United States District Court, N.D. California, Oakland Division
ALFRED E. DIXON, SR., Petitioner,
EDMUND G. BROWN, JR., et al., Respondents.
ORDER GRANTING IN PART AND DENYING IN PART RESPONDENTS' MOTION TO DISMISS PETITION; AND SETTING BRIEFING SCHEDULE
SAUNDRA BROWN ARMSTRONG, Senior District Judge.
Petitioner Alfred E. Dixon, Sr. filed the instant pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties are presently before the Court on Respondents' motion to dismiss the instant petition as untimely under the one-year limitations period prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d). Alternatively, Respondents move to dismiss the petition for failure to exhaust available state judicial remedies.
Having read and considered the papers submitted and being fully informed, the Court GRANTS IN PART and DENIES IN PART Respondents' motion to dismiss the petition, and directs the parties to comply with the briefing schedule outlined below.
On August 3, 2005, the Contra Costa County District Attorney charged Petitioner with committing a lewd and lascivious act on a child under 14 years-old. Petitioner was accused of engaging in substantial sexual conduct with the victim; having a prior serious felony conviction; having a prior strike conviction; and having served a prior prison term.
The following evidence was presented at Petitioner's jury trial:
On July 4, 2005, the 11-year-old victim was staying at the home of her adult cousin Anita. Many others, including Anita's father, the defendant, were also spending the night there. Anita testified that when she went to sleep at around 3:00 a.m. the victim, defendant and the other children were in the living room watching television. Sometime between 6:00 a.m. and 7:00 a.m. defendant woke Anita to ask for a cigarette. She directed him to a pack of cigarettes by her bed and as defendant left the room he said something like "That little girl gonna come in here and say I tried to do something to her." As soon as defendant left, the victim came into the bedroom, reporting "I got to tell you something.... When I woke up, your daddy was sucking on me." When asked where, the victim pointed to her vagina. Anita called the police and reported the incident.
The victim testified that while watching television she had fallen asleep on the couch with the other children. She was wearing her swimsuit bottom, jeans and a shirt. Early in the morning, she was awakened to find that defendant had unbuttoned and unzipped her pants and partially pulled down her swimsuit bottom. Defendant was on his knees licking the exposed part of her vagina. The victim pushed defendant away.
Police Officer David Zuniga testified that he arrived at Anita's home shortly before 8:00 a.m. on July 5. He took a brief statement from the victim, who appeared to be upset and looked as if she had been crying. The victim was cooperative and although she began to cry when she described the incident, she was able to demonstrate the positions of defendant and herself during the incident. On cross-examination, the officer stated that defendant was cooperative when asked to give a DNA sample, knowing the purpose for which the sample would be used.
Anita's 17-year-old cousin testified regarding a separate incident with defendant that occurred when she was staying with Anita in June. She testified that she was watching television alone with defendant when he spontaneously asked if he could "suck on [her] pussy." She was shocked and left the room. Although she told Anita what defendant had said to her, the police were not called.
Susan R. testified to another incident involving defendant. She testified that in 1996, when she was 14 years old, she was awakened around 3:00 a.m. to find a man kneeling over her by the side of her bed. Her blankets had been pulled down and she felt the rim of the man's baseball cap moving up her thighs toward her vagina. The man ran when she screamed, but she immediately recognized him as her father's friend and she identified defendant as the man who had been in her room that night. Susan also testified that on the morning after this incident she discovered that some of her jewelry was missing.
Dkt. 8-2 at 3-4.
On October 18, 2005, a jury found Petitioner guilty as charged. In bifurcated proceedings on the prior serious felony conviction allegation, the jury received documentary evidence Petitioner had been convicted of first degree burglary in 1997 arising out of the 1996 incident about which Susan R. had testified. Dkt. 8-2 at 4. The jury found true the prior serious felony conviction allegation. Id.
On January 4, 2006, the trial court sentenced Petitioner to seventeen years in state prison.
Petitioner filed a direct appeal in the California Court of Appeal, and he raised the following two claims:
(1) that "[t]he trial court erred prejudicially in excluding evidence that appellant was not held to answer for alleged prior sexual conduct that occurred in 1996"; and (2) that "[t]he trial court deprived appellant of due process of law when it instructed the jury that it could use appellant's alleged prior acts of sexual misconduct, proved by a preponderance of the evidence, as a proxy for proof beyond a reasonable doubt of the sexual offenses charged in the present case."
Dkt. 8 at 3. On April 11, 2007, the state appellate court affirmed the judgment.
Petitioner then sought review in the California Supreme Court, where he raised only the second of the two claims from his direct appeal-i.e., that the trial court violated his right to due process by instructing the jury with CALJIC No. 2.50.01, which permits an inference of guilt on a charged sexual offense based on evidence of a past sexual offense. Dkt. 8-3 at 5. On June 20, 2007, the state supreme court denied review.
On July 21, 2008, Petitioner filed his initial habeas petition in this Court. Dkt. 1. Petitioner framed his claims in one paragraph under the section labeled "ground one, " as follows:
The state court's use of Evidence Code (EC) § 1108 to present incriminating evidence against Petitioner and then also use it to block his defense to this 1996 charge, conjoined with the jurys' [sic] instruction with CALJIC 2.50.01, denied to Petitioner his fundamental constitutional right to present a meaningful defense to both the crime charged and the uncharged crime by: 1) denying him his right to confront his accuser; and 2) to present a meaningful defense to the crime.
Id. at 4.
On April 22, 2009, the Court ordered Respondents to show cause why the petition ...