United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se, has filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. §2254. The
matter was referred to the United States Magistrate Judge
pursuant to 28 U.S.C. §636(b)(1) and Local Rule 302(c).
convicted of serial sex crimes, raises two claims, but they
both concern insufficiency of evidence. An appeal was taken,
but on a sentencing issue only. Petitioner directed attacks
to the merits of his conviction only in state habeas
proceedings. Somewhat confusingly, petitioner in this federal
case, apparently raises as a strongly argued straight claim
that the evidence showing him to be at a different place when
one of the crimes took place renders the evidence of
conviction on that count to be insufficient, but this
insufficiency is not raised in the section where he claims
appellate counsel was ineffective for not raising
“meritorious” claims. Conversely, petitioner
asserts that for two of the other crime victims his appellate
counsel was not effective for failing to raise two
meritorious insufficiency of evidence claims, but petitioner
does not assert claims in and of themselves that the evidence
of the analytical prism for petitioner's claims, all
involve an allegation of insufficient evidence, and no matter
how framed, each claim requires an analysis of whether the
evidence in some way was indeed insufficient. For the reasons
set forth below, the undersigned recommends the petition
should be denied in its entirety.
the California Court of Appeal, Third Appellate District
(“Court of Appeal”) did not analyze a sufficiency
of the evidence issue in its opinion, the factual findings of
the appellate court are a useful starting point for our
On the morning of February 3, 2014, J.V. left her house to
walk to the gym. She passed defendant along the way.
Defendant asked her if she would stop to talk to him. She
said “no” and continued walking. A short while
later, J.V. noticed defendant running towards her in the
street. Defendant said, “I like the way you play with
your booty hole.” J.V. may have cussed in response and
kept walking on the sidewalk.
Defendant then grabbed J.V. by the waist from behind. She
tried to peel his hands off her. As they struggled, they fell
to the ground on the front lawn of a nearby house. The yard
had a small brick retaining wall. J.V.'s back was on the
grass, but her legs dangled over the short retaining wall.
Defendant was on top of her.
Defendant tried to pull J.V.'s pants down while she
continued to fight him. She held onto her pants with her left
hand, and she hit defendant twice in the face with her right
hand. He eventually succeeded in pulling her pants down so
that her buttocks and vagina were partially exposed. She
continued to struggle to pull her pants up, and yelled twice
for defendant to “stop.” Defendant responded,
“No, I don't even care.” Defendant then
picked J.V. up and slammed her to the nearby sidewalk. At
this point, defendant was able to pull J.V.'s pants to
her knees, fully exposing her vagina and buttocks. He dragged
her along the sidewalk and began fiddling with the drawstring
on his pants. Defendant pulled J.V.'s neck towards his
groin area in an attempt to force her to orally copulate him.
J.V. could smell defendant's penis, which was a few
inches from her face. She did not see defendant's penis,
however, because she had turned her head away.
J.V. told defendant “no, ” and continued to
pulled her head away. Defendant then said, “I don't
even care, ” and ran away. Defendant did not succeed in
putting his penis in either J.V.'s vagina or her mouth.
J.V. described the incident as “very fast.” After
defendant left, J.V. pulled her pants up. She called her
boyfriend and her sisters to tell them about the attack.
Although they looked for defendant in the area, they could
not find him. Later that day, J.V. reported the attack to
Approximately two weeks later, on February 20, 2014,
defendant assaulted M.C. while she walked home alone from
school. Defendant passed her while riding a bike and said
“Hey.” While standing in the street, defendant
grabbed her legs from behind and threw her down. He
unbuttoned his pants and tried to put his penis in her mouth.
M.C. was able to yell for help and fight defendant off; he
gave up the attack and ran away. M.C. reported the assault to
Later that same day, A.M. was walking home alone in the dark
when defendant approached her on a bike. He commented about
her butt, and grabbed her buttocks. She pushed him away and
quickly walked to a nearby apartment complex while calling
her sister. Defendant followed. A.M.'s sister came
outside and confronted defendant, and defendant took off. He
was apprehended by police later that night.
People v. Hudson, No. C083615, 2018 WL 3828783, at
*1-3 (Cal.Ct.App. Aug. 13, 2018).
An October 2016 amended information charged defendant with
assaulting J.V. with the intent to commit rape (§§
220, 261, subd. (a)(2)-count one), assaulting J.V. with the
intent to commit forcible oral copulation (§§ 220,
288a, subd. (c)(2)-count two), assaulting M.C. with the
intent to commit forcible oral copulation (§§ 220,
288a, subd. (c)(2)-count three), and committing a lewd and
lascivious act on A.M., a child over 15 years old and more
than 10 years younger than defendant (§ 288, subd.
The jury found defendant guilty of all charges. The court
sentenced defendant to an aggregate term of 21 years in state
prison, consisting of the upper term of three years for the
lewd and lascivious act conviction in count four, and to
consecutive terms of six years each for the three assault
convictions in counts one through three. Defendant timely
People v. Hudson, 2018 WL 3828783, at *2.
appeal was sought as to a sentencing error only. None of the
issues here concern that appeal. The issue of insufficient
evidence and ineffective assistance of counsel for not
raising sufficiency of the evidence were first set forth in a
habeas corpus petition before the Sacramento County Superior
Court (“Superior Court”). ECF No. 12-15. The
Superior Court denied the straight insufficient evidence
issues on procedural default grounds with a citation to
In re Harris, 5 Cal.4th 813, 829 (1993) (claims
which should have been raised on direct appeal cannot be
raised in habeas corpus). ECF No. 12-16. The Superior Court
denied the ineffective assistance of appellate counsel issues
on the merits. Id. The petitions filed in the Court
of Appeal and the California Supreme Court were silent
denials thereby adopting the decision of the Superior Court
as a matter of law. ECF Nos. 12-17-12-20. See Wilson v.
Sellers, 138 S.Ct. 1188 (2018).
federal petition was timely filed on August 8, 2019. ECF 1.
Respondent answered, ECF No. 11, but addressed the merits
only, and did not seek to have the straight sufficiency of
evidence issues procedurally barred or found unexhausted.
Rather, respondent treated the federal petition as having
raised sufficiency of the evidence issues with respect to all
three victims; the same was argued with respect to the
ineffective assistance of appellate counsel.