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Butler v. Montgomery

United States District Court, S.D. California

April 12, 2017

W. L. MONTGOMERY, et al., Respondents.


          Hon. Gonzalo P. Curiel United States District Judge.

         On January 7, 2016, Petitioner Darius Butler (“Petitioner”), a state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus (“Petition”) in federal court pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) He challenges his state court convictions in San Diego Superior Court Case No. SDC237121 for attempted murder, kidnapping, and forcible sodomy and oral copulation, for which he is sentenced to 50 years-to-life plus 19 years in state prison. (Dkt. No. 1, Pet. at 1-2, 15[1].)

         On October 11, 2016, pursuant to 28 U.S.C. § 636(b)(1), Magistrate Judge Mitchell D. Dembin issued a Report and Recommendation (“Report”) that this Court deny the Petition. (Dkt. No. 21.) Petitioner did not file an objection.

         After careful consideration of the pleadings and relevant exhibits submitted by the parties, the Court finds Magistrate Judge Dembin's Report to be thorough, complete, and an accurate analysis of the legal issues presented in the Petition. For the reasons explained below, this Court: (1) ADOPTS the Magistrate Judge's Report in its entirety denying the petition for writ of habeas corpus, and (2) DENIES a certificate of appealability.


         A. Procedural Background

         On March 26, 2012, the San Diego County District Attorney's Office filed a third amended felony complaint charging Petitioner with kidnapping for the purpose of committing sodomy and/or oral copulation in violation of California Penal Code (“Penal Code”) section 209(b)(1) (Count 1), forcible oral copulation in violation of Penal Code section 288(c)(2)(A) (Count 2), sodomy by use of force in violation of Penal Code section 288(c)(2)(A) (Count 3), and attempted murder in violation of Penal Code section 187(a) (Count 4). (Dkt. No. 13-7, Lodgment No. 2, Clerk's Tr. [“CT”] at 21-25[2].) As to all counts the complaint alleged that Petitioner used a deadly weapon (a knife) and committed the offenses while he was released on bail. (Id.) As to counts 2-4 the complaint alleged he inflicted great bodily injury on the victim, and as to counts 2 and 3 it alleged he substantially increased the risk of harm by kidnapping the victim. (Id.)

         Following a jury trial, Petitioner was found guilty on all counts. (Dkt. No. 13-9, Lodgment No. 2, CT at 371-80.) The jury found true the allegations that he was released on bail at the time of the offenses, that he substantially increased the risk of harm to the victim by kidnapping her with respect to counts 2 and 3, that he personally inflicted great bodily injury during the commission of counts 3 and 4, and that he personally used a deadly weapon during the commission of count 4. (Id.) The jury returned not true findings that he used a deadly weapon during the commission of counts 1-3 and inflicted great bodily injury during the commission of count 2. (Id.) A new trial motion argued, inter alia, that the investigation into juror misconduct was inadequate. (Dkt. No. 13-8, Lodgment No. 2, CT at 184-208.) That motion was denied and Petitioner was sentenced to 50 years-to-life plus 19 years in state prison. (Dkt. No. 13-9, Lodgment No. 2, CT at 383-85.)

         Petitioner raises five challenges to his state court conviction. (Dkt. No. 1, Pet.) Petitioner claims his due process rights were violated by the trial court's failure to sua sponte instruct the jury on attempted voluntary manslaughter as a lesser included offense of attempted murder (Claim 1), on the Petitioner's reasonable but mistaken belief the victim consented (Claim 2), and on the defense of accident (Claim 3). (Id. at 17-31.) Petitioner also claims the trial court failed to adequately investigate potential juror misconduct (Claim 4), and that he received ineffective assistance of counsel due to his trial counsel's failure to object to comments made by the prosecutor during closing arguments (Claim 5). (Id. at 32-46.)

         Petitioner appealed his conviction with the California Court of Appeal, raising Claims 1-4 presented here. (Dkt. Nos. 13-10, Lodgment No. 3.) While the appeal was pending in the appellate court, Petitioner's appellate counsel withdrew Claim 3 on the basis that the claim “has been resolved by the California Supreme Court.” (Dkt. No. 13-11, Lodgment No. 4.) The state appellate court affirmed the convictions in a written opinion. (Dkt. No. 13-14, Lodgment No. 7.) Petitioner then filed a petition for review in the California Supreme Court presenting Claims 1-4 raised here. (Dkt. No. 13-15, Lodgment No. 8.) Petitioner included the previously withdrawn Claim 3 and requested a remand for the appellate court to consider the claim. (Id. at 26.) On October 16, 2014, the California Supreme Court summarily denied the petition for review in an order which stated: “The petition for review is denied.” (Dkt. No. 13-16, Lodgment No. 9.) Petitioner thereafter filed habeas petitions in the state superior, appellate and supreme courts raising Claim 5. (Dkt. Nos. 13-17, 13-19, 13-21, 13-22, Lodgment Nos. 10, 12, 14, 15.) The claim was denied on the merits by the superior and appellate courts, and summarily denied without citation of authority by the state supreme court. (Dkt. Nos. 13-18, 13-20, 13-23, Lodgment Nos. 11, 13, 16.)

         On January 7, 2016, Petitioner filed the present Petition, alleging that his state court conviction violated his federal constitutional rights on the basis of Claims 1-5. (Dkt. No. 1, Pet.) Respondent filed an Answer and lodged the state court records on March 7, 2016, arguing habeas relief is unavailable because (a) Claim 1 and 2 do not present a federal question, but even if they do the decisions of the state courts are entitled to deference because the adjudication of those claims is neither contrary to nor an unreasonable application of Supreme Court precedence; (b) Claim 3 is unexhausted, procedurally defaulted and does not present a federal question, but can be denied irrespective of the failure to exhaust because it is without merit; and (c) the state court denials of Claim 4 and Claim 5 are neither contrary to nor an unreasonable application of Supreme Court precedence. (Dkt. No. 12; 12-1 at 11-49; 13.) On June 14, 2016, Petitioner filed a Traverse in which he admits Claim 3 is unexhausted and procedurally defaulted and requests it be withdrawn from his Petition, but argues that his remaining claims have merit. (Dkt. No. 20, Traverse at 2, 13-37.)

         B. Factual Background

         This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); see also Parle v. Fraley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from these facts, are entitled to statutory presumption of correctness). The following facts are taken from the unpublished California Court of Appeal opinion, affirming Petitioner's conviction. (Dkt. No. 13-14, Lodgment No. 7, People v. Butler, No. D063890 (Cal.App. 4th July 22, 2014).)

         A. Incidents

In 2010, Butler was in his early 20's and a tall, strong ex-Marine when he met 20-year-old Danielle (5'3” tall). They had a harmonious romantic and sexual relationship for about four months. He gave her a knife and taught her how to use it. They started to argue and physically fight about their relationship and mutual infidelity and periodically broke up, but they continued their sexual relationship off and on for about a year.
These charges arose out of an October 2011 incident involving Danielle's overnight visit to his apartment, involving drinking and consensual sex, and then the next day of being together drinking, arguing, and eventually, fighting in which she was badly injured. Additionally, the prosecution presented evidence about several incidents of Butler's earlier uncharged violent criminal conduct toward Danielle, occurring from June through September 2011. In June 2011, they argued by phone about infidelity and a sexually transmitted disease. Butler went to Danielle's home, grabbed her around the neck, threw her into a wall and door, then choked her and pushed her to the ground. Danielle's friend, Samantha P., was present and called 911, reporting that Butler was threatening to cut Danielle's throat with his knife. After less than 10 minutes, Butler handed the knife to Danielle and left. Butler was arrested and his knife confiscated from Danielle. Butler told police that he gave the knife to Danielle because he was afraid something would happen. Butler did not have any explanation for police about the reasons for the June 2011 fight.
After the June 2011 incident, the court issued a criminal protective order dated July 18, 2011 that prohibited Butler from contacting Danielle. However, they continued to call, text and see each other occasionally.
In August 2011, Butler and Danielle were driving when he angrily hit her in the throat a few times, then stopped, pulled her out of the car, and kicked her in the face and stomach. She did not go home to her parents until the next day because her injuries looked so bad. She then called police and a report was taken.
In September 2011, Butler pled guilty to dissuading a witness from reporting a crime and was released on bail, pending sentencing in November 2011. Later in September 2011, Danielle sent him some nude photographs of herself and a female friend in sexual positions together, but she then asked for the pictures back. Butler refused and told her he was going to post the photographs on the Internet. Danielle threatened to file a police report.
On September 30, 2011, Butler sent text messages to Danielle and asked her to call him, but she did not do so. She and a friend were driving away from her home when they saw Butler in his car waiting around, and he then followed her car, honked his horn and interfered with her driving, trying to get her car to veer off the road. After a few days, Danielle made a police report about the incident.
In mid-October, Danielle sent text messages to Butler, and on October 15, 2011, they had a two-hour phone conversation. They started arguing about their relationship and infidelity, and Butler wanted to come to her house, which her parents had forbidden. She wanted to keep him away from her friends and family and agreed to come to his apartment, so she could say goodbye and have “closure.” Bringing her overnight bag, Danielle drove her car to Butler's apartment around 2 a.m. For about two hours, they drank wine, talked, had consensual conventional sex, then fell asleep.
In the morning, Danielle told Butler she was going to church, but he discouraged her from doing so, and they spent the day together, eating and drinking numerous cocktails and beers at a few bars near his apartment, where they walked. He carried a knife in his pocket, as he usually did. They went to a sushi bar for dinner, but Danielle because nauseated and went to the restroom. According to her testimony, when she returned, Butler looked angrily at her and started asking her about her unfaithfulness, and telling her she had messed with the wrong person and was not going to have a good night. When he slapped her face, Danielle did not want to talk to the employees at the restaurant or make a scene, so they left, walking through a dark alley.
In the alley, Butler hit and kicked her, knocked her to the ground, and kicked her some more. When he pulled her up, she could not move her arm. Butler told her he was going to kill her and punched her in the stomach and beat her head into the ground. For about an hour, Butler dragged and pulled Danielle back toward his house, while he continued to hurt her. When they reached her parked car, Butler shoved her into the passenger seat and got in the driver's seat. She did not run away because she was afraid he would catch her and hurt her again. He unzipped his pants, showing he had an erection, and pulled Danielle's head down to his penis while he told her to orally copulate him. According to Danielle, he was holding the knife on his lap and hitting her. She told him to stop, but he continued to threaten her and force his penis into her mouth while he drove. After they traveled this way for about a half-mile, Butler parked his car, took his clothes off, pulled Danielle by the hair into the back seat, and ripped off her clothes. Danielle was on her hand and knees while he penetrated her anus several times with his penis, which hurt her. When he finished, he got dressed and started driving toward a park at the end of the street, saying he was going to kill her there where it was dark and quiet and she believed him. He parked the car and started to pull her out by the hair. As they struggled and she screamed, his knife went into her back about an inch and she started bleeding.
Butler then started walking Danielle toward the park, and they noticed that a neighbor near the park and others were watching. Butler decided to go back to the car, Danielle got into the passenger seat, and he closed the door and walked around to the driver's seat. At that point, Danielle opened her door, jumped out and ran toward the neighbor's house and bolted into it, crying, “He is going to kill me.” The neighbor, Anthony Lawrence, shut and locked the door, and had her sit down because she seemed to be hyperventilating. Next, Danielle ran up the stairs to another room and collapsed, telling Lawrence and his roommate that Butler had raped, beaten and threatened her. Lawrence called 911, telling the dispatcher that a young woman, who was a stranger to him, had run into his house to get away from a man who had been “dragging” her back to their car, while apparently using his knife to control her. Before police responded, Butler knocked on the door and called for Danielle, but they did not answer and he left.
The responding police officer testified he found Danielle on a bed in Lawrence's house, in a bruised and hysterical condition. She had a puncture wound in the center of her back and was bleeding all over the bed. Blood was found on the sidewalk outside the house. While being taken to a hospital, Danielle was crying and in pain. She described to the responding officer and a detective how Butler attacked, threatened and forced her into sex acts. She also reported she had consumed three beers and a gin and tonic that evening. She gave a similar account to a deputy district attorney and the investigating detective the next day, and later at Butler's preliminary hearing.
At the hospital, Danielle was examined by medical personnel, including an orthopedic surgeon and a sexual assault response team (SART) nurse. Danielle's injuries included a fractured wrist with significant displacement, caused by blunt force trauma, and a lacerated liver. She was very “banged up” and in pain, with bruising and soreness in her face, back and anus, where she was bleeding. The nurse could not fully examine Danielle's anal area, due to the pain, but the nurse saw one laceration there. The nurse's findings about injuries were consistent with Danielle's description of the incident, but the nurse could not rule out consensual sex as a causative factor.
Butler was arrested a few days later, at his new girlfriend's home in Oceanside. His vehicle was found in her garage.

         B. Trial Proceedings

At trial, Lawrence testified he heard a commotion outside his house at about 7:30 p.m. that day, so he looked outside and saw Butler “shepherding” Danielle by the arm back to a white car. She looked like she had been crying. After Danielle got in the car, Lawrence saw her jump out and run towards his house, screaming that her boyfriend was going to kill her, and saying she couldn't move her arm. He didn't think she seemed intoxicated.
The prosecution presented evidence about several incidents of Butler's earlier uncharged criminal violent conduct toward his ex-wife Jessica Butler, who was then also in the Marine Corps. They were married in January 2007 and had a violent argument in October 2007. When Butler slapped, pushed, and choked his then-wife, she lost consciousness. As a result, Butler pleaded guilty to a crime of domestic violence, and a criminal protective order prohibited him from contacting her. However, they continued to have a relationship.
Another violent incident took place between them in May 2008, when he threatened and chased Jessica, then seven months pregnant, and she jumped off a second-story balcony to get away from him. He ran after her and punched or kicked her, knocking her down. Butler served time in jail and in 2009, was dishonorably discharged from the Marine Corps for domestic violence.
At trial, the jury heard testimony from a domestic violence expert who explained the usual dynamics of such a relationship, such as why an abused woman might continue to return to her abuser. [Footnote: Rebuttal evidence was presented about an attack by Butler on a couple in November 2008, but it need not be summarized here.]
Butler testified in his defense, first explaining that in the Marines, he had received special training in martial arts and was a black belt instructor. He was a weapons enthusiast and usually carried a knife. During their relationship, he gave a knife to Danielle and taught her how to use it. However, he did not get his own knife back after he gave it to Danielle after the June 2011 incident.
Butler acknowledged that both he and Danielle disrespected each other when they cheated on each other, during their relationship of one and a half years. By June 2011, when they had the fight at her home, they had been together for about a year and she was angry that he had relationships with other women. That day, she told him she was unfaithful to him, using a racial slur. Butler said he pushed her against the wall, she apologized, and they both calmed down. He did not open his knife that day.
During the incident in August 2011, he said Danielle got upset when he lost the keys to a car that she was driving, but they did not fight about it. When he was arrested a few days later for assaulting Danielle, he denied it. When Danielle sent him nude photographs of herself and a female friend in September, Butler refused to give them back. He was upset about the August arrest and claimed that Danielle was threatening to lie to the police and file a false police report. He testified that he did not follow ...

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