United States District Court, N.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF APPEALABILITY
TIGAR United States District Judge
the Court is the above-titled pro se petition for a writ of
habeas corpus, filed pursuant to 28 U.S.C. § 2254 by
petitioner Alan Scott Randel, challenging the validity of a
judgment obtained against him in state court. Respondent
filed an answer to the petition. Petitioner has filed a
traverse. For the reasons set forth below, the petition is
January 25, 2011, a Sonoma County jury found petitioner
guilty of three counts of forcible rape (Cal. Penal Code
§ 261(a)(2)), forcible oral copulation (Cal. Penal Code
§ 288a (c)(2)), dissuading a witness (Cal. Penal Code
§ 136.1(b)(1)), and misdemeanor child abuse (Cal. Penal
Code § 273a(b). Ex. 1 at 366-67. On May 3, 2011, the trial
court sentenced petitioner to state prison for a total
determinate term of 25 years. Ex. 1 at 789.
December 26, 2012, the California Court of Appeal affirmed
the judgment in an unpublished decision. Ex. 6. The
California Supreme Court denied review on March 13, 2013. Ex.
8. Petitioner filed habeas petitions in the state superior,
appellate, and supreme courts. Exs. 9-13. Each was denied,
and only the superior court issued a reasoned opinion.
Id. The instant action was filed on December 16,
STATEMENT OF FACTS
following background facts describing the crime and evidence
presented at trial are from the opinion of the California
Court of Appeal:
[Petitioner] was the stepfather of victim Jane Doe, who was
about 13 years old when [petitioner] married Doe’s
mother. [Petitioner], Doe, Doe’s mother, and
Doe’s older brother lived together in an apartment in
Santa Rosa for about 18 months, until Doe’s mother, and
then Doe’s brother, moved out in the beginning of 2006.
By then, Doe was around 14 years old. [Petitioner] assured
Doe that he would take care of her and put her through
college, so Doe agreed to continue living with him.
[Petitioner] was strict with Doe. He did not allow her to
talk to boys. He often punished her by taking away her phone
or iPod or forbidding her to visit her friends. Doe
testified: “A couple times he locked me in my bedroom
and I wasn’t allowed to go out and get anything to
drink or eat and [had] to stay in for a day.” Once
[petitioner] made Doe stay in her room without allowing her
to use the bathroom. He also forbade her from shutting her
bedroom door and bathroom door; if she tried to shut the
bathroom door, he would open it and yell at her.
[Petitioner] was physically and emotionally abusive as well.
He punched Doe in the face a couple of times, slapped her in
the face, pushed her to the floor, and punched her in the
arms, resulting in bruises. One of the blows to her face
caused her braces to slice her gums. He warned Doe that if
she ever told anybody, he would kill her or hurt her family
or she “wouldn’t have any place to live or any
place to go.”
When Doe was 15 years old, she and [petitioner] moved into a
house. There, Doe slept in her own bed only once. On that
night, she awoke to find [petitioner] groping her vagina and
breasts, outside her clothes. When she asked him to stop
touching her and to get out of her room, he became angry.
After that, [petitioner] insisted that Doe sleep in his bed;
Doe acquiesced because she felt she had no choice.
A couple of months before her sixteenth birthday,
[petitioner] forced Doe to have sexual intercourse for the
first time. Doe was sitting on the bed, watching television,
when [petitioner] entered and told her to sit next to him.
When she refused, he sat next to her and started to rub her
thigh. She slapped his hand away and told him not to touch
her, and they argued. He then began rubbing her vagina
outside her clothes, and she told him to stop. Doe attempted
to get up, but [petitioner] pulled her back; she tried to
leave, but [petitioner] blocked the door, pushed her onto the
bed, held her down, and took off her pants. [Petitioner]
started to put his penis in Doe’s vagina; she was
crying and attempted to get up, but she was unable to.
[Petitioner] then raped her, using “a lot of
force” to prevent her from escaping. Afterward, Doe
“just laid there, crying, for a while, ” and
[petitioner] “got up and left.”
From then on, [petitioner] continued to have sex with Doe,
for awhile “a couple times a week.” She never
consented or wanted to have sex with him. To the contrary,
Doe testified, she always told [petitioner] that she did not
want to have sex with him, but “[h]e would always get
mad and hit me, or he would yell back at me.” Doe even
tried to push [petitioner] off of her, punch him, slap him,
and throw things at him, but “[i]t just made
[petitioner] mad and more angry.” Eventually, Doe
stopped resisting. She testified: “I was afraid of
getting hit or slapped. I didn’t want to get hurt
Doe also tried to call the police once but, she testified,
[petitioner] “threw the phone and told me, ‘I
wouldn’t call the police, ’ because if I did, he
would kill me.” [Petitioner] threatened Doe that if she
told anybody, he would hurt her mother and brother and she
would be homeless with nowhere to go.
[Petitioner] told Doe that he wanted to marry her and
“have kids” with her, bought her diamond jewelry,
etched their names in the concrete in front of the house, and
claimed “it’s not rape because we’re in
love.” Doe acknowledged that she did tell [petitioner]
that she loved him, because he was her stepfather and because
she thought he would otherwise get mad. But she thought he
was “crazy” when he said, “we’re in
love, ” because she told him “all the time”
that she was not in love with him.
[Petitioner] nonetheless continued to assault Doe sexually
until June 13, 2009. On that day, he orally copulated her for
the first time. When Doe told him “no, ”
[petitioner] forced his penis into her vagina.
A few days later, Doe told a friend that [petitioner] was
sexually assaulting her. At trial, the friend confirmed that
Doe had cried and said that [petitioner] had been molesting
her for a year and a half.
Detective Hector DeLeon of the Santa Rosa Police Department
investigated Doe’s complaint against [petitioner]. Doe
agreed to make a pretext phone call to [petitioner], which
DeLeon recorded. In the phone conversation, [petitioner]
promised Doe that he would stop having sex with her. He
apologized and said that he felt bad. When Doe asserted that
it “started when I was fifteen, almost sixteen, ”
[petitioner] replied: “I expected too much from
you.” When Doe claimed, “I told you every time I
don’t want to” and “[w]hat you did to me is
not okay, ” [petitioner] did not dispute the point, but
asked whether Doe was with anyone. Doe said “raping me
is not okay, ” and [petitioner] told her not to
“say that.” He agreed not to lick her vagina. He
also acknowledged that he should not have hit Doe and that he
had a bad temper.
[Petitioner] was arrested. In an interview with Detective
DeLeon, [petitioner] initially denied hitting Doe or having
any sexual contact with her. Later, he admitted that he had
sex with her at least five times, and that Doe might be
correct that it began in January 2008. He also admitted that
they orally copulated each other and that Doe copulated him
two or three times. [Petitioner] claimed that he and Doe were
a couple and were “in love, ” and he expressed
disbelief that Doe said the sex was not consensual.
Psychologist Anthony Urquiza, as an expert in child sexual
abuse accommodation syndrome (CSAAS), testified that the
components of CSAAS include the abused child’s secrecy
about the abuse, feelings of helplessness, disassociation,
and delayed disclosure. A number of factors present in this
case, he opined, were consistent with abuse or could produce
one or more of the characteristic CSAAS behaviors.
[Petitioner] testified that he and Doe were in love and they
“told each other every day that [they] loved each
other”-five times a day. They would hug and kiss on the
couch, and eventually their relationship became sexual: he
touched her vagina; she touched his penis; they orally
copulated each other; they had intercourse “[m]any
times”; they had an “intimate sexual
relationship” that “was loving, very
loving”; Doe was “comfortable with”
[petitioner] orally copulating her; and “Doe actually
enjoyed having a sexual relationship. [petitioner] claimed
that Doe would want to have sex, but he would refuse because
he did not want to get her pregnant. Once when he suggested
they “make love, ” Doe said she did not have a
ring, so he took her to pick out a ring and later bought it
for her. He denied beating, threatening, shoving, or forcibly
During cross-examination, the prosecutor queried [petitioner]
about lies he told to Detective DeLeon during their
interview. [Petitioner] acknowledged, “Yeah throughout
the whole interview, I suppose I lied.” Attempting to
explain himself, he said: “All I can say for myself is
I was uncomfortable.” He claimed he had “never
been in that position.” He added: “I was totally
at sea. I didn’t know how to answer the questions
without putting myself in jeopardy or Ms. Doe.” He
asserted that he “wanted to tell the truth, but it
wasn’t going to be heard.” Many times DeLeon
asked [petitioner] to tell the truth, but he
“didn't feel comfortable with it.”
Other defense witnesses included a neighbor, who testified
that Doe said she had a “boyfriend at work” and a
“house boyfriend, ” and then quickly said,
“no, no, no, I meant at work.”
[Petitioner]’s stepmother testified that she saw Doe
sit down next to [petitioner] and “cozy” up to
him. [Petitioner]’s father testified that he saw Doe
rub [Petitioner]’s hair, put her finger in his ear,
place her arms around [petitioner], and slide her hand into
his back pocket. [Petitioner]’s mother testified that
she saw Doe run her hands up [petitioner]’s neck and
“tickle” it, “shush” him by placing
her fingers on his lips, and slide under [petitioner]’s
arm in a restaurant.
People v. Randel, No. A132185, 2012 WL 6734678, at
*1-3 (Cal.Ct.App. Dec. 26, 2012).
Standard of Review
petition for a writ of habeas corpus is governed by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA"). This Court may entertain a petition for
a 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.
district court may not grant a petition challenging a state
conviction or sentence on the basis of a claim that was
reviewed on the merits in state court unless the state
courts’ 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 in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding." 28 U.S.C. §
2254(d); Williams v. Taylor, 529 U.S. 362, 412-13
(2000). Additionally, habeas relief is warranted only if the
constitutional error at issue “‘had substantial
and injurious effect or influence in determining the
jury’s verdict.’” Penry v.
Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993)).
court decision is “contrary to” clearly
established Supreme Court precedent if it “applies a
rule that contradicts the governing law set forth in [the
Supreme Court’s] cases, ” or if it
“confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [its]
precedent.” Williams, 529 U.S. at 405-06.
“Under the ‘unreasonable application’
clause, a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle
from [the Supreme] Court’s decisions but unreasonably
applies that principle to the facts of the prisoner’s
case.” Id. at 413. “[A] federal habeas
court may not issue the writ simply because that court
concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must
also be unreasonable.” Id. at 411.
determinations by state courts are presumed correct absent
clear and convincing evidence to the contrary.”
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
This presumption is not altered by the fact that the finding
was made by a state court of appeals, rather than by a state
trial court. Sumner v. Mata, 449 U.S. 539, 546-47
(1981); Bragg v. Galaza, 242 F.3d 1082, 1087 (9th
Cir.), amended, 253 F.3d 1150 (9th Cir. 2001). A petitioner
must present clear and convincing evidence to overcome
section 2254(e)(1)’s presumption of correctness;
conclusory assertions will not do. Id. Under 28
U.S.C. 2254(d)(2), a state court decision “based on a
factual determination will not be overturned on factual
grounds unless objectively unreasonable in light of the
evidence presented in the state-court proceeding.”
Miller-El, 537 U.S. at 340; see also Torres v.
Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000).
2254(d)(1) restricts the source of clearly established law to
the Supreme Court’s jurisprudence. “[C]learly
established Federal law, as determined by the Supreme Court
of the United States” refers to “the holdings, as
opposed to the dicta, of [the Supreme] Court’s
decisions as of the time of the relevant state-court
decision.” Williams, 529 U.S. at 412. “A
federal court may not overrule a state court for simply
holding a view different from its own, when the precedent
from [the Supreme Court] is, at best, ambiguous.”
Mitchell v. Esparza, 540 U.S. 12, 17 (2003).
state court decision to which 2254(d) applies is the
“last reasoned decision” of the state court.
See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991);
Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir.
2005). Here, the court of appeal, in its opinion on direct
review, did not address the claims petitioner raises in the
instant petition. The last reasoned state court decision as
to claims 1, 4, 5, and 6 is the decision by the state
superior court denying habeas relief. Ex. 9. The last
reasoned state court decision for claim 3 comes from the
trial court’s ruling on petitioner’s
Miranda motion. Ex. 2 at 678-82. No court issued a
reasoned decision as to claims 2 and 7. When presented with a
state court decision that is unaccompanied by a rationale for
its conclusions, a federal court must conduct an independent
review of the record to determine whether the state court
decision is objectively reasonable. See Delgado v.
Lewis, 223 F.3d 976, 982 (9th Cir. 2000). This
“[i]ndependent review . . . is not de novo review of
the constitutional issue, but rather, the only method by
which [a federal court] can determine whether a silent state
court decision is objectively unreasonable.” See
Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
“Where a state court’s decision is unaccompanied
by an explanation, the habeas petitioner’s burden still
must be met by showing there was no reasonable basis for the
state court to deny relief.” See Harrington v.
Richter, 562 U.S. 86, 98 (2011).
asserts the following grounds for relief: (1) illegally
obtained evidence was used against him; (2) his Sixth
Amendment right to counsel was violated when police and the
victim deliberately elicited incriminating statements from
petitioner; (3) his Miranda rights were violated; (4)
the prosecution violated Brady; (5) the
prosecution knowingly used false or perjured testimony; (6)
trial counsel rendered ineffective assistance; and (7)
appellate counsel rendered ineffective
assistance. The Court addresses these claims in turn.
Illegally Obtained Evidence
claims the pretext phone call between him and Doe was
illegally obtained evidence and therefore its introduction
violated his right to due process. Petitioner contends that
because Doe was a minor, the government was required to
obtain the permission of her legal guardian before she made
the call. Pet. at 10. Because the pretext phone call was not
obtained in violation of federal law, federal habeas relief
is unavailable for this claim.
conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution,
laws, or treaties of the United States.” Estelle v.
McGuire, 502 U.S. 62, 68 (1991). Petitioner identifies
no federal authority, nor is the Court aware of any,
requiring the government to obtain the permission of a minor
victim’s legal guardian before allowing her to initiate
a pretext phone call. In the absence of clearly established
Supreme Court authority, federal habeas relief is
unavailable. See Knowles v. Mirzayance, 556 U.S.
111, 122 (2009) (“[I]t is not an unreasonable
application of clearly established Federal law for a state
court to decline to apply a specific legal rule that has not
been squarely established by this Court.”); Carey
v. Musladin, 549 U.S. 70, 74 (2006) (denying habeas
relief in absence of clearly established federal law).
claims that the call violated California Penal Code section
701.5, Use of Minor Informants. Pet. at 10. Federal habeas
relief is not available for violations of state law.
Estelle, 502 U.S. at 67. In addition, the Sonoma
County Superior Court’s ruling, on state habeas, that
Doe was not a “minor informant” under the statute
is binding on this court. See Ex. 9 at 2.
Bradshaw v. Richey, 546 U.S. 74, 76 (2005)
(“[A] state court's interpretation of state law,
including one announced on direct appeal of the challenged
conviction, binds a federal court sitting in habeas
corpus.”). Finally, the statute clearly does not apply
to Doe. California Penal Code section 701.5(e) defines a
“minor informant” as “a minor who
participates, on behalf of a law enforcement agency, in a
prearranged transaction or series of prearranged transactions
with direct face-to-face contact with any party, when the
minor’s participation in the transaction is for the
purpose of obtaining or attempting to obtain evidence of
illegal activity by a third party and where the minor is