from a state appellate court's decision. Moses v. Payne , 555 F.3d 742, 746 n.1 (9th Cir. 2009). The following statement of facts is taken from the opinion of the CCA in People v. Daniel Lopez, case number F057870, filed on December 30, 2010:

FACTS

The nine-year-old victim told her teenaged cousin that defendant, the victim's stepfather, had been sexually molesting her since she was eight years old. The cousin and three other female relatives took the victim to the police station.

In her statement, the victim told the detective that, when her mother was at work, defendant made her suck his private part, then put his private part in her butt, which made her bleed. He did this more than 20 times in the master bedroom with the door locked. She had not told her mother or anyone else because defendant threatened to spank her if she did. A recording of this interview was played for the jury. The detective scheduled an examination of the victim by the Sexual Abuse Response Team (SART).
Officers arrested defendant at his work place and took him to the police station. When the detective and another officer interviewed him, he initially denied touching or abusing the victim. But as the officers urged him to tell the truth and told him things would go better for him if he did, he eventually admitted sodomizing the victim "one time only." Then he admitted it happened "[a]bout two times only, " then "[l]ike about three" times. He denied engaging in oral copulation, but eventually admitted that the victim orally copulated him.
At no time did the officers threaten or physically hit defendant. They used no physical violence. Nor did they ask defendant to remove his clothing. The interview was recorded on a digital audio recorder that the detective placed in the middle of the table. He did not stop the recorder until the interview was over. The recording of this interview was played for the jury.
At the SART interview conducted by a forensic specialist, the victim described in detail what defendant did to her and what he made her do to him. The acts included sodomy, oral copulation, vaginal penetration, and fondling. Defendant would pull his penis out through a "hole" in his underwear. The abuse occurred nearly every day when the mother was at work. Defendant told the victim he would spank her hard if she told anyone what they were doing. The video of this interview was played for the jury.
A forensic nurse examiner made no findings that showed the victim had been sexually assaulted. The nurse testified it is common to find no injuries in sexually abused children. Anal injuries, for example, usually heal within 24 to 48 hours. The absence of findings did not mean the victim had not been sexually abused.
At trial, the victim recanted her statements. She denied having been molested by defendant and claimed she had lied about the allegations because her cousin and aunt told her what to say and promised her toys and clothes in return. She said she felt bad because her mother was sad that defendant was gone.
The victim's 11-year-old brother testified that defendant hit him and his sisters with a belt. He said the victim told him defendant "did something gross" to her that had to do with body parts.
The victim's mother said defendant admitted injuring the children with a belt. At one time, the mother found blood in the victim's panties, but there was nothing about defendant's relationship with the victim that caused her concern about molestation. She said the victim had trouble having bowel movements, but the victim explained to her it was because she did not drink enough water. Although defendant did not threaten the mother with violence, he threatened to take their baby and leave. Since defendant was taken into custody, mother cried often and was having financial and emotional difficulties. Defendant tried to reach her every day after he was arrested.
The parties stipulated that the mother told defendant to leave the house when she saw the injuries he had inflicted on the victim's younger sister. Defendant did not want to leave, so he told the mother he would take their baby and call immigration on her. He told her that, as a citizen, he could leave with the baby and she would have no recourse. Defendant sent the mother a letter from jail, professing his love and asking forgiveness. Mother turned over this letter and three others to the police.
Some of the victim's relatives testified that no one told the victim what to say, no one described sex acts to her, and no one promised to buy her anything in return for reporting the abuse. They bought her clothes because she had nothing to wear after she was removed from the home.
A psychologist testified that 24 percent of sexual abuse victims eventually recant their allegations. The most common reason for a child to recant is family pressure. A child who observes the negative effects on family members might think she could improve the situation by recanting.
The victim's eleven-year-old cousin testified that the victim told her she felt bad about telling ...

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