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Gomez v. Frauenheim

United States District Court, N.D. California

December 18, 2019

JUAN GOMEZ, Petitioner,
v.
SCOTT FRAUENHEIM, Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          EDWARD M. CHEN UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Juan Gomez filed this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his conviction and sentence from Santa Clara County Superior Court. Respondent has filed an answer to the petition, and Mr. Gomez has filed a traverse. For the reasons discussed below, the petition is denied.

         II. BACKGROUND

         A. The Crime

         The California Court of Appeal described the evidence presented at trial:

During a one-day trial, the victim, then 11 years old, testified that defendant is her younger half-sister's father. He moved in with her and her mother when the victim was six or seven years old. She testified that once, when she was sick and her mother was out buying soup, defendant asked if he could lick her vagina. She said yes and he did so, but he quickly stopped when her mother returned. Defendant told the victim not to tell her mother about the incident. On another occasion, when the victim was about eight years old, she laid down on the living room floor, pulled down her pants, and the defendant licked her vagina. He stopped when a friend of the victim's knocked on the door. Afterwards, he took the victim to ballet class. The victim recalled a third occasion when the defendant licked her vagina after she had gone swimming. The victim also testified that defendant once put his penis in her vagina; she told him “not all the way in ‘cause it hurts.” He then rubbed his penis on the outside of her vagina and white stuff came out of it. Defendant also showed the victim pornography on the television.
On cross-examination, the victim said that she was angry with defendant when she first disclosed the abuse to a counselor. She also admitted to sometimes exaggerating and agreed with defense counsel's statement that “maybe not everything that you're saying happened [actually] happened.”
Alejandro Ortiz, a sexual assaults detective with the San Jose Police Department, testified that he interviewed defendant following his arrest. Detective Ortiz testified that defendant admitted to touching the victim's vagina with his finger and said that “he would tickle her [vagina] with his tongue.” Defendant specifically admitted to touching the victim's vagina on a day when she was home sick, although he did not say what part of his body he used to touch her on that occasion. Defendant also admitted to exposing his penis to the victim and ejaculating “in front of her or near her.” Defendant denied putting his penis inside the victim. On cross-examination, defense counsel asked: “[defendant] admitted that he orally copulated [the victim] one time; correct?” Detective Ortiz responded: “I believe so, yes.”

People v. Gomez, No. H043446, 2017 WL 3769628, at *1 (Cal.Ct.App. Aug. 31, 2017) (alterations in original).

         B. Procedural History

         Following a jury trial in Santa Clara County Superior Court, Mr. Gomez was convicted of one count of intercourse or sodomy with a child 10 years of age or younger (see Cal. Penal Code § 288.7(a)), and three counts of oral copulation or sexual penetration with a child 10 years of age or younger (see Cal. Penal Code § 288.7(b)). On April 1, 2016, Mr. Gomez was sentenced to 70 years to life in prison. See Docket No. 15-3 at 167-68. The sentence was comprised of a term of 25 years to life for the intercourse or sodomy with a child 10 years of age or younger (Count 1), plus three consecutive terms of 15 years to life for the three counts of oral copulation or sexual penetration with a child 10 years of age or younger (Counts 2, 3, and 4). See Id. at 168.

         Mr. Gomez appealed. The California Court of Appeal affirmed his conviction in a reasoned decision. See Gomez, 2017 WL 3769628, at *5. The California Supreme Court summarily denied Mr. Gomez's petition for review. Docket No. 15-15 at 2. He apparently did not file any petitions for writ of habeas corpus in the state courts.

         Mr. Gomez then filed this action to obtain a federal writ of habeas corpus. His federal petition raises the lone claim that his trial attorney provided ineffective assistance of counsel by incorrectly conceding Gomez's guilt on Counts 2, 3, and 4 during closing argument.

         III. JURISDICTION AND VENUE

         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).

         IV. STAND ...


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