Randel v. Keeton

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY

          JON S. TIGAR United States District Judge

         Before 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 denied.^[1]

         I. PROCEDURAL HISTORY

         On 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.^[2] On May 3, 2011, the trial court sentenced petitioner to state prison for a total determinate term of 25 years. Ex. 1 at 789.

         On December 26, 2012, the California Court of Appeal affirmed the judgment in an unpublished decision.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, 2014.

         II. STATEMENT OF FACTS

         The following background facts describing the crime and evidence presented at trial are from the opinion of the California Court of Appeal:^[3]

         A. Prosecution Case

[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 anymore.”

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.

         B. Defense Case

[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 raping Doe.

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).

         III. DISCUSSION

         A. Standard of Review

         A 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. § 2254(a).

         A 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)).

         A state 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.

         “Factual 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).

         Section 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).

         The 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).

         B. Petitioner’s Claims

         Petitioner 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^[4] rights were violated; (4) the prosecution violated Brady^[5]; (5) the prosecution knowingly used false or perjured testimony; (6) trial counsel rendered ineffective assistance; and (7) appellate counsel rendered ineffective assistance.^[6] The Court addresses these claims in turn.

         1. Illegally Obtained Evidence

         Petitioner 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.^[7] Because the pretext phone call was not obtained in violation of federal law, federal habeas relief is unavailable for this claim.

         “In 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).

         Petitioner 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 participating ...