ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
AUDREY B. COLLINS, Chief Judge.
Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, as well as petitioner's objections, and has made a de novo determination.
IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as the findings of fact and conclusions of law herein; (3) petitioner's request to stay these proceedings is denied; and (4) Judgment shall be entered denying the petition for writ of habeas corpus and dismissing the action with prejudice.
IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on petitioner.
REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE
ROSALYN M. CHAPMAN, United States Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Audrey B. Collins, Chief United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On January 27, 2005, in San Bernardino County Superior Court case no. FVA021733, a jury convicted petitioner Damone Heron, aka Damone Dante Heron, of one count of continuous sexual abuse in violation of California Penal Code ("P.C.") § 288.5(a) (count 1) and three counts of lewd act upon a child in violation of P.C. § 288(a) (counts 2-4), and, as to
The petitioner appealed his convictions and sentence to the California Court of Appeal, CT 179, which affirmed the judgment in an unpublished opinion filed August 2, 2006, 2006 WL 2147697. Lodgment nos. 2-6. On September 8, 2006, petitioner, proceeding through counsel, filed a petition for review in the California Supreme Court, which, on October 11, 2006, denied the petition "without prejudice to any relief [petitioner] might be entitled after the United States Supreme Court determines in Cunningham v. California... the effect of Blakely v. Washington... and United States v. Booker... on California law." Lodgment nos. 7-8.
The California Court of Appeal, in affirming the judgment, made the following findings of fact:
In 1998, Doe briefly lived with her biological father but later returned to her mother's home. Doe's family, which now included two younger siblings, moved to Rialto. When Doe was nine years old, petitioner began having sexual intercourse with her. While living in Rialto, petitioner had sex with Doe more than three times.
The family moved to Fontana when Doe was in the seventh grade. Petitioner continued having sexual intercourse with Doe. Doe agreed to have sex with petitioner in exchange for certain privileges, including being excused from punishment. Petitioner would release Doe from being grounded and allow her to play outside. Doe also had sex with petitioner to avoid getting a whipping. Doe remembered having sex with petitioner more than five times while living in Fontana. Doe estimated that she had sex with petitioner more than 50 times altogether.
Although the family usually lived in small apartments, the sexual encounters always occurred at the family home. They occurred even while Doe's mother or siblings were at home. Petitioner fathered a total of four children with Doe's mother. When petitioner suffered a head injury and required in-home nursing services, petitioner continued to have sex with Doe while the nurse was present in the home.
Doe's mother discovered that Doe was pregnant when she was 12 years old. Doe told her mother that a boy from school was the child's father. When the school alerted the police concerning the pregnancy, the police interviewed Doe. During the interview, Doe explained that she had sex with her boyfriend, "Brandon," at school. Later in the interview, however, Doe broke into tears and admitted that petitioner had impregnated her. Doe explained that the sexual contacts occurred about twice a week at certain times. The most recent incident occurred in January or February of 2003.
Doe had a late-term abortion. Blood taken from petitioner and the fetal tissue
Effective January 2, 2008, petitioner, proceeding pro se, filed the pending habeas corpus petition under 28 U.S.C. § 2254 and a supporting memorandum of points and authorities ("Memo."). On May 16, 2008, respondent filed his answer, and on August 20, 2008, petitioner filed his reply.
The petitioner raises two claims:
Ground One—"The imposition of upper terms and consecutive sentences violated... petitioner's federal constitutional rights to a jury trial and due process of law." (Memo. at 3-7); and
Ground Two—"Insufficient evidence supported the jury's finding that petitioner inflicted great bodily injury on Jane Doe by impregnating her, and the enhancement should be stricken." (Memo. at 7-13).
The petitioner also requests a stay, which he has erroneously labeled as Ground Three to the petition. (Memo. at 13-17).
District courts have authority to stay habeas corpus proceedings and to hold such proceedings in abeyance while a petitioner exhausts his state court remedies, but only "where such a stay would be a proper exercise of discretion." Rhines v. Weber, 544 U.S. 269, 276, 125 S.Ct. 1528, 1534, 161 L.Ed.2d 440 (2005); Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir.), cert. dismissed, ___ U.S. ___, 129 S.Ct. 621, 172 L.Ed.2d 473 (2008). "[S]tay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Rhines, 544 U.S. at 277, 125 S.Ct. at 1535; Wooten, 540 F.3d at 1023; Jackson v. Roe, 425 F.3d 654, 660-61 (9th Cir.2005). "Stays are also improper when the unexhausted claims are `plainly meritless' or where the petitioner has engaged in `abusive litigation tactics or intentional delay.'" Jackson, 425 F.3d at 661 (quoting Rhines, 544 U.S. at 278, 125 S.Ct. at 1535); cf. Wooten, 540 F.3d at 1023 ("Under Rhines, a district court must stay a mixed petition only if: (1) the petitioner has `good cause' for his failure to exhaust his claims in state court; (2) the unexhausted claims are potentially meritorious; and (3) there is no indication that the petitioner intentionally engaged in dilatory litigation tactics.").
In his habeas corpus petition, petitioner requests this Court to stay his action and hold it in abeyance while he exhausts the following new claims: (1) "trial counsel's performance fell woefully below any reasonable standard of professionalism... [in that] Counsel failed to investigate the case"; (2) "[t]he prosecutors [sic] agents impermissibly intercepted confidential communications between [petitioner] and his attorney in violation of the Sixth Amendment"; and (3) "the trial court deprived [petitioner] of a fair trial (thirdparty culpability defense) by refusing to allow [petitioner] to present evidence that the great bodily injury was caused by another person. This also violated [petitioner's] Sixth Amendment right to confront his accuser."
Here, petitioner has not shown good cause to stay these proceedings. See Neville v. Dretke, 423 F.3d 474, 479-80 (5th
The AEDPA "circumscribes a federal habeas court's review of a state court decision." Lockyer v. Andrade, 538 U.S. 63, 70, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003); Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2534, 156 L.Ed.2d 471 (2003). As amended by AEDPA, 28 U.S.C. § 2254(d) provides:
28 U.S.C. § 2254(d). Further, under AEDPA, a federal court shall presume a state court's determination of factual issues is correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
"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 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." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000); Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850, 152
The California Supreme Court reached the merits of petitioner's claims when it denied his petition for review.
In Ground One, petitioner claims he was denied his Sixth and Fourteenth Amendment rights when the trial court sentenced him to upper terms on both counts one and four and imposed consecutive sentences. Memo. at 3-7. The California Court of Appeal, in affirming petitioner's judgment, made the following relevant factual findings:
Lodgment no. 2 at 15. The California Court of Appeal then denied petitioner's Sixth Amendment claim, relying on the California Supreme Court's decision in Black I. Lodgment no. 2 at 15-16.
The California Supreme Court's denial of petitioner's request for review, which upheld the California Court of Appeal's decision under Black I to deny petitioner's challenge to the upper term sentences on counts 1 and 4, was contrary to clearly established federal law.
"[U]nder California law, only one aggravating factor is necessary to set the upper term as the maximum sentence...." Butler, 528 F.3d at 643; People v. Black, 41 Cal.4th 799, 813, 62 Cal.Rptr.3d 569, 579, 161 P.3d 1130 (2007) (Black II), cert. denied, ___ U.S. ___, 128 S.Ct. 1063, 169 L.Ed.2d 813 (2008); People v. Osband, 13 Cal.4th 622, 728, 55 Cal.Rptr.2d 26,
Here, the trial court in imposing upper term sentences on the continuous sexual abuse count (count 1) and one of the lewd act with a child counts (count 4), found two factors in aggravation: (a) the victim was a "particularly vulnerable victim[,]" RT 340:14-341:19; see also Cal. Rule of Court 4.421(a)(3) (2005) (factors in aggravation include "[t]he victim was particularly vulnerable"); and (b) petitioner abused a "position of trust or confidence[,]" RT 340:14-341:19; see also Cal. Rule of Court 4.421(a)(11) (2005) (factors in aggravation include "[t]he defendant t[aking] advantage of a position of trust or confidence to commit the offense.").
A petitioner is entitled to habeas relief only if the sentencing error was not harmless. Washington v. Recuenco, 548 U.S. 212, 222, 126 S.Ct. 2546, 2553, 165 L.Ed.2d 466 (2006); Butler, 528 F.3d at 648; see also Medina v. Hornung, 386 F.3d 872, 877 (9th Cir.2004) ("[E]ven if a state court's decision was contrary to, or an unreasonable application of, clearly established federal law, habeas relief may still be denied absent a showing of prejudice."). "[T]he standard for determining whether habeas relief must be granted is whether the ... error `had substantial and injurious effect or influence'" on petitioner's sentence. Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 1714, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)); Butler, 528 F.3d at 648; see also United States v. Zepeda—Martinez, 470 F.3d 909, 913-14 (9th Cir.2006) (Apprendi error harmless under Recuenco when record contained "overwhelming and uncontroverted evidence" supporting factual finding court made in sentencing defendant to enhanced term). "Applying this standard, ... petitioner is not entitled to habeas relief." Brecht, 507 U.S. at 623, 113 S.Ct. at 1714.
The jury believed Jane Doe's testimony, rather than petitioner's testimony, and found petitioner guilty on all counts. Thus, it is clear that a jury would have found at least one of the aggravating factors beyond a reasonable doubt, i.e., that Jane Doe was "particularly vulnerable" or petitioner abused a "position of trust[,]" and under Cunningham, one aggravating
There also is no merit to petitioner's claim that the imposition of consecutive sentences by the trial court violated Apprendi and its progeny. To the contrary, the Supreme Court has recently determined that the Sixth Amendment does not require juries to make findings of fact regarding the imposition of consecutive sentences, and states may allow judges to make those factual findings. Oregon v. Ice, ___ U.S. ___, 129 S.Ct. 711, 714-15, 172 L.Ed.2d 517 (2009). Therefore, the California Supreme Court's denial of petitioner's consecutive sentencing claim was neither contrary to, nor an unreasonable application of, clearly established federal law.
To review the sufficiency of evidence in a habeas corpus proceeding, the Court must determine whether "`any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Lewis v. Jeffers, 497 U.S. 764, 781, 110 S.Ct. 3092, 3102-03, 111 L.Ed.2d 606 (1990) (citation omitted); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). All evidence must be considered in the light most `favorable to the prosecution, Lewis, 497 U.S. at 781, 110 S.Ct. at 3103; Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, and if the facts support conflicting inferences, reviewing courts "must presume— even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir.2004) (per curiam); Turner v. Calderon, 281 F.3d 851, 882 (9th Cir.2002). Furthermore, under the AEDPA, federal courts must "apply the standards of Jackson with an additional layer of deference." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir.2005), cert. denied, 546 U.S. 1137, 126 S.Ct. 1142, 1145, 163 L.Ed.2d 1000 (2006). These standards are applied to the substantive elements of the criminal offenses under state law. Jackson, 443 U.S. at 324 n. 16, 99 S.Ct. at 2792 n. 16; Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir.) (en banc), cert. denied, 543 U.S. 956, 125 S.Ct. 415, 160 L.Ed.2d 318 (2004).
In Ground Two, petitioner claims there is insufficient evidence to support the great bodily injury enhancement to count 4 since impregnating a minor victim cannot constitute "great bodily injury" within the meaning of P.C. § 12022.7(a).
Lodgment no. 2 at 12-15 (footnote omitted).
After the California Court of Appeal affirmed petitioner's judgment, the California Supreme Court rejected the argument that pregnancy does not constitute great bodily injury, within the meaning of P.C. § 12022.7(a), holding that "based solely on evidence of the pregnancy, the jury could reasonably have found that [the] 13-year old [victim] suffered a significant or substantial physical injury." People v. Cross, 45 Cal.4th 58, 66, 82 Cal.Rptr.3d 373, 380, 190 P.3d 706 (2008). The circumstances in Cross are quite similar to petitioner's case: the defendant married the minor victim's mother and began sexually molesting the minor over several months, resulting in the minor victim becoming pregnant and having a late-term abortion. Id. at 61-62, 82 Cal.Rptr.3d at 376, 190 P.3d 706. The California Supreme Court's "interpretation of state law ... binds [this] federal court sitting in habeas corpus." Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 604, 163 L.Ed.2d 407 (2005) (per curiam); Medley, 506 F.3d at 862.
Moreover, as the Court of Appeal held, there was more than sufficient evidence to support the jury's determination that petitioner personally inflicted great bodily when he impregnated 12-year old Jane Doe. The victim testified it was petitioner who impregnated her, RT 85:20-89:26, and the DNA analysis of the victim's and petitioner's blood and the fetal tissue showed the probability of petitioner's paternity was 99.99%. RT 141:26-143:11. The testimony of a single witness is sufficient to uphold a conviction, Bruce, 376 F.3d at 957-58; United States v. Larios, 640 F.2d 938, 940 (9th Cir.1981), and, absent exceptional circumstances not present here, a federal court in a habeas corpus proceeding cannot redetermine the credibility of witnesses when it has not observed those witnesses's demeanor. Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 851, 74 L.Ed.2d 646 (1983); see also Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir.1997) ("The reviewing court must respect the province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts by assuming, that the jury resolved all conflicts in a manner that supports the verdict." (quoting Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir.1995))). Thus, substantial evidence supports the jury's determination that petitioner personally inflicted great bodily injury on the victim. Cross, 45 Cal.4th at 66, 82 Cal.Rptr.3d at 380, 190 P.3d 706; see also People v. Superior Court (Duval) 198 Cal.App.3d 1121, 1131, 244 Cal.Rptr. 522 (1988) ("Pregnancy, abortion, or venereal disease constitute injury significantly and substantially beyond that necessarily present in the commission of an act of unlawful sexual intercourse.").
Accordingly, the California Supreme Court's denial of Ground Two was neither contrary to, nor an unreasonable application of, clearly established federal law.
IT IS RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation; (2) adopting the Report and Recommendation as the findings of fact and conclusions of law herein; (3) denying petitioner's request to stay these proceedings; and (4) directing that Judgment be entered denying the petition and dismissing the action with prejudice.
DATE: March 30, 2009.
P.C. § 12022.7(a) & (f) (2005).