HAYWOOD S. GILLIAM, Jr., District Judge.
Before the Court is the above-titled pro se petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254 by petitioner Jose A. Rosas, challenging the validity of a judgment obtained against him in state court. Respondent has filed an answer to the petition.
In May 2009 in San Francisco Superior Court, a jury found petitioner guilty of two counts of forcible sexual penetration (Cal. Penal Code § 289(d)(3), (4)), elder abuse (id. at § 368(b)(1)), misdemeanor sexual battery (id. at § 243.4(e)(1)), multiple counts of simple assault (id. at § 240), and the unlawful dissuasion of a witness (id. at § 136.1(b)(1)). CT at 366-68, 371-76, 386-96.
Petitioner filed both a direct appeal and a habeas petition in the California Court of Appeal. On May 31, 2012, the California Court of Appeal struck the sentences on two of the simple assault convictions but otherwise affirmed the judgment. Ex. 6. The court of appeal denied the habeas petition for failure to state a prima facie case for relief. Id. The California Supreme Court summarily denied review of the direct appeal on August 8, 2012. Ex. 8.
Petitioner also filed a petition for writ of habeas corpus in the California Supreme Court, which was summarily denied on December 12, 2012. Ex. 10.
On December 13, 2013, petitioner filed the instant petition for a writ of habeas corpus.
The following background facts describing the crime and evidence presented at trial are from the May 31, 2012 opinion of the California Court of Appeal
People v. Rosas, No. A129711, 2012 WL 1955717, at *1-5 (Cal. Ct. App. May 31, 2012).
A petition for a writ of habeas corpus is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state courts adjudication of the claim: "(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." 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Additionally, habeas relief is warranted only if the constitutional error at issue "`had substantial and injurious effect or influence in determining the jury's verdict.'" Penry v. Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
A state court decision is "contrary to" clearly established Supreme Court precedent if it "applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases," or if it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [its] precedent." Williams, 529 U.S. at 405-06. "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411.
Section 2254(d)(1) restricts the source of clearly established law to the Supreme Court's jurisprudence. "[C]learly established Federal law, as determined by the Supreme Court of the United States" refers to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412. "A federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme Court] is, at best, ambiguous." Mitchell v. Esparza, 540 U.S. 12, 17 (2003).
Petitioner's claims in this action were presented to the California Supreme Court only in petitioner's state petition for writ of habeas corpus, which was summarily denied. When presented with a state court decision that is unaccompanied by a rationale for its conclusions, a federal court must conduct an independent review of the record to determine whether the state court decision is objectively reasonable. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). This "[i]ndependent review . . . is not de novo review of the constitutional issue, but rather, the only method by which [a federal court] can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Harrington v. Richter, 562 U.S. 86, 98 (2011).
Petitioner asserts that his trial counsel rendered ineffective assistance by: (1) failing to procure a defense medical expert; (2) failing to investigate and call petitioner's office assistant as the primary custodian of the patient-victims' medical records; (3) failing to call a defense forensic DNA expert and to effectively cross-examine the prosecutor's DNA expert; (4) failing to call Inspector Kidd and Dr. Yap regarding Claudia; (5) failing to call medical board investigator Moya regarding his investigation tactics; and (6) failing to call and effectively cross-examine Inspector Lee. Pet. at 10.
Claims of ineffective assistance of counsel are examined under Strickland v. Washington, 466 U.S. 668 (1984). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. In order to prevail on a claim of ineffectiveness of counsel, a petitioner must establish two factors. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms, id. at 687-88, "not whether it deviated from best practices or most common custom," Harrington v. Richter, 562 U.S. 86, 105 (2011) (citing Strickland, 466 U.S. at 690). "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 104 (quoting Strickland, 466 U.S. at 689).
Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. "The likelihood of a different result must be substantial, not just conceivable." Richter, 562 U.S. at 112 (citing Strickland, 466 U.S. at 693). It is unnecessary for a federal court considering an ineffective assistance of counsel claim on habeas review to address the prejudice prong, i.e., the second factor of the Strickland test, if the petitioner cannot establish incompetence, as required under the first prong. Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998).
The standards of both 28 U.S.C. § 2254(d) and Strickland are "highly deferential, and when the two apply in tandem, review is doubly so." Richter, 562 U.S. at 105 (quotation marks omitted). "[T]he question [under § 2254(d)] is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
"[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91. "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id. at 691.
That an attorney might have conducted a more thorough investigation does not establish deficient performance. Burger v. Kemp, 483 U.S. 776, 794 (1987). "[T]he duty to investigate does not force defense lawyers to scour the globe on the off chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste." Rompilla v. Beard, 545 U.S. 374, 383 (2005). The question is not what the best lawyer or even what most good lawyers would have done, but whether a reasonable lawyer could have acted as defense counsel did. Coleman v. Calderon, 150 F.3d 1105, 1113 (9th Cir.), rev'd on other grounds, 525 U.S. 141 (1998). Thus, the relevant inquiry is not what trial counsel could have done, but whether counsel's actions were reasonable. Babbitt v. Calderon, 151 F.3d 1170, 1174 (9th Cir. 1998).
To succeed on a claim that counsel was ineffective in failing to call a favorable witness, a federal habeas petitioner must identify the witness, provide the testimony the witness would have given, show the witness was likely to have been available to testify and would have given the proffered favorable testimony, and demonstrate a reasonable probability that, had such testimony been introduced, the jury would have reached a verdict more favorable to the petitioner. See Alcala v. Woodford, 334 F.3d 862, 872-73 (9th Cir. 2003). A petitioner's mere speculation that the witness would have given helpful information if interviewed by counsel and called to the stand is not enough to establish ineffective assistance. See Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir.), amended, 253 F.3d 1150 (9th Cir. 2001).
In Dows v. Wood, 211 F.3d 480 (9th Cir. 2000), the Ninth Circuit denied a petitioner's claim that his counsel had been ineffective in failing to investigate and call a witness, where the petitioner only provided his own "self-serving affidavit" and no other evidence, such as "an affidavit from [the] alleged witness," that the witness would have given helpful testimony. Id. at 486-87; cf. Alcala, 334 F.3d at 872 & n.3 (distinguishing, inter alia, Dows; finding ineffective assistance of counsel where petitioner submitted interviews reflecting testimony missing witnesses would have provided).
The Court next addresses each ineffective assistance of counsel claim.
Petitioner claims that his counsel rendered ineffective assistance by failing to procure a defense medical expert. Petitioner contends that a defense expert could have reviewed the medical records of Glenda and Claudia and testified that they were fabricating their claims that petitioner had sexually assaulted them during their examinations. Petitioner further contends that a defense expert could have testified that it is a "normal medical [] procedure for a doctor to externally examine a patient's sacrum area without gloves," thereby undermining the incriminating nature of the evidence of petitioner's DNA found in the sacrum area of A.'s underwear. Pet. at 11-14.
The state court had a reasonable basis to deny this claim because counsel could have reasonably believed that obtaining an expert for the purposes proposed by petitioner would have been unsuccessful. First, an expert's review of petitioner's medical files had little to no probative value. The medical records of petitioner's examination of Claudia and Glenda prepared by petitioner were nothing more than self-serving statements. See Bray v. Andrews, 640 F.3d 731, 738-39 (6th Cir. 2011) (holding that the state court was not unreasonable in finding that the self-serving statements of petitioner did not support a claim of ineffective assistance of counsel).
Moreover, the proposed defense expert testimony would not have been admissible to prove the untruthfulness of Glenda's or Claudia's testimony. Under California law,
Cal. Evid. Code § 801. "[A]n expert may not give an opinion whether a witness is telling the truth [or not], for the determination of credibility is not a subject sufficiently beyond common experience that the expert's opinion would assist the trier of fact; in other words, the jury generally is as well equipped as the expert to discern whether a witness is being truthful." People v. Coffman, 34 Cal.4th 1, 82 (2004). Defense counsel cannot be deemed ineffective for failing to introduce inadmissible testimony. See Rupe v. Wood, 93 F.3d 1435, 1445 (9th Cir. 1996) ("[T]he failure to take a futile action can never be deficient performance.").
Regarding petitioner's claim that an expert could have testified on the normal medical procedure for conducting a pelvic examination, such evidence was not relevant. Under California law, "`[r]elevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." Cal. Evid. Code § 210. Here, the DNA evidence found on the inside of A.'s underwear was presumptive for petitioner's saliva. RT at 1539-40, 1552, 1572, 1585-87, 1594, 1603, 1609. Consequently, whether it was "normal" for a doctor to examine a patient's sacrum area without gloves had no tendency to discredit the evidence, as it clearly is not "normal" for a doctor to take any action that would result in saliva being found in that area.
Turning to Strickland's second prong, petitioner cannot show prejudice. First, petitioner has offered no evidence that a defense medical expert would have provided favorable testimony at trial. He fails to offer a declaration from an expert setting forth the testimony to be offered, which is fatal to any showing of prejudice. Bible v. Ryan, 571 F.3d 860, 871 (9th Cir. 2009) (where petitioner contended he might have some type of organic brain dysfunction but offered no expert declaration that he in fact suffered from it, "This speculation is not sufficient to establish prejudice."); Gonzalez v. Knowles, 515 F.3d 1006, 1015-16 (9th Cir. 2008) (petitioner argued "that if tests had been done, and if they had shown evidence of some brain damage or trauma, it might have resulted in a lower sentence. Such speculation is plainly insufficient to establish prejudice."); Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997) ("Speculation about what an expert could have said is not enough to establish prejudice.").
Further, petitioner cannot show prejudice from the absence of a defense medical expert because, even with such an expert, the evidence against him was overwhelming. Each victim testified as to how petitioner had sexually assaulted her. See RT at 1131-34, 1167-69 (Claudia's testimony regarding petitioner's penetration of her vagina and anus after he put her in the knee-chest position); RT at 1206-31 (Maria's testimony that petitioner touched her clitoris, put her in a knee-chest position, sexually penetrated her vagina "pushing in and going around," and caused her to bleed and have pain); RT at 1377-79, 1381 (Glenda's testimony regarding petitioner's hard penetration of her vagina causing her pain); RT at 1478-82 (A.'s testimony regarding petitioner's penetration and masturbation of her vagina and his kissing of her buttocks).
Significantly, the victims' testimony was consistent with the complaints that they made to others about petitioner's sexual assaults. See RT at 1181-82, 1184, 1198-99 (Maria V.'s testimony regarding Claudia's statement made immediately after the assault); RT at 1320-21 (Dr. Snyder's testimony regarding Maria's statement made the day after the assault); RT at 1291-93 (the SART nurse's testimony regarding Maria's statement made the day after the assault); RT at 1638-44 (Dr. Nicol's testimony regarding Maria's statement made the day after the assault); RT at 1415-17 (Glenda's sister's testimony regarding Glenda's statement immediately after the assault); RT at 1510-11, 1514, 1517 (Rhina O.'s testimony regarding A.'s statement on the evening following the assault). These prompt, consistent reports to others of the sexual abuse strengthened the credibility of the victims' claims.
There was also a significant amount of corroborating evidence. This included petitioner's own admission to Raquel C. that he "had done something that wasn't right" to A. and his attempts through Raquel C. to silence A. in exchange for money. RT at 1522-26. There was also evidence of a prior uncharged sexual offense against another female patient (Audelia) in 2002. RT at 1453-57, 1460, 1466-67. Furthermore, in the case of A., petitioner's DNA was found on the back inside rear panel of her underwear and it was "highly likely" that the DNA came from petitioner's saliva. RT at 1539-40, 1552, 1572, 1585-87, 1594, 1603, 1609. In addition, Dr. Nicol testified that it is never appropriate for a doctor to masturbate his patient, keep his fingers inside her vagina for an extended period of time, or kiss his patient. RT at 1668-72. In the case of Claudia, Dr. Nicol opined that it is uncommon for a general practitioner to give a new patient a pelvic examination on her first visit while he is still getting to know the patient and her medical history. RT at 1657-59. Dr. Nicol added that the knee-chest position would have been painful to Claudia, who had reported to petitioner that she was experiencing back pain. RT at 1660.
In Maria's case, the swelling, laceration, redness, and bruising in her vaginal area, along with her complaint of vaginal pain, corroborated her claim that petitioner had sexually assaulted her. RT at 1291, 1294-99, 1318-20, 1644, 1732. The evidence included petitioner's apology letter to Maria for having given her an "inappropriate exam." RT at 1532-35. Petitioner also admitted to Dr. Miller that his examination of Maria was sexual and said that he did not stop because he "lost [his] mind" while he was examining her. RT at 1346, 1365-66. The evidence showed that petitioner was well aware that his misconduct could lead to a report to the state medical board and eventually end his career as a doctor. RT at 1347-48. In sum, given the overwhelming evidence against petitioner, the admission of defense expert testimony would likely not have yielded a more favorable result. Strickland, 466 U.S. at 694.
Accordingly, petitioner is not entitled to habeas relief on this claim.
Petitioner claims that his counsel rendered ineffective assistance by failing to call his office assistant as the primary custodian of the patient-victims' medical records so that the complete medical records of the patient-victims could be introduced to show that no sexual abuse had occurred during their examinations. Pet. at 14-17.
This claim fails because the state court could have reasonably concluded that counsel reasonably decided to forgo introducing the complete medical records. As discussed above, the medical records were prepared by petitioner and thus were nothing more than self-serving statements made by petitioner to suggest that he had not abused his patients. See Bray, 640 F.3d at 738-39. Additionally, although the patient-victims' medical records documented no assaultive behavior, another reason counsel may have decided not to introduce them was because some of the records did support the prosecutor's theory. This is because many of the records showed that petitioner had conducted anal and vaginal examinations of patient-victims who had come to see him for ailments (such as headaches, back pain, the flu, and shoulder pain) that did not require such examinations for purposes of treatment. See Pet. Exs. A-B, D-F. Thus deciding not to introduce the medical records does not demonstrate incompetence, but was instead a rational tactical choice. See Wong v. Belmontes, 558 U.S. 15, 20 (2009) (per curiam) (habeas court must consider "all the relevant evidence that the jury would have had before it if [counsel] had pursued the different path," and it is reasonable for counsel to limit introduction of evidence that would assist the prosecution); Richter, 562 U.S. at 109 (quoting Yarborough v. Gentry, 540 U.S. 1, 8 (2003) ("There is a `strong presumption' that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than `sheer neglect.'").
Finally, the state court could have reasonably concluded that no relief was warranted because petitioner failed to demonstrate prejudice. As discussed above, the evidence tying petitioner to the crimes was strong enough that admission of the medical records would likely not have yielded a more favorable result. Strickland, 466 U.S. at 694.
Accordingly, petitioner is not entitled to habeas relief on this claim.
Petitioner claims that his counsel rendered ineffective assistance by failing to call a defense DNA expert and by not effectively cross-examining the prosecutor's DNA expert, Ms. Boland. Specifically, petitioner claims that had defense counsel effectively cross-examined Ms. Boland, he would have been able to elicit her testimony that the DNA test performed on A.'s underwear was "presumptive" for saliva and not conclusive. Petitioner further claims that had his counsel obtained a defense DNA expert, that expert would have been able to undermine the testimony of Ms. Boland whom he claims gave misleading testimony. Pet. at 17-20.
The state court had a reasonable basis to deny this claim. First, contrary to petitioner's claim, Ms. Boland did not provide misleading testimony regarding the DNA found on A.'s underwear. To the contrary, the record shows that Ms. Boland made it clear that A.'s underwear tested "presumptively" for saliva. In doing so, Ms. Boland initially explained that amylase is an enzyme that is found in high concentrations in saliva, but is also found in low levels in other body fluids such as blood, sweat, tears, fecal matter, and the pancreas. RT at 1565. Ms. Boland specifically stated that the DNA found on A.'s underwear tested positive for the presence of amylase in the first test and "presumptively" positive for saliva in the second test. RT at 1566-67. Ms. Boland made it clear that the San Francisco crime laboratory does not use the second test as a "confirmatory test for saliva." RT at 1567. Ms. Boland explained: "There have been documented reports in the forensic community that breast milk, as well as fecal material, will react . . . so just to be very conservative we say it's a presumptive test, although the manufacturer still says it is a confirmatory test for human saliva." RT at 1567.
Further, the record demonstrates that defense counsel did effectively cross-examine Ms. Boland. Defense counsel specifically asked and Ms. Boland confirmed that the tests used by the San Francisco crime laboratory constituted a screening, not a confirmatory test for saliva, adding, "we call it a presumptive test." RT at 1595. Defense counsel also asked whether anything was done to differentiate between a possible DNA mixture of saliva and urine on the underwear. RT at 1596. Ms. Boland made it clear that the San Francisco crime laboratory had not done anything to make such a distinction, explaining that she expected A.'s skin cells, not urine, to be on the inside back panel of A.'s underwear and reiterated that the manufacturer indicated there was "no cross reactivity with urine." RT at 1596. Trial counsel did not demonstrate incompetence by deciding to address the accuracy of the DNA testing through cross-examination, rather than through defense expert testimony. Defense expert testimony was not guaranteed to be helpful to the defense, especially after it was subjected to cross-examination. See Richter, 562 U.S. at 111 ("Strickland does not enact Newton's third law for the presentation of evidence, requiring for every prosecution expert an equal and opposite expert from the defense. In many instances cross-examination will be sufficient to expose defects in an expert's presentation."); Bonin v. Calderon, 59 F.3d 815, 834 (9th Cir. 1995) ("while the Constitution requires that a criminal defendant receive effective assistance of counsel, the presentation of expert testimony is not necessarily an essential ingredient of a reasonably competent defense").
Finally, petitioner again fails to establish prejudice. He provides no declaration from any expert stating how he or she would have testified at trial, which is fatal to his claim. See Dows, 211 F.3d at 486; Grisby, 130 F.3d at 373 (noting "[s]peculation about what an expert could have said is not enough to establish prejudice"). And as discussed above, the evidence of petitioner's guilt was so overwhelming that, even assuming a defense expert had been retained, it cannot be said that his or her testimony would likely have yielded a more favorable result. Strickland, 466 U.S. at 694.
Accordingly, petitioner is not entitled to habeas relief on this claim.
Petitioner claims that his counsel rendered ineffective assistance by failing to call Inspector Kidd of the San Francisco Police Department and Dr. Yap of the Medical Board of California regarding their earlier investigation of Claudia's claims of sexual assault by petitioner in 2002, which led to no charges being filed and no revocation of petitioner's medical license at that time. Pet. at 20-22.
The state court had a reasonable basis to deny this claim. Contrary to petitioner's claim, the record shows that defense counsel did in fact highlight the fact that petitioner was not arrested in 2002 following Claudia's 2002 report of sexual abuse. Specifically, defense counsel elicited Inspector Lee's testimony on cross-examination that no arrest warrant was issued in 2002 in relation to Claudia's claims against petitioner and that the case was "closed" later in 2002. RT at 1543.
Furthermore, defense counsel's decision not to introduce evidence of the initial investigation into Claudia's claims of sexual abuse by petitioner in 2002 was a reasonable tactical decision. The record shows that when Claudia initially reported the sexual abuse, the chief of medicine at St. Luke's Hospital thereafter reprimanded petitioner, advised him to use the conventional lithotomy position with his female patients, and advised him to have a chaperone present during future pelvic exams of his female patients. RT at 1750-51. Further, Dr. Yap's memorandum finding insufficient evidence to support the 2002 allegations includes admissions by petitioner that could have hurt his case. See Pet. Ex. K. Specifically, petitioner admitted to examining Claudia without a chaperone and without providing her a gown. Id. Petitioner also admitted placing Claudia in a genupectoral (knee-chest) position for the purpose of examining her rectum and vagina. Id. This was a position that would have caused Claudia discomfort as she was already complaining of back pain. See RT at 1660. Defense counsel may well have reasoned that it was not helpful to focus on the 2002 events given that they opened the door to evidence that would have helped the prosecution. See Wong, 558 U.S. at 20.
Finally, petitioner again fails to establish prejudice. Petitioner presents no declaration from either Inspector Kidd or Dr. Yap stating that they were available to defense counsel in preparation for trial and that they would have testified in the manner petitioner now claims. Allen, 395 F.3d at 1002 n.2; Dows, 211 F.3d at 486. Nor is there a reasonable probability that their testimony would have resulted in a different verdict. The jury had already heard from Inspector Lee that charges were not filed against petitioner when Claudia first reported to authorities petitioner's assault. RT at 1543. And there was sufficient evidence to support the jury's verdict with respect to Claudia.
Accordingly, petitioner is not entitled to habeas relief on this claim.
Petitioner claims that his counsel rendered ineffective assistance by failing to call Medical Board of California Investigator Moya regarding his investigation tactics, which purportedly changed after he learned that a new complaint of sexual assault had been made against petitioner by Maria. Specifically, petitioner claims that despite Dr. Yap's determination in 2003 that Claudia's 2002 complaint against petitioner was insufficient to support an allegation, Investigator Moya used "rogue investigations" and "tainted taped interviews" to later substantiate Claudia's complaint after Maria lodged her complaint in 2005. Petitioner also alleges that Investigator Moya conducted "tainted taped interviews" of Claudia's friend Maria V., Glenda, and M. and that Investigator Moya used "biased investigative tactics" and "suspicious interrogation techniques." Pet. 22-24.
The state court had a reasonable basis to deny this claim. There is no evidence that Investigator Moya sought out any of the victims before they made their reports to the hospital and police, and there is no evidence that Investigator Moya used any improper tactics to persuade any victim to make false claims against petitioner. Petitioner thus fails to make a sufficient factual showing to substantiate his ineffective assistance of counsel claim. See Schaflander, 743 F.2d at 721.
Petitioner points to the testimony of Dr. Margarita Alvarado, a St. Luke's gynecologist with whom M. discussed her 2001 examination by petitioner, mentioning that it was not comfortable. RT at 1846-51. At trial, Dr. Alvarado testified that she felt threatened by some comments Inspector Moya made after she told him that she had received no other complaints about the way petitioner had been conducting his examinations. RT at 1848-50. Notwithstanding Dr. Alvarado's reaction to the comments, her testimony did not in any way establish that Investigator Moya used investigatory techniques that should have been subjected to further scrutiny by defense counsel at trial.
Indeed, had the defense called Investigator Moya as a witness, the prosecutor would have had the opportunity to elicit the following additional incriminating evidence against petitioner on his cross-examination of Investigator Moya: during an unannounced visit at petitioner's medical office, Investigator Moya saw a female patient exit an examination room with petitioner with no chaperone in violation of the court's order that petitioner conduct all physical examinations of his female patients with a chaperone present. RT at 10-12. Thus, defense counsel made a sound tactical decision not to call Investigator Moya as a defense witness. See Wong, 558 U.S. at 20.
Further, petitioner again fails to establish prejudice. The jury heard the testimony of the victims themselves and the friends and doctors to whom they reported the assaults. This evidence, along with abundant other evidence, supported the verdicts.
Accordingly, petitioner is not entitled to habeas relief on this claim.
Petitioner claims that counsel rendered ineffective assistance by failing to call and effectively cross-examine Inspector Lee to show that he pressured petitioner to write an apology letter to Maria, which was later used as evidence against him, and used "suspicious" tactics in his investigation of the accusations made by Glenda. Pet. at 24-26.
The state court had a reasonable basis to deny this claim. There is no evidence that Inspector Lee pressured petitioner to write a letter of apology to Maria when Lee interviewed him on March 24, 2005. RT at 1532-35. To the contrary, the evidence shows that petitioner voluntarily met with Inspector Lee, cooperated during the interview, wrote a letter of apology to Maria voluntarily in both Spanish and English, was free to leave after the interview, and did so. RT at 1532-35, 1541.
Regarding the investigation of Glenda, petitioner attaches transcripts of Inspector Lee's interviews with Glenda. There is nothing in the transcripts showing that Inspector Lee used any improper tactics to persuade Glenda to make false claims against petitioner. Petitioner argues that Inspector Lee failed to re-interview Glenda after reviewing her medical records, even though these records contradicted her interview statements. As noted above, however, the medical records were prepared by petitioner and were therefore nothing more than self-serving statements with no tendency to discredit Glenda's own statements. Regarding petitioner's argument that counsel should have highlighted the fact that Glenda did not file a complaint until eight months after her examination, the jury likely would have understood that she did not feel comfortable reporting the incident until she had learned in the news that other women were complaining of sexual assault by petitioner.
Further, petitioner again fails to establish prejudice. There was not a reasonable probability that the jury would have reached a different result had defense counsel questioned Inspector Lee differently. As indicated above, there was no evidence to indicate that Inspector Lee had coerced or pressured petitioner or Glenda in any way. In addition, the evidence against petitioner was overwhelming.
Accordingly, petitioner is not entitled to habeas relief on this claim.
The federal rules governing habeas cases brought by state prisoners require a district court that issues an order denying a habeas petition to either grant or deny therein a certificate of appealability. See Rules Governing § 2254 Case, Rule 11(a).
A judge shall grant a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), and the certificate must indicate which issues satisfy this standard. Id. § 2253(c)(3). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: [t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Here, petitioner has not made such a showing, and, accordingly, a certificate of appealability will be denied.
For the reasons stated above, the petition for a writ of habeas corpus is DENIED, and a certificate of appealability is DENIED.
Additionally, the Clerk is directed to substitute Warden John Rathman on the docket as the respondent in this action.
