United States District Court, N.D. California
ORDER DENYING PETITION FOR WRIT OF HEABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY
LUCY H. KOH, District Judge.
Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent was ordered to show cause why the petition should not be granted. Respondent has filed an answer. Petitioner has filed a reply, which the court construes as a traverse. Having reviewed the briefs and the underlying record, the court concludes that petitioner is not entitled to relief, and DENIES the petition.
On October 6, 2010, petitioner was convicted after a jury trial of a lewd or lascivious act on a child under the age of 14 (Victim 2); sexual penetration by force, violence, duress, menace or fear of bodily injury (Victim 1); rape by force, violence, duress, menace or fear (Victim 1); and sexual battery (Victim 3). As to the charges regarding Victim I and Victim 2, the jury found true multiple victims enhancements. Petitioner admitted a prior strike and a prior felony conviction. On November 8, 2010, the trial court sentenced petitioner to a total term of 90 years to life plus 15 years, and 90 days in county jail for the misdemeanor sexual battery conviction.
On September 26, 2011, the California Court of Appeal reversed and remanded the case. It instructed the trial court to reduce petitioner's convictions regarding Victim 1 to the lesser included offenses of assault with intent to commit sexual penetration (count 2) and assault with intent to commit rape (count 3), and re-sentence petitioner. On November 30, 2011, the California Supreme Court denied review.
On September 10, 2012, the trial court re-sentenced petitioner, as instructed, to a total term of 33 years in prison. On November 14, 2013, the California Court of Appeal affirmed. On January 21, 2014, the California Supreme Court denied review.
Petitioner filed the underlying federal habeas petition on March 6, 2014.
The following facts are taken from the Court of Appeal's opinion in People v. Simpson, No. H036255, 2011 WL 4436758 (Cal.App. Sept. 26, 2011).
In May 2008, Victim 1 was 16 years old. Id. at *2. At that time, Victim 1 was living with her aunt and legal guardian, A. Id. Victim 1 referred to petitioner as "Uncle Tim." Id. Petitioner, who is Victim 2's father, sometimes lived with A. and Victim 1. Id. On May 11, 2008, Victim 1 was sleeping on the sofa, and awoke to find petitioner, who was naked, on top of her. She felt his fingers inside her vagina, noticed her pants and underwear had been removed, and her legs had been spread apart. Id. Victim 1 felt petitioner insert his penis about a quarter of the way into her vagina. Id. Victim 1 told petitioner to get off, and pushed him away. Id. Victim 1 grabbed her clothes and ran to her bedroom. Id. Petitioner entered her bedroom and told her that no one would believe her if she said anything and she should not tell anyone what happened. Id. Later that morning, Victim 1 told A. what had happened. Id. Victim 1 told A. that Victim 1 would not report it to the police, however, because Victim 1 was embarrassed and was worried about splitting up the family. Id.
On June 13, 2009, Victim 2, who was 13 at the time of trial, had fallen asleep on the couch. Id. at *3. Around midnight or 1:00 a.m., Victim 2 woke up and felt petitioner touching her thigh over her clothing, and moving his hand toward her crotch. Id. Victim 2 was not sure whether petitioner's hand reached her crotch, but she kicked her legs at his hands and petitioner walked away. Id. Victim 2 fell back asleep after that. Id. When Victim 2 woke up, she told her mother what happened, and told her mother that her "private spot" itched. Id.
Victim 3 was visiting Victim 1 in June 2009. Id. One night, Victim 3 was watching television with Victim 1, but got tired and went to sleep in Victim 1's bedroom. Id. Around 4:00 a.m., Victim 3 woke up and petitioner was on the bed next to her, rubbing her bottom through her pajamas. Id. at *4. Victim 3 believes petitioner did so for about 15 seconds, but when she started to get up, petitioner quickly left the room. Id. Victim 3 went out to the living room where Victim 1 was sleeping, and slept next to her. Id. Between 7:00 and 8:00 a.m., Victim 3 woke Victim 1 up and explained to her what had happened. Id.
At trial, a prior victim testified that she met petitioner in 1997 when she was 15 years old at an apartment complex with her friends. Id. at *5. After petitioner drove the victim and her friends to get food, petitioner told the victim he wanted to talk to her. Id. She agreed, thinking that it would be a brief conversation. Id. Everyone except the victim and petitioner got out of the van, and petitioner drove down a few streets away from the apartment complex. Id. at *5-6. Petitioner asked the victim if she wanted to make some money, and the victim agreed as long as it was legal. Id. Petitioner drove onto the freeway and pulled over into a sparsely populated neighborhood. Id. Petitioner began touching the victim's leg, and told her that she had to show her loyalty. Id. The victim began to scream and cry, and petitioner told her that someone had sent him to kill her, and that she needed to prove her loyalty. Id. Petitioner raped the victim, and afterward, warned her not to say anything to anyone. Id.
The court will provide further relevant facts as necessary in the discussion section of this order.
STANDARD OF REVIEW
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted ...