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Johnson v. Grounds

United States District Court, E.D. California

March 30, 2017

BYRL FATEI JOHNSON, Petitioner,
v.
R.T.C. GROUNDS, Warden, Respondent.

          FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE

         Petitioner is a state prisoner proceeding through counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a judgment of conviction entered against him on February 16, 2012, in the Solano County Superior Court (No. VCR204879) on two counts of committing lewd acts upon a child under the age of fourteen years, with findings that there were multiple child victims, one prior strike conviction, and one prior serious felony conviction. Petitioner seeks federal habeas relief on the ground that his trial counsel rendered ineffective assistance by allegedly failing to investigate and present a voluntary intoxication defense or present expert testimony that petitioner does not fit the profile of a child molester. Upon careful consideration of the record and the applicable law, it is recommended that petitioner's application for habeas corpus relief be denied.

         I. Background

         In its unpublished opinion affirming petitioner's judgment of conviction, the California Court of Appeal for the First Appellate District provided the following factual summary of the evidence presented at petitioner's trial:

         BACKGROUND

         Eight-year-old M.R. and six-year-old B.H. were best friends and neighbors at the time of the relevant events. Jamie J. is M.R.'s mother. Her boyfriend, Ken, is Johnson's nephew.

         On the afternoon of June 14, 2009, Jamie and Ken took M.R. and B.H. to a barbecue at the home of Johnson's friend, Patty. The barbecue lasted late into the night. The adults, including Johnson, watched the NBA playoffs and drank. The girls were jumping around and acting rowdy, “Just, you know, just doing silly things.”

         The girls wanted to spend the night at Patty's house, and Jamie agreed. By the time Jamie and Ken went home around midnight, Johnson had gone upstairs to bed. Jamie assumed the girls would sleep downstairs in the living room. From this point the witness accounts diverge until Jamie and Ken returned to pick the girls up the next morning.

         M.R.'s Testimony

         M.R. was 10 years old at trial. She testified that she and B.H. spent the night of the barbecue in Patty's room with Patty and Johnson. The girls slept “in the end of the bed.” She wore her underwear and a big t-shirt to bed because she did not have pajamas with her.

         When M.R. and B.H. woke up the next morning, Patty was gone and Johnson was still asleep. The girls woke Johnson up by jumping on the bed. Then Johnson touched M.R. beneath her shirt “on my chest” and “down on my private part.” He rubbed his hand all over her chest. Johnson rubbed B.H.'s chest too, but M.R. did not remember whether his hand was underneath or on top of B.H.'s clothing. Johnson touched the outside of M.R.'s panties, but not underneath them.

         On cross-examination, M.R. said she and B.H. slept on the bedroom floor and Patty and Johnson slept in the bed. Johnson was angry when the girls woke him up. Initially, M.R. testified that Johnson pulled her leg to make her lie down on the bed and then touched her, but she also testified that she decided to lie down because she was tired. Then she said “it was something around there that somebody pulled my leg and I fell down, ” but she did not know who the “somebody” was. Then she again said she was tired so she lay down next to Johnson, but also that somebody pulled her down, and then “I laid down because I was tired.”

         Johnson rubbed M.R.'s chest and “tummy” and touched her between her legs. In an earlier interview at the Rainbow Center, M.R. said Johnson only touched her tummy and chest, not anywhere else. At trial, she testified that he also touched her “near my legs” and that she told this to the man at the Rainbow Center. While defendant was touching M.R., B.H. was still jumping on the bed. M.R. pulled Johnson's hand away and moved farther from him, but he “scooted closer” and started to rub her all over. Then B.H. pulled M.R. up, and the girls went downstairs. Later, they went back and jumped on the bed some more before they left again to go downstairs to the kitchen. Johnson came downstairs and made them chicken soup, then he went back upstairs. M.R. and B.H. returned to Johnson's room and started lighting matches he gave them to play with. They also played marbles with Johnson.

         B.H.'s Testimony

         B.H. was eight years old at trial. She and M.R. slept on the floor at the end of the bed. When they woke up in the morning, Patty had already left for work. The girls got up and jumped on the bed. Johnson woke up and “pulled us down and started touching us in private places.” He touched M.R. “[o]n the sides near her private area, ” but nowhere else. He touched B.H.'s chest, but not M.R.'s. Johnson touched the girls under their long t-shirts but did not put his hand inside their panties. B.H. pulled Johnson's hand as he was touching M.R. and the girls ran off and started playing on the stairs.

         Later, M.R. and B.H. went back into the bedroom and jumped on the bed some more. Johnson woke up and told them to get off, but instead the girls sat on the end of the bed. He did not make the girls breakfast or soup. B.H. did not remember playing with matches and did not know whether or not she did.

         Jamie's Testimony

         When Jamie and Ken arrived to pick them up the next morning, the girls rushed to the door looking frantic and scared. They said Johnson had played with M.R.'s chest, patted her private parts, and put his thumbs between her leg and vagina.

         Johnson was upstairs in the bedroom. Patty was still at work. Jamie and Ken spoke with Johnson, then stayed at the house until Patty came home in the early afternoon. The girls repeated their story to Jamie and Patty, and later at home Jamie continued to talk to them about the incident. Throughout the day, the girls remained adamant about what Johnson did to them.

         That evening Johnson came to Jamie and Ken's home. At one point Ken went outside, and Jamie had a private conversation with Johnson while sitting in his lap. Ken came in and asked Jamie why she was sitting there. She told him it was not anything. Jamie called the police the next morning.

         Ken's Testimony

         Ken testified that he and Johnson drank “more than the limit” at the barbecue. He did not want to believe what the girls told them about Johnson when he and Jamie returned to get them the next morning. Johnson was upstairs on the bed, still dressed in his clothes from the previous night. Ken could tell he “was still been drinking or feeling it from the night before.” Ken discussed the girls' allegations with Johnson that morning and again that evening when Johnson came over to his house. Ken did tell Jamie to get off of Johnson's lap, but he was not angry about it.

         The next day Ken called the police. He also called Victoria James, Johnson's girlfriend, and told her about the alleged molestation. Ken explained that he and Jamie “knew that [Johnson had] been doing things to [James] and this and that and figured she was upset and that she got the kids and Jamie got kids, and I was like this is what my uncle doing.” He asked James to tell the police about an incident in which he thought that Johnson had attacked James's car or house with a baseball bat, but he did not tell her to say Johnson beat her with a baseball bat, and he did not ask her to lie to the police.

         Jamie and Johnson did not get along and had gotten into a couple of confrontations since Jamie and Ken started dating.

         Officer Bassett's Testimony

         Vallejo Police Officer Mark Bassett was the investigating officer and attended the police interviews of both girls at the Rainbow Center in August 2009. M.R. said that she and B.H. were jumping on the bed when she got tired and decided to lie down next to Johnson. She never said she was pulled down onto the bed. When M.R. was asked where Johnson touched her, she said that he rubbed her chest and tummy. Johnson also rubbed the area between “the hem of her panty line and her thigh area, ” but M.R. repeatedly said he did not touch her privates or put his hand inside her underpants. M.R. did not say that Johnson also touched B.H. during this interview, but later in a second interview she was asked whether Johnson touched anyone else. She responded that Johnson touched B.H. while B.H. was bouncing on the bed.

         B.H. told Officer Bassett she saw Johnson put his hand inside the top of M.R.'s panties and touch her “coco, ” the area under her panties. M.R. smacked Johnson's hand away and said, “Don't touch me like that.” B.H. also said Johnson put his hand under her own shirt, and she slapped him. None of the prior police reports reflected that B.H. had claimed Johnson touched her too.

         Victoria James's Testimony

         Victoria James dated Johnson between January and June 2009, but broke up with him in June because of his heavy drinking. Ken told her about the girls' accusations and told her to tell the police that he had beaten her with a baseball bat. Ken knew this was a lie. James testified that her relationship with Johnson was peaceful, but she admitted that she sought a restraining order after a violent incident in September 2009 to get Johnson out of her house and help him stop drinking.

         Johnson's Testimony

         Johnson testified that he drank heavily at the barbecue, “upwards of [a] quarter of a gallon.” The next morning when he woke up he was hung over but not drunk. The girls were screaming and jumping on the bed. He screamed at them and “told them to get the ‘F' off the bed, ” but they just laughed and kept jumping. Then he threatened to tell their parents if they did not stop. M.R. stopped, but B.H. did not, so Johnson pushed M.R. off the bed and the girls left the room. Johnson drank a shot of alcohol and continued to doze on and off until the girls came back and resumed their jumping. Johnson again responded by yelling at them and saying he would tell Jamie. B.H. told him to stop yelling at her or she would “tell on [him].” The girls left again, but a while later they returned and started striking matches against the bedroom furniture. Johnson jumped up and the girls ran off. They all went downstairs, where Johnson made the girls soup and sandwiches for breakfast. After breakfast the girls played, and Johnson showed them how to play marbles before he returned upstairs to nap and drink brandy.

         Later that afternoon Patty told him about the girls' accusations. That night Johnson went over to Ken and Jamie's house. He testified: “I was crying. I was telling them, ‘You know me better than that. Why would you even ask me some shit like that?'” Ken and Jamie assured him that the matter “was already squashed” and would not go any further.

         Later, after Ken left, Jamie sat on Johnson's lap to console him. When Ken returned, he asked what was going on and told Jamie to “get the fuck off” Johnson's lap. Jamie immediately got up, and she and Ken “kicked [Johnson] out.”

         Johnson had never previously been accused of a sexual crime. He denied that he ever touched either girl's chest or private parts. He pushed M.R. because he was angry, not ...


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