United States District Court, N.D. California
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.
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.
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
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
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
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
Prior Incidents of Domestic Violence and Sexual
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.
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
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.
State Court Trial and Direct Appeal
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).
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.
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)).
State Court Habeas Proceedings
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.
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.
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.
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).
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)).
Federal Habeas Proceedings
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.
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
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
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
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
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 16: Appellate counsel was ineffective
in failing to raise the issues identified in claims 8 and 14
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.
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.
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.
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.
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.
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).
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.
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.
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
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).
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.
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.
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).
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.
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.
Claims Based on Statements Made ...