Casner v. Dickinson

Filing 42

ORDER Denying 1 Petition for Writ of Habeas Corpus, Directing Entry of Judgment for Respondent, and DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY signed by Magistrate Judge Sheila K. Oberto on 08/06/2013. CASE CLOSED.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 KENNETH H. CASNER,

Case No. 1:10-cv-01081-SKO-HC

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ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS (DOC. 1), DIRECTING
ENTRY OF JUDGMENT FOR RESPONDENT,
AND DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY

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Petitioner,
v.

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15 ELVIN VALENZUELA, Warden,
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Respondent.

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Petitioner is a state prisoner proceeding with counsel with a

20 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
21 Pursuant to 28 U.S.C. 636(c)(1), the parties have consented to the
22 jurisdiction of the United States Magistrate Judge to conduct all
23 further proceedings in the case, including the entry of final
24 judgment, by manifesting their consent in writings signed by the
25 parties or their representatives and filed by Petitioner on July 13,
26 2012, and on behalf of Respondent on September 26, 2012.
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Pending before the Court is the petition, which was filed on

28 June 8, 2010, and transferred to this division of this Court on June
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1 15, 2010.

Respondent filed an answer with supporting documentation

2 on August 15, 2012.

Petitioner filed a traverse on January 13,

3 2013.
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I.

Jurisdiction

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Because the petition was filed after April 24, 1996, the

6 effective date of the Antiterrorism and Effective Death Penalty Act
7 of 1996 (AEDPA), the AEDPA applies in this proceeding.

Lindh v.

8 Murphy, 521 U.S. 320, 327 (1997); Furman v. Wood, 190 F.3d 1002,
9 1004 (9th Cir. 1999).
10

A district court may entertain a petition for a writ of habeas

11 corpus by a person in custody pursuant to the judgment of a state
12 court only on the ground that the custody is in violation of the
13 Constitution, laws, or treaties of the United States.

28 U.S.C.

14 §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7
15 (2000); Wilson v. Corcoran, 562 U.S. -, 131 S.Ct. 13, 16 (2010) (per
16 curiam).

Petitioner claims that in the course of the proceedings

17 resulting in his conviction, he suffered violations of his
18 constitutional rights.

The challenged judgment was rendered by the

19 Tuolumne County Superior Court (TCSC), which is located within the
20 territorial jurisdiction of this Court.

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U.S.C. §§ 84(b),

21 2254(a), 2241(a), (d).
22

Respondent filed an answer on behalf of Respondent Kathleen

23 Dickinson, Warden of the California Medical Facility at Vacaville,
24 California, where Petitioner was incarcerated.

However, pursuant to

25 Petitioner’s motion, Elvin Valenzuela, Warden of the California
26 Men’s Colony at San Luis Obispo, California, was substituted for
27 Warden Dickinson.

Petitioner has, therefore, named as a respondent

28 a person who has custody of the Petitioner within the meaning of 28
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1 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254
2 Cases in the United States District Courts (Habeas Rules).

See,

3 Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir.
4 1994).

Accordingly, this Court has jurisdiction over the subject

5 matter of this action and over the person of Respondent Valenzuela.
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II.

Procedural Summary

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On October 1, 2008, following a jury trial, Petitioner was

8 found guilty of forcible spousal rape in violation of Cal. Pen. Code
9 § 262(a)(1) (count 1), kidnapping in violation of Cal. Pen. Code
10 § 207 (a lesser included offense of the charged offense of
11 kidnapping to commit spousal rape in violation of Cal. Pen. Code
12 § 209(b)(1)) (count 2), first degree burglary with intent to commit
13 larceny and any felony in violation of Cal. Pen. Code § 459 (count
14 3), criminal threats in violation of Cal. Pen. Code § 422 (count 4),
15 unlawful possession of a firearm after conviction of spousal battery
16 and corporal injury in violation of Cal. Pen. Code § 12021(c)(1)
17 (count 5), first degree residential burglary with intent to commit
18 larceny and any felony in violation of Cal. Pen. Code § 459 (count
19 6), and grand theft of a firearm in violation of Cal. Pen. Code
20 § 487(d) (count 7).
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(CT 191-200.)

In connection with the spousal rape conviction in count 1, the

22 jury found that Petitioner’s movement of the victim substantially
23 increased the risk of harm to the victim over and above that level
24 of risk necessarily inherent in the underlying crime of spousal rape
25 within the meaning of Cal. Pen. Code § 667.61(a) and (d); Petitioner
26 committed the spousal rape during the commission of a first degree
27 burglary with the intent to commit spousal rape; and Petitioner
28 personally used a firearm in the commission of the offense within
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1 the meaning of Cal. Pen. Code §§ 667.61(b), 12022.5(a)(1) and
2 12022.53(b). (CT 192-93.)

The jury found that Petitioner personally

3 used a firearm in the commission of the kidnapping within the
4 meaning of Cal. Pen. Code §§ 12022.5(a)(1) and 12022.53(b).
5 195.)

(Id. at

The jury found that in connection with the first degree

6 burglary charged in count 3, victim S.C. was present at the time of
7 the commission of the offense, and Petitioner personally used a
8 firearm in the commission of the offense within the meaning of Cal.
9 Pen. Code §§ 12022.5(a)(1) and 12022.53(b).

(Id. at 196-97.)

The

10 jury further found that Petitioner personally used a firearm in the
11 commission of the criminal threats within the meaning of Cal. Pen.
12 Code §§ 12022.5(a)(1) and 12022.53(b).
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(Id. at 198.)

On November 10, 2008, Petitioner was sentenced to an

14 indeterminate term of twenty-five years to life on the spousal rape;
15 a consecutive, determinate upper term of eight years on the
16 kidnapping plus an enhancement of ten years for personal use of a
17 firearm in the commission of the kidnapping; a concurrent two-year
18 middle term for the possession of the firearm; middle terms on the
19 first burglary and the criminal threats, which were stayed; a
20 consecutive term of sixteen months, or one-third of the middle term,
21 on the second burglary; and a middle term on the grand theft, which
22 was stayed.

Petitioner’s total sentence was thus twenty-five years

23 to life plus a determinate term of nineteen years and four months.
24 (CT 265-69.)
25

The Court of Appeal of the State of California, Fifth Appellate

26 District (CCA) affirmed the judgment on appeal in a decision filed
27 on August 21, 2009.

(Ans., Ex. A, doc. 28-1, 1-14.)

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On October 28, 2009, the California Supreme Court (CSC)

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2 summarily denied Petitioner’s petition for review without a
3 statement of reasoning or authority.

(LD 4, LD 5.)1

Petitioner did

4 not file any habeas corpus petitions with respect to the judgment in
5 the state courts.

(Doc. 28, 8:12-13.)

Petitioner filed the instant petition on June 8, 2010.

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On

7 March 12, 2012, the Court acknowledged Petitioner’s request to
8 withdraw claims as to which state court remedies had not been
9 exhausted concerning cumulative error and trial and appellate
10 counsel’s failure to raise Petitioner’s mental illness as a defense.
11 The claims were dismissed without prejudice, and the case has
12 proceeded on Petitioner’s claims that trial counsel was ineffective
13 in failing to move to strike inadmissible character evidence of a
14 car dealer’s testimony concerning her fear of Petitioner, the trial
15 court violated due process by failing to give a limiting instruction
16 concerning the jury’s consideration of the victim’s extra-judicial
17 statement to a medical examiner, and trial counsel was ineffective
18 in failing to request such a limiting instruction.
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III.

Factual Summary

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In a habeas proceeding brought by a person in custody pursuant

21 to a judgment of a state court, a determination of a factual issue
22 made by a state court shall be presumed to be correct.

The

23 petitioner has the burden of producing clear and convincing evidence
24 to rebut the presumption of correctness.

28 U.S.C. ' 2254(e)(1);

25 Sanders v. Lamarque, 357 F.3d 943, 947-48 (9th Cir. 2004).

This

26 presumption applies to a statement of facts drawn from a state
27 appellate court=s decision.

Moses v. Payne, 555 F.3d 742, 746 n.1

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“LD” refers to documents lodged by the Respondent in connection with the answer.

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1 (9th Cir. 2009).

The following statement of facts is taken from the

2 decision of the CCA in case number F056594, which was filed on
3 August 21, 2009.
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FACTUAL AND PROCEDURAL SUMMARY
Casner was six feet six inches tall and weighed 280 pounds
in November 2007. On November 26, 2007, Casner began
hitting his and S.C.'s 22-year-old son, C.C. When S.C.
attempted to intervene, Casner said, “You want some?” and
proceeded to hit S.C. As a result of this incident,
criminal charges were filed against Casner and a criminal
protective order issued.
In December 2007, S.C. obtained a civil restraining order
against Casner. Shortly thereafter, in January 2008, S.C.
filed for dissolution of the marriage. Also in January
2008, the criminal protective order was extended for three
years.
Casner repeatedly called S.C. at home, at work, and on her
cell phone. In February 2008, she contacted the sheriff's
department to report Casner's violations of the protective
and restraining orders. While a deputy was interviewing
S.C. at her home, Casner again called the house, a
violation of the orders. A criminal case for violation of
the protective and restraining orders was initiated and
still pending as of May 2008.
C.C. and his 20-year-old sister, B.C., lived with S.C.
C.C. had a full-time job and B.C. was attending classes at
a school that taught independent living skills to the
developmentally delayed. The usual routine was that C.C.
would leave for work around 6:30 a.m. and drop off B.C. at
the bus stop to catch the school bus. S.C., a registered
nurse, worked a night shift from 6:30 p.m. to 7:30 a.m.
and usually arrived home about an hour or so after her
shift ended.
On April 23, 2008, Casner purchased a Subaru wagon, paying
cash and registering the car in B.C.'s name, although B.C.
did not have a license and did not drive. He left the car
at the dealership to have the windows tinted, but did not
pick up the car when this work was completed.
On May 6, 2008, Casner parked his truck at the dealership,
put a duffle bag in the Subaru, and drove the Subaru to a
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remote wooded area about 16 miles from S.C.'s house.
Casner took a cab back to town, telling the cabbie his car
had broken down and was being towed. The cabbie dropped
him off at the dealership and Casner drove away in his
truck.
On the morning of May 7, after C.C. and B.C. had left and
before S.C. arrived home, Casner entered S.C.'s home
through a window and hid in C.C.'s bedroom. S.C. arrived
home around 9:00 a.m., did a few small chores around the
house, and climbed into bed to go to sleep. After falling
asleep, the next thing S.C. remembered was seeing a
“shadow coming through the bedroom door of a man.” Next,
“[Casner] rushed up to the bed and put his hand over my
mouth and put a gun to my head and told me if I made any
noise, he would blow my head off with a 357.”
S.C. was scared. She lay there with the gun held to her
head, while Casner flipped her over onto her stomach on
the bed and handcuffed her hands behind her back. Casner
ordered her to turn over and when she could not, he
flipped her over onto her back. Casner held up some zip
ties and told her if she “put up a struggle,” he would
bind her feet. Casner told S.C. he wanted to spend time
with her and then he “planned to kill [S.C.] and kill
himself.”
Casner told S.C. he wanted her to go away with him. When
she refused, Casner pulled out a plastic baggie with pills
in it and said, “They're pills to drug you if you won't
come.” Casner said he had Seroquel and OxyContin in the
baggie. Casner told S.C. how upset he was because she had
turned him in for making phone calls and how he would have
to “serve time” as a result.

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Casner began asking S.C. to kiss him. When she repeatedly
said “no,” he climbed on top of her and tried to kiss her,
but she kept turning her head. Casner then released one of
S.C.'s hands from the handcuffs and pulled her nightgown
off. Casner forced her legs apart and forced her to submit
to oral copulation and then raped her. S.C. was crying and
asked Casner, “You know what this is, right?” Casner
responded, “Yeah, rape.”
After he finished raping S.C., Casner told her to swallow
one of the pills he had brought. She responded, “No,” and
clenched her mouth closed. Casner grabbed her face,
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squeezed hard until her mouth opened, and then shoved a
pill into S.C.'s mouth. Casner held her mouth closed and
told her to swallow, continuing to hold her mouth closed
until she swallowed.
After the rape, Casner told her he needed to get his bag,
so Casner took her down the hall to their son's room. In
their son's room is a trap door in the floor of the closet
that leads to an area under the house. Casner opened up
the trap door, reached down, and pulled out a duffle bag.
Casner took a douche kit from the bag and instructed S.C.
to use it.

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By this time, S.C. was very sleepy from the effects of the
pill Casner forced on her and she was wobbling when she
walked. Casner took her through the house and out to her
car, where he placed her in the passenger seat. S.C. did
not remember anything after that until about 2:00 o'clock
in the afternoon, when Casner shook her awake and told her
to call in sick to work and to call their children.
When S.C. awoke, she and Casner were in her car in a
forested area. There was a Subaru parked nearby, which
Casner said was his. Casner moved her from her car to the
Subaru and had her call in sick to work. Casner then
instructed her to call home and leave a message on her
answering machine for their children, telling them that
she was going out with friends and would be back later.
After making the calls, S.C. nodded off again. When she
awoke, she pleaded with Casner to take her home; he
refused. Casner had S.C. climb into the back of the
Subaru, where she was hidden by a cover, while he drove.
At some point, Casner indicated they were near
Bakersfield. When Casner needed to pull into a gas
station, he told S.C. if she tried anything he would kill
her.
Casner had S.C. get into the front seat when they left the
gas station. While he was driving, he put his hands inside
her pants and began rubbing her vaginal area. S.C. told
him he was “rubbing [her] raw” and she asked him to stop;
he “didn't care.” Casner pulled into a motel parking lot,
opened up the back of the Subaru, and pulled out an
envelope “an inch thick” containing money. Casner paid for
a room.

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Inside the motel room, S.C.'s cell phone reflected that
her children had called numerous times trying to locate
her. Casner had S.C. call them, and she managed to reach
her son and daughter. Casner was listening to her
conversation while she told them she was staying with
friends and would be home tomorrow. Her son, C.C., asked
“Are you okay? Does dad have you?”
Shortly after concluding her conversation with her
children, a deputy sheriff called. The deputy indicated
that S.C.'s children were worried and asked exactly where
she was. Casner told her to say she was with a guy named
Mike and that she would be home in the morning. The deputy
asked where she was, the location of the house where she
was, and if she could see out the window. S.C. responded
that she did not know where the house was at and that she
could not see out the window. After the deputy concluded
his call, C.C. called to tell S.C. they were trying to
find her.
Casner had S.C. take off most of her clothes and climb
into bed. Casner got into bed with her and S.C. asked him
to leave her alone. Casner again forced her to submit to
oral sex and then raped her. Afterwards, Casner decided
they needed to get going “before they get organized” and
S.C. was found.
Casner told S.C. that if she promised not to say anything
about what had happened, he would take her back home and
let her go. Casner told her if she could not “stick with
this plan” he would have to go back to his “original plan,
which was to kill us both.” S.C. promised not to tell.
Casner was driving while they headed back to S.C.'s house.
At one point, Casner pulled another douche kit from his
duffle bag and said he wanted her to use it. Casner
stopped at a fast food location and told S.C. to use the
douche kit in the bathroom while he ordered food. Casner
was waiting when she came out of the bathroom and he took
her to the car.
At one point on the drive back, they crossed a bridge
spanning a river. Casner stopped on the bridge and pulled
out the gun, which Casner told her was a “Taurus.” Casner
dropped the gun over the side of the bridge.

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After Casner dropped her where they had left her car, he
continued to follow her and stop her on the road. S.C. was
afraid she would not get out of her situation alive after
all.
When she returned home, her son drove her to the sheriff's
department to make a report. S.C. was then taken to the
hospital for a forensic sexual assault examination. S.C.'s
pubic hair was positive for bodily secretions in a Woods
lamp test. Her vaginal area was red and swollen and there
were two lacerations. The results of the examination were
consistent with S.C.'s description of the sexual assaults.

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The sheriff's department had S.C. make a pretextual phone
call to Casner. In the call, S.C. indicated the sheriff's
department wanted her to come down and make a statement
because she had been reported missing. S.C. said she did
not know what to say, and Casner told her she did not have
to give a statement.
The sheriff's department found the gun in the river below
the bridge, where S.C. indicated Casner had dropped it.
The gun was fully loaded with seven bullets. The gun was
identified as belonging to Michelle Vinci.
Vinci had dated Casner briefly. She kept a Taurus .357
handgun in a case in her bedroom. Casner had been in her
bedroom when they were dating, but she did not give him or
anyone else permission to take the gun. On April 30, 2008,
Vinci discovered the gun was missing and she reported the
theft.

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...

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Casner was incarcerated in the jail pending trial. While
awaiting trial, he asked his cell mate, Frankie Henley, if
fingerprints could be recovered from stainless steel after
it had been in water. Henley said Casner admitted entering
his wife's home with a gun, waiting for her to come home,
drugging her, driving away with her, and later dropping
the gun in the river. Casner said he was sorry he had not
killed S.C. and offered to pay Henley to do it when Henley
was released.

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At trial, Casner denied stealing Vinci's gun or even
knowing that she had a gun. Casner admitted violating the
restraining orders and going to S.C.'s house on May 7,
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2008, but denied he had a gun. He testified S.C.
voluntarily invited him into her home and her bedroom and
that they had consensual sex. He denied handcuffing her,
bringing zip ties or douche kits with him, and denied
drugging her. Casner also denied forcing S.C. to accompany
him out of town against her will and claimed that the
sexual encounter in the motel room was consensual.
(Doc. 28-1, 3-8.)
IV.

Standard of Decision and Scope of Review

8

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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(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.
Clearly established federal law refers to the holdings, as

20 opposed to the dicta, of the decisions of the Supreme Court as of
21 the time of the relevant state court decision.

Cullen v.

22 Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v.
23 Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362,
24 412 (2000).
25

A state court’s decision contravenes clearly established

26 Supreme Court precedent if it reaches a legal conclusion opposite
27 to, or substantially different from, the Supreme Court's or
28 concludes differently on a materially indistinguishable set of
11

1 facts.

Williams v. Taylor, 529 U.S. at 405-06.

The state court

2 need not have cited Supreme Court precedent or have been aware of
3 it, "so long as neither the reasoning nor the result of the state4 court decision contradicts [it]."

Early v. Packer, 537 U.S. 3, 8

5 (2002).
6

A state court unreasonably applies clearly established federal

7 law if it either 1) correctly identifies the governing rule but then
8 applies it to a new set of facts in an objectively unreasonable
9 manner, or 2) extends or fails to extend a clearly established legal
10 principle to a new context in an objectively unreasonable manner.
11 Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002); see,
12 Williams, 529 U.S. at 407.
13

An application of clearly established federal law is

14 unreasonable only if it is objectively unreasonable; an incorrect or
15 inaccurate application is not necessarily unreasonable.
16 529 U.S. at 410.

Williams,

A state court’s determination that a claim lacks

17 merit precludes federal habeas relief as long as it is possible that
18 fairminded jurists could disagree on the correctness of the state
19 court’s decision.
20 786 (2011).

Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770,

Even a strong case for relief does not render the state

21 court’s conclusions unreasonable.

Id.

To obtain federal habeas

22 relief, a state prisoner must show that the state court’s ruling on
23 a claim was “so lacking in justification that there was an error
24 well understood and comprehended in existing law beyond any
25 possibility for fairminded disagreement.”

Id. at 786-87.

The

26 § 2254(d) standards are “highly deferential standard[s] for
27 evaluating state-court rulings” which require that state court
28 decisions be given the benefit of the doubt, and the Petitioner bear
12

1 the burden of proof.

Cullen v. Pinholster, 131 S.Ct. at 1398.

2 Habeas relief is not appropriate unless each ground supporting the
3 state court decision is examined and found to be unreasonable under
4 the AEDPA.

Wetzel v. Lambert, -–U.S.--, 132 S.Ct. 1195, 1199

5 (2012).
6

In assessing under section 2254(d)(1) whether the state court’s

7 legal conclusion was contrary to or an unreasonable application of
8 federal law, “review... is limited to the record that was before the
9 state court that adjudicated the claim on the merits.”

Cullen v.

10 Pinholster, 131 S.Ct. at 1398. Evidence introduced in federal court
11 has no bearing on review pursuant to § 2254(d)(1).

Id. at 1400.

12 Further, 28 U.S.C. § 2254(e)(1) provides that in a habeas proceeding
13 brought by a person in custody pursuant to a judgment of a state
14 court, a determination of a factual issue made by a state court
15 shall be presumed to be correct; the petitioner has the burden of
16 producing clear and convincing evidence to rebut the presumption of
17 correctness.

A state court decision on the merits based on a

18 factual determination will not be overturned on factual grounds
19 unless it was objectively unreasonable in light of the evidence
20 presented in the state proceedings.

Miller-El v. Cockrell, 537 U.S.

21 322, 340 (2003).
22

A state has adjudicated a claim on the merits within the

23 meaning of § 2254(d) when it decides the petitioner’s right to
24 relief on the basis of the substance of the constitutional claim
25 raised, rather than denying the claim because of a procedural or
26 other rule precluding state court review of the merits.
27 Blodgett, 393 F.3d 943, 969 (9th Cir. 2004).
28
13

Lambert v.

1

Where there has been one reasoned state judgment rejecting a

2 federal claim, later unexplained orders upholding that judgment or
3 rejecting the same claim are presumed to rest upon the same ground.
4 Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).

Thus, where the

5 California Supreme Court denies a habeas petition without citation
6 or comment, a district court will “look through” the unexplained
7 decision of that state court to the last reasoned decision of a
8 lower court as the relevant state-court determination.

Ylst v.

9 Nunnemaker, 501 U.S. at 803-04; Taylor v. Maddox, 366 F.3d 992, 998
10 n.5 (9th Cir. 2004).

A petitioner has the burden to overcome or

11 rebut the presumption by strong evidence that the presumption, as
12 applied, is wrong.
13

Ylst, 501 U.S. at 804.

Here, this Court will look through the unexplained decision of

14 the CSC to the decision of the CCA, which was the last reasoned
15 decision addressing Petitioner’s claims.
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V.

Ineffective Assistance of Counsel in Failing to Move
to Strike a Car Dealer’s Testimony

Petitioner argues that he suffered a violation of his Sixth and

19 Fourteenth Amendment right to the effective assistance of counsel
20 when his trial counsel failed to move to strike the testimony of a
21 saleswoman at the automobile dealership where Petitioner bought the
22
Subaru.
23
The trial transcript reveals that Amy Lane testified she had
24
25 another salesperson sell the Subaru to Petitioner, who came to the
26 dealership five or six times and paid cash for the vehicle.
27 Petitioner drove the Subaru and returned it to the lot on various
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occasions.

Lane tried not to have any contact with Petitioner.
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1 When the prosecutor asked her why, she replied, “I was scared of
2 him.”
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When the prosecutor asked why she was scared, the trial court

stated, “Counsel, I’m going to interject.
relevant.

Move on.”
A.

I don’t think that is

(1 RT 152-160.)

The State Court’s Decision

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The pertinent part of the CCA’s decision is as follows:

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I. Ineffective Assistance of Counsel

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Casner contends his trial counsel was ineffective because
counsel failed to move to strike the car salesman’s
comment that she was “scared” of defendant. He claims this
failure was prejudicial because this was a “reasonably
close case” as to whether he harbored the intent to commit
a felony at the time he entered S.C.'s home or whether he
merely was attempting to effect a “peaceful
reconciliation.”

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Casner has the burden of proving defense counsel rendered
ineffective assistance. (People v. Cox (1991) 53 Cal.3d
618, 655.) In order to prove ineffective assistance,
Casner must demonstrate that counsel's performance was
deficient and that counsel's action or failure to act was
prejudicial. (Strickland v. Washington (1984) 466 U.S.
668, 687 (Strickland); People v. Ledesma (1987) 43 Cal.3d
171, 216-218 (Ledesma).) When a claim of ineffective
assistance is based upon defense counsel's failure to make
a motion, as here, the defendant must prove “not only the
absence of a reasonable tactical explanation for the
omission but also that the motion or objection would have
been meritorious.” (People v. Mackenzie (1995) 34
Cal.App.4th 1256, 1272.)
We disagree with Casner's fundamental assessment of the
case as “reasonably close.” There was virtually no
evidence that Casner intended anything other than rape and
murder when he entered S.C.'s home, except for his selfserving statements.
Casner spent considerable time, effort, and funds in
planning these crimes. He purchased a car in his
daughter's name and paid cash; hence, the car would not be
15

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traceable to him. He had the windows tinted so people and
items in the car could not be seen. Casner obtained potent
prescription drugs with which to sedate his estranged wife
and purchased douche kits in an attempt to erase any trace
of sexual intercourse. Casner stole a gun and brought that
loaded gun with him to S.C.'s house. Immediately upon
entering S.C.'s bedroom, Casner rushed to the bed, placed
the weapon against S.C.'s head, and told her he would
shoot her if she made any noise. Casner then proceeded to
tell S.C. that he wanted to spend time with her-apparently
his euphemism for forced sex-before killing her. Casner's
very entry into the home violated criminal and civil
restraining orders.
Casner's actions and words provide overwhelming evidence
of felonious intent at the time he entered S.C.'s house.
Even if we were to credit Casner's argument that he
harbored an intent of effecting a peaceful reconciliation
when he initially entered S.C.'s home, that intent clearly
was combined with the intent to rape and murder her if his
attempts at reconciliation did not work. The evidence is
clear that he was prepared to overcome resistance and act
forcibly if necessary-he brought with him a loaded gun and
medication with which to sedate S.C. in order to prevent
any resistance by her. Even if the use of force was a
secondary, or contingent, plan on Casner's part, he still
harbored the requisite intent upon entry, although that
intent may have been “contingent” in his mind. (People v.
Fond (1999) 71 Cal.App.4th 127, 132.)

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Furthermore, even if we assume Casner did not harbor any
intent to commit a felony at the moment he illegally
entered S.C.'s house, the evidence is abundantly clear he
harbored a felonious intent at the time he entered S.C.'s
bedroom. His first actions upon entering the bedroom were
to hold a loaded gun to S.C.'s head and tell her he would
kill her if she made noise. He then proceeded to handcuff
and rape her. If Casner did not harbor a felonious intent
at the time he entered S.C.'s house, but did harbor a
felonious intent at the time he entered her bedroom,
burglary still lies. (People v. Abilez (2007) 41 Cal.4th
472, 509; People v. Sparks (2002) 28 Cal.4th 71, 87.) As
the California Supreme Court held in Sparks, the word
“‘room’” in section 459 “must be given its ordinary
meaning,” and the entry with the requisite intent while
within a home into another room of the house, particularly
a bedroom, is burglary. (Sparks, at pp. 86-87.)
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Although Casner claims his failure to overpower S.C.
immediately after she entered the home is evidence that he
had a desire for a peaceful reconciliation, we disagree.
In all likelihood, Casner waited to overpower S.C. to
lessen the possibility that she would cry out and be heard
by a neighbor or passerby. Further, waiting until S.C. was
in the bedroom facilitated the rape.
This is not a close case. Casner's attempt to characterize
his actions as “clumsy attempts at seduction” and an
attempt to reconcile with his estranged wife is ludicrous
and not supported by the facts. Under the facts of this
case, there is no possibility the jury would have
disbelieved S.C.'s testimony and credited Casner's version
of events. Therefore, even if we assume arguendo defense
counsel should have moved to strike the comment about the
car salesperson being “scared” of Casner, the failure to
move to strike was not prejudicial because it is not
reasonably probable the outcome would have been more
favorable to Casner absent any error. (Strickland, supra,
466 U.S. at p. 687; Ledesma, supra, 43 Cal.3d at pp. 216218.)
(Doc. 28-1, 8-10.)
B.

Analysis

The law governing claims concerning ineffective assistance of

18 counsel is clearly established for the purposes of the AEDPA
19 deference standard set forth in 28 U.S.C. ' 2254(d).
20

Premo v.

Moore, BU.S. B, 131 S.Ct. 733, 737-38 (2011); Canales v. Roe, 151

21
22
23

F.3d 1226, 1229 n.2 (9th Cir. 1998).
To demonstrate ineffective assistance of counsel in violation

24 of the Sixth and Fourteenth Amendments, a convicted defendant must
25 show that 1) counsel=s representation fell below an objective
26 standard of reasonableness under prevailing professional norms in
27
light of all the circumstances of the particular case; and 2) unless
28
17

1 prejudice is presumed, it is reasonably probable that, but for
2 counsel=s errors, the result of the proceeding would have been
3
4
5
6

different.

Strickland v. Washington, 466 U.S. 668, 687-94 (1984);

Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994).

A petitioner must

identify the acts or omissions of counsel that are alleged to have

7 been deficient. Strickland, 466 U.S. at 690.

This standard is the

8 same standard that is applied on direct appeal and in a motion for a
9 new trial. Id. at 697-98.
10
11
12
13

In determining whether counsel=s conduct was deficient, a court
should consider the overall performance of counsel from counsel’s
perspective at the time of the representation.

14 at 689.

Strickland, 466 U.S.

There is a strong presumption that counsel=s conduct was

15 adequate and within the exercise of reasonable professional judgment
16 and the wide range of reasonable professional assistance. Id. at
17
688-90. The challenger's burden is to show Athat counsel made errors
18
so serious that counsel was not functioning as the Acounsel@
19
20 guaranteed the defendant by the Sixth Amendment.@ Id. at 687.
21

In determining prejudice, a reasonable probability is a

22 probability sufficient to undermine confidence in the outcome of the
23
24
25
26

proceeding.

Strickland, 466 U.S. at 694.

In the trial context, the

question is thus whether there is a reasonable probability that,
absent the errors, the fact finder would have had a reasonable doubt

27 respecting guilt.

Id. at 695.

This Court must consider the

28 totality of the evidence before the fact finder and determine
18

1 whether the substandard representation rendered the proceeding
2 fundamentally unfair or the results unreliable.
3
4
5
6

Id. at 687, 696.

Where the state court has applied the correct, clearly
established federal law to a claim concerning the ineffective
assistance of counsel, a federal district court analyzes the claim

7 under the Aunreasonable application@ clause of ' 2254(d)(1), pursuant
8 to which habeas relief is warranted where the correct law was
9 unreasonably applied to the facts.
10
11
12
13

Weighall v. Middle, 215 F.3d

1058, 1062-62 (2000) (citing Williams v. Taylor, 529 U.S. 362
(2000)).
The Supreme Court has described the high bar presented by

14 § 2254(d)(1) for prevailing on a claim of ineffective assistance of
15 Counsel as follows:
16
17
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19
20
21
22
23
24
25
26
27
28

ATo establish deficient performance, a person challenging a
conviction must show that >counsel's representation fell
below an objective standard of reasonableness.=
[Strickland,] 466 U.S., at 688 [104 S.Ct. 2052]. A court
considering a claim of ineffective assistance must apply a
>strong presumption= that counsel's representation was
within the >wide range= of reasonable professional
assistance. Id., at 689 [104 S.Ct. 2052]. The challenger's
burden is to show >that counsel made errors so serious that
counsel was not functioning as the Acounsel@ guaranteed the
defendant by the Sixth Amendment.= Id., at 687 [104 S.Ct.
2052].
AWith respect to prejudice, a challenger must demonstrate
>a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.= ...
A >Surmounting Strickland's high bar is never an easy task.=
Padilla v. Kentucky, 559 U.S. ----, ---- [130 S.Ct. 1473,
1485, 176 L.Ed.2d 284] (2010). An ineffective-assistance
19

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claim can function as a way to escape rules of waiver and
forfeiture and raise issues not presented at trial [or in
pretrial proceedings], and so the Strickland standard must
be applied with scrupulous care, lest >intrusive post-trial
inquiry= threaten the integrity of the very adversary
process the right to counsel is meant to serve.
Strickland, 466 U.S., at 689-690 [104 S.Ct. 2052]. Even
under de novo review, the standard for judging counsel's
representation is a most deferential one. Unlike a later
reviewing court, the attorney observed the relevant
proceedings, knew of materials outside the record, and
interacted with the client, with opposing counsel, and
with the judge. It is >all too tempting= to >second-guess
counsel's assistance after conviction or adverse sentence.=
Id., at 689 [104 S.Ct. 2052]; see also Bell v. Cone, 535
U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002);
Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838,
122 L.Ed.2d 180 (1993). The question is whether an
attorney's representation amounted to incompetence under
>prevailing professional norms,= not whether it deviated
from best practices or most common custom. Strickland, 466
U.S., at 690, 104 S.Ct. 2052.
AEstablishing that a state court's application of
Strickland was unreasonable under ' 2254(d) is all the
more difficult. The standards created by Strickland and '
2254(d) are both >highly deferential,= id., at 689 [104
S.Ct. 2052]; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117
S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply
in tandem, review is >doubly= so, Knowles, 556 U.S.,
at ----, 129 S.Ct., at 1420. The Strickland standard is a
general one, so the range of reasonable applications is
substantial. 556 U.S., at ---- [129 S.Ct., at 1420].
Federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with
unreasonableness under ' 2254(d). When ' 2254(d) applies,
the question is not whether counsel's actions were
reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland's
deferential standard.@

25 Premo v. Moore, -U.S. -, 131 S.Ct. 733, 739-40 (2011) (quoting
26 Harrington v. Richter, BU.S.-, 131 S.Ct. 770 (2011)).
27
///
28
20

1

Here, as Respondent notes, defense counsel may have been acting

2 in accordance with a rational tactical choice not to move to strike
3
4
5
6

the testimony because doing so after the trial court had already
foreclosed further inquiry might have served to highlight the
witness’s testimony concerning her fear of Petitioner.

7 wide latitude in making tactical decisions.

Counsel have

In a § 2254 proceeding,

8 a defendant must overcome a presumption that a challenged action of
9 counsel might be considered sound trial strategy under the
10
11
12
13

circumstances and was undertaken in the exercise of reasonable
professional judgment.

Strickland, 466 U.S. at 689.

In her testimony, the saleswoman did not provide any details to

14 support her fear of Petitioner.

The saleswoman testified to a

15 series of unusual actions undertaken by Petitioner in connection
16 with his purchase of the car. Petitioner came in on April 23, 2008
17
(two weeks before the charged crimes occurred) and purchased the
18
vehicle; he had the windows tinted, drove the vehicle, and then
19
20 returned to park it at the lot on several occasions. Finally on or
21 about April 30, 2008, Petitioner drove in to the lot, drove the
22 Subaru away, and returned in a taxi to pick up and depart in the
23
24
25
26

vehicle that he had driven to the dealership. (RT 154-57.)
Under the circumstances, counsel would have been reasonable in
deciding that a motion to strike would have underscored the

27 saleswoman’s testimony concerning not only her fear of Petitioner,
28 but also Petitioner’s unusual behavior concerning the car, which was
21

1 damaging because it warranted a strong inference that Petitioner was
2 carefully planning to use the car in the commission of the offenses.
3
4
5
6

Further, even assuming reasonable counsel would have moved to strike
the bare statements that the saleswoman tried to avoid Petitioner
and was scared of him, the state court properly decided that any

7 failure of defense counsel to move to strike the evidence was not
8 prejudicial.

There was significant evidence before the trier of

9 fact independently providing a basis for fear of the Petitioner,
10
11
12
13

including Petitioner’s testimony that he had pushed his wife and
slapped his son in November 2007, which resulted in Petitioner’s
arrest and conviction; the existence of restraining orders against

14 him prohibiting his possession of weapons and contact with his son;
15 and his wife’s later filing another complaint, which resulted again
16 in Petitioner’s arrest for violating the restraining order. (RT
17
547, 553, 596-97.)
18
Further, the evidence of Petitioner’s guilt was strong. The
19
20 victim’s testimony was corroborated by the discovery of the gun,
21 which had belonged to a friend of the Petitioner, where the victim
22 had testified that Petitioner left it.
23
24
25
26

The victim’s testimony was

also corroborated by Petitioner’s admissions to his cellmate of
having drugged the victim and having taken her away at gunpoint.
Other evidence indicated that Petitioner had planned to kidnap and

27 rape his wife, including Petitioner’s purchase of the Subaru with
28 cash, having the windows tinted, and registering it in his
22

1 daughter’s name; his placement of the duffle containing the douche
2 kits below the trap door, where his shoeprint was found; and
3
4
5
6

lacerations and swelling on the victim’s body that indicated rough
treatment.
Contrary to Petitioner’s assertions, the evidence was not close

7 with respect to whether Petitioner intended to commit a felony at
8 the time he entered the victim’s house or bedroom.

Instead, the

9 independent evidence of planning was abundant and strongly supported
10
11
12
13
14

an inference that when entering the house and bedroom, Petitioner
fully intended to assault and rape the victim by overpowering the
victim with a gun, cuffs, and a drug.
In summary, the state court’s application of the Strickland

15 standard was reasonable, and the state court’s decision was not
16 contrary or, or an unreasonable application of, clearly established
17
federal law.
18
VI. Instructional Error
19
Petitioner argues that his right to due process of law was
20
21 violated by the trial court’s failure to instruct the jury that the
22 victim’s extra-judicial statement to a forensic medical examiner was
23
24
25
26

not admissible for the truth of the matters asserted. Petitioner
contends the evidence should have been admitted only as support for
the expert’s opinion, and the failure so to instruct the jury

27
28
23

2
1 improperly bolstered the victim’s testimony.

2

A.

3
4
5
6

The State Court’s Decision

The pertinent part of the decision of the CCA regarding this
issue, as well as the related issue of the alleged ineffective
assistance of counsel in not requesting such an instruction, is as

7 follows:
8

II. Instructional Error

9

Casner next contends that the trial court's use of
Judicial Council of California Criminal Jury Instructions
(2008) CALCRIM No. 318 (prior statements as evidence) was
prejudicial error because it applied to the testimony of
the forensic examining nurse. Casner argues that S.C.'s
statement to the forensic nurse essentially was identical
to her trial testimony and, as such, CALCRIM No. 318's
instruction that the earlier statement could be considered
true was prejudicial error because a victim's statement to
a forensic nurse is inadmissible for its truth.

10
11
12
13
14
15

Prior to instructing the jury, the trial court went
through each instruction with counsel and Casner present.
The trial court told counsel and Casner that it would
“just go through the instructions by number one more time.
If there is any objection, shout out. If there aren't, it
will be deemed as all parties are agreeing it should be
given.” After going through all of the instructions,
including CALCRIM No. 318, the trial court asked if anyone
disagreed with any of the proposed instructions. Casner's
counsel responded, “No.”

16
17
18
19
20
21
22

Casner's claim of instructional error has been forfeited.
To the extent Casner contends there should have been a

23
24
25
26
27
28

2

As read to the jury, CALCRIM 318 stated the following:
You have heard evidence of statements that a witness made before trial.
If you decide that the witness made those statements, you may use those
statements in two ways: To evaluate whether the witness’s testimony
in court is believable, and as evidence that the information in
those earlier statements are (sic) true.

(4 RT 719.)

24

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clarification of CALCRIM No. 318, or a limiting
instruction given, he was obligated to make such a request
to the trial court in order to preserve the issue for
appeal. (People v. Gutierrez (2002) 28 Cal.4th 1083,
1134.)
Furthermore, to the extent Casner contends the issue is
preserved, despite the failure to object or request
clarification in the trial court, he is mistaken. Casner
maintains that People v. Key (1984) 153 Cal.App.3d 888
supports his position and stands for the proposition that
the trial court had a sua sponte duty to clarify or modify
the pattern CALCRIM No. 318 instruction. In Key, the trial
court gave an instruction on the use of prior crimes
evidence, but failed to limit it to those crimes where
prior crimes evidence properly is admissible. (Key, at p.
898.) The California Supreme Court has stated that the
holding of Key is limited and is based on the principal
(sic) that other crimes evidence cannot be used to prove
that defendant engaged in wrongful conduct in the charged
offense. (People v. Heishman (1988) 45 Cal.3d 147, 168.)
CALCRIM No. 318 does not address prior crimes evidence and
thus the holding of Key is inapplicable.
Additionally, CALCRIM No. 318 is not an instruction on the
elements of an offense, thus an objection or request for
clarification was required to be made in the trial court
in order to preserve the issue for appellate review. It is
only “[i]nstructions regarding the elements of the crime
[that] affect the substantial rights of the defendant,
[that require] no objection for appellate review.
[Citations.]” (People v. Hillhouse (2002) 27 Cal.4th 469,
503.)
Alternatively, Casner contends counsel was ineffective for
failing to request a limiting instruction. As set forth in
part I, ante, in order to demonstrate ineffective
assistance of counsel, Casner must demonstrate prejudice.
(Strickland, supra, 466 U.S. at p. 687; Ledesma, supra, 43
Cal.3d at pp. 216-218.) This he has failed to do.
First, Casner concedes that S.C.'s statement to the
forensic nurse was admissible for the purpose of
explaining the nurse's opinion that the physical injuries
were consistent with the history taken from S.C. at the
start of the exam. CALCRIM No. 318 does not instruct the
jurors they must accept or presume a prior statement to be
25

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5
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7
8
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16
17

true; it merely states that the jury may use the prior
statement to evaluate whether the witness's in-court
testimony is believable.
Furthermore, CALCRIM No. 226 (witnesses), with which the
jury was instructed, permits the jury to consider a prior
statement made by any witness and evaluate whether it is
consistent or inconsistent with trial testimony, as a
factor in evaluating the credibility of a witness. Thus,
any clarifying instruction directed at CALCRIM No. 318
would not have precluded the jury from considering S.C.'s
statement to the nurse and its consistency with her trial
testimony.
Second, there was a plethora of physical evidence
corroborating S.C.'s trial testimony. The physical
evidence included the douche kits and zip ties found in
S.C.'s home; the loaded gun found where S.C. said Casner
dropped it; the footprint matching Casner's in the crawl
space where the duffle bag was hidden; the subterfuge of
buying a car for cash and placing it in B.C.'s name; and
S.C.'s own physical injuries as documented in the forensic
exam. It is not reasonably probable that the outcome of
the trial would have been more favorable to Casner if a
limiting instruction had been given. (Strickland, supra,
466 U.S. at p. 687; Ledesma, supra, 43 Cal.3d at pp. 216218.)
(Doc. 28-1, 11-13.)

18
19
20

B.

Procedural Default

The doctrine of procedural default is a specific application of

21 the more general doctrine of independent state grounds.

It provides

22 that when state court decision on a claim rests on a prisoner=s
23
24
25
26

violation of either a state procedural rule that bars adjudication
of the case on the merits or a state substantive rule that is
dispositive of the case, and the state law ground is independent of

27 the federal question and adequate to support the judgment such that
28 direct review in the United States Supreme Court would be barred,
26

1 the prisoner may not raise the claim in federal habeas absent a
2 showing of cause and prejudice or that a failure to consider the
3
4
5
6

claim will result in a fundamental miscarriage of justice.

Walker

v. Martin, - U.S. -, 131 S.Ct. 1120, 1127 (2011); Coleman v.
Thompson, 501 U.S. 722, 729-30 (1991); Bennett v. Mueller, 322 F.3d

7 573, 580 (9th Cir. 2003); Wells v. Maass, 28 F.3d 1005, 1008 (9th
8 Cir. 1994).

The doctrine applies regardless of whether the default

9 occurred at trial, on appeal, or on state collateral review.
10
11
12
13

Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
Where a state court discusses a state procedural bar as a
separate basis for its decision but then, in an alternative holding,

14 discusses the merits of the federal claim, the court has clearly and
15 expressly stated its reliance on a procedural ground, and the
16 procedural bar applies. Bennett v. Mueller, 322 F.3d at 580;
17
Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (citing Coleman
18
v. Thompson, 501 U.S. 722 and Harris v. Reed, 489 U.S. at 264 n.10).
19
However, a procedural default is not jurisdictional. Trest v.
20
21 Cain, 522 U.S. 87, 89 (1997).

Instead, it proceeds from concerns of

22 comity and federalism because a prisoner=s failure to comply with a
23
24
25
26

state=s procedural requirement for presenting a federal claim has
deprived the state courts of an opportunity to address the claim in
the first instance.

Coleman v. Thompson, 501 U.S. at 831-32.

27 Therefore, a court may bypass an issue of procedural bar in the
28 interest of judicial economy, such as where the issue of procedural
27

1 default is complex and the claim may easily be resolved against the
2 petitioner.
3
4
5
6

Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (citing

28 U.S.C. ' 2254(b)(2), which permits a federal court to deny a
habeas petition on the merits notwithstanding the applicant=s failure
to exhaust state remedies); Franklin v. Johnson, 290 F.3d 1223, 1232

7 (9th Cir. 2002) (noting the power of appellate courts to reach the
8 merits of habeas petitions, if on their face and without regard to
9 any facts that could be developed in a lower court, they are clearly
10
11
12
13

not meritorious).
Here, the state court expressly ruled that the instructional
error claim had been forfeited because under state law, where the

14 instruction did not concern an element of an offense, the Petitioner
15 was required to object to the instruction or request clarification
16 in order to preserve the issue. (Doc. 28-1, 12.) Thus, the state
17
court expressly stated its reliance on a procedural ground.
18
However, the state court also indirectly addressed the merits
19
20 of the claim in its discussion of the ineffective assistance of
21 counsel, determining that even if there had been error in failing to
22 request a limiting instruction and/or in failing to move to strike
23
24
25
26
27
28

the car dealer’s testimony, the errors were harmless.
Here, in the interest of economy, the underlying issues will be
addressed.
C.

Instructional Error

When a conviction is challenged in a proceeding pursuant to 28
28

1 U.S.C. § 2254 on the basis of error in jury instructions, this Court
2 is guided by two clearly established legal principles.
3

First, the United States Supreme Court has held that a

4 challenge to a jury instruction solely as an error under state law
5 does not state a claim cognizable in federal habeas corpus
6 proceedings.

Estelle v. McGuire, 502 U.S. 62, 71-72 (1991).

A

7 claim that an instruction was deficient in comparison to a state
8 model or that a trial judge incorrectly interpreted or applied state
9 law governing jury instructions does not entitle one to relief under
10 ' 2254, which requires violation of the Constitution, laws, or
11 treaties of the United States.
12

28 U.S.C. '' 2254(a), 2241(c)(3).

Secondly, the only basis for federal collateral relief for

13 instructional error is that the infirm instruction or the lack of
14 instruction so infected the entire trial that the resulting
15 conviction violates due process.

Estelle, 502 U.S. at 72; Cupp v.

16 Naughten, 414 U.S. 141, 147 (1973); see, Donnelly v. DeChristoforo,
17 416 U.S. 637, 643 (1974) (it must be established not merely that the
18 instruction is undesirable, erroneous or even Auniversally
19 condemned,@ but that it violated some right guaranteed to the
20 defendant by the Fourteenth Amendment).

Further, the instruction

21 may not be judged in artificial isolation, but must be considered in
22 the context of the instructions as a whole and the trial record.
23 Estelle, 502 U.S. at 72.
24

Additionally, in reviewing an ambiguous instruction, it must be

25 determined whether there is a reasonable likelihood that the jury
26 has applied the challenged instruction in a way that violates the
27 Constitution.

Estelle, 502 U.S. at 72-73 (reaffirming the standard

28 stated in Boyde v. California, 494 U.S. 370, 380 (1990)).
29

Estelle

1 emphasized that the Court had defined the category of infractions
2 that violate fundamental fairness very narrowly, and that beyond the
3 specific guarantees enumerated in the Bill of Rights, the Due
4 Process Clause has limited operation.
5

Id. at 72-73.

Moreover, even if there is instructional error, a petitioner is

6 generally not entitled to habeas relief for such error unless it is
7 prejudicial.

The Supreme Court has held that harmless error

8 analysis applies to instructional errors as long as the error at
9 issue does not categorically vitiate all the jury's findings.
10 Hedgpeth v. Pulido, 555 U.S. 57, 61 (2008) (citing Neder v. United
11 States, 527 U.S. 1, 11 (1999) (quoting in turn Sullivan v.
12 Louisiana, 508 U.S. 275 (1993) concerning erroneous reasonable doubt
13 instructions as constituting structural error)).

In Hedgpeth v.

14 Pulido, the Court cited its previous decisions that various forms of
15 instructional error were trial errors subject to harmless error
16 analysis, including errors of omitting or misstating an element of
17 the offense or erroneously shifting the burden as to an element.
18 Hedgpeth, 555 U.S. 60-61.

To determine whether a petitioner

19 pursuant to ' 2254 suffered prejudice from such an instructional
20 error, a federal court must determine whether a petitioner suffered
21 actual prejudice by assessing whether, in light of the record as a
22 whole, the error had a substantial and injurious effect or influence
23 in determining the jury=s verdict.

Hedgpeth, 555 U.S. at 62; Brecht

24 v. Abrahamson, 507 U.S. 619, 638 (1993).
25

Here, Holly Price testified that as a registered nurse and a

26 certified sexual assault nurse examiner at Doctor’s Medical Center,
27 she took a statement from the victim and examined her on May 8.
28 369-72.)

The nurse testified to the victim’s statement, which
30

(RT

1 narrated in detail the events of the offenses, including the entry,
2 rape, threats, kidnapping, and rape.

(Id. at 372-80.)

The nurse

3 further testified to her examination of the victim and detailed the
4 findings that were consistent with the victim’s narration, including
5 the presence of body secretions in her pubic hair and swelling and
6 lacerations of the genital area.
7

(Id.)

As noted by the state court, Petitioner conceded on appeal that

8 the statement to the forensic nurse was admissible for explaining
9 the nurse’s opinion that the physical injuries were consistent with
10 the history taken from the victim at the start of the exam.

The

11 jury was instructed that it had heard evidence of statements made by
12 a witness before trial and, if it decided that the witness made
13 those statements, it could use the statements to evaluate whether
14 the witness’s in-court testimony was believable, and as evidence
15 that the information in those earlier statements was true.
16 719.)

(Id. at

The jury was also instructed that it could consider any

17 factor tending to prove or disprove the truth of a witness’s
18 testimony, including whether the witness had made a prior consistent
19 or inconsistent statement. (4 RT 714-15.)

The jury was further

20 instructed on what to consider in evaluating an expert opinion: to
21 use the general instructions concerning credibility or witnesses, to
22 consider the facts or information on which the expert relied in
23 arriving at the opinion, and to decide whether the information was
24 true and accurate.

(Id. at 719-20.)

Thus, the jury was instructed

25 in effect to consider the story that the victim told the nurse as
26 well as the findings on examination to evaluate the opinion that the
27 findings on examination were consistent with the victim’s statement
28 to the examiner.
31

1

It is logically possible that jurors would understand the

2 instructions to mean that jurors could consider the truth of the
3 matters in the victim’s statement to the examining nurse in order to
4 determine whether the victim’s later testimony at trial was true.
5 It is this possibility that Petitioner’s contention addresses.
6 Petitioner argues that it was unfair because it gave an additional
7 basis for a favorable credibility finding with respect to the
8 victim.
9

However, as noted by the state court, even if there was error

10 in failing to request a limiting instruction as to the nurse’s
11 testimony and moving to strike the testimony of the car dealer,
12 there was no prejudice.

The jury was presented with very strong

13 evidence of Petitioner’s guilt independent of the victim’s
14 testimony, including a wealth of evidence of planning the offenses
15 that has previously been summarized, such as the gun, handcuffs, and
16 the footprint in the house; physical evidence from the nurse’s
17 examination; Petitioner’s motivation to kill the victim because her
18 complaints to law enforcement had resulted in his conviction,
19 sentence, and yet another criminal charge; Petitioner’s admissions
20 that he committed the offense; and his invitation to his cell mate
21 to kill the victim.

Petitioner’s version of the journey he took his

22 wife on was patently unlikely in view of the pendency of a
23 restraining order and an additional criminal charge concerning a
24 repeat violation of the restraining order.
25

In light of the totality of the evidence presented to the jury,

26 the fact that the victim’s statement to the nurse might have been
27 considered for its truth would have had little, if any, impact.

The

28 primary significance of the nurse’s testimony was to establish that
32

1 the results of the forensic exam were consistent with the victim’s
2 description of the events.

Although Petitioner argues that the

3 instructional omission raised a risk that the jury would consider
4 repetition of the victim’s history of the events as corroboration of
5 her in-court testimony, the jury was presented with considerable
6 weighty, independent evidence of circumstances that corroborated the
7 victim’s testimony.
8

Any error regarding the forensic nurse’s testimony did not

9 categorically vitiate all the findings of the jury.

The state court

10 could reasonably have decided that the possibility that jurors
11 considered the statement made to the nurse for the truth of the
12 matters asserted in the statement did not have a substantial and
13 injurious effect or influence in determining the jury=s verdict.
14

Petitioner argues for the first time in the traverse that the

15 instruction permitting the jury to consider the victim’s statement
16 to the forensic nurse was irrational, created a presumption, and
17 lowered the burden of proof beyond a reasonable doubt.
18

A jury instruction violates due process if it fails to give

19 effect to the requirement that the government prove every element of
20 the offense beyond a reasonable doubt.
21 U.S. 433, 437 (2004).

Middleton v. McNeil, 541

An ambiguity, inconsistency, or deficiency in

22 a jury instruction rises to the level of a due process violation
23 only where the instruction so “‘infected the entire trial that the
24 resulting conviction violates due process.’”

Estelle v. McGuire,

25 502 U.S. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
26 The defective instruction must be viewed in the context of the
27 overall charge; if the charge as a whole is ambiguous, the question
28 is whether there is a reasonable likelihood that the jury has
33

1 applied the challenged instruction in a way that violates the
2 Constitution.

Boyde v. California, 494 U.S. 370, 378 (1990);

3 Estelle, 502 U.S. at 72.
4

The jury was instructed on the presumption of innocence and the

5 People’s overall burden of proof beyond a reasonable doubt, as well
6 as the need to meet the same burden of proof with respect to all
7 facts essential to a conclusion based on circumstantial evidence and
8 circumstantial evidence of the defendant’s state of mind.
9 711-13.)

(4 RT

Although CALCRIM 318 referred to considering the nurse’s

10 testimony concerning Petitioner’s statement for the truth of the
11 matters stated, the jury was instructed that it could consider
12 anything that reasonably tended to prove or disprove the truth or
13 accuracy of the testimony, including the witness’s ability to
14 remember and describe what happened, and whether the witness made a
15 statement in the past that was consistent or inconsistent with his
16 or her testimony.

(Id. at 714-15.)

The jury was also instructed

17 that it was the sole judge of the believability of a witness.
18 at 714.)

(Id.

Considering the instructions as a whole, the burden of

19 proof was clearly set forth.
20

However, even if ambiguous, it does not appear reasonably

21 likely that the jury would have understood that CALCRIM 318 created
22 a separate standard or modified the burden of proof with respect to
23 the victim’s statement to the nurse.
24

Petitioner argues that the instruction created a presumption

25 that the victim’s statement to the forensic nurse was true.
26 However, CALCRIM 318 did not by its terms compel the finder of fact
27 to accept the out-of-court statements as true.

It instead permitted

28 use of the out-of-court statement to evaluate the credibility of the
34

1 victim’s in-court testimony and as evidence that the information in
2 those earlier statements was true.

In light of the totality of the

3 instructions concerning the burden of proof and evaluation of the
4 credibility of witnesses, the Court concludes it was not reasonably
5 likely that the jury understood CALCRIM 318 to create a presumption
6 or modify the burden of proof.
7

Even assuming that failure to strike the statement of the car

8 dealer that she was scared of Petitioner was erroneous or
9 substandard, the presence of significant, independent evidence that
10 Petitioner was worthy of fear rendered the omission harmless.
11 Considering the totality of alleged errors in light of the whole
12 record, the state court reasonably decided that Petitioner had not
13 shown prejudice or a denial of fundamental fairness.
14

VII.

Ineffective Assistance of Counsel

15

Petitioner argues that his counsel was ineffective for failing

16 to seek an instruction limiting the use of the victim’s statement to
17 the nurse so that the jury could not consider the truth of the
18 matters asserted in the statement to the nurse.
19

Even assuming that the failure to seek the instruction was

20 substandard, the state court’s decision was not an objectively
21 unreasonable application of the Strickland standard.

The state

22 court determined that it was not reasonably probable that the result
23 would have been different if a limiting instruction had been given.
24 The jury was given the victim’s testimony in court and multiple
25 sources of credible evidence, physical and testimonial, that
26 corroborated the victim’s testimony in numerous particulars.

The

27 chief import of the nurse’s testimony was to present the jury with
28 the findings on her examination, which were consistent with the
35

1 victim’s testimony that she had had sexual relations and that
2 Petitioner’s sexual advances were painful.
3

In summary, with respect to all issues raised, Petitioner has

4 not shown that the state court decision was contrary to, or an
5 unreasonable application of, clearly established federal law within
6 the meaning of § 2254(d)(1).

Thus, the petition will be denied.

7

VIII.

Cumulative Error

8

Although Petitioner did not raise a claim of cumulative error

9 as such in the petition for review that he filed in the CSC (LD 4,
10 ii, 2, 1-19), in the foregoing analyses this Court has considered
11 the cumulative prejudice of all errors raised by Petitioner.
12

IX.

Certificate of Appealability

13

Unless a circuit justice or judge issues a certificate of

14 appealability, an appeal may not be taken to the Court of Appeals
15 from the final order in a habeas proceeding in which the detention
16 complained of arises out of process issued by a state court.

28

17 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
18 (2003).

A certificate of appealability may issue only if the

19 applicant makes a substantial showing of the denial of a
20 constitutional right.
21

' 2253(c)(2).

Under this standard, a petitioner must show that reasonable

22 jurists could debate whether the petition should have been resolved
23 in a different manner or that the issues presented were adequate to
24 deserve encouragement to proceed further.

Miller-El v. Cockrell,

25 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484
26 (2000)).

A certificate should issue if the Petitioner shows that

27 jurists of reason would find it debatable whether: (1) the petition
28 states a valid claim of the denial of a constitutional right, or (2)
36

1 jurists of reason would find it debatable whether the district court
2 was correct in any procedural ruling.

Slack v. McDaniel, 529 U.S.

3 473, 483-84 (2000).
4

In determining this issue, a court conducts an overview of the

5 claims in the habeas petition, generally assesses their merits, and
6 determines whether the resolution was debatable among jurists of
7 reason or wrong.

Id.

An applicant must show more than an absence

8 of frivolity or the existence of mere good faith; however, an
9 applicant need not show the appeal will succeed.

Miller-El v.

10 Cockrell, 537 U.S. at 338.
11

A district court must issue or deny a certificate of

12 appealability when it enters a final order adverse to the applicant.
13 Rule 11(a) of the Rules Governing Section 2254 Cases.

Here, it does

14 not appear that reasonable jurists could debate whether the petition
15 should have been resolved in a different manner.

Petitioner has not

16 made a substantial showing of the denial of a constitutional right.
17

Accordingly, the Court will decline to issue a certificate of

18 appealability.
19

X.

Disposition

20

In accordance with the foregoing analysis, it is ORDERED that:

21

1) The petition for writ of habeas corpus is DENIED; and

22

2) Judgment be ENTERED for Respondent; and

23

3) The Court DECLINES to issue a certificate of appealability.

24
25 IT IS SO ORDERED.
26
27

Dated:

August 6, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

28
37