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Flores v. S. Frauenheim

United States District Court, E.D. California

May 19, 2017

ZENON FLORES, Petitioner,
v.
S. FRAUENHEIM, Respondent.

          FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS [TWENTY-ONE DAY OBJECTION DEADLINE]

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.

         Petitioner is currently serving an indeterminate sentence of twenty-five-years-to-life plus twenty-six years for committing multiple sex acts with his stepdaughter when she was nine and thirteen years old. He has filed the instant habeas action claiming: 1) His confession should have been excluded because it was obtained in violation of Miranda[1]; 2) His confession was involuntary and a product of psychological coercion and improper promises of leniency. As discussed below, the Court finds that the state court's determinations were not contrary to or an unreasonable application of clearly established Supreme Court precedent and recommends the petition be DENIED.

         I. PROCEDURAL HISTORY

         Petitioner was convicted in the Kern County Superior Court on April 2, 2013, of: (1) sexual intercourse or sodomy with a child 10 years old or younger (Cal. Pen. Code § 288.7(a)); (2) oral copulation or sexual penetration of a child 10 years old or younger (Cal. Penal Code § 288.7(b)); (3) two counts of sodomy against the will of a victim under 14 years old by force, violence, duress, menace, or fear of bodily injury (Cal. Penal Code § 286(c)(2)(b)); (4) oral copulation by a perpetrator older than 21 with a person under 16 (Cal. Penal Code § 288a(b)(2)); and (6) a lewd act against a person under 14 (Cal. Penal Code § 288(a)). People v. Flores, No. F067133, 2015 WL 3796273, at *1 (Cal.Ct.App. June 17, 2015).

         Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). The Fifth DCA affirmed the judgment on June 17, 2015. Id. Petitioner filed a petition for review in the California Supreme Court, and the petition was summarily denied on September 9, 2015. (LD[2] 5, 6.)

         On January 5, 2016, Petitioner filed the instant petition for writ of habeas corpus in this Court. (Doc. No. 1.) Respondent filed an answer on June 23, 2016. (Doc. No. 15.) Petitioner filed a traverse on October 14, 2016. (Doc. No. 21.)

         II. FACTUAL BACKGROUND

         The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision[3]:

At trial, the victim, then 14 years old, testified that she considered Flores to be her stepfather; he lived with her mother but was not married to her. She testified that, from the time she was 9 until she was 13, Flores subjected her to sex acts around 20 times. She said yes when asked whether, each time, “[h]e would put his penis in your butt” and “he would touch your boobs.” He made her touch his penis on about half of these occasions. She told him to stop or she would tell her mother. He did not stop. He said if she told, he would do something to her mother. He showed her pornographic movies and said she had to watch them.
She did not remember seeing blood or feeling pain when Flores put his penis in her buttocks. She saw “white stuff” each time.
The victim testified about several specific instances of molestation by Flores. The first time, she was nine. Flores grabbed her while she was sleeping and took her to the bathroom. He put his hands inside her clothing and touched her breasts and buttocks. He grabbed her hands and made her touch his penis. She told him to stop but he did not stop. Flores made the victim touch his penis another time when she was nine and then made her bend over and, she said, “put his penis in my butt.” She did not know whether his penis entered her anus, but it at least pressed against her anus. Subsequently, “[w]hite stuff came out” of Flores's penis and fell on the floor.
The victim testified that she did not think Flores ever put his penis in her mouth, but she was not sure. She also said he never touched her vagina.
Dr. John Digges testified that he examined the victim on January 30, 2012. Digges was a child abuse physician employed by Kern County at the Child Assessment Center at Kern Medical Center. The victim had been brought to him, he was told, because of allegations of sexual touching that took place starting when she was nine. The examination yielded normal results. There were no injuries indicating penetration of the genitals or anus. The anus, however, could have been penetrated repeatedly without any detectable injury remaining by the time of the examination. The findings were consistent with both anal penetration and abuse by rubbing the penis against the exterior of the anus.
Flores was interviewed at a police station by detectives César Ollague and James Conner. Flores spoke Spanish during the interview, and Ollague, who is bilingual, interpreted for both Flores and Conner. A recording of the interview was played for the jury. At first, Flores denied ever touching the victim sexually. Eventually, however, he said the victim touched his penis when she was about 9 or 10, and that he had vaginal intercourse with her three or four times starting when she was 13. Flores ejaculated but not inside the victim. Flores also said the victim put her mouth on his penis more than 20 times. He touched the victim's breasts and kissed her mouth when they had intercourse, but he denied that he put his mouth on her vagina. The last time he had sex with the victim was about 15 days before the interview. On that occasion, there might have been either vaginal or anal intercourse. Flores said the sex acts were consensual and the victim never told him to stop. At the end of the interview, Flores complied with the detectives' request that he write a letter to the victim. In the letter, Flores apologized and promised never to do “these things” again. Conner said Flores would need to be more specific, so Flores added that there would be no more sexual relations.

Flores, 2015 WL 3796273, at *1-2.

         III. DISCUSSION

         A. Jurisdiction

         Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Kern County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d).

         On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

         B. Legal Standard of Review

         A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the petitioner can show that the state court's adjudication of his 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); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 412-413.

         A state court decision is “contrary to” clearly established federal law “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 is materially indistinguishable from a [Supreme Court] decision but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-406).

         In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that an “unreasonable application” of federal law is an objective test that turns on “whether it is possible that fairminded jurists could disagree” that the state court decision meets the standards set forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Cullen v. Pinholster, 563 U.S. 170, 203 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement.” Harrington, 562 U.S. at 103.

         The second prong pertains to state court decisions based on factual findings. Davis v. Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). Under § 2254(d)(2), a federal court may grant habeas relief if a state court's adjudication of the petitioner's claims “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.” Wiggins v. Smith, 539 U.S. 510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). A state court's factual finding is unreasonable when it is “so clearly incorrect that it would not be debatable among reasonable jurists.” Jeffries, 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004).

         To determine whether habeas relief is available under § 2254(d), the federal court looks to the last reasoned state court decision as the basis of the state court's decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). “[A]lthough we independently review the record, we still defer to the state court's ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

         The prejudicial impact of any constitutional error is assessed by asking whether the error had “a substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007) (holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness).

         C. Rev ...


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