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White v. Frauenheim

United States District Court, E.D. California

July 19, 2017

DALLAS RANDOLPH WHITE, Petitioner,
v.
SCOTT FRAUENHEIM, Warden, 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 103 years-to-life for multiple sex offenses committed against a child under 10 years old. He has filed the instant habeas action challenging his conviction and sentence. As discussed below, the Court finds that the state court rejections of his claims were not contrary to or an unreasonable application of clearly established Supreme Court precedent and recommends the petition be DENIED.

         I. PROCEDURAL HISTORY

         On June 18, 2013, Petitioner was convicted in the Stanislaus County Superior Court of: one count of engaging in sexual intercourse or sodomy with a child 10 years of age or younger (Cal. Penal Cod § 288.7(a)); one count of engaging in oral copulation or sexual penetration with a child 10 years of age or younger (Cal. Penal Code § 288.7(b)); one count of oral copulation with a child under 14 years of age (Cal. Penal Code § 288a(c)(1)); one count of sexual penetration with a person under 14 years of age (Cal. Penal Code § 289(j)); and one count of committing a lewd or lascivious act upon a child under 14 years of age (Cal. Penal Code § 288(a)). People v. White, No. F067535, 2015 WL 1261445, at *1 (Cal.Ct.App. Mar. 18, 2015), review denied (June 24, 2015). In addition, Petitioner admitted he had suffered a prior strike for robbery and had served two prison terms. Id. Petitioner was sentenced to an aggregate term of 103 years-to-life in state prison. Id.

         Petitioner appealed to the California Court of Appeal, Fifth Appellate District (hereinafter “Fifth DCA”). On March 18, 2015, aside from corrections to the abstracts concerning certain terminology, the judgment was affirmed. Id. Petitioner filed a petition for review in the California Supreme Court, which was summarily denied on June 24, 2015. Id.

         On September 19, 2016, Petitioner filed the instant petition for writ of habeas corpus in this Court. (Doc. No. 1.) Respondent filed an answer on February 3, 2017. (Doc. No. 20.) Petitioner did not file a traverse.

         II. FACTUAL BACKGROUND

         The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision[1]:

At trial, Jane Doe's mother (Mother) testified she was married to defendant's son, but her oldest child, Jane Doe, had a different father. According to Mother, defendant lived in her home from June 2009 until June 2011. On June 11, 2011, Mother observed that Jane's vaginal area was red and irritated. Despite questioning, Jane did not reveal the cause of the redness or irritation. Mother became concerned after observing the vaginal irritation as Jane had been “acting funny” in the preceding weeks. Specifically, Mother noted Jane had recently begun sleeping in the hallway or alongside Mother's bed, and she also had been demonstrating inappropriate sexual vocabulary. Mother also recalled that earlier that day she had walked in on defendant and Jane together, and Jane fled the room, claiming to have defecated in her pants, while defendant's suspenders were loose and his pubic hair was exposed.
The next day, Jane informed Mother that defendant had touched her vagina. At that time, Mother removed her children from the home, contacted the police, and took Jane to the hospital to be evaluated. Upon returning home, Mother collected from the laundry pile a pair of underwear Jane had been wearing the previous day and placed them in a Ziploc bag. Mother later turned that bag over to the police on June 21, 2011, ten days after first contacting the police.
Mother testified she had not previously observed any cuts or abrasions on Jane's vagina, but when she came home on June 11, 2011, the same day she later noticed the redness and irritation on Jane's vagina, she found defendant and Jane together.
She testified Jane fled the room, claiming to have defecated in her pants, and defendant's suspenders were loose and his pubic hair was exposed.
Jane testified defendant had sexually abused her on several occasions while she was in first grade. Specifically, defendant had touched her breasts, repeatedly penetrated her vagina with his fingers and penis, placed his mouth on her vagina, inserted his penis into her rectum, and made Jane perform oral sex on him. Jane observed “clear stuff” coming out of defendant's penis, and defendant told her not to tell anyone.
Joanna Franks, a registered nurse, conducted the forensic “Sexual Assault Response Team” (SART) exam on Jane and noted bruising in the area between Jane's buttock and thigh, as well as redness and a possible healing bruise on Jane's vaginal opening. Franks did not find evidence of bodily fluids or any injuries to Jane's hymen or rectum. According to Franks, however, past penetrative sex would not always cause visible damage to those areas as they were capable of healing rapidly. Franks acknowledged she could not definitively conclude the injuries present on Jane's exam were caused by sexual abuse rather than a fall or general irritation.
The underwear provided to the police by Mother tested positive for seminal fluid and spermatozoa, but there was insufficient DNA in the sample to determine the source of the semen.

White, 2015 WL 1261445, 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 Stanislaus 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. Review of Claims

         Petitioner raises the following claims challenging his conviction and sentence: 1) The trial court erred in admitting the underwear and related biological evidence; 2) The trial court erred in admitting expert testimony; 3) The presence of a support person for the victim absent any particularized showing of need violated Petitioner's Sixth Amendment right to confrontation and due process right to a fair trial; 4) The trial court erred in failing to sua sponte instruct the jury concerning Petitioner's admissions; 5) The reasonable doubt instructions were erroneous; 6) The cumulative effect of the errors deprived Petitioner of due process and a fair trial; and 7) The term of 103 years-to-life constituted cruel and unusual punishment.

         1.Admission of Evidence

         Petitioner claims that the trial court erred by admitting the underwear and related biological evidence in the case. He argues that the evidence was lacking in foundation and relevance, and at a minimum, was grossly and unduly prejudicial, thereby denying him a fair trial.

         a. State Court Decision

         Petitioner presented this claim on appeal. In the last reasoned decision, the Fifth DCA denied the claim as follows:

Prior to trial, defense counsel moved to exclude Jane Doe's underwear and the forensic tests performed on them from evidence. Defendant claimed the evidence was more prejudicial than probative, as the source of the semen could not be determined, ten days passed before Mother turned the underwear over to police, and a recent study had shown semen could be transferred between articles of clothing in a washing machine. Following a hearing, the trial court denied defendant's motion, finding the evidence was more probative than prejudicial, and defendant's arguments for exclusion went to the weight of the evidence rather than its admissibility.
On appeal, defendant renews his objection to the admission into evidence of Jane's underwear and related forensic tests, again asserting the evidence was more prejudicial than probative. We disagree. We review a trial court's decision to admit evidence for an abuse of discretion. (People v. Avitia (2005) 127 Cal.App.4th 185, 193.) An abuse of discretion occurs when a court exercises its discretion in an “arbitrary, capricious, or patently absurd manner that result[s] in a miscarriage of justice.” (Ibid.)
Under Evidence Code section 352, a trial court has the discretion to exclude evidence “if its probative value is substantially outweighed by the probability that its admission will ... create substantial danger of undue prejudice.” While the admission of semen-stained underwear was certainly damaging to defendant's case, “‘[i]n applying [Evidence Code] section 352, “prejudicial” is not synonymous with “damaging.”' [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638, quoting People v. Yu (1983) 143 Cal.App.3d 358, 377.) Instead, evidence is only unduly prejudicial if it “‘uniquely tends to evoke an emotional bias against defendant as an individual and ... has very little effect on the issues.'” (People v. Bolin (1998) 18 Cal.4th 297, 320, quoting People v. Yu, supra, at p. 377.)
The forensic testing in this case had a profound effect on the issues, even in the absence of definitive proof that the semen came from defendant. Jane Doe testified defendant sexually assaulted her and ejaculated in her presence, and the presence of semen on Jane's underwear tended to corroborate those claims. Such corroborating physical evidence has obvious probative value. (People v. Clark (2011) 52 Cal.4th 856, 923 [“Here, notwithstanding the expert's inability to type the semen stain, the evidence tended to show defendant's guilt of attempted rape”].)
Moreover, that probative quality was not outweighed by any prejudicial effect as contemplated by Evidence Code section 352. That section “‘uses the word in its etymological sense of “prejudging” a person or cause on the basis of extraneous factors. [Citation.]' [Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 958.) The physical evidence in this case did not run the risk of causing the jury to prejudge defendant on “extraneous” factors, as it directly related to actual crimes for which defendant stood accused.
Further, defendant's repeated assertion that the semen could have been transferred in the washing machine does nothing to decrease the probative value of the evidence in question. At trial, expert testimony established the underwear had not been laundered, and it tested positive for not only spermatozoa but also seminal fluid, which cannot be transferred by the laundering process.
Likewise, neither the delay in turning the underwear over to police nor the fact there was insufficient DNA evidence to conclusively determine the source of the semen on the underwear renders the evidence in question inadmissible. The trial court correctly noted those facts go to the weight of the evidence, not its admissibility. (People v. Clark, supra, 52 Cal.4th at p. 923 [“Defendant's argument goes to the weight, not the admissibility, of the semen stain evidence”].) In order to be admissible, evidence need only be relevant, not beyond reproach. As the evidence in question was obviously relevant to the primary question in this case, we find the trial court did not abuse its discretion by denying defendant's motion to exclude the evidence. (Ibid. [no abuse of discretion in admitting evidence of semen stain on defendant's boxer shorts in attempted rape prosecution even though source of stain could not be scientifically established].)

White, 2015 WL 1261445, at *2-3.

         b. Legal Standard and Analysis

         A federal court in a habeas proceeding does not review questions of state evidence law. Our inquiry is limited to whether the evidence ruling “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.” 28 U.S.C. § 2254(d)(1). With respect to the admission of evidence, there is no Supreme Court precedent governing a court's discretionary decision to admit evidence as a violation of due process. In Holley v. Yarborough, the Ninth Circuit stated:

Under AEDPA, even clearly erroneous admissions of evidence that render a trial fundamentally unfair may not permit the grant of federal habeas corpus relief if not forbidden by “clearly established Federal law, ” as laid out by the Supreme Court. 28 U.S.C. § 2254(d). In cases where the Supreme Court has not adequately addressed a claim, this court cannot use its own precedent to find a state court ruling unreasonable. Musladin, 549 U.S. at 77, 127 S.Ct. 649.
The Supreme Court has made very few rulings regarding the admission of evidence as a violation of due process. Although the Court has been clear that a writ should be issued when constitutional errors have rendered the trial fundamentally unfair, see Williams, 529 U.S. at 375, 120 S.Ct. 1495, it has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ. Absent such “clearly established Federal law, ” we cannot conclude that the state court's ruling was an “unreasonable application.” Musladin, 549 U.S. at 77, 127 S.Ct. 649. Under the strict standards of AEDPA, we are therefore without power to issue the writ . . . .

Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009); see Moses v. Payne, 555 F.3d 742, 760 (9th Cir. 2008) (holding that trial court did not abuse its discretion in excluding expert testimony “[b]ecause the Supreme Court's precedents do not establish a principle for evaluating discretionary decisions to exclude the kind of evidence at issue here”). Since there is no clearly established Supreme Court precedent governing a trial court's discretionary decision to admit evidence as a violation of due process, habeas relief is foreclosed. Id. Therefore, Petitioner cannot demonstrate that ...


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