United States District Court, E.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY (DOCS. 1,
is a state prisoner proceeding pro se with a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. For the following reasons, Petitioner’s
petition for writ of habeas corpus will be denied and the
Court will decline to issue a certificate of appealability.
is in the custody of the California Department of Corrections
pursuant to the September 9, 2010, judgment of the Superior
Court of California, Mariposa County. Clerk’s Tr. at
649. Petitioner was charged in a five-count criminal
information. A jury convicted Petitioner of kidnapping with
intent to commit rape (count 1), in violation of California
Penal Code section 209(b)(1); sexual penetration by foreign
object (count 2), in violation of California Penal Code
section 289(a)(1); and forcible rape (count 3), in violation
of California Penal Code section 261(a)(2). Id.;
Clerk’s Tr. at 582-583. The jury also found true
special finding number 2, attached to counts 2 and 3-that
petitioner “kidnapped the victim … in violation
of Penal Code Section 207 or 209, pursuant to Penal Code
Section 667.61(e)(1).” Clerk’s Tr. at 582-583.
Petitioner was found not guilty of an additional count of
forcible rape against the same victim (count 4); or
dissuading a witness (count 5), in violation of California
Penal Code section 261(a)(2). Id. The jury also
found not true special finding number 1, also attached to
counts 2 and 3-that Petitioner’s kidnapping of the
victim substantially increased to risk of harm to her.
Id. Petitioner was sentenced to consecutive terms of
15 years to life on counts two and three. Clerk’s Tr.
at 649. At the prosecution’s request, the superior
court imposed a no-contact order, restraining Petitioner from
having any contact with the victim. People v.
Robertson, 208 Cal.App.4th 965, 995 (Cal.Ct.App. Aug.
filed a direct appeal with the California Court of Appeal,
Fifth Appellate District, challenging the sufficiency of the
evidence to support aggravated kidnapping, the admission of
evidence of uncharged misconduct, and the imposition of the
no-contact order. Lodged Doc. 33. On August 21, 2012 the
appellate court struck the trial court’s no-contact
order, and in all other respects affirmed the judgment.
People v. Robertson, 208 Cal.App.4th at 997.
Petitioner petitioned for review to the California Supreme
Court. Lodged Doc. 38. Review was denied. Lodged Doc. 39.
has filed a total of 11 different state habeas petitions.
Each appears to have been largely substantively identical to
the others and to the petition now pending before this Court.
The following is a chronology of Petitioner’s state
habeas filings and the outcomes of those petitions:
1. On August 30, 2013, Petitioner filed a habeas petition
directly with the California Supreme Court. Lodged Doc. 40.
In that petition, Petitioner indicated that no issues were
raised that were not contained in his direct appeal. Lodged
Doc. 40.The California Supreme Court denied that petition,
citing In re Waltreus, 62 Cal.2d 218, 225 (1965),
for the proposition that a habeas petitioner cannot
relitigate matters decided on direct appeal. Lodged Doc. 41.
2. On March 12, 2014, Petitioner filed a habeas petition with
the California Fifth District Court of Appeal. Lodged Doc.
42. That petition was denied because Petitioner had not first
exhausted his superior court habeas remedies. Lodged Doc. 43.
3. On May 2, 2014, Petitioner filed a second habeas petition
with the California Supreme Court. Lodged Doc. 44. The
California Supreme Court denied that petition, again citing
In re Waltreus. Lodged Doc. 45.
4. On May 13, Petitioner filed a second habeas petition with
the California Fifth District Court of Appeal. Lodged Doc.
46. Again, the Fifth District Court of Appeal denied that
petition for failure to exhaust superior court habeas
remedies. Lodged Doc. 47.
5. On June 24, 2014, Petitioner filed a habeas petition with
the Mariposa County Superior Court. Lodged Doc. 48. The
Mariposa County Superior Court denied that petition as
“unintelligible.” Lodged Doc. 49.
6. On June 25, 2014, Petitioner filed a second habeas
petition with the Mariposa County Superior Court. Lodged Doc.
50. The Mariposa County Superior Court denied that petition
as “unintelligible.” Lodged Doc. 51 7. On July
15, 2014, Petitioner filed a third habeas petition with the
Mariposa County Superior Court. Lodged Doc. 52. The Mariposa
County Superior Court denied that petition as redundant of
Petitioner’s other filings. Lodged Doc. 53.
8. On July 24, 2014, Petitioner filed a third habeas petition
with the California Supreme Court. Lodged Doc. 54. The
California Supreme Court denied that petition citing In
re Clark, 5 Cal.4th 750, 767-769 (1993), for the
proposition that a court may refuse to consider repeated or
piecemeal applications for habeas corpus.
9. On July 28, 2014, Petitioner filed a fourth habeas
petition with the California Supreme Court. Lodged Doc. 55.
The California Supreme Court denied that petition, again
citing In re Clark.
10. On July 29, 2014, Petitioner filed a third habeas
petition with the California Fifth District Court of Appeal.
Lodged Doc. 56. The California Fifth District Court of Appeal
denied that petition, noting that Petitioner failed to show
that he exhausted superior court habeas remedies and that
Petitioner’s petition is conclusory, successive, and
contained issues that were more appropriately addressed on
11. Finally, on September 29, 2014, Petitioner filed a fourth
habeas petition with the Mariposa County Superior Court.
Lodged Doc. 57. The Court’s docket does not reflect the
outcome of that case.
filed his federal habeas petition on May 29, 2014. Doc. 1. He
filed an amended petition on July 9, 2014. Doc. 15. On
October 15, 2014, Respondent filed an answer to the petition.
Doc. 35. On October 31, 2014, without leave from the Court,
Petitioner a second amended petition. Doc. 43. Each of the
petitions that Petitioner filed with this Court was
STATEMENT OF THE FACTS
In fall of 2009, appellant and his wife lived on a parcel of
land containing a house, a detached garage, a workshop, a
patio and dining area, a kennel, an aviary and several small
outbuildings (the compound). Appellant conducted Christian
services inside the garage, which was outfitted with several
rows of pews, a pulpit and a large rectangular wooden tub
which resembled a coffin. This tub was lined with black
plastic and filled with water. It had a removable cover,
which a photographic exhibit depicted as resting against an
The victim's testimony.
The victim is a native of Mexico who cannot speak English.
She has four children, including a daughter who suffers from
diabetes and an adult son named Miguel.
The victim attended three services conducted by appellant
because several people told her that “[h]e worked
miracles so I went there to have my daughter healed.”
Appellant told the victim “that he could heal [her]
daughter” and asked the victim to bring the girl to see
him. They made arrangements for appellant to meet her
daughter sometime in October.
Appellant told the victim “that God told him”
that her son should baptize her. So, during the victim's
second visit to the compound, appellant directed the
victim's minor son in baptizing the victim in the tub.
During this baptism, the victim was fully submerged in the
tub. The victim participated because she “wanted to
have him heal [her] daughter.” The victim believed
appellant was endowed by God with special healing powers that
enabled him to work miracles. During the victim's
baptism, appellant pulled out a towel that he said was
covered in the blood of Christ. She heard appellant claim to
have turned a snake into a lizard.
The victim also believed appellant had the power to have
someone harmed if he wanted to do so. Appellant told the
victim that he had friends who were police officers in
Atwater and they would hurt or kill any person he wished to
be harmed. Appellant told the victim that his dogs would tear
someone apart if he commanded them to do so.
During the morning of October 12, appellant called the
victim. The victim could not understand appellant but thought
that he was asking her to clean his home or the garage. She
handed the phone to Miguel. After speaking with appellant,
Miguel asked the victim if she was willing to go to the
compound and clean. The victim agreed.
About half an hour later, she and Miguel drove to the
compound. Appellant was waiting for them in the parking area.
He told Miguel to go look for a job. When Miguel told
appellant that he did not have a car, appellant told him to
take his mother's truck. Miguel responded that he did not
have a driver's license. Appellant gave him a vacuum and
told him to clean the cabins. When appellant was alone with
the victim, he said, “Why did you bring your son? I did
not want your son. I wanted you alone.” The victim was
uncomfortable with appellant's demeanor, which she
characterized as “aggressive.”
Appellant walked toward the garage and told the victim to
follow him. Appellant did not take any cleaning materials
with him. Appellant used a key to unlock the door at the back
of the garage. He ordered her to go inside. The victim was
afraid because the lights were off and the inside of the
building was dark, but she obeyed him. Appellant followed her
into the garage and locked the door with a key. Then he
hugged her from behind. She pushed him away and tried to get
to the door. The victim told appellant that she wanted to
talk to his wife. He mockingly replied in Spanish that his
wife was not here. He told the victim to walk toward the
front of the garage where the pulpit and tub were located.
When the victim refused, appellant put his arms on her back
and pushed her forward past two rows of pews “[t]oward
where the [tub] is.” Appellant was “upset,
furious.” Again, he ordered her to walk forward. The
victim obeyed because she “was afraid.” The
victim repeatedly asked appellant where his wife was and he
replied in Spanish that she “is not here.”
They stopped at the front of the garage near the tub.
Appellant told the victim to take off her clothes and to lie
on the ground. The victim initially refused but eventually
lay down on the ground and took off her pants. Appellant
lowered his pants. He held the victim with one hand, lifted
the other hand in the air and, “in a mocking way,
” prayed, “Thank you Jesus for giving me a pretty
woman. What I was asking you for, the prettiest woman.”
Appellant kissed the victim's mouth and neck. He slightly
penetrated the victim's vagina with his penis at least
two times. He was not able to maintain an erection so he
inserted his fingers deep into her vagina.
The victim was frightened and angry but did not scream or
struggle for several reasons. Appellant sexually assaulted
her near the tub, which was uncovered and filled with water.
The victim was afraid that if she resisted, appellant would
throw her in the tub and drown her. Also, the victim was
afraid that if Miguel heard her scream and came inside the
garage, appellant would hurt Miguel or Miguel would hurt
appellant. Finally, the victim was afraid of appellant's
dogs and thought they would hurt her.
After 10 or 15 minutes, appellant and the victim heard Miguel
approaching with the vacuum cleaner. Appellant pulled up his
pants and the victim put her pants on. They exited the garage
through the back door. Appellant told the victim to walk into
the house and go to his wife's bedroom. The victim
complied because she was afraid. Once they both were inside
the bedroom, appellant told her to lie on the bed. She
refused. Just then, Miguel opened the sliding door into the
house. Appellant left the bedroom and the victim followed.
When the victim saw Miguel she did not tell him what
appellant had done to her because she was worried that Miguel
would try to hurt appellant. Instead, she told Miguel to tell
appellant that they had to leave. He asked her what he should
tell appellant and she told him to tell appellant that they
had to pick up her other son from school. In order to prevent
Miguel from suspecting what appellant had done to her, the
victim told Miguel to ask appellant to give her a broom to
sweep outside. The victim went to her truck and waited for
Miguel. Appellant gave Miguel some packaged food that had
passed its expiration date to take with them. Appellant went
to the parking lot and prayed for them before they left.
Appellant repeatedly called the victim later that day and on
October 13. During these calls, he told her not to tell
anyone what he had done. If the victim did not answer the
house's landline, appellant would call her cell phone. If
she did not answer the cell phone, within seconds he would
call the landline. The victim was upset by these calls and
stopped answering the phone.
About a week after the sexual assault, the victim met with
some of appellant's friends at a Starbucks coffee shop.
She told them “what the [appellant] had done to
[her].” They did not believe her, even after she swore
on a Bible.
Other prosecution evidence.
On October 13, the victim and her friend Sonia Gutierrez went
to the Merced Police Department to file a police report. The
victim was referred to the Mariposa County Sheriff's
Office, where she filed a report on October 14. Gutierrez
acted as the victim's interpreter during the conversation
with a police officer on October 14. Gutierrez testified that
she tried to relay the information accurately but may have
made some misstatements. The victim also spoke with a police
officer on January 26, 2010; a certified interpreter and
victim advocate were present during that interview.
A police officer who spoke with the victim on October 13
testified that when he “initially made contact with her
she appeared nervous, embarrassed, and ... [y]ou could tell
by her demeanor she was really embarrassed and ... was a
victim of something that did occur.”
The victim made some pretext phone calls to appellant in the
presence of a police officer. [N.3] During the first call,
appellant exhorted her “don't tell nobody,
Amen.” During another call, the victim told appellant
that she was not happy and said that Jesus did not like him.
Appellant replied, “Yeah, he forgive, ” and,
“I told Jesus sorry, he say forgive.” The victim
asked appellant to confirm that he would not touch her
anymore. Appellant replied, “Okay. Finished.”
During another call, appellant said, “Yeah. So, nobody
know amen, ” and “Yeah, don't tell nobody,
[N.3.] The pretext phone calls were recorded on audio CDs,
which were played for the jury and admitted into evidence. A
written transcript of the phone calls was provided to the
jury for their reference during trial; it was stipulated that
the transcript was an accurate translation of the audio
T.N. testified about an incident that occurred in 1974 during
which appellant kidnapped and raped her. Appellant was
arrested and charged with kidnapping, rape and attempted oral
copulation in connection with that sexual assault. He
accepted a negotiated plea agreement and pled no contest to
one count of battery.
Appellant testified that he began Christian ministry work in
1975. Some people think that he is a “kind of a miracle
worker” who “can heal their children.” But
he “can't. Only God can.” He knows that some
women are sexually attracted “to preachers because they
Appellant said his wife was away from the compound during the
morning of October 12 and he expected his daughter and her
children to visit him. While he was waiting, appellant called
Miguel to ask why he had not attended the service that
appellant conducted on Sunday and to see if Miguel was still
planning to go to “a recovery home.” Miguel
“translated to his mother something.” Then Miguel
“asked ... if my wife was there” and appellant
“said no.” Miguel asked appellant what he
“was going to be doing, ” and appellant
“said, what are you doing?” Miguel said they were
“going to go to a work furlough place in Merced,
” and then said, “we're going to come and
clean.” Appellant replied, “I don't need you
to come cleaning. Go get a job, ” and “hung the
About an hour later, Miguel and the victim arrived at the
compound. Appellant was in his workshop when they approached
him. The victim hugged appellant in an
“inappropriate” way. Miguel asked appellant if he
could vacuum the outbuildings and the victim asked if she
could clean the garage. Appellant allowed them to stay and
clean because “[p]eople come there all of the time. We
eat. They clean. I don't stop them. That is their
choice” to volunteer at the compound.
Appellant walked to the garage and the victim followed him.
He entered the building through the back door, which was not
locked. The victim followed him inside and shut the door. It
was not dark inside the building because daylight entered
through three windows. Nonetheless, appellant turned to
switch on the lights. Suddenly, the victim grabbed
appellant's penis over his pants. Appellant told her to
stop, but she grabbed his penis again. Appellant removed the
victim's hand and asked her to pray with him. He walked
forward toward the front of the garage “to have her sit
down and pray.” The tub was at the front of the
building; it was empty. The victim followed appellant and
grabbed his crotch again. Appellant knew it “wasn't
an accident” “[b]ecause this time she held
on.” He removed her hand. Appellant told her to
“sit down there and pray and stop it.” Appellant
sat down on a pew and prayed to God for help. Then appellant
“went to the other side to the front door, ” and
opened the door. He turned around and saw that the victim was
removing her clothing. Appellant left the garage. The victim
chased him, grabbed his arm and held onto it.
Appellant saw Miguel and told him to take the victim home.
Miguel replied that they came to work. Then Miguel said,
“[s]he wants a broom to sweep out front.”
Appellant got a broom from the kitchen area, gave it to
Miguel and went to his workshop. About five or 10 minutes
later, the victim and Miguel approached appellant. Miguel
told him that they were leaving. Appellant “prayed with
them and [the victim] wanted to hug me again, and I told her
not to come back.” Miguel took some chips and food and
then he and the victim drove away.
Appellant called Miguel later that day and left a message.
The victim called appellant numerous times during the next
few days and he returned her phone calls. During the pretext
phone calls ...