Baltiera v. McDonald
Filing
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ORDER Substituting Connie Gipson, Warden as Respondent; FINDINGS and RECOMMENDATIONS to Decline to Consider New Claims and to Deny the First Amended Petition for Writ of Habeas Corpus 14 ; FINDINGS and RECOMMENDATIONS to Deny Petitioner's Requ est for an Evidentiary Hearing; FINDINGS and RECOMMENDATIONS to Direct the Entry of Judgment for Respondent and Decline to Issue a Certificate of Appealability, signed by Magistrate Judge Sheila K. Oberto on 1/22/13. Referred to Judge O'Neill, Connie Gipson added. Thirty-Day Deadline. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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EDWARDO BALTIERA,
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Petitioner,
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v.
CONNIE GIPSON, Warden,
Respondent.
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1:10-cv—00590-LJO-SKO-HC
ORDER SUBSTITUTING CONNIE GIPSON,
WARDEN, AS RESPONDENT
FINDINGS AND RECOMMENDATIONS TO
DECLINE TO CONSIDER NEW CLAIMS
AND TO DENY THE FIRST AMENDED
PETITION FOR WRIT OF HABEAS
CORPUS (DOC. 14)
FINDINGS AND RECOMMENDATIONS TO
DENY PETITIONER’S REQUEST FOR AN
EVIDENTIARY HEARING
FINDINGS AND RECOMMENDATIONS TO
DIRECT THE ENTRY OF JUDGMENT FOR
RESPONDENT AND DECLINE TO ISSUE A
CERTIFICATE OF APPEALABILITY
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Petitioner is a state prisoner proceeding pro se and in
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forma pauperis with a petition pursuant to 28 U.S.C. § 2254.
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matter has been referred to the Magistrate Judge pursuant to 28
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U.S.C. § 636(b)(1) and Local Rules 302 through 304.
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before the Court is the first amended petition (FAP), which was
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filed on July 13, 2011.
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with supporting documents on September 7, 2011.
The
Pending
Respondent filed an answer to the FAP
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On October 20,
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2011, Petitioner filed a traverse.
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I.
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Because the petition was filed after April 24, 1996, the
Jurisdiction
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effective date of the Antiterrorism and Effective Death Penalty
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Act of 1996 (AEDPA), the AEDPA applies in this proceeding.
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v. Murphy, 521 U.S. 320, 327 (1997); Furman v. Wood, 190 F.3d
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1002, 1004 (9th Cir. 1999).
Lindh
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A district court may entertain a petition for a writ of
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habeas corpus by a person in custody pursuant to the judgment of
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a state court only on the ground that the custody is in violation
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of the Constitution, laws, or treaties of the United States.
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U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362,
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375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13,
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16 (2010) (per curiam).
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the proceedings resulting in his conviction and sentence, he
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suffered violations of his constitutional rights.
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judgment was rendered by the Madera County Superior Court (MCSC),
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which is located within the territorial jurisdiction of this
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Court.
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Petitioner claims that in the course of
The challenged
28 U.S.C. §§ 84(b), 2254(a), 2241(a), (d).
An answer was filed on behalf of Respondent M. McDonald,
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Warden, who at the time the petition and answer were filed was
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the warden of the High Desert State Prison at Susanville,
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California, where Petitioner was incarcerated at the time the
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petitions were filed.
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person who had custody of the Petitioner within the meaning of 28
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U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254
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Cases in the District Courts (Habeas Rules).
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California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
Petitioner thus named as a respondent a
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See, Stanley v.
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Accordingly, this Court has jurisdiction over the subject
matter of this action and over the person of Respondent.
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II.
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Fed. R. Civ. P. 25(d) provides that an action does not abate
Order to Substitute Respondent
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when a public officer who is a party in an official capacity
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dies, resigns, or otherwise ceases to hold office while the
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action is pending; rather, the officer’s successor is
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automatically substituted as a party.
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that a court may at any time order substitution, but the absence
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The rule further provides
of such an order does not affect the substitution.
Petitioner initially named as Respondent Mike McDonald, who
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at the time the petition was filed was the warden of the High
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Desert State Prison.
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address after the FAP was filed to reflect that his present
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custodial institution is the California State Prison at Corcoran,
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California (CSP-COR).
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Department of Corrections and Rehabilitation (CDCR) reflects that
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Connie Gipson is presently acting as the warden of CSP-COR.1
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However, Petitioner filed a change of
The official website of the California
Accordingly, it is ORDERED that Connie Gipson, Warden, is
SUBSTITUTED as Respondent.
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III.
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In case number MCR017637 in the MCSC, Petitioner was
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convicted of having committed sexual offenses against his
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stepdaughters.
Procedural Summary
As to stepdaughter D, Petitioner was convicted of
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The Court may take judicial notice of facts that are capable of
accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned, including undisputed information posted on official
websites. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331,
333 (9th Cir. 1993); Daniels-Hall v. National Education Association, 629 F.3d
992, 999 (9th Cir. 2010). The address of the official website for the CDCR is
http://www.cdcr.ca.gov.
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having committed two counts of aggravated sexual assault in
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violation of Cal. Pen. Code § 269(a)(1) [counts 1 and 2], and one
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count of attempted lewd acts in violation of Cal. Pen. Code
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§§ 664 and 288(a) [count 4]; he was acquitted of a third count of
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aggravated sexual assault against D [count 3].
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stepdaughter R, Petitioner was convicted of two counts of
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forcible lewd acts in violation of Cal. Pen. Code § 288(b)
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[counts 5 and 6].
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an offense against more than one victim within the meaning of
As to
The jury also found that Petitioner committed
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Cal. Pen. Code § 667.61.
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consecutive terms of fifteen years to life for counts 1, 2, 5,
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and 6, plus three years for count 4, the attempt conviction.
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(Ans., doc. 20, 6-7; doc. 20-1, 2, 8.)
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The trial court imposed four
Petitioner appealed his conviction to the Court of Appeal of
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the State of California, Fifth Appellate District (CCA), which
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remanded the case for re-sentencing on counts 5 and 6 but
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affirmed the judgment in all other respects.
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Petitioner’s petition for review of the CCA’s decision was denied
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by the California Supreme Court (CSC) without a statement of
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reasons or citation of authority.
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collateral actions were filed in state court.
(LD 5-6.)
(LD 1, 27.)2
No post-conviction
(Doc. 20, 6:12.)
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IV.
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In a habeas proceeding brought by a person in custody
Factual Summary
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pursuant to a judgment of a state court, a determination of a
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factual issue made by a state court shall be presumed to be
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correct; the petitioner has the burden of producing clear and
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“LD” refers to documents lodged by Respondent in support of the
answer.
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convincing evidence to rebut the presumption of correctness.
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U.S.C. § 2254(e)(1); Sanders v. Lamarque, 357 F.3d 943, 947-48
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(9th Cir. 2004).
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facts drawn from a state appellate court’s decision.
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Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009).
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statement of facts is taken from the decision of the CCA filed on
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September 25, 2008, in People v. Baltierra, case number F052609:
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Defendant was born in March 1974, and married Christi
in June 2001. The victims, D. and R., were Christi's
daughters. D. was born in March 1991 and R. was born in
November 1992. The victims also had two little
brothers.
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This presumption applies to a statement of
Moses v.
The following
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In June 2003, defendant, Christi, and the children
moved in with Daniel Pool (hereafter, “Pool” or “Uncle
Dan”). Pool lived out in the country, and the children
called him Uncle Dan. It was during the time they were
living with Pool that defendant sexually abused the
victims. At defendant's trial, four witnesses testified
for the prosecution.
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1. Victim D.
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At trial, D. recalled three specific incidents of
sexual abuse. One night defendant took her into the
orchards outside Pool's house. He told her they were
going to shoot rabbits. But once they were there,
defendant placed D. on the ground and put his finger
inside her vagina. He then got on top of her and put
his penis inside her vagina. D. cried and struggled to
get away but defendant “just kept going.” When he was
done, defendant pulled up D.'s pants and then his own
before they walked back to the house.
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Another night, defendant came into the victims' bedroom
while they were sleeping. Defendant got on top of D.,
pulled down her pants, and put his penis inside her
vagina. D. recalled that R. woke up and defendant told
her to go back to sleep. D. cried and tried to get
free, but defendant “just kept going and going until he
was done.” When he was done, defendant pulled up his
pants and left the room.
The last incident D. could recall took place around
Thanksgiving. D. testified that she thought it was
Thanksgiving “Because that morning my uncle put in the
turkey in the oven.” Defendant came to her room and
gave her a beer to drink. He then touched her and put
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his penis inside her vagina.
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When asked how many times these encounters with
defendant occurred, D. testified, “Whenever he was
drinking or smoking pot.” Her mother was asleep when
they happened.
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The first person D. told about what was happening was
Uncle Dan. It was Thanksgiving morning. Uncle Dan asked
her why she was crying and why defendant had been in
her room. D. did not tell anybody sooner because she
was scared her mother would not believe her. D.
explained her mother “takes the man before her
children.”
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No one besides defendant ever touched D.
inappropriately.
D. claimed that defendant physically disciplined her by
getting a belt and hitting her on the back. He also did
this to one of her brothers.
Even before the first incident of abuse, D. thought
defendant was “a nasty man” and “had a feeling
something bad was going to happen.”
When D. lived in the house with her mother and
defendant, defendant spoke Spanish. D. understood and
spoke Spanish and was able to communicate with
defendant.
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On cross-examination, D. confirmed that, during an
interview, she estimated that defendant had sex with
her 30 to 35 times and that this was true. It would
happen every Friday and Saturday night when defendant
would get drunk and come into her room. Her mother was
always in the house when this happened.
D. also acknowledged that when she was asked during the
interview how her mother and defendant met, she said
they met when her mother forced her to watch her having
sex with 20 men, two at a time. Defendant was one of
the 20 men. D. maintained that this was true.
D. further verified that when she was asked during the
interview how she knew defendant was done having sex
with her during the incident in the orchards, she
answered, “he shot his sperm inside me.”
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Before talking to Uncle Dan, D. never told any school
officials about defendant's abuse because she was
afraid she and her siblings would be taken away from
her mother and Uncle Dan, and she wanted them to stay
together.
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D. admitted she wanted defendant out of her life and
her family's life from the time she met him.
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On redirect examination, D. testified she did not
dislike defendant so much that she would be willing to
lie to get rid of him.
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2. Victim R.
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At trial, R. recalled that defendant touched her in
three different rooms in Uncle Dan's house. The first
incident she could recall occurred in defendant's room.
Defendant pulled her pants down, laid her on the bed,
and started trying to put his penis inside her vagina.
R. could not get up because defendant was bigger than
she was and he would push her back down on the bed.
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The second incident R. could recall occurred in the
bathroom. Defendant laid her down on a towel on the
bathroom floor and tried to put his penis inside her
vagina. His penis went in “[a] little.” He stopped when
R. heard her uncle asking where she was.
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R. recalled that defendant also assaulted her in the
living room. R. testified that defendant bent her over
the arm of a couch and “did it from behind ... [h]e
stuck his [penis] into my vagina.”
R. also claimed that one night she witnessed defendant
sexually assaulting her sister, D. According to R.
defendant came into their bedroom through the window.
He went to the bed, pulled down D.'s pants, and stuck
his penis inside her. R. told him to stop or she would
tell her uncle. He stopped and left the bedroom through
the door.
R. never told her mother because her mother would not
have believed her, “Because she's like that.” R. did
not think any of her teachers would believe her either.
R. confirmed that defendant spoke Spanish. She
understood it and was able to communicate with
defendant when she lived with him.
On cross-examination, R. acknowledged that in August
2004, about eight months after she was placed in foster
care, she told a social worker that Pool also molested
her and that this was true. According to R., she had
tried to tell her teachers, but they had not believed
her.
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R. confirmed that she told law enforcement officials
that her mother met defendant while they were playing
basketball at a school.
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R. also acknowledged that she told Uncle Dan that
defendant molested her. When she talked to Uncle Dan,
he told her “almost all Mexicans fuck their own
children.”
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R. acknowledged that when describing defendant's acts
to an interviewer, she made statements including, “I
put it tight so he doesn't stick it in,” “he just stuck
the head in,” and “Every time he tries to shoot the
load in me, he can't.”
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On redirect examination, R. verified that it was her
testimony that both defendant and Pool molested her.
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3. Daniel Pool
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Pool testified he saw defendant go into D.'s room early
one morning. Defendant had two beers with him. When D.
came out of the room, Pool asked her what was going on,
but she did not say anything. Pool then asked what
defendant was doing bringing beers into her room. D.
replied that defendant was just talking to her, but
Pool could smell beer on her breath. D. eventually
disclosed that she was being molested. Pool told D. she
needed to tell her mother. Pool was present when D.
spoke to her mother, who became upset. Pool then called
the sheriff's department and they came out and spoke
with D.
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Pool denied that he ever threatened defendant. Pool did
not speak Spanish and never spoke to defendant. Pool
often saw defendant drinking in the house.
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Pool recalled that on the occasion he saw defendant go
into D.'s room, he was preparing food, including a
turkey, for Christmas dinner.
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Pool never saw defendant whip any of the children with
a belt.
Pool acknowledged that he was aware that R. had in the
past accused him of touching her inappropriately. To
his knowledge, the allegations were investigated. He
did not know what happened with those allegations. The
allegations were made sometime before Christi,
defendant, and the children moved into his home. Pool
was never charged with any crimes.
On cross-examination, Pool testified that he contacted
the sheriff's department the same night D. told him
about defendant. His recollection was that D. told him
on Christmas Eve.
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Pool denied that R.'s allegations against him were
true. When asked if he said “almost all Mexicans fuck
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their own children,” Pool responded, “That's a lie,
sir.” According to Pool, the victims “always had
problems of telling stories.”
Pool further testified on cross-examination that he was
gone a lot, mostly on the weekends, and never witnessed
defendant touch D. or R. inappropriately. Pool also
denied that he ever physically disciplined D.
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On redirect examination, Pool explained that he allowed
Christi and her family to live with him despite R.'s
prior allegations because they were begging him for a
place to stay. Pool was upset the night he called the
sheriff's department, “Because it didn't seem like
their mother wanted to do anything, and I was so upset
that these kinds of things would happen in my house.”
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4. Detective Hancock
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Detective Karl Hancock with the sheriff's department
was assigned to the case involving D. and R. He went to
Pool's home to investigate their allegations. Detective
Hancock described Pool's home and the surrounding area.
On cross-examination, Detective Hancock testified he
was present during the separate “C-SART [(Child Sexual
Abuse Response Team)]” interviews of D. and R. During
her interview, D. did not make any statements about an
incident of sexual activity occurring on Thanksgiving.
Rather, she indicated it was Christmas Eve. Detective
Hancock confirmed that D. stated defendant met her
mother when her mother forced D. to watch her have sex
with 20 men. D. also reported that she had around 30
sexual encounters with defendant. In her interview, R.
stated that defendant had or attempted to have sex with
her about 20 times. During their interviews, neither D.
nor R. mentioned she was molested by Daniel Pool.
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Detective Hancock further testified that Pool reported
defendant for the first time to the sheriff's
department on January 24, 2004.
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The Defense
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With the aid of a Spanish interpreter, defendant
testified and denied that he ever had sex or attempted
to have sex with D. or R.
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Defendant further testified he had lived in the United
States for 12 years. He never had group sex with his
wife, and D.'s testimony that he and 19 other men had
sex with his wife was false.
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Defendant testified that a few weeks before defendant
was arrested, Pool threatened him and said “he's going
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to find the way to fuck me up.”
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On cross-examination, defendant testified he met
Christi and her two daughters for the first time when
he was on the street running errands. Defendant and
Christi married a year later. He communicated with
Christi in Spanish.
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Defendant further testified that Pool threatened him
around November 2003, and that he moved out of the
house two to three weeks later. Defendant denied that
he ever disciplined the victims.
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Chris Swearengin testified that he was Pool's
biological son. He sometimes visited Pool at his
residence when Christi's family was living with him.
During his visits, he saw Pool physically disciplining
R. When asked in what manner Pool disciplined R.,
Swearengin replied: “Spanked ‘em with his bare palm.”
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V.
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Title 28 U.S.C. § 2254 provides in pertinent part:
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(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings unless
the adjudication of the claim–
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Standard of Decision and Scope of Review
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(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
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(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.
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Clearly established federal law refers to the holdings, as
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opposed to the dicta, of the decisions of the Supreme Court as of
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the time of the relevant state court decision.
Cullen v.
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Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v.
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Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S.
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362, 412 (2000).
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///
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A state court’s decision contravenes clearly established
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Supreme Court precedent if it reaches a legal conclusion opposite
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to, or substantially different from, the Supreme Court's or
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concludes differently on a materially indistinguishable set of
5
facts.
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need not have cited Supreme Court precedent or have been aware of
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it, "so long as neither the reasoning nor the result of the
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state-court decision contradicts [it]."
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U.S. 3, 8 (2002).
10
Williams v. Taylor, 529 U.S. at 405-06.
The state court
Early v. Packer, 537
A state court unreasonably applies clearly established
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federal law if it either 1) correctly identifies the governing
12
rule but then applies it to a new set of facts in an objectively
13
unreasonable manner, or 2) extends or fails to extend a clearly
14
established legal principle to a new context in an objectively
15
unreasonable manner.
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(9th Cir. 2002); see, Williams, 529 U.S. at 407.
17
Hernandez v. Small, 282 F.3d 1132, 1142
An application of clearly established federal law is
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unreasonable only if it is objectively unreasonable; an incorrect
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or inaccurate application is not necessarily unreasonable.
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Williams, 529 U.S. at 410.
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claim lacks merit precludes federal habeas relief as long as
22
fairminded jurists could disagree on the correctness of the state
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court’s decision.
Harrington v. Richter, 562 U.S. -, 131 S.Ct.
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770, 786 (2011).
Even a strong case for relief does not render
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the state court’s conclusions unreasonable.
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federal habeas relief, a state prisoner must show that the state
27
court’s ruling on a claim was “so lacking in justification that
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there was an error well understood and comprehended in existing
A state court’s determination that a
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Id.
To obtain
1
law beyond any possibility for fairminded disagreement.”
2
786-87.
3
standard[s] for evaluating state-court rulings” which require
4
that state court decisions be given the benefit of the doubt, and
5
the Petitioner bear the burden of proof.
6
131 S. Ct. at 1398.
7
unless each ground supporting the state court decision is
8
examined and found to be unreasonable under the AEDPA.
9
Lambert, -–U.S.--, 132 S.Ct. 1195, 1199 (2012).
10
Id. at
The standards set by § 2254(d) are “highly deferential
Cullen v. Pinholster,
Further, habeas relief is not appropriate
Wetzel v.
In assessing under section 2254(d)(1) whether the state
11
court’s legal conclusion was contrary to or an unreasonable
12
application of federal law, “review... is limited to the record
13
that was before the state court that adjudicated the
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claim on the merits.”
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Evidence introduced in federal court has no bearing on review
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pursuant to § 2254(d)(1).
17
that was on the merits and was based on a factual determination
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will not be overturned on factual grounds unless it was
19
objectively unreasonable in light of the evidence presented in
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the state proceedings.
21
Cockrell, 537 U.S. 322, 340 (2003).
Cullen v. Pinholster, 131 S. Ct. at 1398.
Id. at 1400.
A state court decision
28 U.S.C. § 2254(e)(1); Miller-El v.
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VI.
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Petitioner challenges the trial court’s imposition of
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consecutive terms of fifteen years to life for counts 1 and 2,
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the aggravated sexual assaults of D committed in violation of
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Cal. Pen. Code § 269.
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sentence him to consecutive sentences because Cal. Pen. Code
28
§ 269 was not listed as an offense requiring a mandatory
Consecutive Terms
Petitioner argues that it was improper to
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consecutive sentence pursuant to Cal. Pen. Code § 667.6(d).
2
4, 7-8.)
3
(FAP
The CCA addressed Petitioner’s claim in its decision on
4
appeal.
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for review summarily.
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the CCA is the last reasoned decision on the claim.
(Doc. 20-1, 8-13.)
The CSC denied Petitioner’s petition
(LD 5-6.)
Accordingly, the decision of
7
The CCA began its analysis as follows:
8
The trial court imposed 15-year-to-life sentences for
each of the two aggravated sexual assault counts (i.e.,
the § 269 counts), as was required by section 269,
subdivision (b). It ordered that those sentences run
consecutively under the assumption that consecutive
sentences were mandatory under section 667.6,
subdivision (d). Defendant argues that consecutive
sentences were not mandatory because section 269 is not
an offense enumerated in section 667.6, subdivision
(d). We disagree with defendant's argument.
9
10
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13
(Doc. 20-1, 8.)
The CCA reviewed § 269 and the California cases
14
applying the statute in analogous situations.
(Id. at 9-10.)
15
The CCA considered a 2006 amendment of § 269, which Petitioner
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argued showed that the Legislature took a contrary view of the
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pertinent statutes.
The CCA reviewed the terms of the amendment,
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the legislative history, the broader state statutory scheme,
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applicable state law principles of statutory construction, and
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pertinent state case law. (Id. at 10-13.)
The CCA concluded as
21
follows:
22
Based on our reasoning in Jimenez and Glass, we agree
with the conclusion that “Section 667.6, subdivision
(d) was crystal clear, at the time defendant committed
his crimes, in its application to the rapes that the
jury in this case found beyond a reasonable doubt to
have been committed. Therefore, consecutive sentencing
was mandatory under that subdivision.” (Figueroa,
supra, 162 Cal.App.4th at p. 100.)
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(Doc. 20-1, 13.)
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///
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1
In its analysis of Petitioner’s sentencing issue, the CCA
2
was engaging in statutory interpretation and construction of
3
California law.
4
application by its summary denial of Petitioner’s petition for
5
review.
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The CSC endorsed the CCA’s construction and
In a habeas corpus proceeding, this Court is bound by the
7
California Supreme Court’s interpretation of California law
8
unless it is determined that the interpretation is untenable or a
9
veiled attempt to avoid review of federal questions.
Murtishaw
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v. Woodford, 255 F.3d 926, 964 (9th Cir. 2001).
11
interpretation of state law, including one announced on direct
12
appeal of the challenged conviction, binds a federal court
13
sitting on habeas corpus.
14
(2005) (per curiam); Menendez v. Terhune, 422 F.3d 1012, 1029
15
(9th Cir. 2005).
16
A state court’s
Bradshaw v. Richey, 546 U.S. 74, 76
Here, there is no indication in the record that the state
17
court’s interpretation was either untenable or a veiled attempt
18
to avoid review of federal questions.
19
court’s construction and application of the California sentencing
20
statutes in this case bind this Court.
21
Accordingly, the state
Petitioner has not shown a basis for relief on his
22
sentencing claim in a proceeding pursuant to 28 U.S.C.
23
§ 2254, which remedies only violations of the Constitution, laws,
24
or treaties of the United States.
25
2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000);
26
Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 16 (2010) (per
27
curiam).
28
sentencing claim be dismissed.
28 U.S.C. §§ 2254(a),
It will, therefore, be recommended that Petitioner’s
14
1
VII.
2
Petitioner argues for the first time in his traverse that
3
his consecutive sentences for aggravated assault constituted a
4
violation of the prohibition against ex post facto laws.
5
24, 6-7.)
6
Ex Post Facto
(Doc.
It is improper to raise substantively new issues or claims
7
in a traverse, and a court may decline to consider such matters.
8
To raise new issues, a petitioner must obtain leave to file an
9
amended petition or additional statement of grounds.
Cacoperdo
10
v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994), cert. den., 514
11
U.S. 1026 (1995).
12
Here, Petitioner did not raise the ex post facto ground in
13
the FAP.3
14
to amend his petition to raise this new issue, and Respondent has
15
not had an opportunity to respond to the claim.
Further, Petitioner has not sought leave of the Court
16
Accordingly, it will be recommended that the Court exercise
17
its discretion to decline to consider Petitioner’s ex post facto
18
19
20
21
22
23
24
25
26
27
28
3
For his first ground in the FAP, Petitioner wrote “(See-3A),” which the
Court understands to be a reference to Petitioner’s page 3A, which was added
to the petition form as a typed addendum. (FAP, doc. 14 at 7.) Reference to
Petitioner’s page 3A (which appears at FAP 5) shows only a continuation of
grounds responsive to question 9(d) of the petition form, which appeared on
page 4 of the FAP and requested information on the grounds raised in an appeal
of the conviction. In item 9(d), the first ground Petitioner stated was
raised in the appeal was, “Whether the former version of the crime of
aggravated sexual assault of a child (Pen. Code § 269) was subject to
mandatory consecutive sentencing (PC § 667.6.sub.(d)). Even though this crime
was not specified-(See 3A).” (FAP, doc. 14, 4.) On page 3A, before the
second ground is listed, the words “in section 667.6" appear. (Id. at 5.)
For the supporting facts for the claim, Petitioner directed the reader to
“(See-5A).” (FAP 7.) On page 5A (FAP 8), which is another typed page added
to the petition, Petitioner stated, “Petitioner Edwardo Baltiera argued on
appeal the trial court erred in imposing mandatory consecutive sentences on
counts 1 and 2 for aggravated sexual assault.” (FAP 8.) It therefore appears
that the first ground Petitioner raises in the FAP is whether a violation of
Cal. Pen. Code § 269 was subject to mandatory consecutive sentencing even
though it was not specified in Cal. Pen. Code § 667.6(d). No mention of an ex
post facto claim is made; rather, Petitioner appears to argue a state law
claim of sentencing error.
15
1
claim.
2
VIII.
3
Petitioner argues that although he speaks some Spanish, the
Native American Dialect Interpreter
4
trial court’s failure to inquire to determine whether a Spanish
5
language interpreter was sufficient, when the court was on notice
6
that the defendant’s primary language was a Central American
7
Indian language, presents important federal constitutional and
8
state law questions.
9
(FAP 8.)
To the extent that Petitioner relies on state law for his
10
claim regarding an interpreter, Petitioner fails to allege facts
11
that would entitle him to relief in a proceeding pursuant to
12
§ 2254 because in this proceeding, only violations of the
13
Constitution, laws, or treaties of the United States qualify for
14
relief.
15
issue that does not rise to the level of a federal constitutional
16
violation.
17
(2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
18
errors in the application of state law are not cognizable in
19
federal habeas corpus.
20
Cir. 2002); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996).
21
The Court accepts a state court's interpretation of state law.
22
Id. at 1389.
Federal habeas relief is not available to retry a state
Wilson v. Corcoran, 562 U.S. — , 131 S.Ct. 13, 16
Alleged
Souch v. Schaivo, 289 F.3d 616, 623 (9th
23
Accordingly, to the extent that Petitioner’s claim
24
concerning an interpreter is based on state law, it will be
25
recommended that the claim be dismissed.
26
With respect to Petitioner’s claim under the Constitution,
27
the last reasoned state court decision was the decision of the
28
CCA.
The CSC summarily denied review of the claim.
16
Thus, the
1
Court will look through the summary denial of the CSC to the
2
CCA's decision.
3
A.
Facts
4
The facts stated in the CCA’s decision are as follows:
5
IV. Denial of a “Mixtec” Interpreter
6
During the proceedings which spanned a period of three
years, defendant was aided by a Spanish interpreter. He
also testified in Spanish at trial. For the first time
at the sentencing hearing in March 2007, defendant's
newly retained counsel asserted that defendant did “not
understand Spanish” but spoke “Musla Indian.” FN4
Defense counsel then asserted the proceedings should
not go forward without a “proper interpreter.” The
prosecutor objected that this was “asinine.” The trial
court then denied the defense request for an
“additional type of interpreter.” The court noted that
defendant was convicted in August 2006, and that the
matter had already been continued numerous times. The
court expressed suspicion that defendant's “new sudden”
claim for a “new and different type of interpreter” was
simply a “ploy” to delay the proceedings further.
Defendant now contends the court abused its discretion
in denying his request for a new interpreter and
failing to conduct a hearing into defendant's asserted
need for a “Mixtec” interpreter. We disagree.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
FN4. On appeal, defendant asserts that “this
must be a transcription error or misstatement
on the part of counsel; there is no such
language as ‘Musla,’ whereas Mixtec is an
Indian language that is commonly spoken by
Mexican immigrants in the Central Valley,
particularly Madera County, where [defendant]
lived and where this case was tried.”
Defendant supports his assertion regarding
the prevalence of the Mixtec language in
Madera County with a UC Davis study and New
York Times article. Otherwise, the record
contains no evidence that defendant spoke the
Mixtec language.
(Doc. 20-1, 19-20.)
B.
The Decision of the State Court
The CCA based its decision on Cal. Const., art. I, § 4,
27
which expressly provides that a person unable to understand
28
English who is charged with a crime has a right to an interpreter
17
1
throughout the proceedings.
2
analyzed whether the Petitioner had established that an
3
interpreter was necessary by showing that his understanding of
4
Spanish was not sufficient to allow him to understand the nature
5
of the proceedings and to participate intelligently in his
6
defense.
7
discretion under California case law which would be affirmed
8
unless there was a complete lack of any evidence in the record
9
that the accused did understand Spanish, thereby rendering the
10
It further considered the scope of a trial court’s
decision totally arbitrary.
11
The CCA applied California cases and
(Id. at 20-21.)
The CCA noted the numerous indicia of Petitioner’s knowledge
12
of Spanish contained in the record,4 characterized the record as
13
not reflecting a complete lack of evidence that defendant
14
understood Spanish, determined that no authority supported a duty
15
on the part of the trial court to make an inquiry under the
16
circumstances, and concluded as follows:
17
Given his demonstrated ability to understand Spanish
during the majority of the proceedings, the trial court
did not abuse its discretion by implicitly concluding
defendant understood Spanish and did not require a new
interpreter. It follows there was no due process
violation.
18
19
20
(Id. at 21-22.)
21
///
22
23
4
24
25
26
27
28
The court considered Petitioner’s having testified in Spanish at
trial, Petitioner’s having testified that he communicated with his wife in
Spanish, testimony by English-speaking witnesses that Petitioner spoke Spanish
at home and that they understood and were able to communicate with him in
Spanish, Pool’s testimony that Petitioner spoke Spanish, and Petitioner’s
having undergone a psychological evaluation pursuant to Cal. Pen. Code § 288.1
which produced a report describing him as “Spanish-speaking only.” (Id. at
21.) The court discounted two isolated instances of confusion that Petitioner
claimed showed difficulty understanding Spanish but which the trial court
found were possibly due to Petitioner’s desire to evade an uncomfortable line
of questioning. (Id. at n.5.)
18
1
2
C.
Analysis
The United States Supreme Court has recognized that persons
3
who speak languages other than English are protected by the
4
Constitution.
5
Cir. 2003) (citing cases).
6
right to a court-appointed interpreter, the use of an interpreter
7
is within the discretion of the trial court.
8
States, 205 U.S. 86, 91 (1907); United States v. Si, 333 F.3d at
9
1042-43 n.3.
10
11
12
13
14
15
16
United States v. Si, 333 F.3d 1041, 1043 n.3 (9th
Although there is no constitutional
Perovich v. United
The rule in the Ninth Circuit is as follows:
Our circuit holds that a constitutional right to an
interpreter exists in certain situations. See United
States v. Mayans, 17 F.3d 1174, 1179-81 (9th Cir.1994)
(holding that a defendant's Fifth Amendment rights were
violated when an interpreter was withdrawn by the
court); see also United States v. Shin, 953 F.2d 559,
561 (9th Cir.1992) (“As a constitutional matter, the
appointment of interpreters is within the district
court's discretion.”).
United States v. Si, 333 F.3d at 1043.
Here, the facts as found by the state court reflect that
17
Petitioner proceeded throughout a substantial portion of the
18
trial proceedings with a Spanish language interpreter, including
19
the hearing and giving of testimony, without any apparent
20
difficulty except one instance of confusion concerning the
21
Petitioner’s definition of sex during testimony, and Petitioner’s
22
expressed inability to understand his right to an appeal when he
23
was receiving advice after his request for a new interpreter was
24
denied.
25
additional interpreter.
26
the available information concerning Petitioner’s conduct during
27
the trial.
28
to understand Spanish during the majority of the proceedings, the
It was not until sentencing that Petitioner asked for an
At that time, the trial court reviewed
Because the Petitioner had demonstrated his ability
19
1
CCA concluded that the trial court’s implicit conclusions that
2
the Petitioner understood Spanish and did not require an
3
interpreter were within the court’s discretion.
4
This conclusion was not contrary to, or an unreasonable
5
application of, clearly established federal law.
6
indication that Petitioner’s ability to comprehend the
7
proceedings, give testimony, or communicate with counsel had been
8
affected.
9
basis for a finding of a violation of Petitioner’s Fifth, Sixth,
There was no
Thus, there were no circumstances that presented a
10
or Fourteenth Amendment due process rights.
11
could reasonably find that Petitioner’s apparent ability to
12
proceed with a Spanish language interpreter throughout the trial
13
proceedings demonstrated an ability to communicate effectively in
14
the Spanish language.
Cf. United States v. Si, 343 F.3d 1116,
15
1122 (9th Cir. 2003).
As long as the defendant’s ability to
16
understand the proceedings and communicate with counsel is
17
unimpaired, the appropriate use of interpreters in the courtroom
18
is a matter within the trial court’s discretion.
19
States v. Lim, 794 F.2d 469, 471 (9th Cir. 1986).
20
A fairminded jurist
Cf. United
Accordingly, it will be recommended that Petitioner’s claim
21
concerning the failure to provide an additional interpreter be
22
denied.
23
IX.
24
For the first time in his traverse, Petitioner argues in
25
conclusional form that even though he spoke some Spanish, the
26
failure to provide him with an additional interpreter for his
27
native Central American Indian language violated his right to
28
present a complete defense, to be present meaningfully at every
Additional Claims concerning an Interpreter
20
1
material phase of trial, and to have meaningful access to the
2
courts.
3
understand the charges and defend himself.
4
Petitioner also claims that he was denied the right to
However, Petitioner does not point to a single indicator of
5
denial of any of those rights or of any related prejudicial
6
effect.
7
proceedings which he did not understand, no evidence that he was
8
unable to comprehend or confront, no instance where he could not
9
testify or communicate with counsel, and no indication of any
10
plea or request that he would have entered had an additional
11
translator been present.
12
satisfaction and facility with Spanish during his day-to-day
13
living, testimony, and the remainder of the trial proceedings, it
14
does not appear that Petitioner could establish that he suffered
15
any prejudice from the use of a Spanish language interpreter.
16
Petitioner has identified no particular part of the
In light of Petitioner’s apparent
A habeas petitioner must allege facts that show that he was
17
prejudiced by an alleged constitutional violation.
18
v. Abrahamson, 507 U.S. 619, 637 (1993) (determining that habeas
19
relief is warranted when an error resulted in actual prejudice,
20
or had a substantial and injurious effect or influence in
21
determining the jury’s verdict).
22
an opportunity to respond to the new claims, and Petitioner does
23
not seek to amend his petition to include the additional claims.
24
Accordingly, it will be recommended that the Court exercise
25
26
Cf., Brecht
Further, Respondent has not had
its discretion to decline to consider Petitioner’s new claims.
X.
Denial of a Motion for a New Trial Based on Newly
Discovered Evidence
27
Petitioner argues that the trial court erred in denying a
28
21
1
motion for a new trial after newly discovered evidence revealed
2
that a principal prosecution witness was a serial child abuser,
3
which in turn could have explained how the two victims were able
4
to provide detailed accounts of the facts of sexual abuse.
5
5, 8.)5
6
of federal constitutional and state law.
7
previously noted, to the extent that Petitioner’s claims rest on
8
state law, they are not cognizable in this proceeding as this
9
Court’s scope of review extends only to violations of the
10
11
(FAP
Petitioner alleges that this poses an important question
(FAP 8.)
However, as
Constitution, laws, or treaties of the United States.
Accordingly, to the extent that Petitioner’s claim
12
concerning the new trial motion rests on state law, it will be
13
recommended that the claim be dismissed.
14
15
16
A.
The State Court’s Decision
The CCA stated the following in its appellate opinion, which
was the last reasoned decision of a state court on the issue:
17
V. Denial of New Trial Motion
18
After the jury rendered its verdict and prior to
sentencing, defendant filed a written motion for a new
trial on the ground of newly discovered evidence in the
form of declarations from two women in their thirties
claiming that prosecution witness Daniel Pool sexually
molested them when they were children between the ages
of four and 11. In his motion, defendant asserted:
“Under Penal Code Section 1181(8), this testimony would
be both material and tend to cast doubt on the
testimony of the two victims in this case, as well as
the testimony of Mr. Pool.” At the hearing on
defendant's motion, the parties submitted on the
19
20
21
22
23
24
25
26
27
28
5
The only statement of this claim in the FAP is as follows:
C. Ground 3:
An important question of federal constitutional and state law
is raised by the issue whether the court errs in denying a
motion for a new trial after newly discovered evidence revealed
that the principal prosecution witness was a serial child abuser,
which in turn would have explained how the two victims were able
to provide detailed accounts of the acts of sexual abuse. (FAP 8.)
22
1
2
3
4
5
6
7
8
9
10
11
briefing. The trial court denied the motion, finding
the evidence insufficient to warrant a new trial.
Defendant now claims the trial court abused its
discretion in denying his motion for a new trial
because there was a reasonable probability of a more
favorable result. Defendant claims that the victims in
this case had severe credibility problems and that the
only circumstance that supported their credibility was
their ability to describe defendant's sexual acts in
explicit detail. Thus, defendant argues the new
evidence was relevant to show that the victims learned
about sex acts from someone else and thereby provide an
alternative explanation for the one circumstance that
made their testimony against him convincing. Defendant
emphasizes, however, that he is not offering Pool as a
third party culprit, asserting: “The evidence of Pool's
pedophilia was relevant, not to show that Pool was the
culprit in the charged crimes, but rather to show that
the two girls had obtained their sophisticated
knowledge of sex from Pool, the resident pedophile,
which enabled them to convincingly concoct their
accusation against [defendant].”
12
13
14
15
In short, defendant appears to be arguing that evidence
Pool molested two girls in the past would be relevant
and admissible to discredit the victims' testimony in
this case that they were sexually abused by defendant.
We find defendant's argument unpersuasive and find no
abuse of discretion in the trial court's denial of his
new trial motion.
16
17
18
19
20
21
22
23
24
25
26
27
28
A new trial may be granted “[w]hen new evidence is
discovered material to the defendant, and which he
could not, with reasonable diligence, have discovered
and produced at the trial.” (§ 1181, subd. (8).) We
review the trial court's denial of a motion for a new
trial for an abuse of discretion. (People v. Delgado
(1993) 5 Cal.4th 312, 328.) Newly discovered evidence
must be material, noncumulative, and must contradict
the strongest evidence introduced at trial against the
defendant. (Id. at p. 329.) To grant a new trial on the
basis of newly discovered evidence, the evidence must
make a different result probable on retrial. (People v.
Beeler (1995) 9 Cal.4th 953, 1004-1005; People v.
Delgado, supra, 5 Cal.4th at pp. 328-329.)
The proferred evidence does not meet this standard. The
strongest evidence at trial was the victims' firsthand
accounts of defendant's sexual abuse. The declarations
defendant offered in support of his new trial motion
contain nothing which contradicts or impeaches the
victims' testimony. To the extent the declarations were
offered as impeachment evidence, the evidence went to
Pool's credibility only. (See People v. Massey (1987)
192 Cal.App.3d 819, 823 [“It is well established that
23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
child molesting in California law is a crime of moral
turpitude for impeachment and other purposes”].) The
circumstance that Pool might have molested two little
girls decades earlier did not make it more or less
likely that the victims here were telling the truth
when they testified that defendant molested them in
2003.
Defendant recognizes that, as a general rule, “evidence
which merely impeaches a witness is not significant
enough to make a different result probable....” (People
v. Huskins (1966) 245 Cal.App.2d 859, 862 (Huskins.)
However, he points to Huskins, a case in which
impeachment of the main prosecution witness was
considered sufficient to warrant a new trial. In
Huskins, the Second District Court of Appeal reversed
the trial court's denial of a motion for a new trial
based on newly discovered evidence. Huskins involved a
child molestation case in which it was discovered that
the chief prosecution witness, the victim's foster
mother, Mrs. White, had accused her own husband in
civil commitment proceedings of being a sex pervert who
had attacked his daughter and had sex with animals.FN6
In ruling that it was error for the trial court to deny
the motion for a new trial, the Court of Appeal
portrayed the new evidence as doing “more than merely
impeach the main prosecution witness-it tends to
destroy her testimony by raising grave doubts about her
veracity and credibility .” (Id. at pp. 862-863.) This
case is distinguishable. Pool was not the main
prosecution witness. The main prosecution witnesses
here were the victims themselves. The new evidence
presented by defendant, while potentially impeaching
Pool, had no bearing on the victims' credibility in
this case.
FN6. These were unproved accusations.
(Huskins, supra, 245 Cal.App.2d at p. 861.)
20
21
22
23
24
25
26
27
28
We are also unconvinced by defendant's theory that
evidence of Pool's asserted propensity to sexually
abuse young girls would be relevant to show that the
victims obtained their knowledge of sex from being
molested by Pool. People v. Daggett (1990) 225
Cal.App.3d 751 (Daggett), on which defendant relies, is
distinguishable. In that case, the defendant brought a
motion under section 782, seeking to introduce evidence
that the alleged victim had been molested at an earlier
time by two older children and had in turn been charged
with molesting two children. (Daggett, supra, 225
Cal.App.3d at p. 754.) The trial court found the
defense offer of proof insufficient to hold a hearing
on the prior victimization, although it allowed the
victim to be questioned about his own offenses of
molesting children. (Ibid.) At trial, the victim
24
1
described the defendant's alleged acts of touching,
sodomy, and oral copulation. (Ibid.)
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The appellate court concluded that the court erred in
failing to hold a hearing to determine whether the acts
committed previously against the victim were
sufficiently similar to the acts alleged against the
defendant. (Daggett, supra, 225 Cal.App.3d at p. 757.)
The court stated, “[a] child's testimony in a
molestation case involving oral copulation and sodomy
can be given an aura of veracity by his accurate
description of the acts. This is because knowledge of
such acts may be unexpected in a child who had not been
subjected to them. In such a case it is relevant for
the defendant to show that the complaining witness had
been subjected to similar acts by others in order to
cast doubt upon the conclusion that the child must have
learned of these acts through the defendant. Thus, if
the acts involved in the prior molestation are similar
to the acts of which the defendant stands accused,
evidence of the prior molestation is relevant to the
credibility of the complaining witness and should be
admitted.” (Ibid.)
Here, the prior acts of molestation by Pool did not
involve the victims in this case, and thus Daggett does
not appear to be direct authority for defendant's
argument that the new evidence was admissible to show
the victims acquired their knowledge of sex acts from
him. Moreover, the acts described by Pool's alleged
victims, while undeniably disturbing, were not as
egregious as those attributed to defendant by the
victims in this case.FN7 However, even assuming the new
evidence bolstered R.'s claim that Pool molested her,
it does not necessarily follow that defendant did not
molest her. She claimed she was molested by both men.
Moreover, there is no evidence that R. told D. about
her alleged prior experiences with Pool. Defendant's
theory that R. confided to D. what she learned from
being molested by Pool, and that they then used that
knowledge to fabricate charges against defendant is
speculative and unsupported by the record or the
evidence offered in support of the new trial motion.
FN7. The sexual acts described by Pool's
alleged victims included “touching to [the]
victim's private parts” and “rubbing his
penis on [the victim's] butt and ... vagina”
but no actual intercourse as defendant's
victim's described. According to one of the
victims, Pool told her that when she grew
hair, “he would give it all to [her].”
Defendant suggests a similarity between this
language and the colloquial expressions used
by the victims in this case to describe
25
1
defendants' sexual acts to law enforcement
officials and interviewers.
2
We are also unconvinced by defendant's assertion that
evidence of Pool's prior molestations would be
admissible under Evidence Code section 1108. Evidence
Code section 1108, subdivision (a) provides: “In a
criminal action in which the defendant is accused of a
sexual offense, evidence of the defendant's commission
of another sexual offense or offenses is not made
inadmissible by Section 1101, if the evidence is not
inadmissible pursuant to Section 352.” (Emphasis
added.)
3
4
5
6
7
8
Defendant acknowledges that Evidence Code section 1108
applies by its terms to “the defendant,” but claims the
California Supreme Court had impliedly recognized that
Evidence Code section 1108 “would allow admission of a
third party's prior sex crime.” People v. Abilez (2007)
41 Cal.4th 472 (Abilez), on which defendant relies,
does not support this assertion. Unlike Pool, the
so-called third party in Abilez was a codefendant and
he and the defendant were both charged with the same
sexual offense-forcible sodomy-but the codefendant was
acquitted and the defendant was convicted of the crime.
(Abilez, supra, 41 Cal.4th at pp. 472, 485.) At trial,
the defendant offered his codefendant's adjudication of
a prior sex crime as evidence of identity; i.e., to
show that it was the codefendant who sodomized and
killed the victim. (Id. at p. 502.) The Supreme Court
concluded that the trial court did not abuse its
discretion under Evidence Code sections 1101 and 1108
by excluding the prior crime because it was remote and
dissimilar to the charged crime. (Abilez, supra, 41
Cal.4th at pp. 502-504.) It also rejected the
defendant's “subsidiary claim that the trial court
erred in excluding the evidence because it comprised
evidence of third party culpability.” (Abilez, supra,
41 Cal.4th at p. 502; italics added.) Abilez simply
does not support defendant's position that the evidence
of a non-defendant, third party's prior molestations
would be admissible under Evidence Code section 1108.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
For all these reasons, we conclude that defendant has
not shown the trial court abused its discretion in
denying his motion for a new trial based on newly
discovered evidence.
23
24
25
(LD 20-1, 22-26.)
26
B.
27
28
Analysis
As Respondent notes, Petitioner’s claim is based on state
law.
The state court decision addressed the state court’s
26
1
alleged error in the interpretation or application of Cal. Pen.
2
Code § 1181(8), which included the application of state law cases
3
concerning the nature of newly discovered evidence that would
4
warrant the granting of a new trial pursuant to § 1181; the
5
interpretation and application of Cal. Evid. Code §§ 1101, 1108,
6
and 352; and the application of state cases that in turn
7
interpreted and applied those statutes.
8
9
To the extent that Petitioner’s claim rests on state law,
Petitioner has not alleged facts that would entitle him to relief
10
in this proceeding, which is limited to federal claims.
11
Accordingly, it will be recommended that Petitioner’s claim
12
concerning the new trial motion be dismissed to the extent it is
13
based on state law.
14
Petitioner appears to argue that the evidence was critical
15
to the credibility of not only Pool, but also the victims, who
16
were the chief prosecution witnesses.
17
unfair to exclude the evidence, or to uphold a determination of
18
guilt without the evidence.
Thus, it was fundamentally
19
Although state and federal authorities have broad latitude
20
to establish rules excluding evidence from criminal trials, the
21
Due Process Clause of the Fourteenth Amendment and the Compulsory
22
Process and Confrontation Clauses of the Sixth Amendment
23
guarantee a criminal defendant a meaningful opportunity to
24
present a complete defense.
25
(1986).
26
defense by compelling the attendance and presenting the testimony
27
of witnesses.
28
(1967).
Crane v. Kentucky, 476 U.S. 683, 690
Due process provides a defendant the right to present a
Washington v. Texas, 388 U.S. 14, 18-19, 23
However, a defendant does not have an absolute right to
27
1
present evidence without reference to its significance or source;
2
the evidence must be relevant, material, and vital to the
3
defense.
4
be arbitrary or disproportionate to the purposes the exclusionary
5
rule is designed to serve.
6
319, 324-25 (2006).
7
is respected, frequently applied, and otherwise constitutional
8
would defeat the ends of justice, then the rule must yield to
9
those ends.
10
Id. at 16.
Further, the exclusion of the evidence must
Holmes v. South Carolina, 547 U.S.
If the mechanical application of a rule that
Chambers v. Mississippi, 410 U.S. 284, 302 (1973).
However, well established rules of evidence permit trial
11
judges to exclude evidence if its probative value is outweighed
12
by other factors such as unfair prejudice, confusion of the
13
issues, or potential to mislead the jury.
14
Carolina, 547 U.S. at 326.
15
permissible to exclude evidence that is repetitive, only
16
marginally relevant, or poses an undue risk of harassment,
17
prejudice, or confusion of the issues.
18
547 U.S. at 326-27.
19
Holmes v. South
Thus, it is constitutionally
Holmes v. South Carolina,
Where exclusion of evidence violates a petitioner’s right to
20
present a defense, habeas relief is the appropriate remedy only
21
if the constitutional violation resulted in error that was not
22
harmless, that is, error that resulted in actual prejudice, or
23
had a substantial and injurious effect or influence in
24
determining the jury’s verdict.
25
1091, 1104-05 (9th Cir. 2012), pet. cert. filed 81 U.S.L.W. 3349
26
(Dec. 3, 2012) (No. 12-694) (citing Fry v. Pliler, 551 U.S. 112,
27
121-22 (2007) and Brecht v. Abrahamson, 507 U.S. 619, 637
28
(1993)).
Jackson v. Nevada, 688 F.3d
In determining whether the Brecht standard has been
28
1
met, a court considers various factors, including 1) the
2
importance of the witness’s testimony in the prosecution’s case,
3
2) whether the testimony was cumulative, 3) the presence or
4
absence of evidence corroborating or contradicting the testimony
5
of the witness on material points, 4) the extent of cross-
6
examination otherwise permitted; and 5) the overall strength of
7
the prosecution’s case.
8
(9th Cir. 2011) (citing Delaware v. Van Arsdall, 475 U.S. 673,
9
684 (1986)).
10
Merolillo v. Yates, 663 F.3d 444, 455
Here, although the state court did not articulate a federal
11
standard of decision, its analysis was not inconsistent with
12
federal due process standards.
13
relevance, materiality, and importance of the evidence and
14
correctly concluded it was the victims’, not Pool's, testimony
15
that was the critical evidence against Petitioner.
16
testimony was essentially corroborative of D’s testimony
17
concerning her conversation with Pool about Petitioner’s having
18
brought beer into her room and his having molested her, and the
19
subsequent report to law enforcement.
20
The state court considered the
Pool’s
It is true that in August 2004, about eight months after her
21
placement in foster care, R claimed that Pool had also molested
22
her and that she had tried to tell her teachers, who had not
23
believed her.
24
Pool had molested her, and neither girl reported molestation by
25
Pool or others in interviews with law enforcement.
26
jury already had before it evidence from R that Pool had molested
27
her.
28
months after he investigated the allegations concerning
However, no details were given.
D denied that
Thus, the
Further, the testifying detective indicated that nine
29
1
Petitioner, one of the victims reported that Pool had also been
2
molesting her.
3
(VIII RT 2218.)
The new evidence consisted of Pool’s behavior with third
4
parties decades before.
5
evidence that Pool molested two little girls decades earlier did
6
not tend to show the truthfulness or untruthfulness of the
7
present victims’ testimony, but instead went to Pool’s
8
credibility because it showed that at some time he had committed
9
an act of moral turpitude.
The state court properly concluded that
(Doc. 20-1, 23-24.)
10
The state court further acknowledged that a child’s
11
testimony in a molestation case can be deemed credible by the
12
accurate description of the sexual acts because knowledge of such
13
acts may be unexpected in a child who has not otherwise been
14
subjected to them.
15
complaining witness or witnesses had been subjected to similar
16
acts by others could cast doubt upon the conclusion that the
17
child must have learned of the acts through the conduct of the
18
defendant.
19
prior acts of molestation by Pool did not involve the victims in
20
the present case, they did not provide the required inference of
21
knowledge on the part of the victims.
22
Pool’s alleged prior molestations involved touching and rubbing,
23
but no actual intercourse.
24
those attributed to Petitioner by the victims, and were of a
25
character that would not have provided the knowledge of sexual
26
acts exhibited by the victims on the stand.
27
28
The state court noted that showing that the
However, the state court reasoned that because the
The state court noted that
Thus, they were not as egregious as
(Id. at 23-25.)
The state court properly concluded that even though evidence
of Pool’s prior acts with third parties might indirectly bolster
30
1
R’s claim that Pool molested her, it did not necessarily
2
establish that Petitioner did not molest her, and it did not bear
3
sufficiently upon D’s testimony because there was no evidence
4
that R told D about the former’s alleged prior experiences with
5
Pool.
6
R confided to D what she had learned from being molested by Pool
7
and then used that knowledge to fabricate charges against
8
Petitioner was based on speculation and was unsupported by the
9
record or the evidence offered in support of the new trial
The state court reasonably concluded that the theory that
10
motion.
11
advanced goals related to the administration of justice.
12
(Id. at 25.)
Thus, the exclusion of the evidence
A fairminded jurist could conclude that the state court
13
considered the relevant factors and reasonably determined that
14
the proffered evidence was not significantly impeaching of the
15
victims’ critical evidence, and that its minimal probative value
16
with respect to Pool’s credibility was outweighed by an undue
17
risk of unfair prejudice, confusion of the issues, or potential
18
to mislead the jury.
19
reasonably concluded that a determination of guilt without the
20
proffered testimony was not arbitrary or disproportionate.
21
It thus appears that the state court
Accordingly, the state court's decision denying the motion
22
for new trial was not contrary to, or an unreasonable application
23
of, clearly established federal law.
24
recommended that Petitioner’s claim concerning denial of the new
25
trial motion be denied.
Therefore, it will be
26
XI.
27
For the first time in his traverse, Petitioner sets forth
Brady Violation
28
31
1
facts concerning the post-trial6 discovery of information that
2
Pool had been investigated for sexual molestation of the younger
3
of the two alleged victims in January 2004, and that two victims
4
of Pool’s molestation came forward after trial.
5
Petitioner argues that the prosecution’s failure to disclose
6
before trial that Pool had been investigated by the sheriff for
7
molestation of one of the victims constituted a Brady7 violation
8
that deprived Petitioner of his right to due process of law.
9
However, Petitioner did not allege these facts or a
(Doc. 24, 9-10.)
10
violation of Brady in the petition.
11
litigant’s habeas petition with deference.
12
U.S. 488, 493 (1989); Belgarde v. State of Montana, 123 F.3d
13
1210, 1213 (9th Cir. 1997).
14
trial court erred in denying a motion for a new trial made under
15
California law concerning new evidence is not tantamount to
16
raising a Brady violation.
17
A court construes a pro se
Maleng v. Cook, 490
However, Petitioner’s claim that the
Further, the Respondent has not had an opportunity to
18
respond to a Brady claim.
19
alleged that any claims not properly presented in state court
20
under state rules were barred as procedurally defaulted;
21
Petitioner was also required to show exhaustion of any claims
22
other than those discussed by Respondent in the answer.
23
20, 6.)
24
appear to have been raised in Petitioner’s petition for review
In answering the petition, Respondent
(Doc.
The Court notes that Petitioner’s Brady claim does not
25
26
27
28
6
The Court notes that Pool testified at trial that he was aware that
before the children had moved into his home, R had accused him of touching her
inappropriately; the allegations were investigated, but Pool was never charged
with any crimes. (Doc. 20-1, 6.)
7
The reference is to Brady v. Maryland, 373 U.S. 83 (1963).
32
1
filed in the California Supreme Court.
2
not shown that he has exhausted state court remedies as to such a
3
claim.8
4
5
(LD 5.)
Petitioner has
Accordingly, it will be recommended that the Court exercise
its discretion to decline to consider Petitioner’s Brady claim.
6
XII.
7
Petitioner argues that the issue whether there is sufficient
Sufficiency of the Evidence of an Attempt
8
evidence of an attempt where the evidence showed only completed
9
crimes, and the prosecutor elected not to use the completed
10
crimes to support the charged attempt, raises an important
11
question of federal constitutional and state law.
12
13
A.
(FAP 8.)
The State Court’s Decision
The appellate opinion of the CCA was the last reasoned
14
decision on this claim.
15
to this issue is as follows:
The state court’s opinion with respect
16
III. Sufficiency of the Evidence
17
Defendant challenges the sufficiency of the evidence to
support his conviction for attempted lewd acts against
D. in count 4. Defendant's argument is somewhat
confusing because he acknowledges the record contains
sufficient evidence to support the charge. Even though
D. described only completed acts of rape in her
testimony, defendant recognizes that section 663 FN2
allows for a defendant to be charged and convicted of
an attempted crime, even if the evidence shows a
completed crime. However, it is defendant's position
that the prosecutor did not intend for count 4 to refer
to any of the completed acts shown on the record, and
therefore the principle embodied in section 633 is
inapplicable here. Defendant further claims that the
18
19
20
21
22
23
24
25
26
27
28
8
Although non-exhaustion of remedies has been viewed as an affirmative
defense, it is the petitioner’s burden to prove that state judicial remedies
were properly exhausted. 28 U.S.C. § 2254(b)(1)(A); Darr v. Burford, 339 U.S.
200, 218-19 (1950), overruled in part on other grounds in Fay v. Noia, 372
U.S. 391 (1963); Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). If
available state court remedies have not been exhausted as to all claims, a
district court must dismiss a petition. Rose v. Lundy, 455 U.S. 509, 515-16
(1982).
33
1
2
3
prosecutor essentially conceded there was no evidence
to support count 4, but the trial court improperly
saved the count by tying it to one of the completed
crimes. We find defendant's argument unpersuasive, and
conclude there was sufficient evidence to support count
4.
4
5
6
7
8
9
10
11
12
13
FN2. Section 663 provides: “Any person may be
convicted of an attempt to commit a crime,
although it appears on the trial that the
crime intended or attempted was perpetrated
by such person in pursuance of such attempt,
unless the court, in its discretion,
discharges the jury and directs such person
to be tried for such crime.”
In the amended information, count 4 alleged that
defendant “did, on or about December 24, 2003 ...
commit a FELONY, namely, violation of Section
664/288(a) ... in that the said defendant did
willfully, unlawfully, and lewdly attempted to commit a
lewd and lascivious act upon ... [D.], a child under
the age of fourteen years, with the intent of arousing,
appealing to, and gratifying the lust, passions, and
sexual desires of the said defendant and the said
child.”
14
15
16
17
18
19
20
Here, there was evidence that during the third incident
D. described in her testimony, defendant gave her a
beer to drink and then put his penis inside her vagina.
It was after this incident that D. reported defendant's
conduct to Pool. Although D. thought the third incident
occurred around Thanksgiving, it was Pool's
recollection that it occurred around Christmas Eve, and
both witnesses referred to the circumstance that Pool
was preparing a turkey for the holiday meal. Defendant
does not dispute, and we find, D.'s testimony
describing a rape was more than sufficient to support
defendant's conviction of attempted lewd acts as
charged in count 4.
21
22
23
24
25
26
Defendant nonetheless maintains that the prosecutor
intended for count 4 to refer to an entirely different
incident for which there was no evidence. We note that
defendant's interpretation of the prosecutor's intent
is based primarily on brief comments she made in
response to the defense's section 1118.1 motion at the
end of the prosecution's case-in-chief. The prosecutor
expressed that she would be willing to dismiss count 4
because “That count the girls did not testify-they
testified to only completed acts.” However, the trial
court declined to dismiss count 4, explaining:
27
28
“The fact that it testified as to a completed
act doesn't in any way impact lesser
34
1
2
3
4
included. I mean, the attempt. In fact, the
defendant's given a break that it was called
an attempt as opposed to completed act. I
mean the People could, of course, amend to
conform to proof and then we'd have to re-do
a bunch of the jury instructions, which we
can do, you know. But the evidence is more
than sufficient.”
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Thus, the court correctly noted that evidence of a
completed rape was sufficient to sustain the charge of
attempted lewd acts. Defendant suggests the
prosecutor's failure to “accept the court's invitation
to move to conform to proof” is somehow an indication
that the prosecutor was conceding that the evidence was
insufficient to support count 4. However, the court
clearly discouraged the prosecutor from taking this
course of action by pointing out that the jury
instructions would have to be redone and that the
evidence was sufficient to support the count as charged
in any event.
Nor do we find any special significance in the fact the
prosecutor did not specifically ask the jury to return
a guilty verdict on count 4 during closing argument.
This does not necessarily constitute a concession that
the evidence was insufficient to prove the crime of
attempted lewd acts as defendant suggests. It is
apparent from the record that the prosecutor was aware
she had only presented evidence of three incidents of
sexual abuse against D., not four as charged.FN3 It is
reasonable to suppose she was hoping the jury would
find those incidents supported the more serious
offenses of aggravated sexual assault charged in the
first three counts. However, this is not what happened.
The jury acquitted defendant on the third count of
aggravated sexual assault, and found defendant guilty
of the first two counts of aggravated sexual assault
and the fourth count of attempted lewd acts based on
the three incidents described by D. in her testimony.
The jury was properly instructed on the elements of the
attempted lewd acts offense, and defendant does not
dispute that her testimony was sufficient to support
his conviction on that count. Accordingly, we reject
his sufficiency of the evidence challenge which is
based, not on the state of the evidence, but on the
prosecutor's alleged state of mind.
FN3. Although defendant refers to what he
describes as D.'s generic testimony that
defendant forced her to have sexual
intercourse 30 or 35 times, this was not
evidence that was presented by or relied on
by the prosecution but rather consisted of
statements elicited by the defense during
35
1
2
cross-examination.
(Doc. 20-1, 17-19.)
3
4
B.
Analysis
To determine whether a conviction violates the
5
constitutional guarantees of due process of law because of
6
insufficient evidence, a federal court ruling on a petition for
7
writ of habeas corpus must determine whether any rational trier
8
of fact could have found the essential elements of the crime
9
beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307,
10
319, 20-21 (1979); Windham v. Merkle, 163 F.3d 1092, 1101 (9th
11
Cir. 1998); Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997).
12
All evidence must be considered in the light most favorable
13
to the prosecution.
14
1008.
15
conflicting testimony, weigh evidence, and draw reasonable
16
inferences from the facts; thus, it must be assumed that the
17
trier resolved all conflicts in a manner that supports the
18
verdict.
Jackson v. Virginia, 443 U.S. at 319; Jones, 114 F.3d
19
at 1008.
The relevant inquiry is not whether the evidence
20
excludes every hypothesis except guilt, but rather whether the
21
jury could reasonably arrive at its verdict.
22
Mares, 940 F.2d 455, 458 (9th Cir. 1991).
23
evidence and the inferences reasonably drawn therefrom can be
24
sufficient to prove any fact and to sustain a conviction,
25
although mere suspicion or speculation does not rise to the level
26
of sufficient evidence.
27
820 (9th Cir. 1994); United States v. Stauffer, 922 F.2d 508, 514
28
(9th Cir. 1990); see, Jones v. Wood, 207 F.3d at 563.
Jackson, 443 U.S. at 319; Jones, 114 F.3d at
It is the trier of fact’s responsibility to resolve
United States v.
Circumstantial
United States v. Lennick, 18 F.3d 814,
36
The court
1
must base its determination of the sufficiency of the evidence
2
from a review of the record.
3
Jackson at 324.
The Jackson standard must be applied with reference to the
4
substantive elements of the criminal offense as defined by state
5
law.
6
However, the minimum amount of evidence that the Due Process
7
Clause requires to prove an offense is purely a matter of federal
8
law.
9
(per curiam).
Jackson, 443 U.S. at 324 n.16; Windham, 163 F.3d at 1101.
Coleman v. Johnson, - U.S. -, 132 S.Ct. 2060, 2064 (2012)
For example, under Jackson, juries have broad
10
discretion to decide what inferences to draw and are required
11
only to draw reasonable inferences from basic facts to ultimate
12
facts.
13
Id.
Further, under the AEDPA, federal courts must apply the
14
standards of Jackson with an additional layer of deference.
15
Coleman v. Johnson, - U.S. -, 132 S.Ct. 2060, 2062 (2012); Juan
16
H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005).
17
is, therefore, whether the state court decision being reviewed
18
reflected an objectively unreasonable application of the Jackson
19
standards to the facts of the case.
20
S.Ct. at 2062; Juan H. v. Allen, 408 F.3d at 1275.
21
determination of the state court on a question of sufficiency of
22
the evidence is entitled to considerable deference under 28
23
U.S.C. § 2254(d).
24
The question
Coleman v. Johnson, 132
The
Coleman v. Johnson, 132 S.Ct. at 2065.
Here, the state court did not articulate its standard of
25
review.
26
an unlawful attempt to commit a lewd and lascivious act upon a
27
child under the age of fourteen years with the intent of
28
arousing, appealing to, and gratifying the lust, passions, and
However, it reviewed the elements of the charge, namely,
37
1
sexual desires of the defendant and the child.
2
The state court reviewed the evidence of the third incident
3
described by D in which Petitioner gave her a beer and put his
4
penis in her vagina, which was followed by D’s report of the
5
conduct to Pool when Pool was preparing a turkey for a holiday
6
meal.
7
regarding the rape was more than sufficient to show an attempt to
8
commit a lewd act upon the child with the intent of gratifying
9
the defendant’s passions.
10
(Id. at 18.)
(Doc. 20-1, 17.)
The court concluded that D’s testimony
(Id.)
Further, the CCA noted that Petitioner's failure to dispute
11
D’s testimony was sufficient to support the conviction.
12
The court reviewed the arguments to the jury and the verdicts,
13
noting that the jury apparently acquitted Petitioner on the third
14
count of aggravated assault against D and instead found two
15
completed aggravated sexual assaults and one count of an
16
attempted lewd act.
17
that the prosecutor’s offer during argument on a motion pursuant
18
to Cal. Pen. Code § 1118.19 to withdraw the attempt count had to
19
be accepted.
20
sufficiency of the evidence as it was not based on the evidence,
21
but rather on the prosecutor’s alleged state of mind.
22
(Id.)
The court dismissed Petitioner’s assertion
The state court rejected Petitioner’s challenge to
(Id.)
A fairminded jurist could conclude that the state court’s
23
application of the rule of Jackson v. Virginia was based on
24
reasonable inferences drawn from evidence in the record, and that
25
26
27
28
9
Cal. Pen. Code § 1118.1 provides that at the close of the evidence in
a jury trial and before submission to the jury, and upon the motion of the
court or the defendant, a judgment of acquittal shall be entered if the
evidence before the court is insufficient to sustain a conviction of the
offense on appeal.
38
1
it thus was not objectively unreasonable.
2
Because Petitioner has failed to show that the CCA’s opinion
3
on the sufficiency of the evidence resulted in a decision that
4
was contrary to, or an unreasonable application of clearly
5
established federal law, it will be recommended that Petitioner’s
6
sufficiency of the evidence claim be denied.
7
XIII.
8
Petitioner seeks an evidentiary hearing to review factual
9
10
11
Evidentiary Hearing
disputes and to appoint counsel for such a hearing.
(Doc. 24,
4.)
The decision to grant an evidentiary hearing is generally
12
left to the sound discretion of the district courts.
13
2254; Habeas Rule 8(a); Schriro v. Landrigan, 550 U.S. 465, 473
14
(2007).
15
the AEDPA, a petitioner must allege a colorable claim by alleging
16
disputed facts which, if proved, would entitle him to relief.
17
Schriro v. Landrigan, 550 U.S. at 474.
28 U.S.C. §
To obtain an evidentiary hearing in federal court under
18
The determination of entitlement to relief, in turn, is
19
limited by 28 U.S.C. § 2254(d)(1), which requires that to obtain
20
relief with respect to a claim adjudicated on the merits in state
21
court, the decision must be either contrary to, or an
22
unreasonable application of, clearly established federal law.
23
Schriro v. Landrigan, 550 U.S. at 474.
24
claim pursuant to § 2254(d)(1), a federal court is limited to the
25
record before the state court.
26
1388, 1398 (2011).
27
habeas relief under the limitations set forth in § 2254(d), a
28
district court is not required to hold an evidentiary hearing.
Further, in analyzing a
Cullen v. Pinholster, 131 S.Ct.
Thus, when a state court record precludes
39
1
Cullen v. Pinholster, 131 S.Ct. at 1399 (citing Schriro v.
2
Landrigan, 550 U.S. at 474).
3
granted with respect to a claim adjudicated on the merits in
4
state court where the petitioner satisfies § 2254(d)(1), or where
5
§ 2254(d)(1) does not apply, such as where the claim was not
6
adjudicated on the merits in state court.
7
131 S.Ct. at 1398, 1400-01.
8
9
An evidentiary hearing may be
Cullen v. Pinholster,
Here, the state court adjudicated Petitioner’s claims on the
merits.
Petitioner has not shown that the state court decision
10
was contrary to, or an unreasonable application of, clearly
11
established federal law within the meaning of § 2254(d)(1).
12
Further, Petitioner has not shown or attempted to show that the
13
state court adjudication of his claims resulted in a decision
14
that was based on an unreasonable determination of the facts in
15
light of the evidence presented in the state court proceedings.
16
Thus, this court’s review is limited to the record before the
17
state court, and Petitioner’s request for an evidentiary should
18
be denied.
19
20
Accordingly, it will be recommended that Petitioner’s
request for an evidentiary hearing be denied.
21
XIV.
22
Unless a circuit justice or judge issues a certificate of
Certificate of Appealability
23
appealability, an appeal may not be taken to the Court of Appeals
24
from the final order in a habeas proceeding in which the
25
detention complained of arises out of process issued by a state
26
court.
27
U.S. 322, 336 (2003).
28
only if the applicant makes a substantial showing of the denial
28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537
A certificate of appealability may issue
40
1
of a constitutional right.
2
petitioner must show that reasonable jurists could debate whether
3
the petition should have been resolved in a different manner or
4
that the issues presented were adequate to deserve encouragement
5
to proceed further.
6
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
7
§ 2253(c)(2).
Under this standard, a
Miller-El v. Cockrell, 537 U.S. at 336
A certificate should issue if the Petitioner shows that
8
reasonable jurists would find it debatable whether: 1) the
9
petition states a valid claim of the denial of a constitutional
10
right or 2) the district court was correct in any procedural
11
ruling.
12
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
In determining this issue, a court conducts an overview of
13
the claims in the habeas petition, generally assesses their
14
merits, and determines whether the resolution was debatable among
15
jurists of reason or wrong.
16
applicant to show more than an absence of frivolity or the
17
existence of mere good faith, although the applicant need not
18
show that the appeal will succeed.
19
U.S. at 338.
Id.
It is necessary for an
Miller-El v. Cockrell, 537
20
A district court must issue or deny a certificate of
21
appealability when it enters a final order adverse to the
22
applicant.
23
Habeas Rule 11(a).
Here, it does not appear that reasonable jurists could
24
debate whether the petition should have been resolved in a
25
different manner.
26
of the denial of a constitutional right.
27
recommended that the Court decline to issue a certificate of
28
appealability.
Petitioner has not made a substantial showing
41
Accordingly, it will be
1
XV.
2
Accordingly, it is RECOMMENDED that:
3
1) The Court DECLINE to consider the new claims that are
4
Recommendations
raised by Petitioner in the traverse; and
5
2) The first amended petition for writ of habeas corpus be
6
DENIED; and
7
3)
8
DENIED; and
9
4)
Judgment be ENTERED for Respondent; and
10
5)
The Court DECLINE to issue a certificate of
11
Petitioner’s request for an evidentiary hearing be
appealability.
12
These findings and recommendations are submitted to the
13
United States District Court Judge assigned to the case, pursuant
14
to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of
15
the Local Rules of Practice for the United States District Court,
16
Eastern District of California.
17
being served with a copy, any party may file written objections
18
with the Court and serve a copy on all parties.
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should be captioned “Objections to Magistrate Judge’s Findings
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and Recommendations.”
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and filed within fourteen (14) days (plus three (3) days if
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served by mail) after service of the objections.
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then review the Magistrate Judge’s ruling pursuant to 28 U.S.C.
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§ 636 (b)(1)(C).
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objections within the specified time may waive the right to
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appeal the District Court’s order.
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///
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///
Within thirty (30) days after
Such a document
Replies to the objections shall be served
The Court will
The parties are advised that failure to file
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Martinez v. Ylst, 951 F.2d
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1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
ie14hj
January 22, 2013
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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