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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 KEITH R. RIOS, Case No. 13-cv-03430-VC Plaintiff, 7 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS v. 8 9 SANDRA PENNYWELL, Defendant. 10 United States District Court Northern District of California 11 12 The petition for a writ of habeas corpus is denied, because the decision of the California 13 Court of Appeal is not contrary to clearly established federal law, nor did it involve an 14 unreasonable application of clearly established federal law to the facts. See 28 U.S.C. § 15 2254(d)(1). 16 With respect to Rios' argument that his lawyer was ineffective for failing to object to the 17 prosecutor's discussion of the reasonable doubt standard at closing, there was no Strickland error 18 for the reasons stated by the Court of Appeal. With respect to Rios' argument that his lawyer was 19 ineffective for failing to object to the prosecutor's comments about unanimity, there was also no 20 Strickland error for the reasons stated by the Court of Appeal. Furthermore, although the parties 21 do not mention it, a review of the prosecutor's entire closing argument shows that he did not invite 22 the jury to convict Rios even if they could not agree on a specific criminal act Rios committed. To 23 the contrary, the prosecutor went through every count and specified that for each count that 24 charged the commission of a crime within a specified date range, where there was evidence Rios 25 committed more than one violation within that range, the jury must identify the first violation and 26 convict on that basis. 27 28 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 1 evidence presented by the prosecution was overwhelming, and there was strong evidence that 2 Rios' daughters were not telling the truth on the stand when they recanted their prior allegations of 3 sexual assault by him. For example, although one of his daughters had written a letter recanting 4 her prior allegations, the prosecution presented documentary evidence that this letter was 5 originally drafted by her mother, who was attempting to reunite her family and protect Rios from 6 conviction. And the jury's rejection of the daughters' assertion that they were pressured by police 7 and social workers into accusing their father of sexual assault would not have changed if defense 8 counsel had successfully objected twice during the prosecutor's closing argument. Therefore, even 9 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 11 United States District Court Northern District of California 10 appealability will not issue. See 28 U.S.C. § 2253(c). 12 13 14 15 IT IS SO ORDERED. Dated: July 22, 2014 ______________________________________ VINCE CHHABRIA United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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