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Hendrix v. Hatton

United States District Court, N.D. California

April 4, 2018

SHAWN HATTON, Respondent.


          EDWARD M. CHEN, United States District Judge


         Sumadi 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.


         The 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 hand back.
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 defendant.
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 buccal swabs.

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.

         Following the jury trial in Santa Clara County Superior Court, Mr. Hendrix was convicted of assault with the intent to commit rape.[1] He was sentenced to 13 years in prison.

         Mr. 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.

         Mr. 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 decision.


         This 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).


         This 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).

         The 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).

         “Under 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).

         “Under 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.

         Section 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.

         V. DISCUSSION

         A. Instructional Error Claim

         Mr. Hendrix's first claim concerns the use of the phrase “by its nature” in the following jury ...

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