Rios v. Pennywell

Filing 8

ORDER DENYING PETITION FOR WRIT OF HANEAS CORPUS. Signed by Judge Vince Chhabria on 7/22/2014. (knm, COURT STAFF) (Filed on 7/22/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KEITH R. RIOS,

Case No. 13-cv-03430-VC

Plaintiff,
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ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS

v.
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SANDRA PENNYWELL,
Defendant.

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United States District Court
Northern District of California

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The petition for a writ of habeas corpus is denied, because the decision of the California

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Court of Appeal is not contrary to clearly established federal law, nor did it involve an

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unreasonable application of clearly established federal law to the facts. See 28 U.S.C. §

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2254(d)(1).

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With respect to Rios' argument that his lawyer was ineffective for failing to object to the

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prosecutor's discussion of the reasonable doubt standard at closing, there was no Strickland error

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for the reasons stated by the Court of Appeal. With respect to Rios' argument that his lawyer was

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ineffective for failing to object to the prosecutor's comments about unanimity, there was also no

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Strickland error for the reasons stated by the Court of Appeal. Furthermore, although the parties

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do not mention it, a review of the prosecutor's entire closing argument shows that he did not invite

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the jury to convict Rios even if they could not agree on a specific criminal act Rios committed. To

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the contrary, the prosecutor went through every count and specified that for each count that

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charged the commission of a crime within a specified date range, where there was evidence Rios

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committed more than one violation within that range, the jury must identify the first violation and

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convict on that basis.

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With respect to both Rios' Strickland arguments, this was not a close case. Even if defense
counsel had objected during closing argument and those objections had been sustained, the

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evidence presented by the prosecution was overwhelming, and there was strong evidence that

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Rios' daughters were not telling the truth on the stand when they recanted their prior allegations of

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sexual assault by him. For example, although one of his daughters had written a letter recanting

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her prior allegations, the prosecution presented documentary evidence that this letter was

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originally drafted by her mother, who was attempting to reunite her family and protect Rios from

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conviction. And the jury's rejection of the daughters' assertion that they were pressured by police

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and social workers into accusing their father of sexual assault would not have changed if defense

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counsel had successfully objected twice during the prosecutor's closing argument. Therefore, even

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if defense counsel's failure to object constituted deficient performance, it is extremely unlikely that
a decision to object would have affected the outcome of the trial. For this reason, a certificate of

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United States District Court
Northern District of California

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appealability will not issue. See 28 U.S.C. § 2253(c).

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IT IS SO ORDERED.
Dated: July 22, 2014
______________________________________
VINCE CHHABRIA
United States District Judge

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