United States District Court, N.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF APPEALABILITY; DIRECTIONS TO
CLERK
EDWARD
J. DA VILA United States District Judge.
Petitioner
filed a pro se petition for a writ of habeas corpus under 28
U.S.C. § 2254 challenging his state conviction. The
Court found the petition (Docket No. 1,
"Petition"), stated cognizable claims which merited
an answer from Respondent. (Docket No. 12.) Respondent filed
an answer on the merits. (Docket No. 18, "Answer.")
Petitioner filed a Traverse. (Docket No. 21,
"Traverse.")
For the
reasons set forth below, the Petition for a Writ of Habeas
Corpus is DENIED.
I.
BACKGROUND
In May
2012, Petitioner was found guilty by a jury in Humboldt
County Superior Court ("trial court") of having
committed sexual penetration by a foreign object, sexual
battery by fraud, and misdemeanor battery, against multiple
women. (See Pet. at 1.) On September 14, 2012,
Petitioner was sentenced to seven years in prison.
(See Ans. at 1; Ans. Ex. A at 839.[1]) After less than
three and one-half years in prison, Petitioner was released
on February 20, 2016. (See Pet. at 2.) Petitioner
filed the instant Petition while "at home on
parole." (Id.)
On July
30, 2014, the California Court of Appeal ("state
appellate court") affirmed the judgment in a reasoned
opinion. (Ans., Ex. E; see also People v. Slape, No.
A136669, 2014 WL 3735360, at *1 (Cal.Ct.App. July 30, 2014).)
Petitioner did not pursue his appeal to the California
Supreme Court. (See Ans. at 1.)
Petitioner
filed a petition for a writ of habeas corpus in Humboldt
County Superior Court. (See Ans., Ex. G.) The petition was
denied in a reasoned opinion. (See id.)
Petitioner
filed a petition for a writ of habeas corpus in the
California Court of Appeal for the First Appellate District.
The petition was summarily denied.
Petitioner
filed a petition for a writ of habeas corpus in the
California Supreme Court. (See Ans., Ex. F.) The
petition was summarily denied. (See id.)
On
September 21, 2016, while on parole, [2] Petitioner filed the instant
Petition. (See Pet.)
II.
STATEMENT OF FACTS
The
following facts are taken from the opinion of the state
appellate court on direct appeal:
Defendant committed his crimes against two victims, Jane Doe
One and Jane Doe Two, while giving them massages at his
business. [FN 2]
[FN 2: In his briefing on appeal, defendant almost entirely
ignores the facts underlying his convictions, instead
limiting his "Statement of Facts" to an explanation
of his massage therapy practice, a discussion of his hearing
difficulties, a discussion of the testimony that his proposed
expert witnesses would have provided, and a summary of the
procedural history of the case. While recital of the facts of
this case can be discomfiting, these facts are necessary to
an understanding of the issues defendant raises on appeal,
particularly his challenge to the exclusion of expert
evidence on "referred sensation." We remind
defendant's counsel of his obligation to set forth the
significant facts in appellant's opening brief. (Cal.
Rules of Court, rule 8.204(a)(2)(C).)]
Doe One had injured her psoas muscle, [FN 3] which caused her
pain from her lower back down to her thigh, and in 2007 was
referred to Back in Action (or Healthy Life Alternatives), a
business owned by defendant. During her first appointment,
defendant told her he would give her a massage, and directed
her to undress. He massaged the inside of her upper thighs as
she lay on her back, and his hand brushed against her
genitals a couple of times. He suddenly put his fingers
inside her vagina, directly onto the area that was painful,
and she was immediately in pain. A female physical therapist
had performed internal massage of the knots inside Doe
One's vagina in the past, but she had not given defendant
permission to do so.
[FN 3: The psoas is "a large flexor muscle of the
hip-joint which arises from the lumbar vertebrae and sacrum
and is inserted along with the iliac into the lesser
trochanter of the femur." (12 Oxford English Diet. (2d
ed. 1989) p. 755.).]
Defendant told Doe One to lie on her stomach and told her to
lift her hips off the table. He again inserted his fingers
into her vagina, causing her to have an orgasm. He told her
to lie on her back again, asked her if he could massage her
breasts, and did so. After the massage, Doe One tried to
behave normally. She wrote a check to pay for the massage,
made more appointments, and left. She was upset afterward,
discussed the matter with her husband and pastor, and
reported the incident to the police.
Doe One had taken lorazepam (Adavan) that morning, and an
Ambien tablet the previous night. The lorazepam relieved
stress, but she did not otherwise feel its effects. She had
not noticed any adverse effects from the Ambien, which helped
her sleep. She had been prescribed, and occasionally took,
other medications for migraines (Maxalt and Soma) and
Percocet, but did not recall taking them before the incident.
She also took Cortef, which she said was a hydrocortisone in
tablet form, and which she said caused no side effects other
than weight gain. Defendant presented evidence that some of
the medications Doe One took acted as central nervous
depressants and could affect memory.
Jane Doe Two was a massage therapist. She sought treatment
for back problems in 2009, and defendant told her that since
her insurance would not pay for his services, she could use
some of his business's equipment if she gave him massages
in return. After they spoke in his office, he told her he had
a massage certificate and suggested they trade half-hour
massages. While defendant was massaging Doe Two, he asked if
she knew where her first "chakra" was. She said she
did not, and he slipped his hand under the sheet covering her
and under her underwear, and Eut his hand and finger at the
opening of her vagina. He asked er to put her hand to his
other hand, and asked if she could feel the vibration between
them. She was upset, but after the massage she was afraid
defendant might have locked the door or that he might pursue
her if she tried to leave, and she decided to give him a
massage before leaving. As she did so, he told her he wanted
her to work on his chakra, took her hand, and placed it on
his perineum. Doe Two told him she was not comfortable with
that, and he asked her to continue massaging him. After the
massage, Doe Two made more appointments with defendant
because she was frightened that he would lock her up if he
knew she was uncomfortable. She later reported the matter to
the police.
Michael Drew, who had taught defendant massage therapy in
1996, testified that he taught his students that it is not
appropriate to touch a client's genitals or massage a
woman s breasts. However, internal or pelvic massage could be
used as part of "trigger point therapy," [FN 4] to
search for painful spots that might be referring pain to
other areas. A massage therapist should only do so under the
supervision of a doctor or other licensed medical
professional.
FN 4: Drew explained that people develop trigger points from
overuse injuries or acute injuries.]
Drew testified on cross-examination that there can be trigger
points in the perineal area. He also testified that it was
possible that if a massage therapist activated a nerve in the
lower spine area, a sensation could be felt in the genital
area, and that some of the nerves that run to the genital
area might run through the psoas muscle. If a cramped muscle
was released, the client could feel both painful and
pleasurable sensations in the genitals. A client who was
having referred sensation would feel it both where the
pressure was applied and in the area to which the sensation
was referred.
Janette Johnson, a certified massage therapist and massage
therapy instructor, testified for the People as an expert in
massage therapy and professional standards of conduct. On
cross-examination, she testified that when pressure was
applied to a "trigger point," sensation could be
referred to another site. When a muscle in the inner thigh
area or perineum was activated, referred pain could be felt
in the genitals.
M.G. testified that she received massage therapy from
defendant in 1998, that he asked her to disrobe completely,
and that over time, he focused his massages more on her
crotch area and her breasts. On several occasions, as he
worked on pressure points near her pubic area, he
"hit" her genitals. After each massage, he would
give her a hug in order to "crack [her] back," and
on two occasions he kissed her.
Defendant testified in his own defense. He testified that he
performed trigger point therapy on Doe One, and that it could
be painful. He found trigger points in her right hip area,
and relieved the entrapment that was preventing circulation
of the neuromuscular portion of her hip. When an entrapment
was released, the client could feel sensations throughout the
body. The psoas muscle encompassed the vagina, and when it
was released, the client could experience sensation in the
genitalia, because "those nerves that go to the
genitalia actually go through the psoas muscle." This
could result in a simulated orgasm. While he was massaging
Doe One, he got no closer than three inches to her vagina,
and he denied penetrating her. He massaged her right upper
quadrant, but denied touching her breasts. When Doe One was
on her stomach, he asked her to push her hips up into his
hand so he could determine how much pressure she could
withstand. He did not penetrate her as he did so, and he was
not aware that she was having an orgasm. He believed both Doe
One and Doe Two might have experienced referred sensation.
Defendant testified that Doe Two told him she was a massage
therapist and that they agreed to trade massages. He said he
was within a few inches of her genitals as he was massaging
her, but denied touching them. He said Doe Two had asked for
"chakra infusion," but that he was unable to
"get to" chakra number one, located on the
perineum, because of her body weight, so he went to chakra
number two, just above the navel.
Defendant also testified that as part of the therapy he
received for the effects of a broken back, a massage
therapist regularly massaged his perineum. When Doe Two was
massaging him, he placed her hand on his perineum.
Slape, 2014 WL 3735360, at *1-3.
III.
DISCUSSION
A.
Legal Standard
This
Court may entertain a petition for a writ of habeas corpus
"in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties
of the United States." 28 U.S.C. § 2254(a);
Rose v. Hodges, 423 U.S. 19, 21 (1975). The writ may
not be granted with respect to any claim that was adjudicated
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).
"Under
the 'contrary to' clause, a federal habeas court may
grant the writ 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] Court has on a set of materially indistinguishable
facts." Williams v. Taylor, 529 U.S. 362,
412-13 (2000). The only definitive source of clearly
established federal law under 28 U.S.C. § 2254(d) is in
the holdings (as opposed to the dicta) of the Supreme Court
as of the time of the state court decision.
Williams, 529 U.S. at 412; Brewer v. Hall,
378 F.3d 952, 955 (9th Cir. 2004). While circuit law may be
"persuasive authority" for purposes of determining
whether a state court decision is an unreasonable application
of Supreme Court precedent, only the Supreme Court's
holdings are binding on the state courts and only those
holdings need be "reasonably" applied. Clark v.
Murphy, 331 F.3d 1062, 1069 (9th Cir.), overruled on
other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).
"Under
the 'unreasonable application' clause, a federal
habeas court may grant the writ if the state court identifies
the correct governing legal principle from [the Supreme
Court's] decisions but unreasonably applies that
principle to the facts of the prisoner's case."
Williams, 529 U.S. at 413. "Under §
2254(d)(1)'s 'unreasonable application' clause,
... a federal habeas court 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. A federal habeas court making the "unreasonable
application" inquiry should ask whether the state
court's application of clearly established federal law
was "objectively unreasonable." Id. at
409. The federal habeas court must presume correct any
determination of a factual issue made by a state court unless
the petitioner rebuts the presumption of correctness by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1).
Here,
as noted above, the California Supreme Court summarily denied
Petitioner's petitions for review. See supra at
2; (Ans., Ex. F). The Superior Court of California for the
County of Humboldt ("Humboldt Court"), on
collateral review, addressed all the claims in the instant
petition. (Ans., Ex. G.) The Humboldt Court found some of the
claims to be procedurally barred, and referred others to the
appellate court for consideration. (See id.) The
appellate court and the California Supreme Court then denied
all of Petitioner's claims without comment.
As to
the procedural bars, the Humboldt Court was the highest court
to have reviewed the claims in a reasoned decision, and it is
that decision that this Court reviews herein. See Ylst v.
Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v.
Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005).
As to
the claims that the Humboldt Court referred to the appellate
court, because there is no reasoned opinion on collateral
review, this Court "must determine what arguments or
theories supported or, as here, could have supported, the
state court's decision; and then it must ask whether it
is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a
prior decision of this Court." Harrington v.
Richter, 562 U.S. at 101. Accordingly, as to the
substance of Petitioner's claims, where there is no
reasoned decision on collateral review, the Court will
largely refer to the state appellate court's opinion on
direct review.
The
Supreme Court has vigorously and repeatedly affirmed that
under AEDPA, there is a heightened level of deference a
federal habeas court must give to state court decisions. See
Hard y v. Cross, 132 S.Ct. 490, 491 (2011) (per
curiam); Harrington v. Richter, 131 S.Ct. 770.
783-85 (201 \): Felkner v. Jackson, 131 S.Ct. 1305
(2011) (per curiam). As the Court explained: "[o]n
federal habeas review, AEDPA 'imposes a highly
deferential standard for evaluating state-court rulings'
and 'demands that state-court decisions be given the
benefit of the doubt.'" Id. at 1307
(citation omitted). With these principles in mind regarding
the standard and limited scope of review in which this Court
may engage in federal habeas proceedings, the Court addresses
Petitioner's claims.
B.
Claims and Analysis
The
Petition raised, and the Court found cognizable, the
following grounds[3] for federal habeas relief:
(1)
actual innocence on the basis that certain elements of
Petitioner's crimes were not met ("Claim 1");
(2)
ineffective assistance of trial counsel on grounds not
presented on direct appeal ("Claim 2");
(3) the
trial court erred in admitting prejudicial propensity
evidence of "unproven prior accusation" to prove
intent ("Claim 3");
(4)
ineffective assistance of trial counsel on grounds presented
on direct appeal ("Claim 4");
(5) the
trial court erred in excluding the testimony of two expert
witnesses for the defense ("Claim 5");
(6)
inadequate jury instructions ("Claim 6");
(7)
failure to provide accommodations for his hearing disability
("Claim 7");
(8)
failure to give jury instructions on defense arguments
("Claim 8");
(9) he
was not given proper notice of the charges against him
...