United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE.
is a California state prisoner proceeding pro se with an
application for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. On September 23, 2014 and in the Sacramento
County Superior Court, a jury found petitioner guilty of
first degree residential burglary (Cal. Pen. Code §
459), rape (§ 261, subd. (a)(2)), and robbery (§
211). The jury also found true an allegation that the rape
was committed during the commission of a first-degree
burglary with the intent to commit theft (§ 667.61,
subd. (e)(2)). Finally, the jury found petitioner not guilty
of assault with intent to commit oral copulation, but found
him guilty of the lesser included offense of simple assault
petitioner raises three claims on federal habeas review.
First, he argues that the trial court “coerced”
and “caus[ed] un[n]ecessary pressure on a deadlock[ed]
jury” by providing a deadlock-breaking instruction.
Second, he argues that insufficient evidence supports his
rape conviction. Third, he argues that his trial counsel was
constitutionally ineffective for not adequately communicating
with him during trial.
reasons stated below, the court recommends that this petition
be denied in its entirety.
2013, Mona Doe lived alone in an apartment on Power Inn Road
in Sacramento. An injury to her spine, sustained when she was
three years old, rendered her incapable of walking and
necessitated use of a wheelchair. Nevertheless, Doe retained
some feeling below her waist.
lived in the same apartment complex as Doe and she was
familiar with him. In the fall of 2013, petitioner knocked on
her door and asked if she was single. Doe explained that she
was divorced, indicated that she had to go, and closed the
door. She felt that petitioner was “hitting on
her.” On a subsequent day, an object was thrown through
Doe's apartment window. She reported the incident to
police and went outside to examine the area. Doe saw
petitioner there and he expressed concern about the window.
a.m. on December 21, 2013, Doe heard a banging on her door.
Without opening the door, Doe demanded to know who it was. A
man responded that he was with “maintenance.” Doe
told the man to go to the window and, when he did so, she
recognized him as the petitioner. He told Doe that she needed
to sign some papers. She told him to come back in the
morning. Petitioner moved back to the door and started
banging on it again. Doe took her phone and tried to call her
brother for help.
crashed through her window. Doe began to cry and scream.
Petitioner took her phone, put in his pocket, and told Doe to
quiet herself. He told her that he just wanted to be with
her. When Doe kept screaming and crying, he struck her in the
face several times. She stopped crying because she believed
that petitioner was going to kill her. Petitioner exposed his
genitals roughly a foot from Doe's face. She told him
“No, I can't do that.” Doe offered him all
the money she had - ten dollars - and her laptop if he would
agree to leave. Petitioner declined the offer and reiterated
his desire to be with her.
began to move Doe, in her wheelchair, toward her bedroom with
the intention of having sex with her. She told him not to
move her there. He then asked her where would be preferable.
Doe responded “I guess here, ” indicating the
hallway. She had “no more fight in [her]” and
feared that, if she continued to refuse petitioner's
advances, “it would be worse.”
moved Doe from the wheelchair to the floor. He covered her
mouth and nose with his hand. He climbed on top of her and
vaginally penetrated her with his penis. Doe's feeling is
diminished below the waist, but she testified that she felt
pressure as a consequence of this penetration.
about this time, someone else started pounding on the
apartment door. A security guard had been dispatched to
perform a welfare check after someone else in the complex
reported a possible disturbance or fight. Petitioner stood up
and Doe told him to leave via the back door. He did so, and
fled by climbing over the apartment's back fence. The
security guard entered through the broken window and Doe told
him that she had been raped. He called for backup and police
arrived shortly thereafter.
examined the morning after the attack. An examining physician
observed bruises on Doe's face, forearm, and back. The
physician examined Doe's genitalia and found no injuries.
The physician would later explain that this was not
necessarily inconsistent with Doe's claim that petitioner
raped her, because approximately half of sexual assault
patients displayed no medical findings on the genital exam.
scene investigation of the apartment revealed blood drops on
the carpet. DNA from the blood samples were tested and
matched to petitioner's profile. Petitioner was arrested
two days after the assault. DNA samples from his genitalia
were inconclusive as to whether Doe's DNA was contained
trial, petitioner testified in his own defense. He stated
that, on the day of the assault, he was living with his
girlfriend and four-year old son. He drank a substantial
amount of alcohol that night - a twelve pack of beer and some
hard lemonade. Petitioner claimed not to know why he went to
Doe's apartment that night and stated he could not
remember knocking on her door.
claim to know that he had not gone there with the intention
of having intercourse with Doe; he stated that he expected
only to “conversate” with her. Petitioner also
stated that he remembered breaking the apartment window and
cutting his leg on the broken glass.
admitted striking Doe when she refused his advances. He
testified, however, that “[he] felt like it
[penetration] didn't happen.” During closing
arguments, petitioner's trial counsel conceded that
defendant was guilty of assault, attempted rape, and robbery.
However, counsel urged the jury to acquit him of burglary and
GOVERNING HABEAS RELIEF UNDER THE AEDPA
Applicable Statutory Provisions
U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
provides in relevant part as follows:
(d) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a state court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the 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;
(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.
2254(d) constitutes a “constraint on the power of a
federal habeas court to grant a state prisoner's
application for a writ of habeas corpus.” (Terry)
Williams v. Taylor, 529 U.S. 362, 412 (2000). It does
not, however, “imply abandonment or abdication of
judicial review, ” or “by definition preclude
relief.” Miller El v. Cockrell, 537 U.S. 322,
340 (2003). If either prong (d)(1) or (d)(2) is satisfied,
the federal court may grant relief based on a de novo finding
of constitutional error. See Frantz v. Hazey, 533
F.3d 724, 736 (9th Cir. 2008) (en banc).
statute applies whenever the state court has denied a federal
claim on its merits, whether or not the state court explained
its reasons. Harrington v. Richter, 562 U.S. 86,
99-100 (2011). State court rejection of a federal claim will
be presumed to have been on the merits absent any indication
or state law procedural principles to the contrary.
Id. at 784-785 (citing Harris v. Reed, 489
U.S. 255, 265 (1989) (presumption of a merits determination
when it is unclear whether a decision appearing to rest on
federal grounds was decided on another basis)). “The
presumption may be overcome when there is reason to think
some other explanation for the state court's decision is
more likely.” Id. at 785.
“Clearly Established Federal Law”
phrase “clearly established Federal law” in
§ 2254(d)(1) refers to the “governing legal
principle or principles” previously articulated by the
Supreme Court. Lockyer v. Andrade, 538 U.S. 63, 7172
(2003). Only Supreme Court precedent may constitute
“clearly established Federal law, ” but courts
may look to circuit law “to ascertain
whether…the particular point in issue is clearly
established by Supreme Court precedent.” Marshall
v. Rodgers, 133 S.Ct. 1446, 1450 (2013).
“Contrary To” Or “Unreasonable
Application Of” Clearly Established Federal Law
2254(d)(1) applies to state court adjudications based on
purely legal rulings and mixed questions of law and fact.
Davis v. Woodford, 384 F.3d 628, 637 (9th Cir.
2003). The two clauses of § 2254(d)(1) create two
distinct exceptions to AEDPA's limitation on relief.
Williams, 529 U.S. at 404-05 (the “contrary
to” and “unreasonable application” clauses
of (d)(1) must be given independent effect, and create two
categories of cases in which habeas relief remains
court decision is “contrary to” clearly
established federal law if the decision “contradicts
the governing law set forth in [the Supreme Court's]
cases.” Id. at 405. This includes use of the
wrong legal rule or analytical framework. “The
addition, deletion, or alteration of a factor in a test
established by the Supreme Court also constitutes a failure
to apply controlling Supreme Court law under the
‘contrary to' clause of the AEDPA.” Benn
v. Lambert, 283 F.3d 1040, 1051 n.5 (9th Cir. 2002).
See, e.g., Williams, 529 U.S. at 391, 39395
(Virginia Supreme Court's ineffective assistance of
counsel analysis “contrary to”
Strickland because it added a third prong
unauthorized by Strickland); Crittenden v.
Ayers, 624 F.3d 943, 954 (9th Cir. 2010) (California
Supreme Court's Batson analysis “contrary
to” federal law because it set a higher bar for a prima
facie case of discrimination than established in
Batson itself); Frantz, 533 F.3d at 734 35
(Arizona court's application of harmless error rule to
Faretta violation was contrary to U.S.
Supreme Court holding that ...