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Diaz v. Dean Bs

United States District Court, E.D. California

June 27, 2017

JOSE G. DIAZ, Petitioner,
v.
DEAN BS, Warden, California Institution for Men, [1]Respondent.

          MEMORANDUM DECISION

          JAMES K. SINGLETON, JR. Senior United States District Judge

         Jose G. Diaz, a California state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Diaz is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at the California Institution for Men in Chino, California. Respondent has answered, and Diaz has not replied. Also before the Court is Diaz's motion to stay the federal proceedings. Respondent opposes the stay request, and Diaz has replied in support.

         I. BACKGROUND/PRIOR PROCEEDINGS

         On September 11, 2008, Diaz was charged with one count of continuous sexual abuse of a child under 14 years (Count 1) and ten counts of lewd and lascivious conduct (Counts 2 through 11) in connection with offenses committed upon his stepdaughter. Diaz did not contest the sexual abuse at trial and did not challenge the charges alleged in Counts 2 through 11, which were alleged to have occurred after the victim turned 14. The sole issue at trial was whether the victim was 13 years old for the 3 acts of abuse, each separated by at least 1 month, required by statute for conviction on Count 1.[2] The jury convicted him of all counts based upon the testimony of the victim and Kim Mack, a marriage and family therapist to whom Diaz confessed to the abuse. After trial, Diaz moved for a new trial, supported by a sworn declaration from the victim stating that she had been mistaken when she claimed at trial that she was “very sure” she was 13 when the abuse began, and now believed she was actually 14 at the time. The court denied the motion and, on the same day, sentenced Diaz to an imprisonment term of 18 years and 8 months.

         Through counsel, Diaz appealed his conviction. He challenged only his conviction on Count 1, on the grounds that the trial court abused its discretion when it denied his motion for a new trial on that count based upon new evidence-the victim's partial recantation. On direct appeal of his conviction, the California Court of Appeal laid out the following facts underlying this case and the evidence presented at trial and in the motion for new trial:

Trial
[Diaz], Victim's stepfather, continuously sexually abused her from when she was 13 years old until she was 16 years old. The abuse took various forms, including sexual intercourse, and occurred six nights per week. Victim testified at trial that the abuse first occurred “a couple weeks after [her] 13th birthday.” She also testified that she was still 13 years old when sexual intercourse occurred for the first time. She further testified that [Diaz] continued to abuse her in the same manner throughout the remainder of her 13th year, and through all of her 14th and 15th years. Victim did not report the abuse to the police. However, [Diaz] confessed to a marriage and family counselor, Kim Mack, who by law was required to report the abuse.
At trial the prosecution called two witnesses and the defense called none. Mack testified both as to what he told Child Protective Services (CPS) after [Diaz] confessed to him and what he remembered about [Diaz's] confession directly. On cross-examination, defense counsel pressed Mack only on his testimony that [Diaz] told him that Victim was “roughly 13 years old” when the abuse began. Specifically, counsel focused on the apparent discrepancy between this testimony and certain information Mack provided on the written CPS form. On that form Mack related that the abuse had commenced two to three years earlier. Since Victim was 17 years of age at the time the form was prepared, she would have been older than 13 when the abuse began.
Victim testified as to the nature and timeframe of the abuse. On cross-examination defense counsel tried to raise a doubt as to Victim's age when the abuse commenced. Specifically, counsel asked whether she could “tie the beginning of this to any particular incident . . . ?” Victim could not, but still asserted she was sure she was 13 when the abuse started.
In his closing argument, defense counsel argued that had the abuse occurred when Victim claimed it did, the September 11, 2001 attacks would have occurred during the abuse. Counsel attempted to paint Victim's testimony as unreliable because she did not mention the September 11 attacks in response to his request for a link between the start of the abuse and a major event on cross-examination. The jury, evidently unconvinced, convicted [Diaz] on all counts.
Motion for New Trial
Defense counsel and a private investigator met with Victim and her mother after trial to discuss her testimony. At that time counsel walked Victim through the relevant timeframe. Following this interview, Victim signed a declaration stating that she “believe[s][she] was [14] years old when [appellant] began molesting [her].”
[Diaz] based his motion for a new trial on count 1 on this new evidence. Victim testified at the hearing for the motion that on September 11, 2001, she was still a middle school student. However, she recalled that the abuse did not begin until she was in high school. Since Victim was born in August 1988, she would have been 14 years old when she started high school in the fall of 2002. She testified she “could have been 14.” The trial judge denied the motion based upon two primary factors: the “new” evidence could have been discovered at trial with reasonable diligence and the testimony was “not . . . particularly credible.”

People v. Diaz, No. A126544, 2010 WL 3065247, at *1-2 (Cal.Ct.App. Aug. 6, 2010).

         The Court of Appeal affirmed Diaz's conviction, finding that the trial court acted within its discretion when it determined that the new evidence could have been discovered at trial by the exercise of reasonable diligence by defense counsel during cross-examination and that the victim's additional testimony was not credible. Id. at 1. Diaz petitioned for review in the California Supreme Court, which was summarily denied on November 12, 2010.

         Diaz then filed in the superior court a pro se habeas petition dated July 25, 2011. In that petition, he argued that: 1) the filing of the information, complaint, and arrest warrant after the statute of limitations had already run violated his ex post facto and due process rights under the state and federal constitutions; and 2) the filing of the complaint 2 years after he had already admitted his criminal conduct violated his right to a speedy trial under the state and federal constitutions. The superior court denied the speedy trial claim as procedurally barred and also denied the statute of limitations and ex post facto claims for failure to state a prima facie case for relief.

         Diaz then filed in the Court of Appeal a pro se habeas petition alleging that: 1) the application of California Penal Code § 801.1(b)[3] violated the Ex Post Facto Clause of the federal constitution; 2) the filing of the information, complaint, and arrest warrant after the statute of limitations had already run resulted in pre-accusation delay in violation of the state and federal constitutions; and 3) the filing of the complaint 2 years after he had already admitted his criminal conduct violated his due process right to be free of pre-accusation delay and his right to a speedy trial under the state and federal constitutions. The appellate court found the speedy-trial claim procedurally defaulted and also denied the statute of limitations and ex post facto claims for failure to state a prima facie case for relief.

         Diaz next filed in the California Supreme Court a habeas petition raising a single claim: the filing of the complaint two years after he had already admitted his criminal conduct violated his federal due process right to be free of pre-accusation delay. On October 10, 2012, the court denied the petition with citation to In re Dixon, 264 P.2d 513, 514 (Cal. 1953), which indicates that the state court found it to be barred because it could have been, but was not, raised on direct appeal.

         Diaz then timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on October 18, 2012, Docket No. 1. See 28 U.S.C. § 2244(d)(1)(A). He concurrently filed a motion to stay the federal proceedings to exhaust his state court remedies, Docket No. 3.

         Diaz then filed another pro se habeas petition in the superior court raising the following claims: 1) statutorily defective arrest warrant in violation of his rights to due process and a fair trial; and 2) ineffective assistance of trial counsel for failing to bring a motion to dismiss based on the defective arrest warrant. The superior court denied the petition as successive and untimely.

         Shortly thereafter, Diaz filed in this Court a second motion to stay the federal proceedings to exhaust his state court remedies. Docket No. 7. On September 30, 2013, the Court ...


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