Cervantes-Prado v. Cate

Filing 15

ORDER DENYING PETITION OR WRIT OF HABEAS CORPUS; Certificate of Appealability Denied. Signed by Judge William Alsup on 4/1/13. (Attachments: # 1 Certificate/Proof of Service)(dt, COURT STAFF) (Filed on 4/1/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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LUIS CERVANTES-PRADO,

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No. C 12-2500 WHA (PR)

Petitioner,

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For the Northern District of California

United States District Court

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ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS

v.
MATTHEW CATE, Warden,
Respondent.
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INTRODUCTION
Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus under

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28 U.S.C. 2254, seeking relief from his conviction in state court. Respondent filed an answer

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with a supporting memorandum of points and authorities. Petitioner did not file a traverse. For

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the reasons set forth below, his petition is DENIED.

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STATEMENT
In October 2008, a Santa Clara County Superior Court jury found petitioner guilty of

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two counts of aggravated sexual assault of a child under 14 by rape. The victim, his biological

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daughter, was born in December 1991. According to her testimony, on ten separate occasions

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between November 1996 and April 1998 her father removed her clothing, lay on top of her, and

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inserted his penis into her vagina. He told her not to tell anyone, especially not her mother, and

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she complied because she was afraid (Pet. Exh. E).

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Petitioner was sentenced to a term of 60 years to life in state prison — 15 years for each

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of the two counts, doubled under California’s “Three Strikes” law. On appeal, his conviction

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was affirmed. The California Supreme Court denied petitions for review and for a writ of

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habeas corpus. This petition followed.

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As grounds for federal habeas relief, petitioner claims (1) there was insufficient

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evidence that he committed rape by means of force or duress; (2) the trial court failed to instruct

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the jury on the lesser-included offense of battery; (3) he suffered ineffective assistance of

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counsel at trial; and (4) the prosecution failed to disclose Brady evidence. In addition, he

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requests an evidentiary hearing.

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I.

STANDARD OF REVIEW
A writ of habeas corpus may not be granted with respect to any claim adjudicated on the

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For the Northern District of California

United States District Court

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ANALYSIS

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merits in state court unless the state court’s adjudication: “(1) resulted in a decision that was

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contrary to, or involved an unreasonable application of, clearly established Federal law, as

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determined by the Supreme Court of the United States; or (2) resulted in a decision that was

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based on an unreasonable determination of the facts in light of the evidence presented in the

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State court proceeding.” 28 U.S.C. 2254(d). The first prong applies to questions of law and to

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mixed questions of law and fact, Williams v. Taylor, 529 U.S. 362, 407–09 (2000), whereas the

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second prong applies to decisions based on factual determinations. Miller El v. Cockrell, 537

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U.S. 322, 340 (2003). In any case, a federal court may not issue a writ simply because it

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concludes in its independent judgment that the relevant state-court decision incorrectly applied

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clearly established federal law or wrongly determined the facts of the case. Rather, the state-

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court’s adjudication must be also unreasonable. Williams, 529 U.S. at 411.

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II.

ISSUES PRESENTED

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A.

Insufficient Evidence

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Petitioner claims that there was insufficient evidence to support the jury’s finding that

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he committed rape against the victim’s will by means of force or duress. He argues that (1) the

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record is devoid of any evidence indicating that the force he used was different from that which

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might accompany consensual sex, and (2) there is no evidence that he compelled his daughter’s
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participation by implied threat.

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Federal review of a state court’s conviction must begin “with explicit reference to the

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substantive elements of the criminal offense as defined by state law.” Jackson v. Virginia, 443

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U.S. 307, 324 (1979). Accepting state law, a federal court must then determine whether, “after

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viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

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could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319.

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Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt may

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the writ be granted. Id. at 324. In other words, the only question this Court need ask under

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Jackson “is whether [the jury’s] finding was so insupportable as to fall below the threshold of
bare rationality.” Coleman v. Johnson, 132 S. Ct. 2060, 2065 (2012).

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For the Northern District of California

United States District Court

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In this case, the jury was instructed to decide whether petitioner used force, fear, or

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threat in a way that overcame the victim’s free will, not whether his use of force, fear, or threat

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overcame her physical strength or ability to resist. See CALCRIM No. 1000. If the jury’s

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verdict was based upon a finding that force was used, it was required to distinguish between the

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kind of force that might accompany consensual sex and the kind that overrides an individual’s

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free will. See People v. Bolander, 23 Cal. 4th 155, 161 (1994).

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Any rational trier of fact could have relied upon the victim’s testimony to find beyond a

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reasonable doubt that petitioner overcame her free will. The victim testified that on ten separate

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occasions when she was between the ages of five and seven her father removed her clothing, lay

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on top of her, and inserted his penis into her vagina. According to her testimony, moreover, he

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did not stop when she said it hurt. He also told her not to tell anyone, especially not her mother,

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which frightened her into submission. Such evidence makes it clear that the victim did not

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openly or voluntarily consent to sex with her father. He was bigger, older and more savvy than

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she was, and he exploited those circumstances to have intercourse with her against her will.

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Based on this evidence, the jury could rationally conclude that petitioner used force or fear to

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overcome her free will. Because the jury’s finding of forcible rape was not “so insupportable as

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to fall below the threshold of bare rationality,” Coleman, 132 S. Ct. at 2065, petitioner’s claim

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fails.
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B.

Instruction on Battery

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Petitioner claims that the trial court erred in failing to instruct the jury on the lesser-

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included offense of battery. He argues that the court was obligated to do so because the

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prosecution had not clearly established all elements of the greater offense. The failure of a state

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trial court to instruct the jury on a lesser-included offense in a non-capital case does not present

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a federal constitutional claim. Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000). In other

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words, federal law does not require that a jury in a non-capital case receive instructions on any

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lesser-included offense. Therefore, petitioner is not entitled to habeas relief on this claim.

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Ineffective Assistance of Counsel

Petitioner claims that he suffered ineffective assistance of counsel because his trial

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For the Northern District of California

United States District Court

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lawyer failed to (1) investigate a potential witness, (2) retain an expert witness, and (3) obtain a

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videotape copy of the victim’s Sexual Assault Response Team (SART) examination.

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To prevail on this claim, petitioner must show through evidentiary proof that counsel’s

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performance was deficient. See Strickland v. Washington, 466 U.S. 668, 694 (1984). He must

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also show that he suffered prejudice, meaning that there was a reasonable probability that but

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for counsel’s unprofessional errors the result of his trial would have been different. Ibid.

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1.

Failure to Investigate

Petitioner argues that his trial lawyer should have investigated the identity and

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whereabouts of a person named “Andrew.” He points to the transcript of the victim’s first

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interview with an officer from the San Jose Police Department (Pet. Exh. J). The transcript

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contains a single reference to a person named “Andrew” by the victim, who was six years old at

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the time, when she confirmed that petitioner would remove her pants before molesting her.

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A defense attorney has a general duty to make reasonable investigations. Strickland,

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466 U.S. at 691. However, the duty to investigate does not require that every conceivable

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witness be interviewed, Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir.), amended, 253 F.3d

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1150 (9th Cir. 2001), and mere speculation that a witness might have given helpful information

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is not enough to establish a claim of ineffective assistance, Hendricks v. Calderon, 70 F.3d

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1032, 1040 (9th Cir. 1995). Rather, the claimant must show that a particular witness was likely
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to give testimony such that the jury could have reached a more favorable verdict. Alcala v.

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Woodford, 334 F.3d 862, 872–73 (9th Cir. 2003).

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Here, petitioner has not shown that “Andrew” was likely to give testimony favorable to

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him, or even that a person named “Andrew” even exists. The police investigation did not turn

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up any person named “Andrew” or suggest that a third party could have been the rapist, there

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was no other mention of an “Andrew” in the police reports or interview transcripts, and there

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was no evidence that someone named “Andrew” knew or had access to the victim. Under those

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circumstances, no reasonable attorney would have found it necessary to investigate the

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existence of a person based on a single mention in the transcript of an interview in which the
victim repeatedly identified petitioner as the perpetrator. Petitioner’s claim is based solely upon

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For the Northern District of California

United States District Court

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his speculation that a person named “Andrew” would have helped his case. This is not

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sufficient to satisfy either prong of Strickland, see Allen v. Woodford, 395 F.3d 979, 1002 n.2

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(9th Cir. 2004), and this claim is therefore denied.

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2.

Failure to Retain An Expert

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Petitioner also claims that his lawyer should have hired an expert witness to contradict

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the testimony of the prosecution’s SART examiner Mary Ritter. Petitioner has not shown that

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any expert witness would have contradicted Ritter or provided testimony more helpful to him.

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Indeed, Ritter did not provide incriminating testimony as she testified that the SART

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examination did not produce “definite physical evidence of penetrating trauma” (Pet. Exh. E).

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There was therefore no need for counsel to provide a contradicting expert, even if one had

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existed. Where the evidence does not warrant it, the failure to call an expert does not amount to

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ineffective assistance of counsel. Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999).

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Accordingly, this claim fails.

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3.

Failure to Obtain Videotape

Petitioner also claims that his lawyer’s failure to obtain a videotape of the SART

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examination precluded the defense from contradicting the examiner’s testimony. Petitioner

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offers no evidence that such a videotape exists, nor does he explain why it would have

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contradicted the examiner’s testimony or led to a more favorable outcome. As previously
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noted, the examiner did not provide incriminating testimony because she did not find any

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definite evidence of penetrating trauma. Because there is no indication that a videotape exists

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or that it would have helped petitioner, this claim also fails.

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D.

Suppression of Evidence

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Petitioner alleges that the prosecution suppressed the identity of “Andrew” and a

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videotape of the SART examination. In Brady v. Maryland, the Supreme Court ruled that the

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suppression of evidence, so long as it is favorable to the accused, violates due process when the

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evidence is material to guilt or punishment. 373 U.S. 83, 87 (1963). A Brady claim will

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succeed only if (1) the suppressed evidence was favorable to the accused, because it was
exculpatory or impeaching; (2) the prosecution suppressed the evidence, either willfully or

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For the Northern District of California

United States District Court

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inadvertently; and (3) prejudice resulted. Strickler v. Greene, 527 U.S. 263, 281–82 (1999).

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In this case, petitioner offers no evidence that the prosecution suppressed the identity of

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“Andrew” or a videotape of the SART examination. In fact, he offers no evidence that either

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“Andrew” or the videotape exists. Moreover, as discussed above, he has not shown that either

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one would have been helpful to his case. Because petitioner has failed to show that the

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prosecution willfully or inadvertently suppressed exculpatory evidence, this claim must be

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denied.

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E.

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Petitioner requests an evidentiary hearing in order to establish the identity of “Andrew”

Request for Evidentiary Hearing

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and acquire a videotape copy of the SART examination. A district court may not hold an

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evidentiary hearing on a claim for which a petitioner failed to develop a factual basis in state

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court unless the petitioner shows that: (1) the claim relies either on (a) a new rule of

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constitutional law that the Supreme Court has made retroactive to cases on collateral review, or

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(b) a factual predicate that could not have been previously discovered through the exercise of

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due diligence, and (2) the facts underlying the claim would be sufficient to establish by clear

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and convincing evidence that but for constitutional error, no reasonable fact finder would have

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found the petitioner guilty of the underlying offense. 28 U.S.C. 2254(e)(2).

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Here, petitioner has failed to satisfy his burden of proof under 28 U.S.C. 2254(e)(2).
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Specifically, he has not proven, nor can he, that the factual predicate for his claims could not

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have been previously discovered through the exercise of due diligence. The record shows that

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petitioner was aware of the relevant facts such that he could have developed the factual basis for

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these claims in state court, but that he did not exercise due diligence in attempting to do so.

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Moreover, this court may not take into consideration new evidence in deciding whether the state

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court’s decision was contrary to or an unreasonable application of federal law or involved an

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unreasonable determination of the facts under 28 U.S.C. 2254(d), Cullen v. Pinholster, 131 S.

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Ct. 1388, 1398 (2011), which is the purpose of the evidentiary hearing that petitioner requests.

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Consequently, petitioner’s request for an evidentiary hearing is denied.

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For the Northern District of California

United States District Court

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CONCLUSION
For the reasons described above, the petition for a writ of habeas corpus is DENIED. A

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certificate of appealability will not issue. See 28 U.S.C. 2253(c). This is not a case in which

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“reasonable jurists would find the district court’s assessment of the constitutional claims

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debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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The Clerk shall enter judgment in favor of respondent and close the file.

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IT IS SO ORDERED.

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Dated: April

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, 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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