United States District Court, E.D. California
K. SINGLETON, JR. Senior United States District Judge.
McCoy, a state prisoner proceeding pro se, filed a
Petition for a Writ of Habeas Corpus with this Court pursuant
to 28 U.S.C. § 2254. McCoy is in the custody of the
California Department of Corrections and incarcerated at the
California Substance Abuse Treatment Facility and State
Prison in Corcoran, California. Respondent has answered, and
McCoy has replied.
January 4, 2011, McCoy was charged with forcible rape (count
1); forcible oral copulation (count 2); home burglary (count
3); domestic violence, with a prior conviction in 2007 for
the same crime (count 4); assault with a hammer (count 5);
assault with a bottle (count 6); and violation of a domestic
violence restraining order, with a prior conviction in 2008
for the same violation (count 7). The information further
alleged as to count 3 that another person was present in the
residence during the burglary, and as to count 7 that
McCoy's conduct involved an act or threat of violence.
McCoy pled not guilty to all counts and denied the
allegations. On direct appeal of his conviction, the
California Court of Appeal laid out the following facts
underlying the charges against McCoy:
Viewed through the lens of [McCoy's] arguments, the focus
in our factual account is narrow. Other than give a thumbnail
description of the victim's background with [McCoy], we
are concerned only with the chronology of the night in
Although never married, the relationship of [McCoy] and the
victim dated back to 1993, and produced four children (born
in 1995, 1996, 2001, and 2003). There had been many breakups
over the years, too many for the victim to distinguish. Their
life together was tempestuous, with alcohol-fed domestic
violence on [McCoy's] part.
In 2000 and 2006, the victim sought police intercession.
After an incident in 2007 where [McCoy] also attacked their
eldest daughter when she sought to intercede on the
victim's behalf, the couple never lived together again.
When the victim returned after this incident with her
children to pick up their belongings, [McCoy] arrived; he
struck the victim and damaged the residence and the
victim's car. This led to [McCoy's] prior conviction
for domestic violence. The victim obtained a restraining
order against him in the criminal matter and in a proceeding
in family court.
The victim began to drink heavily at this time. As a result
of harassing the victim, [McCoy] was jailed for violating the
restraining order in 2008, obtaining early release on his
Beginning in late 2009, the victim began communicating with
[McCoy] again in connection with his visitations with their
youngest child, and by February 2010 they had resumed sexual
relations with each other after [McCoy] showed up on her
doorstep with nowhere to stay. [McCoy] began to drink again,
however, and the situation deteriorated quickly.
On the night of March 26, 2010, the victim left [McCoy] at
the apartment and met with deputies, who escorted her back to
her apartment. [McCoy] abruptly opened the door as she
attempted to unlock it, causing her to fall forward. [McCoy]
was extremely angry, but immediately calmed down on seeing
the deputies. In response to the prompting of the deputies,
[McCoy] agreed to leave. However, he forgot his backpack. The
victim went to a motel for two nights to avoid [McCoy] in the
event he came back.
[McCoy] phoned the victim repeatedly about retrieving his
backpack; she was not receptive about seeing him in person.
He showed up uninvited at her apartment on the evening of
March 30. She testified that [McCoy] entered her apartment
through the window after she had called her boyfriend and
then passed out on the bed. She had been drinking tequila and
citrus soda since the morning, and admitted this could have
affected her ability to remember the chronology of events.
[McCoy] began to attack her physically almost immediately,
saying he was angry that she had summoned the deputies. At
some point he broke her cell phone. He then had sexual
relations with her against her will. [McCoy] spent the night
with the victim and would not let her leave. On the following
day, he went with her to an appointment, at which point she
was able to call for assistance and have him arrested.
The victim did not recall making any calls to 911 on the
night of the attack; while she did have a memory of calling
911 from the bathroom, she could not remember the day this
happened. The agency's records, however, showed this was
in fact the evening of March 30, when it received three calls
from the victim at 9:41, 9:45, and 9:53 p.m., during which
she said to the dispatchers that she was in the
bathroom.FN3 When deputies arrived at 10:02 p.m.,
she did not appear to be injured, and deputies recalled that
she told them (as they spoke with her at the door) that
[McCoy] was not there any longer.
FN3. During the first call, she made reference to [McCoy]
having returned after "they" had come over
"last"; she terminated the call when [McCoy] began
to pound on the bathroom door. The second was only a brief
call in which she said [McCoy] was going to break down the
door. In the third, she said that she was sure that [McCoy]
was gone, and asked for the deputies to call her when they
arrived so that she would know it was safe to come out.
At trial, she thought it was evident that [McCoy] was in her
apartment before the 911 calls, and believed the 911 calls
took place before she passed out on the bed and he entered
through the window. She could not recall the arrival of the
deputies. However, she was sure that she had not been beaten
or raped before making the 911 calls.
In a statement to deputies on March 31, the victim said
[McCoy] had come over to her apartment after talking to her
on the phone. She also told them she had called for help
while [McCoy] was there but he left before deputies arrived;
she then made the call to her boyfriend; and [McCoy] later
broke into her apartment through the window and attacked her.
People v. McCoy, No. C067498, 146 Cal.Rptr.3d 469,
471-72 (Cal.Ct.App. 2012).
January 4, 2011, McCoy proceeded to a jury trial. The jury
retired for deliberations on January 11, 2011. The following
day, the jury submitted the following questions:
If [the victim] let Mr. McCoy in the front door is it still
Burglary? Does it matter how he entered the apartment? Can it
be burglary if he was invited in?
trial court notified the defense and the prosecution about
the question. After conferring with the attorneys about the
matter, the trial court responded to the jury, "The
issue is the defendant's specific intent at the time of
entry and not the point of entry." Later that morning,
the jury reached its verdict, finding McCoy guilty on all
counts and finding all additional allegations to be true. ...