United States District Court, E.D. California
ORDER DENYING THE FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS (DOC. 31) ORDER DIRECTING THE ENTRY OF JUDGMENT FOR RESPONDENT AND DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY
SHEILA K. OBERTO, Magistrate Judge.
Petitioner is a state prisoner proceeding with counsel and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting their consent in writings signed by the parties or their representatives and filed by Petitioner on January 12, 2012, and on behalf of Respondent on January 24, 2012. Pending before the Court is the first amended petition (FAP), which was filed on August 14, 2012. Respondent filed a first amended answer on October 4, 2012, and Petitioner filed a traverse, styled as a reply, on November 5, 2012.
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 Merced (MCSC), which is located within the territorial jurisdiction of this Court. 28 U.S.C. §§ 84(b), 2254(a), 2241(a), (d). Further, Petitioner claims that in the course of the proceedings resulting in his conviction, his due process rights were denied when the trial court denied his request to modify a jury instruction on circumstantial evidence. The Court, therefore, concludes that it has subject matter jurisdiction over the action pursuant to 28 U.S.C. §§ 2254(a) and 2241(c)(3), which authorize a district court to entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only 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 Matthew Cate, (doc. 32, 6), the Secretary of the California Department of Corrections and Rehabilitation (CDCR), whom Petitioner named in the FAP. Pursuant to the judgment, Respondent had custody of Petitioner at Petitioner's institution of confinement at the time the petition was filed. 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 United States District Courts (Habeas Rules). See, Stanley v. California Supreme Court , 21 F.3d 359, 360 (9th Cir. 1994). The Court concludes that it has jurisdiction over the person of the Respondent.
II. Procedural Summary
Petitioner is on parole after having served a six-year term for his conviction at a jury trial in the MCSC of one count of lewd and lascivious conduct with a child in violation of Cal. Pen. Code § 288(a). An additional conviction of a forcible lewd act with a child in violation of Cal. Pen. Code § 288(b) was reversed on appeal in the Court of Appeal of the State of California, Fifth Appellate District (CCA), because of instructional error that the CCA concluded affected that count, but the judgment on the remaining count was affirmed. Petitioner sought review in the California Supreme Court (CSC), and the petition was denied summarily without a statement of reasoning or citation of authority. (FAP, exhs. B, D, E.)
III. 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. Armas, case number F056887, filed on March 8, 2010.
Defendant and Olivia had a relationship which produced one child, G. Olivia has a daughter, S.R., from a prior relationship. Olivia's sister Ana lived with Olivia and Olivia's children. Although defendant did not live with Olivia and her children, he frequently was at the home and also stayed with S.R. when Ana and Olivia were not home. In late December 2006, Olivia found out that defendant was married, and she broke off their relationship.
On January 7, 2007, Olivia was with Juan in front of her mother's house. Defendant saw Olivia with Juan, and there was an argument. Defendant told Olivia he was going to take his daughter, G., away from Olivia. S.R. witnessed the argument and became very upset. S.R. came inside her grandmother's house and told her that defendant had done things to her. She told her grandmother that defendant would tell her to kiss his penis and defendant would kiss her all over. Defendant had instructed S.R. to not tell anyone. He gave S.R. money.
S.R. also told her Aunt Alma what happened to her. When Olivia came inside, she was told about what defendant had done to S.R. Olivia called the police.
A videotaped interview of S.R. was conducted in January of 2007 at the "Multi-Discipline Interview Center" (MDIC). S.R. described the first time defendant touched her inappropriately. She said she was on the bed when defendant came in and kissed her on the mouth. S.R. told the interviewer that defendant would come in while S.R. was on the bed in her mother's bedroom, remove her clothing, and lick her on her "private spot." Defendant would lock the door to the room so G. could not come in. S.R. would tell defendant to let G. come in, but he would not let her in the room. S.R. tried to leave, but defendant would not let her leave and he would say to her, "don't you want me to kiss you on the mouth and..." S.R. also said she would tell defendant to leave her alone. When S.R. did leave the room, defendant would yell at her to come back to the room. When S.R. was in her mother's bedroom and wanted to return to watching television in the other room, defendant would not let her leave; she had to stay in the mother's bedroom. On another occasion, defendant tried to put his "nasty part" in her private spot and he got it in. Defendant also kissed her and licked her breasts. S.R. recalled that one evening when her mother was at the hospital she woke up to find defendant licking her private parts. Defendant had removed her clothes.
When asked about other touchings, S.R. said defendant touched her "back butt" many times with his hand. S.R. was afraid to tell anyone about these incidents.
On February 7, 2007, S.R. made a pretextual telephone call to defendant. During the telephone call, she told him she wanted to see him. Defendant asked S.R. if she had received the money he had given to her mother and he told her that when he went to the store he was going to buy her something. S.R. told defendant that her mom did not know she was on the telephone, and she wanted to tell him something. S.R. then told defendant that she wanted to see him but he had to promise that he would not do to her what he had done to her before. He promised he would not. She told him it was not good for her when he used to touch her and that those things were bad. Defendant replied that he knew that and there would be no more. She repeated to him several times that he could not touch any part of her anymore. He replied, "never, never." He finished the conversation by telling S.R. that when she needs something she should tell her mom to ask him for it.
Margie Jessen, a nurse practitioner, conducted a sexual assault examination of S.R. on March 13, 2007. While conducting the examination with S.R. lying on her back, Jessen asked her to relax her legs. S.R. said, "That's what he does to me." Jessen did not include this statement in her report. The examination was consistent with the history given by S.R., although the examination was normal and it could not be determined from the examination whether defendant did or did not do the acts he was accused of doing. Jessen testified that it is possible to insert a penis into the genital area without penetrating the hymen because the hymen is elastic.
At trial in September 2008, S.R. testified about incidents that occurred when she stayed with defendant alone while her mother and aunt were away at work. On these occasions, defendant touched her "a lot of times." She said that defendant kissed her mouth to mouth, touched her breasts, private part, and "back butt" with his hands. He also licked her breasts and her front private part. She remembered one occasion when she was on her mother's bed watching television. Defendant grabbed her, took her clothes off and touched his "nasty part" to her private part. He "put it in there" and it felt "gross" and "nasty"; this type of sexual behavior occurred on only one occasion.
On the day S.R.'s mother went to the hospital, S.R. awoke from her sleep to find defendant licking her private part. On another occasion, defendant and S.R. were outside of the "ranch" in his pickup truck. He licked her private part while they were in the truck. S.R. testified that defendant touched her and licked her at other times, but she was unable to give any specific details. These touchings occurred sometimes in the afternoon after school and sometimes at night.
S.R. testified somewhat inconsistently on whether she resisted defendant. She was scared and did not try to get away, but she also testified that defendant would follow her, grab her, and start doing things to her. She was afraid that if she told her mother defendant would do bad things to her family. S.R. testified that she tried to leave all the time but defendant would grab her. She felt like she wanted to run, she tried, but she did not because she was afraid. S.R. also testified she did not remember any time when she tried to get away but defendant actually kept her from leaving.
When defendant molested S.R. on the bed, he would pull her to face away from the television. When S.R. would try to put her clothes back on, defendant would say to her, "a little bit more." Although defendant never verbalized threats to S.R., she was afraid he would do bad things, would hit her, or would do something to their belongings.
The tapes of the pretextual telephone call and the MDIC interview were played for the jury.
Dr. David Kerns, a pediatrician, testified that girls' genitals heal very rapidly following injury and the majority of girls who have been sexually abused have normal anatomy. If the examination takes place three months or more after clear injury, at the time of the examination the girl will usually appear to have normal anatomy. He testified that it is sometimes difficult for a ...