Slape v. Haase

          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 ...