United States District Court, N.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS
M. CHEN, United States District Judge
Hendrix filed this action for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 to challenge his state
court conviction for assault with intent to commit rape.
Respondent has filed an answer to the petition and Mr.
Hendrix has filed a traverse. For the reasons discussed
below, the Court denies the petition.
California Court of Appeal described the evidence at trial:
On January 21, 2012, Margaret Doe was living in a San Jose
apartment. Margaret drove home alone that night and, at about
11:30 p.m., she parked on the street, which ended in a
cul-de-sac. She was wearing a loose pullover sweatshirt. It
was “really dark.” She collected her things, got
out of the car and closed the door, and discovered defendant
standing two to three feet away from her, which shocked her.
He had a pit bull puppy on a leash with him. Margaret had
seen defendant walking his dog around the neighborhood before
but had never had a conversation with him.
Defendant twice asked Margaret whether she wanted to go on a
walk with him. She said no both times; she was feeling
nervous and anxious. Margaret began to walk toward her
apartment, which was about 20 feet away. For about “a
good ten feet, ” defendant walked alongside her at the
same pace. At this point, she was terrified. Margaret walked
past her apartment and continued walking straight instead of
turning toward her apartment because defendant was in between
her and her apartment.
At some point, defendant moved in front of Margaret and
“bear-hugged” her. He grabbed Margaret around her
shoulders with both of his arms; her arms were down by her
sides. Defendant then put one arm around her waist and, with
his other hand, touched her back, breasts, stomach, legs, and
her buttocks over her sweatshirt or jeans. He groped her
breasts for approximately five seconds and squeezed her
buttocks with his whole hand. Margaret tried to resist by
pushing against defendant's chest with her forearms. She
was scared and she did not want to anger him because she was
afraid he would hit her.
Margaret said that her roommate was coming and she had to go.
Defendant asked her whether she had ever had sex with a black
man before. She said no. Defendant queried whether he could
be her first. He asked her to have sex with him. She said
that she did not want to. His hand was continually around her
waist. Margaret was not giggling, smiling, or flirting with
him. Defendant indicated that sex would happen only one time
because he did not want his girlfriend to find out. He
specifically told her that he did not want her telephone
number. Defendant said that his girlfriend and he had a baby
together and defendant and Margaret “would have to keep
it a secret or else it would ruin his life.” Defendant
said something like, “After we're done here,
you're not going to tell my girlfriend.” Defendant
asked Margaret if she was “good at giving head”
and whether she “would give it to him.” Margaret
said that “he should have his girlfriend do that for
him.” She did not agree to give him oral sex.
Defendant held Margaret's wrist and tried to put her hand
down his pants. She kept resisting and was able to pull her
During this period of touching, Margaret had repeatedly
stepped back from defendant, who followed. At some point,
Margaret realized that they had backed up to the curb next to
the wall of the freeway. She was concerned because there was
no light there and there were bushes. No. one else was out on
the street. Margaret was feeling terrified. Defendant put his
hand in the pockets of Margaret's jeans and tried to pull
down her pants. She “tried to grab the belt loops and
pull them back up.” Defendant told Margaret that he was
stronger than she. She understood that statement to mean that
if she fought him or made a scene, she could not stop him.
Margaret did not scream because she thought that he might hit
her or grab her mouth and “that would be it.”
Defendant began kissing her neck and she tried to pull away.
He tried to open her mouth with his fingers. He told her that
she would like this and she wanted it. She tried to tell him
that she did not want it or like it but that did not stop
One car pulled up and did a quick U-turn but that did not
stop defendant. A few minutes later, a second car came down
the street, stopped, and double parked with its lights on.
When the second car illuminated the area where they were,
defendant let Margaret go and stepped back. Margaret ran fast
to her car, got inside, and drove to her cousin Johnny's
house, which was not far. She was crying, upset, and shaking.
Margaret's interaction with defendant had lasted between
10 to 15 minutes.
Margaret told her cousin what had happened. She did not call
the police; she did not think there was anything anyone could
do because she was not raped and she was not hit. She was
there approximately 45 minutes. Margaret's cousin told
her to go to her sister and her sister would advise her.
Margaret's sister received a call from Margaret, who was
“really, really upset” and crying. Margaret drove
to her sister's home and told her sister that a black man
had tried to rape her. Margaret's sister called their
mother and they convinced Margaret to call police.
Margaret's sister telephoned 9-1-1 for her and Margaret
spoke with the operator.
At about 3:45 p.m. on January 22, 2012, San Jose Police
Officer Angelo Delossantos responded to a call of attempted
rape. The officer went to the home of Margaret's sister
and spoke with Margaret, who was very scared. Officer
Delossantos collected a DNA sample from Margaret's neck
using a swab.
On April 27, 2012, Margaret subsequently selected a
photograph of defendant from a six-photograph lineup.
On August 2, 2012, while Margaret was working at Jamba Juice
in Willow Glen, defendant came into the store with a female
and a baby. She recognized him and they looked at each other
and froze. She was scared and went into the back of the
store, where she watched the store's cameras. Defendant
remained in the store for some time. She called the detective
assigned to the case. On August 2, 2012, San Jose Police
Officer Tina Latendresse received a telephone call from
Margaret, who “sounded panicked, frantic, [and]
scared....” On September 10, 2012, Officer Latendresse
collected DNA samples from defendant's cheeks using
People v. Hendrix, No. H040456, 2015 WL 3883173
(Cal.Ct.App. June 24, 2015) at *1-3. Evidence was presented
that the DNA swab from Ms. Doe's neck contained a mixture
of female and male DNA, and that Ms. Doe was the source of
the female DNA. A criminologist testified that “the
evidence was 'extremely strong' that Margaret and
defendant were the contributors” of the DNA on the swab
taken from Margaret's neck. Id. at *3.
the jury trial in Santa Clara County Superior Court, Mr.
Hendrix was convicted of assault with the intent to commit
rape. He was sentenced to 13 years in prison.
Hendrix appealed. The California Court of Appeal affirmed his
conviction in June 2015, and the California Supreme Court
denied his petition for review in September 2015. Mr. Hendrix
also filed a petition for writ of habeas corpus in the
California Supreme Court, which was summarily denied in April
2016. Docket No. 1 at 8.
Hendrix then filed his federal petition for writ of habeas
corpus. His petition presents the following claims: (1) his
Fourteenth Amendment right to due process was violated
because the CALCRIM 890 jury instruction used at his trial
“is void for vagueness, ” Docket No. 1 at 10; (2)
his Fourteenth Amendment right to due process was violated
because the evidence was insufficient to support his
conviction; and (3) his Sixth Amendment right to effective
assistance of counsel was violated in that counsel (a)
“recommended even insisted that petitioner not take the
stand because Margaret's inconsistencies were enough,
” and (b) did not move to dismiss or object to the use
of the 9-1-1 tape. Docket no. 7-9 at 105. The Court ordered
Respondent to show cause why the petition should not be
granted. Respondent has filed an answer to the petition, and
Mr. Hendrix has filed a traverse. The matter is now ready for
JURISDICTION AND VENUE
Court has subject matter jurisdiction over this action for a
writ of habeas corpus under 28 U.S.C. § 2254. 28 U.S.C.
§ 1331. This action is in the proper venue because the
petition concerns the conviction and sentence of a person
convicted in Santa Clara County, California, which is within
this judicial district. 28 U.S.C. §§ 84, 2241(d).
STANDARD OF REVIEW
Court may entertain a petition for writ of habeas corpus
“in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a).
Antiterrorism And Effective Death Penalty Act of 1996
(“AEDPA”) amended § 2254 to impose new
restrictions on federal habeas review. A petition may not be
granted with respect to any claim that was adjudicated on the
merits in state court unless the state court's
adjudication of the 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).
the 'contrary to' clause, a federal habeas court may
grant the writ if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question
of law or if the state court decides a case differently than
[the] Court has on a set of materially indistinguishable
facts.” Williams (Terry) v. Taylor, 529 U.S.
362, 412-13 (2000).
the 'unreasonable application' clause, a federal
habeas court may grant the writ if the state court identifies
the correct governing legal principle from [the Supreme]
Court's decisions but unreasonably applies that principle
to the facts of the prisoner's case.” Id.
at 413. “[A] federal habeas court may not issue the
writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable.”
Id. at 411. “A federal habeas court making the
'unreasonable application' inquiry should ask whether
the state court's application of clearly established
federal law was 'objectively unreasonable.'”
Id. at 409.
2254(d) generally applies to unexplained as well as reasoned
decisions. “When a federal claim has been presented to
a state court and the state court has denied relief, it may
be presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law
procedural principles to the contrary.” Harrington
v. Richter, 562 U.S. 86, 99 (2011). When the state court
has denied a federal constitutional claim on the merits
without explanation, the federal habeas court “must
determine what arguments or theories supported or . . . could
have supported, the state court's decision; and then it
must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent
with the holding in a prior decision of [the U.S. Supreme]
Court.” Id. at 102.
Instructional Error Claim
Hendrix's first claim concerns the use of the phrase
“by its nature” in the following jury ...