McCoy v. Sherman

          MEMORANDUM DECISION

          JAMES K. SINGLETON, JR. Senior United States District Judge.

         Alan 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.

         I. BACKGROUND/PRIOR PROCEEDINGS

         On 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 question.

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 one-year sentence.

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).

         On 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?

         The 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. ...