United States District Court, C.D. California, Western Division
FINAL REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
DOUGLAS F. McCORMICK, Magistrate Judge.
This Final Report and Recommendation is submitted to the Honorable R. Gary Klausner, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
A. Procedural History
On August 10, 2010, a Los Angeles County Superior Court jury convicted Petitioner Deshon Purvis ("Petitioner") of 17 counts involving two underage victims: one count of kidnapping to commit rape, three counts of forcible sodomy, four counts of forcible rape, two counts of pimping a minor, one count of forcible oral copulation, and six counts of committing a lewd act on a child. Clerk's Transcript ("CT") 106-31. The jury also found special allegations of kidnapping true. Id . Petitioner was sentenced to a total term of 206 years, eight months to life in state prison. CT 156-66; 3 Reporter's Transcript ("RT") 1204-11.
Petitioner appealed his conviction to the California Court of Appeal, raising, inter alia, the claim that his sentence violated the Eighth Amendment's prohibition against cruel and unusual punishment. On December 7, 2011, the state appellate court affirmed Petitioner's conviction in a reasoned opinion. Respondent's Notice of Lodging, Lodged Document ("LD") 1. On February 15, 2012, Petitioner's petition for review was summarily denied by the California Supreme Court. LD 2, 3.
On May 10, 2013, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody in this Court. Dkt. 1 ("Petition"). The original Petition raised two grounds for relief: (1) that his sentence violated the Eighth Amendment's prohibition against cruel and unusual punishment; and (2) that his trial counsel was constitutionally ineffective. Id . at 4-5.
Respondent moved to dismiss the Petition on the ground that Petitioner's ineffective assistance claim was unexhausted because Petitioner had not presented this argument to the California Supreme Court in his petition for review, which only raised the Eighth Amendment claim. Dkt. 18; see LD 2. After Petitioner failed to file a timely opposition, this Court issued an Order to Show Cause in which it advised Petitioner that it appeared that Petitioner's ineffective assistance claim was unexhausted and that therefore the Petition was a "mixed" petition subject to dismissal. Dkt. 19. The Court thus ordered Petitioner to either (a) file a stay-and-abeyance motion if he believed that he would be able to make the requisite three showings under Rhines v. Weber , 544 U.S. 269, 277 (2005); (b) file an Amended Petition deleting the unexhausted claim; or (c) show cause in writing why his Petition should not be dismissed without prejudice. Id . at 4. On January 17, 2014, in response to the Court's order to show cause, Petitioner filed a motion seeking a stay under either Rhines or Kelly v. Small , 315 F.3d 1063, 1070 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey , 481 F.3d 1143 (9th Cir. 2007). Dkt. 21 ("Stay Motion") at 10-11. On February 3, 2014, this Court filed a Report and Recommendation recommending that Petitioner's motion for a stay be denied, that Respondent's motion to dismiss be granted, and that judgment be entered denying the petition and dismissing this action unless Petitioner filed an Amended Petition that was limited to his exhausted claim. Dkt. 24. The District Judge entered an order adopting that Report and Recommendation on March 18, 2014. Dkt. 25.
On March 31, 2014, Petitioner filed a First Amended Petition. Dkt. 26 ("FAP"). The First Amended Petition omits the unexhausted ineffective assistance of counsel claim. Id . The FAP thus raises a single claim of error, that is, that Petitioner's 206-year sentence violates the Eighth Amendment because it is disproportionate to the charged crimes. FAP at 5, 43-47. Respondent filed an Answer to the FAP on June 11, 2014. Dkt. 31 ("Answer"). Petitioner has failed to file a timely reply. B. Summary of the Evidence Presented at Trial
The underlying facts are taken from the unpublished opinion of the California Court of Appeal. See LD 1 at 4-6. Unless rebutted by clear and convincing evidence, these facts are presumed correct. Tilcock v. Budge , 538 F.3d 1138, 1141 (9th Cir. 2008); 28 U.S.C. § 2254 (e)(1). Petitioner has not attempted to overcome this presumption with respect to the underlying facts.
Josephine O. (Josie) had recently moved from Oregon to Long Beach to live with her grandmother. At the time of the relevant events, Josie was 16 years old. On September 30, 2009, Josie skipped school to meet her friends at a hamburger stand. Once there, her friend Tanya introduced Josie to a man who provided them with marijuana, which the girls smoked. The man then took the girls to a house in Compton, where she met Antoinette W., who introduced herself to Josie as "Nicole." Nicole then described to Josie how she could make money from prostitution and drove Josie to a beauty supply store, after which they returned to the house in Compton. At this point, Petitioner entered the car Nicole was driving, and Josie asked him and Nicole to take her home.FN Petitioner responded that he would take Josie home "when he was done with her." Josie continued to insist that they take her home, but Nicole drove the three of them to a dress store, a store where Nicole got her nails done, and a third store where Nicole bought high heels. After Nicole made her purchases, she drove Josie to an area in Compton, and both Nicole and Petitioner described for Josie where to "stop and get picked up" by johns for prostitution. FN Josie did not know Petitioner's name. The three returned to the house in Compton, where Nicole told Petitioner that she did not want to go on a "date" that evening. In response, Petitioner hit Nicole in the face and pulled her hair, and she screamed. After Nicole returned from her date approximately two hours later, she and Petitioner took Josie to the Luxury Inn Motel, where they checked into a room.FN FN At trial, the motel clerk confirmed that Petitioner signed the room registration slip for September 30, 2009, and October 1, 2009. The clerk also confirmed that Petitioner and Nicole (under an assumed name) signed several other registration slips between July and September 2009. Once in the hotel room, Josie asked Petitioner if she could smoke a cigarette outside, but he told her to smoke in the bathroom. Josie entered the bathroom. Petitioner followed her in, locked the door, and then raped and sodomized her. After Petitioner violated Josie, he lay down next to Nicole on the bed and began fondling her. The next day, October 1, Nicole learned that Petitioner had had sex with Josie, and began brutally attacking Josie as Petitioner drove them down the freeway. Petitioner grabbed Nicole, hit her a couple of times, and then pulled over and threw Nicole out of the car. Afterwards, Petitioner drove Josie back to the motel, where he again raped and sodomized Josie. That evening, Nicole returned to the motel, apologized to Josie, and told her that she (Josie) had a date with a customer in a room on the first floor of the motel. During the date, Nicole accompanied Josie as she orally copulated a man, who afterwards gave her a $100 bill. Nicole asked Josie to take the money to Petitioner, who was sitting on the stairwell outside, to get change. When she approached Petitioner with the money, he took it and asked Josie what sexual acts she performed on the man, and she told him. On October 2, Petitioner, Nicole, and Josie were still at the motel. Petitioner made Josie take a bath with Nicole, and made Nicole stick her fingers in Josie's vagina. He then inserted his penis in Josie's vagina. After the bath, the three moved into the bedroom, where Petitioner made Nicole put her mouth on Josie's vagina while he had sex with Nicole. Petitioner then made Josie put her mouth on Nicole's vagina while Petitioner had anal sex with Josie. When Josie went to the bathroom afterwards, she noticed that she was bleeding from her anus. On October 3, Petitioner learned that the police were searching for Josie. Nicole then called Josie's grandmother pretending to be a police detective and told her where she could find Josie. Petitioner and Nicole then dropped Josie off at a bus stop, from which her family subsequently picked her up. Two weeks later, on October 14, Petitioner was arrested and booked. When interviewed by detectives, Petitioner initially denied being a pimp, but admitted to taking cash from Josie and to numerous sexual acts with Nicole, whose real name was discovered to be Antoinette W. These sexual acts included oral, vaginal, and anal sex. Petitioner also revealed that he knew Antoinette was only fourteen years old at the time these acts occurred.
LD 1 at 4-6. II.
STANDARD OF ...