CLAUDIA WILKEN, District Judge.
Petitioner William M. Allen, a state prisoner proceeding
In 2005, a Santa Cruz County jury found Petitioner guilty of multiple sex crimes. 3 Clerk's Transcript (CT) at 703. On November 7, 2005, the trial court sentenced Petitioner to 260 years to life in prison. 6 CT 1406. On August 18, 2006, Petitioner appealed his conviction, asserting the following federal claims: (1) First Amendment and due process violations based on the admission of his confession to Reverend Vining; (2) ineffective assistance of counsel because counsel allowed the prosecutor to have access to Petitioner's psychological evaluation; and (3)
On August 3, 2009, Petitioner filed a petition for a writ of habeas corpus in the Santa Cruz County Superior Court. On October 2, 2009, the Superior Court denied the petition because it was filed late without justification for the significant delay or an explanation of why many of the claims were not addressed on direct appeal. Pet.'s Exh. M; Resp's Exhs. 12-13. His petitions to the California Court of Appeal and California Supreme Court were summarily denied. Exhs. 14, 16, 17.
On October 6, 2010, Petitioner filed this federal petition for a writ of habeas corpus. On November 17, 2010, the case was dismissed without prejudice because Petitioner had failed to file a complete application for leave to proceed in forma pauperis. On June 26, 2012, the Court granted Petitioner's motion to reopen his action, vacated the order of dismissal, granted leave to proceed in forma pauperis and directed Respondent to show cause why the petition should not be granted. The petition now is fully briefed and ready for the Court's review on the merits.
The California Court of Appeal summarized the facts of this case as follows:
Defendant testified on his own behalf. He did not dispute engaging in sexual activity with J.N. at the location she identified, but contended that it was consensual and that he roughed her up as part of a plot in which the two were conniving. He and J.N. had met in 1979 on the Santa Cruz boardwalk. Defendant was at a coffee house in Aptos on September 15, 2002, when J.N. and her son walked in, and they recognized each other from their 1979 encounter. Defendant told J.N. that he had been in prison for sex crimes and was now living in a trailer near a church. J.N. asked defendant if the two could meet in the following week. They met at a parking lot and J.N. told defendant she wanted to get full custody of her son, live with R.F., and continue to receive child support from her son's father. "She wanted to stage a rape so that she could go to him with all the characteristics of a rape and break away from him." She told defendant, "I know you had experience with this. So I am wondering if you can help me stage this without causing unnecessary pain." After telling
A federal court may entertain a habeas petition from a state prisoner "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). Under the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, a district court may not grant habeas relief unless the state court's 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);
A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), only if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts."
If constitutional error is found, habeas relief is warranted only if the error had a "`substantial and injurious effect or influence in determining the jury's verdict.'"
When there is no reasoned opinion from the highest state court to consider the petitioner's claims, the court looks to the last reasoned opinion of the highest court to analyze whether the state judgment was erroneous under the standard of § 2254(d).
If no state court has adjudicated a federal claim on the merits, the federal court must review the claim
The Court first reviews the claims Petitioner presented on direct appeal.
Petitioner contends that the trial court denied his right to due process by refusing to suppress his statements to Reverend Vining. The Court of Appeal held that Petitioner forfeited this constitutional claim because he did not make this argument to the trial court and he did not assert it until his reply on appeal. Although the Court of Appeal did not address the merits of Petitioner's constitutional claim, it addressed the merits of his related state law claim, that his confession to Reverend Vining violated California Evidence Code sections 1030-1033, which prohibit the admission of a communication made in confidence in the course of the clergy-penitent relationship. Although a federal habeas court may not review a state court's ruling regarding a state law claim,
The Court of Appeal denied Petitioner's state law claim as follows:
Petitioner first argues that the state court erred in rejecting his claim under California Evidence Code sections 1030-33 because Reverend Vining spoke to him as a pastor, not as a friend, and, because Petitioner viewed his discussion with Reverend Vining as a pastor, he reasonably expected Reverend Vining to keep his confession in confidence. As mentioned previously, a state court's conclusion regarding a state law claim is unreviewable by a federal court on habeas review.
Petitioner next claims that the admission of his confession to Reverend Vining constituted a violation of his due process rights. According to Petitioner, in cases prior to
This claim fails for many reasons. First, no authority holds that a liberty interest can be created based on Supreme Court authority that was good law over twenty years ago, but not at the time the events at issue took place. Second, even if such a liberty interest could be created, Petitioner does not describe the liberty interest and how it was violated. Third, even if such a liberty interest could be created, Petitioner misapplies his cited pre-1990 authority regarding the free exercise clause.
In
Petitioner does not show how the denial of the clergy-penitent privilege placed a substantial burden upon his exercise of religion. In fact, the evidence shows that the clergy-penitent privilege had no effect on Petitioner's exercise of religion. Reverend Vining testified that Petitioner had no ties to Reverend Vining's church, 8 RT 2171, and the trial court found that Petitioner was not a member of Reverend Vining's church, 8 RT 2116. Petitioner fails to point to any evidence to the contrary or that he is a member of another religion. This is fatal to Petitioner's claim. For all of the above-mentioned reasons, this claim is denied.
On appeal, Petitioner contended his trial counsel was ineffective because he allowed the prosecutor to have access to Petitioner's psychological evaluation. The report included Petitioner's statements to the psychologist that he had fantasized about raping women when he was in prison. The Court of Appeal denied this claim, finding no prejudice, as follows:
A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel.
First, the petitioner must show that counsel's performance was deficient.
Second, the petitioner must show that counsel's errors were so serious as to deprive the petitioner of a fair trial, a trial whose result is reliable.
The only evidence from the psychological report that the jury heard was that Petitioner had rape fantasies over a decade earlier.
Given the strong evidence against Petitioner, it was not objectively unreasonable for the state court to conclude that there was no reasonable probability that, but for counsel's failure to keep the prosecutor from learning of defendant's rape fantasies, the outcome would have been different. This claim is denied.
Petitioner contends that the trial court's failure to strike two prior sex-crime convictions, which were used to enhance his sentence, violated the
A federal habeas petitioner generally may not attack the constitutionality of a prior conviction used to enhance a later sentence. "[O]nce a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid. If that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained."
Petitioner's remaining claims were presented in his state habeas petitions. Citing
However, Respondent has not argued that Petitioner's claims are procedurally defaulted under California's timeliness bar; therefore, any procedural default argument is waived.
Because the Superior Court denied Petitioner's habeas claims on procedural grounds, it did not address their merits. The summary denials of Petitioner's petitions by the California Court of Appeal and California Supreme Court mean that these courts adopted the reasoning of the Superior Court and denied the petitions on procedural grounds. See Ylst, 501 U.S. at 803, 805 (federal habeas court looks through to last highest court to issue an opinion). Because no state court reached the merits of Petitioner's habeas claims, the Court must review them de novo. See Pirtle, 313 F.3d at 1167-68.
Petitioner contends that the trial court violated his right to due process by ordering him to wear a leg brace during the trial.
On September 19, 2005, the trial court held a hearing on Petitioner's oral motion to remove the leg brace that he had been ordered to wear under his pants during the trial. 5 RT 1001; Pet., Ex. K at 3. Defense counsel argued that California Supreme Court authority required a showing of a manifest need for any physical restraint. 5 RT 1001. The trial court stated that Petitioner had been involved in approximately thirty incidents while in jail, including possessing an altered razor, altered staples and other contraband in his cell, fighting with another inmate, using inappropriate language and cursing at the medical nursing staff. 5 RT 1003-04. The court concluded that requiring Petitioner to wear a leg brace under his pants was "the minimal restrictive action." 5 RT 1004.
The court granted defense counsel's request that, on the day Petitioner testified, the court security officer allow him "in court without his knee brace so that when he walks up to the stand he doesn't have to show any sign that he has a restraint on." 11 RT 2505. However, on the day Petitioner was to testify, the court security officer did not allow him to take off the leg brace. Only after defense counsel intervened did the court security officer allow Petitioner in the courtroom without the leg brace.
The Constitution forbids the use of shackles (or other physical restraints) visible to the jury absent a trial court determination, in the exercise of its discretion, that the use is justified by an essential state interest——such as the interest in courtroom security——specific to the defendant on trial.
Petitioner's due process claim fails for two reasons. First, he has not shown that the jury saw the leg brace.
Petitioner argues that the trial court's hearing on his motion to remove the leg brace was flawed in that the court used information from an unidentified source to determine the need for a leg brace and the court would not allow defense counsel to view the information. Pet. at 25. The trial court relied on incident reports from Petitioner's jail. 5 RT 1002. No clearly established federal law suggests that it is impermissible for a trial court to base its finding about the need to restrain a defendant during a trial on hearsay evidence coming from jail officials.
Petitioner also argues that his due process rights were violated because, in Santa Cruz County, leg braces are routinely placed on defendants without a hearing by the trial court to determine whether restraints are warranted. Because the court held such a hearing, this is irrelevant.
Petitioner next argues that his Sixth Amendment right to confront witnesses was violated because he could not cross-examine witnesses at the hearing on his motion.
The confrontation clause of the Sixth Amendment provides that in criminal cases the accused has the right to "be confronted with the witnesses against him." U.S. Const. amend. VI. The confrontation clause applies to all "testimonial" statements.
The right to confrontation is "basically a trial right."
Finally, Petitioner argues that his mental and emotional equilibrium were thrown off balance on the day he was scheduled to testify because the court security officer ordered him to put on the leg brace, even though the trial court had ordered he did not have to wear it that day. Petitioner contends that this shows that the prosecutor intimidated him and interfered with his ability to testify on his own behalf. However, Petitioner's conclusion that the court security officer's conduct can be imputed to the prosecution is unsubstantiated by evidence or authority. The two cases Petitioner cites are inapplicable. In
In summary, Petitioner fails to present evidence supporting his due process claim based on being required to wear a leg brace during trial.
Petitioner argues that his conviction of assault with force likely to produce great bodily injury was not supported by sufficient evidence. He contends that the victim's testimony that he choked her with two hands, nearly to the point of unconsciousness, was contradicted by physical evidence indicating he grabbed her with only one hand.
The due process clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."
A federal court reviewing collaterally a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt.
To grant relief under the AEDPA, a federal habeas court must conclude that "the state court's determination that a rational jury could have found that there was sufficient evidence of guilt, i.e., that each required element was proven beyond a reasonable doubt, was objectively unreasonable."
The victim testified that Petitioner reached through her open car window with both hands and grabbed her neck tightly, making it difficult for her to breathe, and making her feel like she was going to pass out. 7 RT 1800, 1802, 1928-29; 8 RT 2012. She testified that Petitioner strangled her with two hands a number of other times while he was raping and sodomizing her. 7 RT 1807, 1830, 1849; 8 RT 2012-15. The sexual assault nurse who examined the victim testified that the victim had visible injuries on both sides of her neck, though there was a higher level of injury on the right side. 8 RT 2065, 2122-23, 2141-42. The nurse had taken photographs of the victim's injuries and the photographs were admitted into evidence. 8 RT 2122-26.
Petitioner testified that he grabbed the victim with one hand on one occasion for a short period of time, using only enough pressure to cause bruising so as to support her plan to claim rape. 11 RT 2256. During closing, defense counsel argued that the victim's testimony that Petitioner choked her with two hands was not credible because she had a prominent bruise on the right side of her neck, most likely from Petitioner's left thumb, and scratches on the left side of her neck, most likely from Petitioner's fingernails. Defense counsel argued that, if Petitioner had choked the victim with two hands, there would be corresponding bruises on both sides of her neck. 12 RT 2859-61.
Petitioner submits a declaration from James E. Daly, Doctor of Osteopathy, Master of Science in Biochemistry and Microbiology, which was submitted with his state habeas petition, but was not presented during his trial. Pet., Ex. L. Dr. Daly states that he reviewed the photographs of the victim's injuries and concludes that the victim was grabbed by Petitioner with only his left hand. Id. at 4. Petitioner argues that this evidence shows that the victim's testimony that he choked her with two hands was not credible. However, the jurors themselves saw the photographs of the victim's injuries, heard the testimony of the victim and Petitioner and found that the force used by Petitioner was likely to produce great bodily injury. The jury did not have to believe that Petitioner used two hands to have found that he used force likely to cause great bodily injury. He could have accomplished this with the use of only one hand. Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find that the testimony of the victim and the examining nurse established that Petitioner was guilty of assault with force likely to produce great bodily injury. This claim is denied.
Petitioner submits fifteen grounds to argue trial counsel's ineffective assistance.
Petitioner contends counsel was ineffective for failing to investigate the following: (1) whether there was DNA evidence on a redwood tree limb that the victim said Petitioner had placed between her legs; (2) whether there was DNA evidence on the victim's sarong, which Petitioner used to wipe feces off his penis; (3) whether anyone in the victim's neighborhood owned a loud car similar to Petitioner's; and (4) the reason Reverend Vining left California for Ohio.
A defense attorney has a general duty to make reasonable investigations or to make a reasonable decision that particular investigations are unnecessary.
The victim testified that Petitioner laid a limb from a redwood tree over her body and the crevice of her buttocks, but he did not penetrate her with it. 7 RT 1866-67; 8 RT 2037.
Petitioner argues that, because the victim testified that he laid the limb on her body, an absence of DNA on it would diminish her credibility. The victim's account of the limb constituted such a small portion of her testimony that any lack of DNA would not have damaged her credibility. Counsel's performance was not deficient for failing to have the limb tested nor has Petitioner shown a reasonable probability of a different result had it been tested.
The victim testified that Petitioner sodomized her twice, 7 RT 1825-26, 1837, raped her, 7 RT 1839, sodomized her again, 7 RT 1848, raped her again, 7 RT 1861, but never ejaculated, 7 RT 1862, 1870, 1872-73. The victim testified that Petitioner used the victim's sarong to wipe off fecal material left on his penis. 7 RT 1865. The sarong, which the victim identified at trial, had visible fecal stains on it and the nurse who examined the victim found feces in her vagina. 7 RT 1888; 8 RT 2119. Petitioner contends that, to diminish the victim's credibility, counsel should have had the feces on the sarong tested for DNA.
Petitioner acknowledges that he was told that fecal material could not be tested for DNA but disputes this with a citation to the
However, Petitioner does not state whose DNA he wanted the the fecal material to be tested for and how any result would have impeached the victim or otherwise have aided his defense. Because Petitioner admitted that he raped and sodomized the victim, his identity was not at issue. Whether or not Petitioner's DNA was found would not have been probative of anything in dispute. Likewise, there was no reason to test for the victim's DNA because that also would not be probative of any issue in dispute.
Therefore, defense counsel did not act unreasonably in failing to test the fecal material for DNA.
Petitioner claims that, to rebut the testimony of the victim and her lover, R.F., that they had heard a car that made a distinctive rattling noise like Petitioner's driving by R.F.'s house in the weeks preceding the sexual assault, counsel should have investigated R.F.'s neighbors' cars to see if any of them made a similar rattling noise. 7 RT 1759-60; 1790; 1793; 1821; 1884. Petitioner argues this was important to counter the prosecutor's argument that Petitioner had been stalking the victim in the weeks preceding the offense.
Petitioner provides no reason to believe that such an investigation would have been fruitful. There was sufficient evidence that Petitioner was the person who had been driving by R.F.'s house before the assault. R.F testified that she lived in a remote area, on a single-lane road with only two neighbors past her house. 7 RT 1757-58. She stated that any car coming down that single-lane road would belong to someone living in or visiting those two houses. 7 RT 1758. She testified that, in the two months before the sexual assault, she heard a loud car, with a noise like it had no muffler, driving by her house late at night and sometimes during the day. 7 RT 1759. The victim testified that, during the assault, Petitioner told her that he knew that she and R.F. were lovers. 7 RT 1821. The victim testified that she was "shocked that he knew about [R.F.], and then I made the connection of the car and the sound of the car and that we heard that car around. . . ." 7 RT 1821.
The facts that the victim recognized the distinct sound of Petitioner's car at the scene of the crime as the car she heard driving by R.F.'s house, and that Petitioner had information about R.F., provided strong evidence that Petitioner had been driving by that house and watching the victim in the weeks before the offense. Even if counsel had found a car with a loud sound, it would not have been sufficient to counter the evidence that Petitioner had been driving by R.F.'s house and watching the victim.
Petitioner argues that counsel was ineffective for failing to investigate the reason Reverend Vining left Santa Cruz and moved to Ohio. Petitioner contends that Reverend Vining "was forced to leave the Santa Cruz church as a direct consequence of Petitioner's arrest, the ensuing publicity and the loss of confidence by the membership of the Church" and counsel could have impeached Reverend Vining with this evidence because it would have caused Reverend Vining to resent Petitioner. Pet. at 54. However, the evidence does not support Petitioner's theory.
When Reverend Vining testified at Petitioner's trial, he was living in Ohio. 8 RT 2178. Reverend Vining testified that he came to Santa Cruz to re-start the Free Methodist Church, but it never re-started. 8 RT 2169; 2171; 2178. He testified that he had visited Petitioner in jail shortly after Petitioner was arrested and, at this meeting, Petitioner confessed to him. 8 RT 2172; 2175. Immediately afterward, Reverend Vining told his wife what Petitioner had said. 8 RT 2176. He also relayed Petitioner's statements to two gentlemen who were helping him start the church. 8 RT 2177. A few months later, he told law enforcement about Petitioner's statements. 8 RT 2177. On cross-examination, defense counsel asked Reverend Vining if he had any ill will toward Petitioner and Reverend Vining replied, "No. We are friends." 8 RT 2178.
The evidence shows that Reverend Vining communicated Petitioner's confession to three people immediately after his meeting with Petitioner, before he could have been aware that Petitioner's arrest allegedly would cause his church to fail and force him to move to Ohio. Thus, when Reverend Vining repeated Petitioner's statements to others, he had no reason to resent Petitioner for causing him to move to Ohio. Counsel's failure to investigate the reason for Reverend Vining's move to Ohio based upon Petitioner's speculation about Reverend Vining's resentment was not ineffective.
Where the evidence does not warrant it, the failure to call an expert does not amount to ineffective assistance of counsel.
Petitioner argues counsel should have called an expert to testify that the victim's physical injuries demonstrated that Petitioner grabbed her neck with one hand, not two. In support of this claim, Petitioner presents the declaration of Dr. J. E. Daly, discussed above, who reviewed the photographs of the victim's injuries and concluded that she was choked with only one hand. Petitioner speculates that, if counsel had presented Dr. Daly's testimony at trial, the jury would not have found Petitioner guilty of assault with force likely to cause great bodily injury. However, as discussed above, finding that Petitioner choked the victim with two hands was not a prerequisite for the jury to have found him guilty of using force likely to produce great bodily injury. Dr. Daley's testimony may have undermined the victim's testimony that Petitioner used two hands to choke her, but it would not have placed into question her testimony that Petitioner choked her with great force. The jury saw the photos of the victim's injuries which showed that she was injured more on one side of her neck than the other and defense counsel argued that this showed she was only choked with one hand. Nevertheless, the jury found that Petitioner had used sufficient force to find him guilty of assault with force likely to produce great bodily injury. Petitioner has not shown a reasonable probability of a different result if the jury heard Dr. Daly's testimony.
Petitioner claims counsel was ineffective for failing to call a corrections expert who could have bolstered Petitioner's credibility by testifying that Petitioner's previous years in prison motivated him to abide by a prison code of "integrity" which included not cooperating with police. Petitioner argues that this would have explained to the jury why, when the police asked him where he was at the time of the crime, he originally lied to them and said he was in San Jose.
Counsel argued to the jury that Petitioner's response to the police was an example of his integrity because he kept his promise to the victim not to expose their plan of a "staged sexual assault." In his closing, defense counsel stated:
12 RT 2864-65.
Because Petitioner's defense relied on his alleged agreement with the victim, counsel strategically emphasized Petitioner's integrity in keeping to that agreement. Counsel reasonably could have thought that testimony regarding a prison code of integrity which required Petitioner to lie to the police might hinder his defense instead of helping it. Furthermore, if the jury did not believe Petitioner's testimony regarding his agreement with the victim, it is unlikely that expert testimony about the prison code of lying to the police would have strengthened his credibility. Therefore, counsel's failure to call a corrections expert was neither deficient nor prejudicial.
Petitioner contends that counsel was ineffective for failing to call three of his family members who would testify that he had a difficult time adjusting to society after he was released from prison. Petitioner states that Janis Jones, his sister, would have testified that, after Petitioner was released on parole, she had to assist him in purchasing necessary, everyday things that a normal person would take for granted. Petitioner states that his two nieces would have testified that, after Petitioner was released on parole, they had to help him buy groceries because he could not go into a grocery store without experiencing a panic attack. Petitioner argues that this testimony would have helped the jury understand his difficulties in adjusting to society after his release from prison, and would have bolstered his credibility.
Petitioner's adjustment problems after his release from prison did not excuse or mitigate the sexual crimes he committed. Counsel cannot be faulted for failing to introduce testimony that was irrelevant to the issue of whether Petitioner sexually assaulted the victim. Counsel's failure to call Petitioner's family members was neither deficient nor prejudicial.
Petitioner argues that counsel was ineffective for failing to enlarge photographs of the less injured side, or left side, of the victim's neck to counter the prosecution's enlarged photographs of the more injured right side of her neck.
The nurse who examined the victim after the assault testified that there were some injuries on the left side of the victim's neck, though they were not as extensive as the injuries on the right side of her neck. Counsel could reasonably have decided that enlarging the photos of the left side of the victim's neck would have emphasized the injuries on that side, undermining his argument that the disparity between the injuries on the two sides of the victim's neck showed Petitioner choked her with only one hand. Furthermore, as discussed previously, whether Petitioner choked the victim with one hand or two was not determinative of whether he assaulted her with force likely to produce great bodily injury. Therefore, Petitioner fails to demonstrate counsel performed ineffectively by not showing the jury enlarged photos of the left side of the victim's neck.
Petitioner argues that counsel should have impeached the victim with the the tape of her interview with Detective Robert MacAulay. According to Petitioner, the tape would show that, during the interview, when Detective MacAulay left the room, the victim took notes from her purse, reviewed them and, when Detective MacAulay returned, she quickly replaced her notes into her purse. Petitioner contends that this would show that the victim was not truthful. Petitioner also contends counsel could have impeached her with her testimony that she gave her notes to Detective MacAulay because Detective MacAulay testified that she did not give him her notes.
Defense counsel's impeachment of the victim on this issue was not deficient or prejudicial. Counsel cross-examined the victim about her use of notes during the police interview. He elicited from the victim testimony that she wrote notes before her interview with Detective MacAulay and, at one point during the interview, she asked Detective MacAulay to retrieve her purse in which she had the notes. 8 RT 2032-34. The victim stated that, after Detective MacAulay brought her the purse, she got her notes out from the purse and referred to them several times during the interview. The victim also testified that either she left the notes at the police station, gave them to Detective Macaulay or threw them away. During the defense case, counsel called Detective MacAulay and elicited his testimony that the victim brought notes to her interview with him and he did not take those notes or obtain copies of them. 10 RT 2519.
Because counsel questioned the victim about her notes and she admitted she used them during her interview with Detective MacAulay, playing the videotape of the interview to show that the victim used notes would have been redundant. Counsel was not ineffective for failing to show the videotape. Furthermore, the victim did not say she gave her notes to Detective MacAulay, as Petitioner suggests, but testified that she either gave them to him, left them at the station or threw them away. Petitioner's claim that Detective MacAulay's testimony would have impeached the victim is not accurate.
Petitioner also contends that the tape shows that the victim had "no new details to offer and no new insights from her long 'spiritual' journey to `recovery.'" Petitioner argues that this is demonstrated by the fact that, during the interview, the victim showed little of the emotional turmoil that she demonstrated during the trial. Pet. at 59. Petitioner apparently is inferring that the victim's lack of emotion during her interview shows that her trial testimony about a spiritual journey to recovery after the sexual assault was not believable. Petitioner's failure to mention this claim in his traverse may be an indication that he is abandoning it. In any event, that counsel did not question the victim about her "lack of emotion" during the interview or about her emotional recovery appears to be a reasonable strategic decision not to upset or badger a sympathetic witness, which would have been prejudicial to Petitioner's case. Counsel's decision not to impeach the victim regarding her emotional state of mind was neither deficient nor prejudicial.
Petitioner argues that counsel was deficient for failing to impeach Reverend Vining with the reasons he moved to Ohio. This argument was addressed above in regard to Petitioner's claim that counsel was ineffective for failing to investigate why Reverend Vining moved to Ohio. For the same reasons that counsel was not ineffective for failing to investigate this issue, he was not ineffective for failing to impeach Reverend Vining on this theory.
Petitioner claims counsel was ineffective for not preserving an issue that the Court of Appeal determined was forfeited because it was not argued before the trial court, namely, whether the state clergy-penitent privilege is "congruent with the Free Exercise Clause in its pre-1990 manifestation." Pet. at 62. As discussed previously, the state court's decision that the clergy-penitent privilege did not apply to Petitioner could not support a due process claim. Therefore, counsel's failure to assert it during Petitioner's trial was not ineffective.
Petitioner contends that trial counsel was ineffective because he failed to object to the prosecutor's alternate theories in closing argument that the crimes were opportunistic and the result of stalking.
The prosecutor argued that Petitioner was stalking the victim with the intent to rape her and, on the day of the crime, found an opportunity to carry out his intent when he saw her parked on the side of a deserted road. 11 RT 2885. This argument was not inconsistent. Counsel's failure to object was not ineffective assistance.
Petitioner contends trial counsel failed to counter the prosecutor's closing argument. Counsel countered that Petitioner had made an agreement with the victim to pretend to rape her, and that the contrary testimony of the victim and Reverend Vining was not credible.
Petitioner argues that counsel was ineffective for failing to argue that the victim accomplished her goals for enlisting his help to stage a rape——that is, the victim (1) obtained full custody of her son; (2) received full financial support from the child's father; and (3) broke away from her son's father to live with another. Pet. at 63. Petitioner contends that, if counsel had emphasized this in his closing argument, Petitioner's credibility would have been bolstered.
The prosecutor called the father of the victim's son to rebut Petitioner's testimony. The father testified that he and the victim shared time caring for their son, that the victim's relationship with R.F. did not cause any tension between himself and the victim, that his relationship with the victim was loving and they liked spending time with each other as shown by the fact that they took vacations together. 10 RT 2727-30.
Contrary to Petitioner's argument, the evidence did not show that the victim had full custody of her son or that she received full financial support from the father of her son. Rather, the evidence showed that the father and the victim had a friendly, loving relationship that would not require the victim to ask Petitioner to pretend to rape her in order to accomplish her "goals" with her son's father. Counsel's failure to argue that the victim "accomplished" her goals was not ineffective because the evidence did not support such an argument.
Petitioner argues counsel was ineffective for entering into a stipulation about the room in which Petitioner met with Reverend Vining.
Petitioner's counsel offered a stipulation that before Reverend Vining met with Petitioner at the Santa Cruz County Jail, the jail chaplain, Chaplain Seifert, explained to Reverend Vining "that the type of room in which he was meeting with Mr. Allen was an attorney-contact room in which conversations are not recorded." 3 RT 507. The prosecutor added to the stipulation that "none of that information was communicated to Mr. Allen. Mr. Seifert didn't communicate with Mr. Allen at all." 3 RT 507. Defense counsel did not object and the court accepted the stipulation.
Petitioner argues that the stipulation was prejudicial because the state court determined that his conversation with Reverend Vining was not confidential based, in part, on the fact that Petitioner did not know their conversation could not be overheard.
Assuming counsel knew that Petitioner believed his conversation with Reverend Vining could not be overheard, counsel's stipulation that Petitioner lacked such knowledge may have constituted deficient performance. However, Petitioner has not established prejudice.
As discussed above, under California Evidence Code section 1032, the privilege only applies when a communication is made to a member of the clergy who has a duty to keep the communication secret. The Court of Appeal based its conclusion that the clergy-penitent privilege did not apply to Petitioner's confession to Reverend Vining, in part, on the fact that, when Reverend Vining spoke with Petitioner, he was not acting as a member of the clergy.
In summary, none of Petitioner's arguments establish that his trial counsel's performance was ineffective.
Petitioner argues that appellate counsel was ineffective because he failed to raise the following claims on appeal: (1) the policy of the Santa Cruz County Sheriff's Department of routinely using physical restraints on defendants during trial violates due process; (2) the denial of his motion to recuse the trial judge violated his due process rights; (3) admission of his rape fantasies violated his Fifth Amendment rights; (4) the prosecutor committed misconduct by denigrating defense counsel; (5) insufficient evidence supported the charge of assault with force likely to produce great bodily injury; and (6) trial counsel was ineffective.
The due process clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right.
Appellate counsel does not have a constitutional duty to raise every nonfrivolous issue requested by the defendant.
Many of the grounds for Petitioner's claims of ineffective assistance of appellate counsel have been discussed above and have been denied. These are the claims based on (1) the leg brace; (2) insufficient evidence of assault with force likely to cause great bodily injury; and (3) ineffective assistance of trial counsel. Because these claims have no merit, appellate counsel was not ineffective for failing to assert them on appeal and Petitioner has not shown a reasonable probability that the result would have been different had counsel done so.
In a letter to Petitioner, appellate counsel explained his reasons for not raising the remaining claims Petitioner suggested.
During the trial, Petitioner, under California Civil Procedure Code section 170.1, filed a
Petitioner claims appellate counsel should have argued that admitting Petitioner's rape fantasies violated his Fifth Amendment rights under
Petitioner argues that appellate counsel should have asserted a claim of prosecutorial misconduct based upon the prosecutor's closing remark that defense counsel was fabricating a defense. Appellate counsel pointed out to Petitioner that the prosecutor did not argue that defense counsel was fabricating a defense, but that Petitioner was fabricating a defense, which was a proper closing argument for the prosecutor. Exh. K, App'x. 3 at 3.
In summary, appellate counsel's explanations to Petitioner demonstrate that he made considered, tactical decisions not to raise the claims Petitioner suggested. His considered, strategic choices do not constitute ineffective assistance of counsel.
Petitioner argues the cumulative effect of all the alleged constitutional errors entitles him to habeas relief.
In some cases, although no single trial error is sufficiently prejudicial to warrant reversal, the cumulative effect of several errors may still prejudice a defendant so much that his conviction must be overturned.
As discussed above, no constitutional errors were made during Petitioner's trial. Therefore, no errors could accumulate to the level of a constitutional violation. This claim is denied.
Petitioner moves for an evidentiary hearing on several claims. Petitioner has failed to state a claim for habeas relief. There are no material factual disputes in the record that, if resolved in Petitioner's favor, would entitle him to relief. Accordingly, Petitioner's request for an evidentiary hearing on any ground is denied.
The federal rules governing habeas cases brought by state prisoners require a district court that denies a habeas petition to grant or deny a certificate of appealability in the ruling. Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254.
A petitioner may not appeal a final order in a federal habeas corpus proceeding without first obtaining a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 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). The certificate must indicate which issues satisfy this standard. 28 U.S.C. § 2253(c)(3). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong."
The Court finds that reasonable jurists would not find its ruling on any of Petitioner's claims debatable or wrong. Therefore, a certificate of appealability is denied.
Petitioner may not appeal the denial of a certificate of appealability in this Court but may seek a certificate from the Court of Appeals under Rule 22 of the Federal Rules of Appellate Procedure. See Rule 11(a) of the Rules Governing Section 2254 Cases.
Based on the foregoing, the Court orders as follows:
1. The petition for a writ of habeas corpus is denied.
2. The request for an evidentiary hearing is denied.
3. The Clerk of the Court shall enter a separate judgment, terminate all pending motions and close the file.
4. A certificate of appealability is denied.
IT IS SO ORDERED.
