Williams v. Paramo et al

Filing 64

ORDER granting 43 Petitioner's Request to Amend Petition; adopting re 56 Report and Recommendation; dismissing both 1 and 43 Petitioner's Habeas Petitions; denying 60 Motion for Certificate of Appealability. Signed by Judge Anthony J. Battaglia on 3/28/2018. (All non-registered users served via U.S. Mail Service)(acc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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James Michael Williams,

Case No.: 15-cv-2576-AJB-WVG
Petitioner,

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ORDER:

v.
Daniel Paramo, Warden, et al.,

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(1) GRANTING PETITIONER’S
REQUEST TO AMEND HIS
PETITION (Doc. No. 43);

Respondents.

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(2) ADOPTING THE
REPORT AND RECOMMENDATION
(Doc. No. 56);

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(3) DISMISSING BOTH
PETITIONER’S HABEAS PETITIONS
(Doc. Nos. 1, 43); and

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(4) DENYING MOTION FOR
CERTIFICATE OF APPEA LABILITY
(Doc. No. 60).

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Before the Court is Petitioner’s habeas petition, (Doc. No. 1), motion for proposed

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amendment to the habeas petition, (Doc. No. 43), the Magistrate Judge’s report and

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recommendation to deny Petitioner’s habeas petition, (Doc. No. 56), Petitioner’s objections

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and supplemental objections (Doc. Nos. 56, 62), and Petitioner’s motion for certificate of

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appealability, (Doc. No. 60).

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For the reasons stated herein, the Court ADOPTS the Magistrate Judge’s R&R.

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(Doc. No. 56.) The Court also GRANTS Petitioner’s proposed amendment, (Doc. No. 43),

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but DISMISSES the claims raised in both his original habeas petition, (Doc. No. 1), and

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the amended petition, (Doc. No. 43). Finally, the Court DENIES Petitioner’s request for a

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certificate of appealability. (Doc. No. 60.)

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I.

BACKGROUND

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The Court incorporates the procedural background and underlying facts as laid out

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in the report and recommendation, and will briefly reiterate the points pertinent to this

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order. (Doc. No. 56 at 3–17.)

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Petitioner was convicted for one count of forcible rape and two counts of forcible

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oral copulation. The victim testified she ended up with Petitioner in his RV after a night

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out with her friend. The two talked for a while in the RV and agreed to get breakfast

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together. Petitioner attempted to kiss the victim, but she rebuffed his advances. On the way

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to the restaurant, Petitioner stopped at a convenience store to buy cigarettes. After,

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Petitioner drove the RV back to a parking lot, instead of to the restaurant, causing the victim

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to begin to worry. Once in the parking lot, Petitioner propositioned the victim to perform a

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sexual act on her in exchange for money. She refused. Petitioner then became aggressive,

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punching her, pushing her, and blocking her from exiting. She testified that Petitioner

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pulled a knife out of a drawer and held it to her throat while threatening her life. After

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putting the knife away, he “allowed” her to leave, but when she tried to, he punched her

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again and threatened to drug her. Petitioner then forced the victim to orally copulate him

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and used various threats against her until she complied with staying; ultimately raping her.

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Eventually, the victim managed to escape and reported him to police.

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Several events at trial form the basis of petitioner’s habeas arguments. First, the jury

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“returned a not true finding on the allegation that [Petitioner] personally used a knife during

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those offenses.” (Doc. No. 56 at 15.) The jury also could not reach a verdict regarding

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count four, rape by a foreign object, and count five, false imprisonment through violence,
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menace, fraud, or deceit. After the verdicts were reached, but before the verdicts were

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accepted, the prosecutor amended the information “to charge two strikes arising from the

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Oklahoma conviction rather than one, over a defense objection that the amendment was

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untimely and violated double jeopardy having come after the previous mistrial.” (Id.) In a

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bifurcated bench trial on the prior Oklahoma convictions, the court took judicial notice of

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that victim’s—Cheryl B.’s—testimony over defense counsel’s objections.

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II.

LEGAL STANDARDS

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“The court shall make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). The “statute makes

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it clear that the district judge must review the magistrate judge’s findings and

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recommendations de novo if objection is made, but not otherwise.” United States v. Reyna–

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Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); see also

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Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225–26 & n.5 (D. Ariz. 2003) (applying

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Reyna–Tapia to habeas review).

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III.

DISCUSSION

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In Petitioner’s first 37-page objection, he makes repetitive arguments, contesting the

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same points as his petition and traverse. (Doc. No. 59.) Some of his arguments fail to reach

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the merits of the R&R’s analysis, and simply reiterate general assertions that the R&R’s

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analysis is incorrect (by restating his original arguments). The cornerstone of his objections

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rest on his belief that the victim’s testimony was not credible and failed to provide the basis

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for the jury’s finding of force on the forcible rape charge. Petitioner doubles-down on this

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argument, stating that because the jury found her knife allegations not true, there was no

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force used to support the rape conviction. However, because those arguments fail, the

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majority of his petition also crumbles. The Court discusses his various objections in turn.

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1. California Supreme Court’s Failure to Adjudicate on the Merits

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Petitioner argues that “[t]he California Supreme Court’s silent denial of Petitioner’s

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habeas corpus petition, does-not [sic] constitute an adjudication on the merits.”

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(Doc. No. 59 at 3–4 (extraneous quotation marks omitted).) This argument fails to address
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the merits of the R&R’s analysis of his first claim, but rather, takes issue with the procedure

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itself. In the R&R, the Court took the state Supreme Court’s “silent denial” as affirmation

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of the lower court’s reasoning. (Doc. No. 56 at 21.) The R&R states “[t]here is a

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presumption that ‘[w]here there has been one reasoned state judgment rejecting a federal

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claim, later unexplained orders upholding that judgment or rejecting the same claim rest

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upon the same ground.’” (Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803–06 (1991)).)

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Thus, the R&R “look[ed] through the silent denial of this claim by the state supreme court

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on direct appeal to the last reasoned state court opinion addressing the claim . . . .” (Id.)

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The R&R then went on to discuss the appellate court’s opinion on Petitioner’s first claim,

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and found the appellate court’s opinion was not contrary to, or an unreasonable application

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of, clearly established federal law. (Id. at 26.)

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Petitioner is incorrect that a silent denial is not an adjudication on the merits. He

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posits that California Rule of Court 4.551 on habeas petitions requires a “brief statement

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of the reasons for the denial.” (Doc. No. 59 at 4 (citing Cal. Rules of Court 4.551(g)).) Rule

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4.551(g) does state “[a]n order only declaring the petition to be ‘denied’”—without a brief

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statement of reasons—“is insufficient.” Cal. Rules of Court 4.551(g). However, Rule 4.551

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and its subsections do not apply to California Supreme Court decisions, only to habeas

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petitions filed in California Superior Court. See Cal. Rules of Court 4.550(a) (“This chapter

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applies to habeas corpus proceedings in the superior court . . . .”). The California Supreme

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Court may issue summary denials like the one here. Thus, the Court holds this objection is

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without merit.

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2. The Victim’s Credibility

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Petitioner’s next few objections can be summarized as him re-litigating the jury’s

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findings and the victim’s credibility at trial. He argues the jury should not have found that

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force was used against the victim because they found no knife was used, (Doc. No. 59 at 7);

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that the victim’s testimony fails to support a finding of force, (Id.); that the victim’s

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testimony is not credible, (Id. at 8); and that the threats the victim testified to were unproven

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and false, (Id. at 9). Petitioner made the same arguments in his traverse and merely
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reiterates them here.

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Despite Petitioner’s strong conviction regarding the victim’s credibility, “a federal

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habeas petition is not a proper vehicle for challenging the credibility of a state trial

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witness.” Foley v. Kernan, No.: 16cv0408-JLS (BGS), 2017 WL 3840343, at *2 (S.D. Cal.

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Sep. 1, 2017); Jackson v. Virginia, 443 U.S. 307, 319 (1979) (finding a court adjudicating

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a habeas petition must respect the “factfinder’s province to determine witness credibility,

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resolve evidentiary conflicts, and draw reasonable inferences from proven facts” by

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assuming “the trier of fact resolved all such conflicts in favor of the prosecution.”).

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Here, nearly all of Petitioner’s arguments rest on his belief that the victim’s

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testimony regarding threats made and force used was false and not credible. Stemming

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from his attack on the victim’s credibility, he argues that the prosecution failed to meet the

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required elements beyond a reasonable doubt; that the judge improperly rejected his

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directed verdict motion; and that the trial court committed plain error. However, these

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arguments fail as a matter of law and are not appropriate for a federal habeas petition since

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the assertions cannot demonstrate the state court’s opinion was contrary to, or an

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unreasonable application of, clearly established federal law. Thus, the Court rejects

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Petitioner’s objections and affirms the R&R’s conclusions on these matters.

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3. Claim Three

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Petitioner’s third claim asserts the evidence is insufficient to support his convictions.

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Petitioner argues the R&R improperly concluded that the California Supreme Court

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reasonably denied claim three, finding there was sufficient evidence presented at trial to

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support his conviction. (Doc. No. 59 at 13.) Specifically, Petitioner continues to argue that

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because the jury found the force-by-knife allegations not true, there could not have been

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any force used in his case, thus disproving a required element of the crime. (Id. at 14.)

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However, the R&R states,

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Petitioner’s allegation that the force element was not satisfied because the jury
returned a not true finding on the knife use allegation, or because the sex acts
occurred after he held a knife to [the victim’s] throat and punched her in the
face, ignores the evidence of his ongoing threats and the atmosphere of fear
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[the victim] testified they created.
(Doc. No. 56 at 43.)

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“A habeas petitioner challenging the sufficiency of the evidence to support his state

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criminal conviction may obtain relief only if ‘it is found that upon the record evidence

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adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable

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doubt.’” O’Neill v. Sherman, No. 15cv2912 H (PCL), 2016 WL 3199330, at *5 (S.D. Cal.

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May 10, 2016) (citing Jackson v. Virginia, 443 U.S. 307, 324 (1979)). The Court must

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review the evidence in the light most favorable to the prosecution. Jackson, 443 U.S. at 319.

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Based on the Court’s de novo review of the record and the victim’s testimony,

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(Doc. No. 29-2 at 109–56), the Court agrees with the R&R’s analysis and conclusion. The

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victim testified that even after Petitioner put away the knife, he punched her and continued

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to threaten her with violence. According to her testimony, he told her he would take her to

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the “Hell’s Angel headquarters” to “copy [her] drivers [sic] license so that they [the Hell’s

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Angels] knew [her] address.” (Doc. No. 29-2 at 133–34.) He told her she was going to be

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“his girl” and that they were going to “go on the road together.” (Id. at 134.) He demanded

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she notify her friends and family of this by telling her exactly what to say—and making

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her repeat it. (Id.) He then gave her the option of “do[ing] this [intercourse]” the “easy way

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or the hard way,” and specified the hard way meant him drugging her. (Id. at 134–35.) In

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between various sexual acts, Petitioner also told the victim he had a gun in the front

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compartment. (Id. at 137.) She testified he told her that if she ever reported him to the

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police, he would “slit my throat.” (Id. at 138.) Finally, she testified that she was scared of

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him and believed his threats. (Id.) Based on these facts, the Court finds the R&R’s

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conclusion that Petitioner’s actions created an “atmosphere of fear” is appropriate.

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Petitioner failed to prove that no rational trier of fact could have found he used force against

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the victim, despite the not true knife allegation. Because the Court finds the R&R’s analysis

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and conclusion well-reasoned, the Court rejects this objection.

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4. Claim Two

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Claim two concerns Petitioner’s argument that the government’s failure to test
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certain swabs for DNA was a Brady violation. (Doc. No. 56 at 39; Brady v. Maryland, 373

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U.S. 83 (1963).) The R&R states “[t]he failure to test evidence by itself does not support a

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claim for habeas relief.” (Id. at 40 (referencing Villafuerte v. Stewart, 111 F.3d 616, 625–

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26 (9th Cir. 1997) (finding no due process violation arising from the failure to test a semen

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sample absent a showing of bad faith)).) The R&R also concludes Petitioner failed to allege

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materiality under Brady because the evidence did not deprive him of a fair trial, and could

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have actually led to his conviction on a count the jury hung on (count four, rape by a foreign

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object). (Id. at 40–41.)

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Regarding the untested evidence, Petitioner argues “[t]he test analysis, of the

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external area’s [sic] of the vagina were relevant and critical to Count Three, as originally

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charged to Petitioner . . . that Petitioner had orally copulated [the victim].”

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(Doc. No. 59 at 27.) He also states that “the swabs taken from Petitioner’s hands and

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fingers, were relevant to Count Four.” (Id. at 29 (emphasis in original).) Petitioner

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generally complains that the criminalist choosing to test some evidence, and not others,

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“[c]reates a situation, where the development of evidence is one-sided.” (Id. at 31.)

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The Court disagrees with Petitioner. As Respondent argues, and the R&R notes, the

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prosecutor did not act in bad faith because there was no suppression, destruction, or failure

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to preserve this evidence, and it was available for defense to test. (Doc. No. 56 at 39.) But,

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moreover, the R&R is correct that Petitioner fails to establish materiality. Materiality is

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found under Brady if suppression deprived him of a fair trial. United States v. Bagley, 473

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U.S. 667, 678 (1985); see also Kyles v. Whitley, 514 U.S. 419, 434 (1995) (holding that

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prejudice under Brady is shown when “there is a reasonable probability of a different

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result” as to guilt or penalty). Here, the jury could not reach a decision on count four, rape

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by a foreign object, although the victim testified as such. (Id. at 40.) Petitioner’s fingernail

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swab was never tested, but had it been, the evidence could have corroborated the victim’s

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testimony, leading to a guilty verdict on count four. (Id. at 40–41.) Thus, the Court agrees

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with the R&R’s conclusion that “the state supreme court could have reasonably denied this

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claim on the basis that there is no showing of a reasonable probability of a more favorable
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result had Petitioner’s fingernail swab or hair been tested.” (Id.) There was simply no Brady

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violation or non-disclosure of material evidence here. The Court rejects this objection.

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5. Ineffective Assistance of Counsel

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Petitioner argued in claims four and five that his trial and appellate counsel were

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ineffective in various ways. (Doc. No. 56 at 44, 50.) His supplemental objection raises the

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same arguments the R&R addressed. (Doc. No. 62 at 9–13.) After reviewing the R&R’s

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analysis on Petitioner’s claims of ineffective assistance of counsel, the Court finds its

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conclusions well-reasoned. The Court does not find any errors in the Magistrate Judge’s

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recommendation, and Petitioner’s objections do not provide a basis to modify the R&R.

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6. Evidentiary Hearing

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The R&R recommended denying Petitioner’s request for an evidentiary hearing.

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(Doc. No. 56 at 52.) Petitioner objects, and demands a hearing because he “presented a

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clear prima facie case for habeas relief on this claim . . . .” (Doc. No. 59 at 21.) However,

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the Court agrees with the R&R that a hearing is unwarranted when a federal claim can be

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denied on the basis of the state court record, as is the case here. See Campbell v. Wood, 18

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F.3d 662, 679 (9th Cir. 1994) (holding an evidentiary hearing is unnecessary when the

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court can deny a federal claim based on the state court record). Thus, the Court rejects

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Petitioner’s objection and denies his evidentiary hearing request.

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7. Proposed Amendment Claims

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As to Petitioner’s proposed amended claims, the R&R recommends granting

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amendment, but denying relief. (Doc. No. 56 at 27–38.) In his proposed amendment, he

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argues the documents, which were introduced at the bifurcated bench trial, violated federal

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due process, the Confrontation Clause, and double jeopardy because: “(1) they are

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incomplete, improperly authenticated, and contain false statements; (2) they were not

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presented at his first trial, which ended with a hung jury; (3) he was not permitted to

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confront the person who certified the documents; and (4) they provide insufficient

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evidentiary support.” (Id. at 2.)

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Petitioner filed one objection pertaining to count one and the admission of prior
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propensity evidence. (Doc. No. 62 at 13–14.) He argues that allowing Cheryl B. to testify

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regarding his Oklahoma conviction was prejudicial to his trial and the jurors. (Id. at 14.)

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The R&R ultimately concluded that this testimony did not prejudice Petitioner’s trial

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because: (1) whether evidence is incorrectly submitted is not within the jurisdiction of a

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federal habeas petition, (Doc. No. 56 at 24–25); (2) the Supreme Court has reserved ruling

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on whether introducing propensity evidence can give rise to a federal due process violation,

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and since the Supreme Court has denied granting cert on this issue four times, the right has

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not been clearly established and a violation as such is not contrary to clearly established

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federal law, (Id. at 25–26); (3) “there is no basis to find that the state court adjudication of

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claim one is based on an unreasonable determination of the facts in light of the evidence

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presented in the state court proceedings,” (Id. at 26); and finally, (4) a federal habeas

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petition is, again, not the proper vehicle to challenge a witness’s credibility, (Id. at 27). As

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to these points specifically, Petitioner fails to make a contrary argument, but generally

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argues prejudice, and accuses the witness’s testimony as being “a one-sided version of

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events that were extremely embellished by the Oklahoma Prosecutor.” (Doc. No. 62 at 14.)

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However, without any specific argument contravening the R&R’s legal analysis, or

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without proof of collusion between the witness and the Oklahoma prosecutor, the Court

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finds the R&R’s analysis judicious. Thus, the Court ADOPTS the R&R’s recommendation

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to GRANT the proposed amendment, (Doc. No. 43), but also DENIES relief based on

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those claims.

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8. Certificate of Appealability

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When a district court enters a final order adverse to the applicant in a habeas corpus

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proceeding, it must either issue or deny a certificate of appealability, which is required to

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appeal a final order in a habeas corpus proceeding. 28 U.S.C. § 2253(c)(1)(A). A certificate

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of appealability is appropriate only where the petitioner makes “a substantial showing of

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the denial of a constitutional right.” Miller-El v. Cockrell, 537 U.S. 322, 330 (2003)

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(quoting 28 U.S.C. § 2253(c)(2)). Under this standard, the petitioner must demonstrate that

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“reasonable jurists could debate whether [] the petition should have been resolved in a
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different manner or that the issues presented were adequate to deserve encouragement to

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proceed further.” Slack v. McDaniel, 529 U.S. 473, 483–84 (2000) (citation and internal

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quotation marks omitted). Here, the Court finds that reasonable jurists could not debate the

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Court’s conclusion to dismiss with prejudice Petitioner’s claims and therefore DECLINES

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to issue a certificate of appealability.

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IV.

CONCLUSION

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The Court finds the R&R well-reasoned and contains no error. The Court, thus,

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ADOPTS the R&R in its entirety. (Doc. No. 56.) The Court also GRANTS Petitioner’s

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proposed amendment, (Doc. No. 43), but denies relief as to those claims, as well as to the

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claims in his original petition, (Doc. No. 1). Finally, the Court DENIES Petitioner’s

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request for a certificate of appealability. (Doc. No. 60.)

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IT IS SO ORDERED.

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Dated: March 28, 2018

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