LUCY H. KOH, District Judge.
Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent was ordered to show cause why the petition should not be granted. Respondent has filed an answer. Although given an opportunity, petitioner has not filed a traverse. Having reviewed the briefs and the underlying record, the court concludes that petitioner is not entitled to relief, and DENIES the petition.
On August 7, 2009, petitioner was charged with kidnapping to commit rape, sodomy, and oral copulation (Count 1); forcible rape (Count 2); forcible oral copulation (Count 3); oral copulation of a minor (Count 4); and assault with intent to commit sodomy (Count 5). On April 5, 2011, a jury convicted petitioner of Counts 2, 3, and 4. The jury also found corresponding kidnapping enhancements true as to Counts 2 and 3. The jury further convicted petitioner of simple assault as a lesser included offense of Count 5. The jury deadlocked on Count 1, and the Order Denying Petition for Writ of Habeas Corpus; Denying Certificate of Appealability trial court ultimately declared a mistrial on Count 1. The jury also found true a single serious felony strike conviction. On May 20, 2011, the trial court sentenced petitioner to a term of 55 years to life.
On March 19, 2013, the California Court of Appeal affirmed. On June 12, 2013, the California Supreme Court denied review. Petitioner filed the underlying federal habeas petition on September 3, 2014.
The following facts are taken from the Court of Appeal's opinion in People v. Balinton, No. A132571, 2013 WL 1122486 (Cal. App. March 19, 2013).
In 2001, 16 year-old C.C. was walking on Sixth Street in San Francisco. At some point, someone grabbed C.C. from behind and pulled her back into an alleyway. C.C. was unable to get away. The attacker pulled C.C. into a large cardboard box where he sexually assaulted and raped her. Some time after C.C. escaped from the attacker, she was taken to the hospital where she was examined by a sexual assault nurse. Swabs were taken from C.C.'s mouth, vagina, and anus. C.C. gave a description of her attacker as an African-American male, approximately 45 years old, 5 feet nine inches tall, and weighing around 220 pounds.
In 2008, a "cold hit" of DNA from sperm found and preserved on C.C.'s underpants matched a reference sample of petitioner's DNA. At the time, petitioner was incarcerated at San Quentin State Prison. Petitioner admitted being in the area during the time C.C was attacked, but denied having sex with anyone in the alleys south of Market Street, where the attack occurred. Petitioner stated that at the time of the attack, petitioner had a girlfriend and they would go to a hotel to have sex. Petitioner did not recognize C.C. when the police showed him her picture. Petitioner denied that there was any chance his DNA could end up in evidence collected in C.C.'s sexual assault case.
This court may entertain a petition for 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). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court 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).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the U.S. Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] 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 the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, the application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the United States Supreme Court as of the time of the state court decision. Id. at 412. Clearly established federal law is defined as "the governing legal principle or principles set forth by the [United States] Supreme Court." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).
Petitioner's sole claim in his federal habeas petition is that the trial court's instruction regarding asportation for the kidnapping enhancements under Cal. Penal Code § 667.61(d)(2), charged in connection with Counts 2 and 3, was erroneous. The court instructed the jury on the kidnapping enhancements as follows:
To prove this allegation, the People must prove that:
Balinton, 2013 WL 1122486, at *2-*3 (emphasis added). Petitioner argues that, with regard to the emphasized portion, there should have been a comma inserted before and after the phrase "or made her move," to clearly communicate that the "substantial distance" was meant to modify both "moved" and "made her move." That is, without the commas, the instruction misstated the elements of the kidnapping enhancement. Thus, argues petitioner, the jury could have found the kidnapping enhancements true if it found that he moved C.C. without finding that he moved C.C. a substantial distance.
The California Court of Appeal considered and rejected petitioner's claim as follows:
To obtain federal collateral relief for errors in the jury charge, a petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. See Estelle v. McGuire, 502 U.S. 62, 72 (1991). The instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. See id. In other words, the court must evaluate jury instructions in the context of the overall charge to the jury as a component of the entire trial process. United States v. Frady, 456 U.S. 152, 169 (1982) (citing Henderson v. Kibbe, 431 U.S. 145, 154 (1977)).
In reviewing an ambiguous instruction, as petitioner argues here, the inquiry is not how reasonable jurors could or would have understood the instruction as a whole; rather, the court must inquire whether there is a "reasonable likelihood" that the jury has applied the challenged instruction in a way that violates the Constitution. See Estelle, 502 U.S. at 72 & n.4. In order to show a due process violation, the defendant must show both ambiguity and a "reasonable likelihood" that the jury applied the instruction in a way that violates the Constitution, such as relieving the state of its burden of proving every element beyond a reasonable doubt. Waddington v. Sarausad, 555 U.S. 179, 190-191 (2009) (internal quotations and citations omitted).
The state court's rejection of petitioner's interpretation of the instruction was reasonable. Reading the instruction as a whole, the state court's conclusion was reasonable that the challenged instruction properly conveyed the message that the "substantial distance" element applied with respect to whether petitioner moved C.C. or made C.C. move. Even assuming that the instruction was ambiguous, it is reasonable to conclude that the arguments of counsel clarified any potential ambiguity by emphasizing that the "substantial distance" element applied to both the movement of C.C. as well as any act to make her move. Viewing the record and the totality of the circumstances surrounding the challenged instruction, the court concludes that there was not a reasonable likelihood that the jury applied the instruction in a way that violated the Constitution.
Alternatively, assuming that the instruction was ambiguous and erroneous, petitioner has not demonstrated that such error resulted in a substantial and injurious effect on the jury's verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). The evidence clearly supported a finding that petitioner moved C.C. a substantial distance. To determine whether the "substantial distance" element is satisfied, "a trier of fact may consider not only the actual distance the victim is moved, but also such factors as whether that movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim's foreseeable attempts to escape and the attacker's enhanced opportunity to commit additional crimes." People v. Arias, 193 Cal.App.4th 1428, 1435-36 (2011). In California, "relatively short distances have been found not to be incidental where the movement results in a substantial change in the context of the environment." People v. Diaz, 78 Cal.App.4th 243, 247 (2000) (citing cases). Moreover, "a rape involves solely an attack on the person and does not necessarily require movement to complete the crime." Id. at 248 (quoting People v. Salazar, Cal. App. 4th 341, 347 (1995)).
Here, the record demonstrates that C.C. testified she was dragged from the street back into an alleyway and into a large cardboard box with openings cut out and pieces of cloth hanging over the openings. C.C. initially testified that petitioner dragged her 40-50 feet, but later testified that the distance was similar to that between the witness stand and the prosecutor's table. Despite the actual distance that C.C. was moved, the evidence shows that the movement increased C.C.'s risk of harm, decreased the likelihood that she would be detected, and increased the danger inherent in her foreseeable attempts to escape. See Arias, 193 Cal. App. 4th at 1435-36. Thus, even assuming that the instruction was ambiguous as to whether the jury had to find that petitioner moved C.C. a substantial distance, the evidence was more than sufficient to satisfy that element.
Accordingly, the state court's decision was not contrary to, or an unreasonable application of, clearly established U.S. Supreme Court law.
The petition for writ of habeas corpus 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 ("COA") in its ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. Petitioner has not shown "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a COA is DENIED.
The clerk is instructed to enter judgment in favor of respondent, terminate all pending motions, and close the file.
