United States District Court, S.D. California
(1) GRANTING PETITIONER'S REQUEST TO AMEND HIS PETITION
(DOC. NO. 43); (2) ADOPTING THE REPORT AND RECOMMENDATION
(DOC. NO. 56); (3) DISMISSING BOTH PETITIONER'S HABEAS
PETITIONS (DOC. NOS. 1, 43); AND (4) DENYING MOTION FOR
CERTIFICATE OF APPEA LABILITY (DOC. NO. 60).
ANTHONY J. BATTAGLIA UNITED STATES DISTRICT JUDGE.
the Court is Petitioner's habeas petition, (Doc. No. 1),
motion for proposed amendment to the habeas petition, (Doc.
No. 43), the Magistrate Judge's report and recommendation
to deny Petitioner's habeas petition, (Doc. No. 56),
Petitioner's objections and supplemental objections (Doc.
Nos. 56, 62), and Petitioner's motion for certificate o
appealability, (Doc. No. 60).
reasons stated herein, the Court ADOPTS the
Magistrate Judge's R&R. (Doc. No. 56.) The Court also
GRANTS Petitioner's proposed amendment,
(Doc. No. 43), but DISMISSES the claims
raised in both his original habeas petition, (Doc. No. 1),
and the amended petition, (Doc. No. 43). Finally, the Court
DENIES Petitioner's request for a
certificate of appealability. (Doc. No. 60.)
Court incorporates the procedural background and underlying
facts as laid out in the report and recommendation, and will
briefly reiterate the points pertinent to this order. (Doc.
No. 56 at 3-17.)
was convicted for one count of forcible rape and two counts
of forcible oral copulation. The victim testified she ended
up with Petitioner in his RV after a night out with her
friend. The two talked for a while in the RV and agreed to
get breakfast together. Petitioner attempted to kiss the
victim, but she rebuffed his advances. On the way to the
restaurant, Petitioner stopped at a convenience store to buy
cigarettes. After, Petitioner drove the RV back to a parking
lot, instead of to the restaurant, causing the victim to
begin to worry. Once in the parking lot, Petitioner
propositioned the victim to perform a sexual act on her in
exchange for money. She refused. Petitioner then became
aggressive, punching her, pushing her, and blocking her from
exiting. She testified that Petitioner pulled a knife out of
a drawer and held it to her throat while threatening her
life. After putting the knife away, he “allowed”
her to leave, but when she tried to, he punched her again and
threatened to drug her. Petitioner then forced the victim to
orally copulate him and used various threats against her
until she complied with staying; ultimately raping her.
Eventually, the victim managed to escape and reported him to
events at trial form the basis of petitioner's habeas
arguments. First, the jury “returned a not true finding
on the allegation that [Petitioner] personally used a knife
during those offenses.” (Doc. No. 56 at 15.) The jury
also could not reach a verdict regarding count four, rape by
a foreign object, and count five, false imprisonment through
violence, menace, fraud, or deceit. After the verdicts were
reached, but before the verdicts were accepted, the
prosecutor amended the information “to charge two
strikes arising from the Oklahoma conviction rather than one,
over a defense objection that the amendment was untimely and
violated double jeopardy having come after the previous
mistrial.” (Id.) In a bifurcated bench trial
on the prior Oklahoma convictions, the court took judicial
notice of that victim's-Cheryl B.'s-testimony over
defense counsel's objections.
court shall make a de novo determination of those portions of
the [report and recommendation] to which objection is
made.” 28 U.S.C. § 636(b)(1). The “statute
makes it clear that the district judge must review the
magistrate judge's findings and recommendations de novo
if objection is made, but not otherwise.” United
States v. Reyna- Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc) (emphasis in original); see also Schmidt
v. Johnstone, 263 F.Supp.2d 1219, 1225-26 & n.5 (D.
Ariz. 2003) (applying Reyna-Tapia to habeas review).
Petitioner's first 37-page objection, he makes repetitive
arguments, contesting the same points as his petition and
traverse. (Doc. No. 59.) Some of his arguments fail to reach
the merits of the R&R's analysis, and simply
reiterate general assertions that the R&R's analysis
is incorrect (by restating his original arguments). The
cornerstone of his objections rest on his belief that the
victim's testimony was not credible and failed to provide
the basis for the jury's finding of force on the forcible
rape charge. Petitioner doubles-down on this argument,
stating that because the jury found her knife allegations not
true, there was no force used to support the rape conviction.
However, because those arguments fail, the majority of his
petition also crumbles. The Court discusses his various
objections in turn.
California Supreme Court's Failure to Adjudicate on the
argues that “[t]he California Supreme Court's
silent denial of Petitioner's habeas corpus petition,
does-not [sic] constitute an adjudication on the
merits.” (Doc. No. 59 at 3-4 (extraneous quotation
marks omitted).) This argument fails to address the merits of
the R&R's analysis of his first claim, but rather,
takes issue with the procedure itself. In the R&R, the
Court took the state Supreme Court's “silent
denial” as affirmation of the lower court's
reasoning. (Doc. No. 56 at 21.) The R&R states
“[t]here is a presumption that ‘[w]here there has
been one reasoned state judgment rejecting a federal claim,
later unexplained orders upholding that judgment or rejecting
the same claim rest upon the same ground.'”
(Id. (citing Ylst v. Nunnemaker, 501 U.S.
797, 803-06 (1991)).) Thus, the R&R “look[ed]
through the silent denial of this claim by the state supreme
court on direct appeal to the last reasoned state court
opinion addressing the claim . . . ...