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Gordon v. Lizarraga

United States District Court, N.D. California

January 2, 2020

CHARLES DAVID GORDON, Petitioner,
v.
JOE A. LIZARRAGA, Respondent.

          ORDER DENYING SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS; GRANTING IN PART AND DENYING IN PART CERTIFICATE OF APPEALABILITY

          Phyllis J. Hamilton United States District Judge.

         Before the court is the second amended petition for writ of habeas corpus (“Pet.”) pursuant to 28 U.S.C. § 2254 filed by represented state prisoner Charles David Gordon. The briefs are fully submitted and the court determines that the matter is suitable for decision without oral argument. Having reviewed the parties' papers and the record, and having carefully considered the relevant legal authorities, the court DENIES the petition.

         BACKGROUND

         I. Factual Summary

         The following summary of facts is taken from the decision by the California Court of Appeal on Gordon's direct appeal, based on evidence presented at Gordon's bench trial, which was held September 29, 2009, through October 2, 2009.

Counts 3, 4 and 5 Against Erica Doe
Victim Erica Doe (Erica [or Doe No. 2]) met and began dating appellant in October 2002, when she was 16 years old. Their relationship ended in February 2008. They lived together for most of the five years they were together. In June 2003, after living with Erica's parents in Oregon, they moved to American Canyon where they lived with appellant's parents. Appellant had “control of everything” in the relationship, even insisting that Erica dress him every day. There were instances of violence in the beginning of their relationship, and the violence worsened over time. Erica was afraid of appellant. On numerous occasions, he pushed, slapped and punched her, and threatened to “take [her] out in the woods and make [her] disappear.” He also threatened her with a .22-caliber rifle. As a result of the threats, she felt her life was in danger. He would yell at her and call her “bitch, ” “whore, ” “cunt, ” “stupid, ” and “worthless piece of crap.” He gave her a black eye, inflicted bruises, bit her leg, and burned her with a cigarette. Appellant would also be sexually violent toward Erica, forcing sex on her after they fought.
In January 2008, they had a “really bad fight.” At about 10:00 p.m., Erica was home with her friend Marlene [Maple] when appellant arrived and started drinking whiskey. He appeared to be angry. Erica wanted to leave with Marlene but thought this would make the situation worse. When Marlene left, appellant said he was angry because Erica had been “unfaithful” to him that day. He began punching her in the ribs and legs, slapped her, pulled her hair, ripped out some of her hair extension braids, called her a whore and told her to go into the bedroom. Despite her telling him to stop, he pulled her clothes off and raped her. After he ejaculated, they both lit up cigarettes. He then told her he was going to burn her with his cigarette. After his first attempt, she moved away. On his second attempt, he burned her thigh, causing a scarring injury.
Five minutes later, appellant told Erica he was going to have anal sex with her to teach her a lesson. Although she begged him not to, he said he was going to do it “whether [she] wanted it or not.” He then penetrated her anus with his penis and she loudly screamed for him to stop, hoping someone would come to her aid. He held on to her so she could not pull away, stopping only after he ejaculated. He then told her to “get [her] disgusting ass in the shower.” She felt “completely disconnected and scared and just sick.” The next day appellant apologized to her. She thought that calling the police would only make the situation worse.
After this incident, Erica confided in Marlene, and appellant's mother, Connie Gordon, found out about the incident. When Connie Gordon asked Erica if it was true, Erica revealed the scar on her leg. Connie Gordon told Erica to pack her belongings and drove her to meet Erica's mother, who took Erica to Oregon.
On December 17, 2008, Erica participated in a pretext phone call to appellant that was recorded by the Medford, Oregon Police Department. Erica told appellant she was feeling anxious after having been “beaten and raped and burned.” Appellant told her not to “go there this time, ” said he had apologized and tried to make amends and would not call her any more. He also said: “I know what I fucking did to you. . . . You think it makes me happy? . . . I was fucking crazy. I was fucking out of my mind, in a place in my life where I was absolutely fucking out of my mind, . . . there's nothing I can fucking do about it now. . . . It's like yes, you were victimized and . . . you were beaten and you were fucking put through hell . . . yes, you were. I agree with you a hundred percent. It was wrong and it was fucking horrible, okay?” Appellant asked Erica to call Jamie (his current girlfriend) and “just tell her I didn't fucking rape you.” Erica responded, “But you did.”
Counts 1 and 2 Against Kelsey Doe
Victim Kelsey Doe [Doe No. 1], born in 1992, is appellant's niece. When Kelsey was four or five years old, she visited her grandparents in Oregon and she and appellant were together in a sauna. Appellant locked her in the sauna for about 30 minutes and said he would not let her out until she “gave him a blow job.” She was frightened but complied, putting her mouth on his penis. Subsequently, her grandparents came and appellant ran out of the sauna. Kelsey first told her grandmother about the incident when she was about 15 years old. The sauna incident did not really affect Kelsey and appellant's relationship; she still considered him one of her best friends and trusted him. As a teenager, Kelsey liked spending time with appellant because he allowed her to drink alcohol and smoke marijuana.
On November 15, 2008, Kelsey was living with her grandparents in Fairfield and appellant was visiting from Oregon. Kelsey contacted appellant saying she wanted to see him. He asked her to “hang out” with him later that night and asked if she had any friends that he could “hook [ ] up with, ” which Kelsey understood to mean to have sex with. Appellant said he would get alcohol so they could drink when they arrived at the Napa apartment complex where he was staying. The apartment complex was managed by appellant's grandfather.
Prior to going to visit appellant, Kelsey was with two of her friends and drank a bottle of malt liquor. She got a ride to appellant's apartment complex and met him outside. She was “pretty drunk, ” and had trouble walking straight. He took her to a small room off the manager's office. He offered her whiskey and she drank several shots. She then felt drunk; she was dizzy, could not think straight, had trouble walking and vomited. Kelsey gave appellant her cell phone so he could call her boyfriend, Dylan, to pick her up. Appellant appeared to make the call and then told Kelsey Dylan could not pick her up. Appellant said he would get her home.
Kelsey kissed appellant on the cheek because he was one of her best friends. He then began “French kissing” her and said he had had a “crush” on her for some time. Kelsey felt “dirty and disgusting.” Appellant then sat down, told her to come next to him, pulled out his penis, and put it next to her face, indicating he wanted a “blow job.” Kelsey complied and put his penis in her mouth. Although she did not want to engage in oral sex, she felt like she had no “other option, ” and she was not thinking clearly because she was drunk. Throughout the evening she would black out and regain consciousness.
Appellant then kissed Kelsey again and pushed her onto the bed. He said he wanted to have sex and directed her to remove her pants. She said she did not want to and she was a virgin. Appellant said, “No, you're not, ” and removed her shorts despite her telling him not to. He then got on top of her and put his penis inside her vagina. It hurt, and when she yelled for him to stop, he said he was “almost done.” Although she screamed for help, he continued to penetrate her. The rape lasted approximately five minutes. During it, appellant seemed very angry and irritable, and Kelsey was afraid he might hurt her.
When appellant got off of Kelsey she felt “traumatized, ” “in shock, ” and “betrayed.” She accused him of raping her. He grabbed a cell phone, called her grandparents and told them to pick her up. While he was talking to them, Kelsey was screaming into the phone that appellant had raped her. He then told her to stop crying, get dressed and not tell anyone about what had happened. He said if she told her grandparents (his parents) or the police, he would get in trouble. When she tried to leave, appellant stood in front of the door and pushed her, causing her to fall.
When Kelsey's grandparents arrived, she told them appellant had raped her. They did not believe her. They offered to take her to the hospital, but she asked them to take her to her boyfriend's house. Although she wanted to go to the hospital, she did not trust her grandparents or believe they would take her there. At some point she saw a police car and opened the car door in an attempt to get the officer's attention. Her grandmother tried to restrain her and covered her mouth when the officer approached their car. Kelsey told the officer what had happened and he took her to the hospital.
At about 2:40 a.m. on November 16, 2008, Napa Police Officer Russell Davis saw Kelsey's grandparents' SUV drive erratically and pull over. When Davis approached the SUV, Kelsey's grandfather told Davis Kelsey was intoxicated and out of control, but did not mention her having been possibly raped. Kelsey was crying, “hysterical, ” yelling that no one believed her, and her grandmother was trying to keep her from talking. Kelsey told Davis she had been raped by her uncle and was in a lot of pain. She appeared to be intoxicated. Davis administered a PAS test at about 2:00 a.m., which revealed Kelsey's blood alcohol level to be .143. He transported her to the hospital. At the hospital Kelsey described the sexual assault to Davis.
At the hospital, sexual assault nurse examiner Vickie Whitson performed a sexual assault examination on Kelsey. Kelsey said she had vaginal pain and that appellant had grabbed her arm, pulled her onto the bed and used his body weight to hold her down. She said he put both hands around her neck so tightly she could not speak. Kelsey said she was forced to orally copulate appellant and he penetrated her vagina with his penis. The examination revealed two abrasions of Kelsey's hymen, consistent with blunt force trauma. Whitson opined that sexual abuse was highly suspected. Vaginal swabs from Kelsey tested positive for DNA matching appellant's DNA type.
Prior Incidents of Domestic Violence and Sexual Abuse
Jaimie M. met and began dating appellant in June 2008. On September 22, 2008, she went to visit him where he was living in Oregon. She ended up staying, and lived with appellant and his three roommates for about two months. On November 2, they argued because appellant took her paychecks and would not give them back. They also argued because he had flirted with a woman whose boyfriend was supposedly moving in with them. Jaimie told appellant she wanted to move back to Napa and he responded by covering her mouth and saying, “What makes you think you're going to get the chance to?” She perceived this as a threat and was afraid. She started screaming, but his hand covered her mouth and no one heard her. They were on the bed and he had his legs over her so she could not move. After about three or four minutes he let her go and said, “‘Don't tell anybody.'” She went into the dining room and was talking to roommate Tim Grabner, when appellant called her names and angrily said, “Nobody will know if you're gone.” Jaimie feared for her life. She grabbed a knife but Grabner told her, “Don't do that.” Appellant then picked her up by the throat, threw her to the ground, choked her with his arm and said, “You're not worth it.” Grabner told appellant to stop and pulled him off Jaimie. Jaimie ran outside and another roommate called the police.
Grabner testified he befriended appellant when they were in middle school. In September 2008, they resumed their friendship and began living together when appellant moved to Oregon. Grabner said appellant controlled appellant's relationship with Jaimie. On one occasion, Grabner heard Jaimie's muffled scream from inside appellant and Jaimie's bedroom; there was no response when Grabner and his fiancée knocked on the door. Grabner next saw appellant and Jaimie arguing in the kitchen and appellant would not let her move away from the refrigerator. Jaimie picked up a knife and appellant grabbed it. Appellant then slammed Jaimie against the wall, held her by her throat, threw her over his shoulder and they both fell to the floor. Appellant then began choking her while saying, “The bitch is not worth it, and I'm just going to fucking kill her.” Grabner pulled appellant off Jaimie and she ran outside. Appellant later told Grabner he was “not necessarily too concerned about what he had done” to Jaimie. About a month later, appellant joked about the incident with Jaimie after learning that Jaimie's then-boyfriend was in jail, saying, “I don't understand why she dumped me . . . for a fat rapist when she could have at least had a good looking one.”
Appellant also told Grabner that Erica was a “slut and whore” and he had “bent [Erica] over, raped and sodomized her, ” and burned her with a cigarette. He was confident that Erica would never testify against him. Appellant told Grabner that if his brother found out about the sexual incident with Kelsey when appellant and Kelsey were much younger, appellant's brother would kill him.
Krystal W. dated appellant for about six weeks beginning in mid-February 2009. A couple of weeks later she moved in with appellant and his parents. She broke up with him at the end of March because there had been an increasing amount of physical intimidation. Sometimes when playing with her, despite her telling him to let go, appellant would grab and hold her in a way that she “would have difficulty breathing” and she “would be crying.” On one occasion while Krystal showed appellant her bedroom at her parents' house, appellant removed his clothes, pushed her onto the bed and began removing her clothes. Although she said she did not want to have sex, he put on a condom, restrained her wrists and vigorously and forcefully started having sexual intercourse with her against her will. He then tried to convince her he had not sexually assaulted her. Thereafter, Krystal was afraid of appellant and “too afraid to leave him.”
Krystal described appellant's level of anger as “unhinged”; he would escalate a small issue into something much larger. On one occasion, appellant told Krystal's sister's boyfriend that if Krystal's sister did not want to engage in certain sexual acts, “you should just rape her.”
On March 22, 2009, Krystal and appellant argued while in bed. He told her it would be very dangerous for her to stay in the bedroom since he had “been pushed to this wild and violent edge before.” At some point, he left the bedroom. When he returned he said he had done some reprehensible actions for which he could not forgive himself. Krystal was afraid of appellant because he was yelling and throwing things. On March 24, she left appellant and ended the relationship. She left Napa County because she was afraid appellant would attempt to find her.
The Defense
Charles Gilman Gordon ([Gil] Gordon), appellant's father and Kelsey's grandfather and guardian, testified that on November 16, 2008, when he picked up Kelsey at the apartment complex, she appeared a “little agitated, ” said she had been assaulted, and repeatedly asked to be taken to her boyfriend's home. She appeared to have been drinking. [Gil] Gordon did not recall whether she said she was raped.
[Gil] Gordon received letters written by appellant from jail. One letter said that “people need[ed] to lie on the stand.” Another letter said, “The only way I'm going to beat Erica in court is if everyone knows about Erica and my S and M in one way or another. Not everyone can have the same story, but everyone needs to be in the same ballpark.” [Gil] Gordon said he made no effort to fabricate evidence.
Connie Gordon testified that when she and [Gil] Gordon went to pick Kelsey up at the apartment complex Kelsey was intoxicated. After Connie Gordon told Kelsey she would not take her to her boyfriend's house, Kelsey said she was sexually assaulted and raped. Connie Gordon denied holding her hand over Kelsey's mouth. She also said Kelsey had a very bad reputation in the family for truthfulness in the six months leading to November 15, 2008. Connie Gordon testified that a psychologist had said that Kelsey lies to get attention. She also said she did not believe appellant raped and burned Erica.
Appellant testified he and Erica engaged in anal and vaginal penetration. They both used methamphetamine and alcohol. They engaged in “rough sex” and sadomasochistic sex.
Appellant described the events regarding the January 2008 charged incident involving Erica. That morning, before he went to work, he and Erica had “passionate” sex without “the roughness and fantasies and the dirty talk.” When he returned home that night, the apartment smelled like methamphetamine and it appeared that Erica had had sex with someone else that day. Appellant felt “disillusioned” because Erica was apparently not sexually satisfied by him. After Marlene left, he and Erica entered the bedroom and had sex. Appellant denied slapping or hitting Erica before entering the bedroom. They had rough sex but when he attempted to perform anal sex, Erica “wasn't ready for it, ” and began angrily yelling at him. Appellant got angry, lit a cigarette and as they argued, put the cigarette out on her thigh. He denied ever calling her a whore. Erica began to cry and appellant immediately tried to put ice on her cigarette burn. Their sexual relationship ended, but they continued living together until February 14 when Erica moved away.
Appellant denied choking Jaimie when they lived together in Oregon. He said they argued and she attacked him with a piece of metal and then a knife. In self-defense, he grabbed her hand and she dropped the knife. Appellant denied telling Grabner that he raped or sodomized Erica. He did tell Grabner he had burned Erica with a cigarette and exposed his penis to a four-year-old when he was 11 years old. Appellant said he had consensual sex with Krystal and never raped her, threatened her, or forced her to have sex.
Appellant testified that on November 15, 2008, he and Kelsey made plans to get together that evening. She showed up at the apartment complex, sat on his lap and persistently asked him to give her alcohol. He refused because she had been drinking malt liquor and he did not want her to vomit after mixing malt liquor and other alcohol. They then began kissing and she offered to perform oral sex if he gave her alcohol. He agreed. They then resumed kissing and had consensual sex. She then asked him for the alcohol and he complied and went for a walk. When he returned to the apartment they both drank. Eventually, he took the bottle away from her and she went to the bathroom and vomited and asked him to call her boyfriend Dylan. Appellant called him, but Dylan did not have a car. Appellant protested that it was too late when Kelsey said she would walk to Dylan's house. When he prevented her from leaving and threatened to call his parents (her grandparents), Kelsey said she would tell them he raped her. Appellant then called her grandparents, who came and got Kelsey.
Appellant admitted repeatedly lying to Detective Elia for “tactical reasons.” He also admitted asking family and friends to assist him in fabricating a defense.

Dkt. 21 (“Answer”), Ex. C at 2-10 (People v. Gordon, No. A126961, 2010 WL 3771284 (Cal.Ct.App. Sep. 29, 2010)). This factual summary by the state court of appeal of the evidence presented at trial is presumed correct, and Gordon does not raise a dispute over the presumptive correctness of this summary. See 28 U.S.C. § 2254(e)(1). The traverse discloses that Gordon is a transgender woman and is currently undergoing a male-to-female medical transition. Dkt. 33. The court herein refers to Gordon by her preferred pronouns but notes for clarity that the state court record contains references to Gordon as male.

         II. Procedural History

         A. State Court Trial and Direct Appeal

         On October 2, 2009, following a bench trial in the Napa County Superior Court, Gordon was convicted of two counts of rape under California Penal Code § 261(a)(2) (Counts 1 and 3); oral copulation with a minor under § 288a(b)(1) (Count 2); sodomy by force under § 286(c) (Count 4); and infliction of corporal injury on a cohabitant under § 273.5(a)(5) (Count 5).

         Additionally, the court found true a multiple victim allegation under California Penal Code § 667.61(b) as to the rape counts. On November 4, 2009, the trial court sentenced Gordon to an indeterminate term of forty-nine years and eight months to life in prison with the possibility of parole.

         On November 30, 2009, Gordon appealed to the court of appeal, which affirmed her conviction on September 29, 2010. Answer, Ex. C. The California Supreme Court denied review on December 15, 2010. Answer, Ex. E (People v. Gordon, No. S187212 (Cal. Dec. 15, 2010)).

         B. State Court Habeas Proceedings

         On November 22, 2011, Gordon filed a habeas petition with the Napa County Superior Court, which dismissed the petition as untimely on December 5, 2011. On January 3, 2012, Gordon filed a habeas petition with the California Court of Appeal. On January 17, 2012, the California Court of Appeal denied the petition without prejudice. The state appellate court noted that Gordon raised new arguments regarding the timeliness of her habeas petition that were not previously presented to the Napa County Superior Court, and as a result, ruled that Gordon had not exhausted her habeas remedy with the Superior Court. In accordance with that order, on January 20, 2012, Gordon filed an amended habeas petition with the Napa County Superior Court. On February 7, 2012, the superior court requested informal briefing from the parties. On April 24, 2012, after considering the informal response to the amended state habeas petition and Gordon's reply thereto, the superior court ordered respondent to show cause why the petition should not be granted, requesting a full analysis of the merits of the claims.

         On June 5, 2013, the Napa County Superior Court issued a tentative ruling on the 35 claims in Gordon's state habeas petition. See Pet. (dkt. 16), Ex. 60 (In re Gordon, No. HC 1605 (Napa Super. Ct., June 6, 2013)). Gordon filed objections to the state court's tentative findings on the habeas petition. Pet., Ex. 61. After considering the parties' submissions regarding the tentative findings, the superior court ordered an evidentiary hearing on four factual issues related to Gordon's April 1, 2009, interview, and adopted its tentative findings in all other respects as final. Pet., Ex. 62. With respect to claim 1 (violation of Massiah v. United States, 377 U.S. 201 (1964)), the state court found that Gordon's Massiah rights did not attach at the time of her April 1, 2009 interrogation because adversarial judicial proceedings had not commenced. Pet., Ex. 60 at 3-6. With respect to Gordon's Miranda claim (claim 2), the state court found that an evidentiary hearing was necessary to determine whether Gordon's Miranda waiver was valid, as she claimed to have been intoxicated at the time and/or coerced by the interrogator, Detective Elia. Id. at 7. The state court found that “no reasonable likelihood exists that [Gordon] was entitled to relief” on any of the other 33 claims, except to the extent that a few claims (such as ineffective assistance of counsel for failure to raise the Miranda issue) were derivative of claim 2. Id. at 8-32.

         The superior court held a discovery hearing in the state habeas proceedings on December 17, 2013. Pet., Ex. 63. On January 6 and 7, 2014, the superior court held an evidentiary hearing to address: (1) whether Gordon was intoxicated during the April 1, 2009, interview; (2) whether Gordon asserted her Miranda rights on the drive to the police department on April 1, 2009; (3) whether counsel was ineffective for failing to assert a Miranda violation; and (4) whether Gordon was “coerced” by Detective Elia during the April 1, 2009, interview. Pet., Ex. 64 at 7. The superior court held another hearing on April 18, 2014, for argument and ruling on evidentiary issues and the remaining habeas claims. Pet., Ex. 75. On July 15, 2014, the superior court issued written findings that Gordon “was not intoxicated during his April 1, 2009 interview, ” and that Det. Elia did not “coerce” Gordon into waiving her Miranda rights. Pet., Ex. 76 at 1 (In re Gordon, No. HC 1605 (Napa Super. Ct. July 15, 2014)). The superior court also rejected Gordon's 36th claim-added by amendment on January 6, 2014, and corresponding to claim 17 in the instant petition-for violations of Brady v. Maryland, 373 U.S. 83 (1963). Id. In all other respects, the superior court affirmed its tentative ruling and denied the habeas petition in its entirety. Id. at 2.

         Gordon filed a petition for writ of habeas corpus in the court of appeal, which denied the petition on June 24, 2015. Pet., Ex. 77 (In re Gordon, No. A142558 (Cal.Ct.App. June 24, 2015)). Gordon filed an untimely petition for review and an application for relief from default to file an untimely petition for review, which the California Supreme Court denied on July 24, 2015. Answer, Suppl. Ex. K-87 (Letter/Order re: Appl. for Relief from Default, Cal. Supreme Court Case No. S228004).

         On July 28, 2015, Gordon filed a new petition for writ of habeas corpus in the California Supreme Court, which denied the petition on the merits with respect to the claims of ineffective assistance of trial counsel and appellate counsel. Pet., Ex. 79; Answer, Ex. I (In re Gordon, No. S228110 (Cal. Nov. 10, 2015)).

         C. Federal Habeas Proceedings

         On February 16, 2012, while Gordon's habeas petition was pending in state court, she filed a federal habeas petition raising thirty-eight claims for relief. Dkt. 1. On March 28, 2012, this court stayed the matter to allow Gordon to exhaust her claims in state court. Dkt. 6.

         The court lifted its stay of the instant case on December 10, 2015. Dkt. 10. Gordon filed her first amended habeas petition the next day. Dkt. 11. In light of errors in the first amended petition, the court granted leave to file a second amended petition on May 2, 2016. Gordon filed the second amended petition on May 14, 2016. Dkt. 16. By order entered November 21, 2016, the court dismissed claims 5, 6, 8, 10, and 18, and dismissed claim 14 in part with respect to the alleged sentencing error under state law, for failing to state a cognizable ground for federal habeas relief. The court ordered respondent to show cause with respect to the remaining claims:

Claim 1: Gordon's pretrial statements-her April 1, 2009, interrogation, the December 17, 2008, pretext phone call with Doe No. 2, and her communications on MySpace elicited by Detective Elia-were elicited and introduced in violation of her right to counsel under Massiah v. United States, 377 U.S. 201 (1964).
Claim 2: The statements from Gordon's April 1, 2009, interrogation were elicited and introduced in violation of Miranda v. Arizona, 384 U.S. 436 (1966), because Gordon did not waive her Miranda rights, the waiver was coerced, and/or because Gordon was intoxicated at the time of the interrogation.
Claim 3: Gordon's pretrial statements were inadmissible as the product of “outrageous government conduct” amounting to a due process violation.
Claim 4: Trial counsel was ineffective in not objecting to the introduction of Gordon's pretrial statements into evidence on the grounds identified in claims 1-3.
Claim 7: Trial counsel was ineffective for not objecting to the trial court's exclusion of evidence impeaching Doe No. 1 and Doe No. 2, as described in claims 5-6, on “all available grounds, ” including Gordon's right to confrontation.
Claim 9: Gordon's “jailhouse letters” were improperly admitted into evidence at trial because they were written “involuntarily” in light of her incarceration in a segregation unit, her suicidal state of mind, and the antidepressant medications she was taking at the time, in violation of the Fifth Amendment.
Claim 11: Trial counsel was ineffective in failing to conduct an adequate factual and legal investigation to prepare Gordon's case for trial.
Claim 12: Trial counsel was ineffective in failing to litigate material issues during the pretrial and in limine proceedings.
Claim 13: Trial counsel was ineffective in failing to adequately present Gordon's defense of reasonable but mistaken consent on Counts I, III, and IV.
Claim 14 (in part): The 49-years-to-life sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment.
Claim 15: Trial counsel was ineffective for not objecting to the sentence on the grounds identified in claim 14.
Claim 16: Appellate counsel was ineffective in failing to raise the issues identified in claims 8 and 14 on appeal.
Claim 17: Five pieces of exculpatory evidence discovered in post-conviction proceedings should have been disclosed to trial counsel under Brady v. Maryland, 373 U.S. 83 (1963).
Claim 19: The admission into evidence of Gordon's uncharged prior acts of sexual assault and domestic violence under Cal. Evid. Code §§ 1108, 1109, and 1101(b) violated due process and Gordon's right to a fair trial.
Claim 20: “Cumulative error” as a result of the errors described in claims 1-19 amounts to a denial of due process.

See dkt. 18 at 6-7.

         Respondent filed an answer to the second amended petition on March 21, 2017. Dkt. 21 (“Answer”). Gordon timely filed the traverse on January 12, 2018. Dkt. 33 (“Traverse”). Respondent filed objections to new exhibits filed with the traverse and responded to new arguments raised in the traverse. Dkt. 40. On January 30, 2018, Gordon filed a request for an evidentiary hearing to which respondent filed an opposition, followed by Gordon's reply. Dkts. 38, 41, 47.

         On August 17, 2018, the court held that Exhibits 80 to 83, which were newly submitted with the traverse, were offered to provide evidence of Gordon's gender dysphoria in support of Claims 2, 9, 12, and 14, and that this evidentiary basis in support of those claims was not fully and fairly presented to the state court. Dkt. 55. The court directed Gordon to address any applicable grounds to request a stay and abeyance of the mixed habeas petition to exhaust those claims. After filing a second habeas petition in the California Supreme Court to present the unexhausted claims and exhibits, Gordon filed a motion to stay and hold the federal habeas petition in abeyance, which the court granted on October 16, 2018. Dkt. 61.

         After briefing was submitted, the California Supreme Court denied Gordon's second habeas petition with a citation to In re Miller, 17 Cal. 2d 734');">17 Cal. 2d 734, 735 (1941). In re Gordon, No. S251581 (Cal. Mar. 27, 2019). After Gordon filed a notice of the state court's ruling on the exhaustion petition, the court reopened the federal habeas proceedings and ordered additional briefing limited to the issues raised in the traverse by the evidence of Gordon's gender dysphoria diagnosis and treatment in support of claims 2, 9, 12 and 14. Dkt. 65. Respondent filed a supplemental answer on May 24, 2019. Dkt. 66 (“Suppl. Answer”). Gordon filed a supplemental traverse on September 20, 2019, and respondent filed a reply to the opposition to procedural default on September 26, 2019. Dkts. 72 (“Suppl. Traverse”), 73 (“Suppl. Reply to Procedural Default Opp.”). Gordon filed a supplemental request for an evidentiary hearing, which was followed by an opposition and reply. Dkts. 74, 75, 78.

         Gordon's habeas petition and requests for evidentiary hearing are now fully briefed, and the court determines that the matter is suitable for decision without oral argument.

         STANDARD OF REVIEW

         Under The Antiterrorist and Effective Death Penalty Act of 1996 (“AEDPA”), applicable to any federal habeas petition filed after April 1, 1996, a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed 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 first prong applies both to questions of law and to mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09, (2000), while the second prong applies to decisions based on factual determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

         A state court decision is “contrary to” Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), only 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 Supreme] Court has on a set of materially indistinguishable facts.” Williams (Terry), 529 U.S. at 412-13. A state court decision is an “unreasonable application of” Supreme Court authority, falling under the second clause of § 2254(d)(1), if it correctly identifies the 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. The federal court on habeas review 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.” Id. at 411. Rather, the application must be “objectively unreasonable” to support granting the writ. Id. at 409.

         A state court's determination that a claim lacks merit precludes federal habeas relief so long as “fairminded jurists could disagree” on the correctness of the state court's decision. Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “Evaluating whether a rule application is unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Id. “As a condition for obtaining habeas corpus [relief] from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

         Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El, 537 U.S. at 340. Review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

         DISCUSSION

         I. Procedural Default

         As an initial matter, respondent argues that Claims 1 (Massiah violation), 2 (Miranda violation), 3 (outrageous government conduct) and 9 (jailhouse letters) were denied by the court of appeal and state supreme court on procedural grounds and are procedurally defaulted. Answer at 9; Suppl. Answer at 2-4. A federal court will not review questions of federal law decided by a state court if the decision also rests on a state law ground that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991).

         Respondent points out that the court of appeal denied the state habeas claims corresponding to Claims 1, 2, 3 and 9 of the operative federal habeas petition for failure to demonstrate that the claims were timely, failure to raise the claims on direct appeal, and failure to preserve the claims at trial under the contemporaneous objection rule. Pet., Ex. 77 (citing, inter alia, In re Clark, 5 Cal.4th 750 (1993) and In re Robbins, 18 Cal.4th 770 (1998)). The California Supreme Court silently adopted those procedural bars with respect to those claims. Pet., Ex. 79.

         With respect to Claims 2 and 9, which were supplemented by new evidence and argument reflecting Gordon's gender dysphoria, those supplemented claims were presented in Gordon's second habeas petition to the California Supreme Court, which issued a postcard denial citing In re Miller, 17 Cal. 2d 734');">17 Cal. 2d 734, 735 (1941) (per curiam). Suppl. Answer, Ex. Q. As the Ninth Circuit has recognized, the state court's citation of In re Miller in denying a second habeas petition “signals that the Court is denying the petition for the same reasons that it denied the previous one.” Kim v. Villalobos, 799 F.2d 1317, 1319 n.1 (9th Cir. 1986). Applying Ylst v. Nunnemaker, 501 U.S. 797, 804 n.3 (1991), the court looks through the California Supreme Court's denial of the second habeas petition to the last reasoned state court opinion, namely, the court of appeal's June 24, 2015, decision, as the state court's basis for denying the claims presented in the exhaustion petition. That is, the state court denied Claims 2 and 9, as supplemented in the second state habeas petition, on the grounds of untimeliness, failure to raise the claims on direct appeal under In re Dixon, 41 Cal. 2d 756, 759 (1953), and the contemporaneous objection rule.

         As Gordon concedes, California's timeliness rule against substantial delay in filing habeas claims, as reflected in Clark and Robbins, is both independent and adequate. Traverse at 17 (citing Walker v. Martin, 562 U.S. 307 (2011)). However, Gordon asserts that application of the timeliness bar was specifically inadequate in her case, reasoning that the court of appeal's June 24, 2015, denial of the initial state habeas petition as untimely pre-dated the new evidence submitted in the second-filed exhaustion petition filed on September 26, 2018, such that California Supreme Court would have needed to impose a new finding of untimeliness as to the new evidence related to her gender dysphoria diagnosis. Suppl. Traverse at 3-4. In the order denying the second-filed habeas petition, Suppl. Answer, Ex. Q, the California Supreme Court's citation to In re Miller for the principle that “courts will not entertain habeas corpus claims that are repetitive, ” indicates that the state court denied the supplemented claims of the second habeas petition because it presented the same grounds set forth in a prior petition, without disclosing “‘a change in the facts or the law substantially affecting the rights of the petitioner.'” Karis v. Vasquez, 828 F.Supp. 1449, 1457 (E.D. Cal. 1993) (quoting In re Miller, 17 Cal. 2d at 735). Under Ylst, this court presumes that the state supreme court denied the supplemented claims presented in Gordon's second habeas petition under the same procedural bars that were applied in the last reasoned decision to deny state habeas relief on those claims, including the timeliness bar. 501 U.S. at 804 n.3. Gordon fails to show that the state court's denial of supplemented Claims 2 and 9 as untimely imposed “novel and unforeseeable requirements without fair or substantial support in prior state law.” Martin, 562 U.S. at 320-21 (finding “no basis for concluding that California's timeliness rule operates to the particular disadvantage of petitioners asserting federal rights”) (citation and internal marks omitted).

         Because the court finds that Claims 1, 2, 3, and 9 were procedurally defaulted on the separate and independent ground of untimeliness, the court need not reach Gordon's arguments challenging the separate procedural bars under the Dixon rule or the contemporaneous objection rule. Traverse at 8-14, 14-17; Suppl. Traverse at 2-4.

         In the alternative, Gordon argues that the procedural default is excused by cause for the default and actual prejudice as a result of the alleged violation of federal law. See Coleman, 501 U.S at 750. Because Gordon alleges that the failure to timely preserve Claims 1, 2, 3 and 9 was caused by ineffective assistance of trial counsel, a determination of whether attorney error qualifies as “cause” to excuse procedural default would require determination whether there was ineffective assistance of counsel. See Davila v. Davis, 137 S.Ct. 2058, 2062 (2017) (“An attorney error does not qualify as ‘cause' to excuse a procedural default unless the error amounted to constitutionally ineffective assistance of counsel.”); Murray v. Carrier, 477 U.S. 478, 488 (1986). In the interest of judicial efficiency, the court considers the merits of those claims to determine whether the alleged ineffective assistance of counsel in failing to preserve those claims resulted in actual prejudice, without setting forth a separate cause and prejudice analysis on the procedural default question. See Strickler v. Greene, 527 U.S. 263, 296 (1999) (requiring a reasonable probability that the conviction or sentence would have been different to establish prejudice to overcome procedural default). Having considered the merits of Claims 1, 2, 3, and 9 on de novo review, infra, the court finds no “reasonable probability” that the outcome of the trial would have been different had those claims been preserved, and determines that the alleged ineffective assistance of counsel did not result in prejudice to excuse the procedural default of those claims. See Visciotti v. Martel, 862 F.3d 749, 769 (9th Cir. 2016) (applying de novo standard of review to ineffective assistance of counsel claims in the cause-and-prejudice context), cert. denied, 138 S.Ct. 1546 (2018). Accordingly, Claims 1, 2, 3, and 9 are DISMISSED as procedurally defaulted. As discussed below, the court further denies Claims 1, 2, 3, and 9 on the merits, as a separate ground from procedural default for denying habeas relief.

         II. Claims Based on Statements Made ...


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