Allen v. Lizarraga, Case No. 5:15-cv-04387-EJD

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtEDWARD J. DAVILA United States District Judge
PartiesDONALD GUS ALLEN, Petitioner, v. JOE A. LIZARRAGA, Respondent.
Docket NumberCase No. 5:15-cv-04387-EJD
Decision Date17 August 2018

JOE A. LIZARRAGA, Respondent.

Case No. 5:15-cv-04387-EJD


August 17, 2018


Re: Dkt. No. 1

Petitioner has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his state conviction. Respondent filed an answer on the merits (Dkt. No. 14) and Petitioner filed a traverse (Dkt. No. 16). For the reasons set forth below, the petition for a writ of habeas corpus is DENIED.


On May 24, 2012, a jury found Petitioner guilty of forcible oral copulation (Cal. Penal Code § 288a(c)(2)), penetration with a foreign object (Cal. Penal Code § 289(a)(1)), corporal injury to a spouse (Cal. Penal Code § 273.5(e)), criminal threats (Cal. Penal Code § 422), false imprisonment (Cal. Penal Code § 236), and kidnapping (Cal. Penal Code § 207(a)). The court also found that petitioner had two prior strike convictions (Cal. Penal Code §§ 667(b) - (I), 1170.12), a prior serious felony conviction (Cal. Penal Code § 667(a)), and three prison priors (Cal. Penal Code § 667.5(b)). On June 21, 2012, the court sentenced petitioner to 157 years to life in state prison.

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On November 28, 2012, the California Court of Appeal, First Appellate District ("Court of Appeal") affirmed the judgment in an unpublished decision. Resp. Ex. 8, Dkt. No. 14-10 at 187-208. The California Supreme Court denied review on August 13, 2014. Resp. Ex. 10, Dkt. No. 14-11 at 85.

On September 16, 2015, Petitioner filed a petition for writ of habeas corpus in the Del Norte County Superior Court ("Superior Court"). Resp. Ex. 16, Dkt. No. 15-1. The Superior Court denied the petition on January 4, 2016. Resp. Ex. 17, Dkt. No. 15-2. Petitioner then filed an original petition for writ of habeas corpus with the Court of Appeal on January 12, 2016. Resp. Ex. 11, Dkt. No. 14-12 at 3-72. The Court of Appeal summarily denied the petition on March 30, 2016. Dkt. No. 14-12 at 278. The California Supreme Court denied review on June 8, 2016. Resp. Ex. 15, Dkt. No. 14-13 at 172-73.

Meanwhile, on September 24, 2015, petitioner filed a timely petition for writ of habeas corpus in this Court. Dkt. No. 1. This Court stayed the petition pending resolution of all state habeas proceedings. Dkt. No. 8. On March 21, 2017, this Court lifted the stay. Dkt. No. 11.


The California Court of Appeal summarized the facts of the case as follows:

A. Dale Silvey's Account of [T.]'s Rescue

Dale Silvey, [T.]'s son, received a call from his mother at 5:28 a.m. on March 8, 2012. Silvey heard his mother say, "Help me, Bud. I'm at the Shores."1 [T.] sounded scared and distressed. Silvey understood "the Shores" to mean Pacific Shores, an area off Kellog Road in Crescent City, near the beach and about a mile to a mile and a half from Allen's and [T.]'s home. Silvey, his girlfriend, Annie Dixon, and their two children drove to Pacific Shores to investigate.

Silvey drove along the roads of Pacific Shores for about two hours before finding [T.]'s Toyota 4-Runner truck parked on the road. The driver's side window was broken and Silvey saw clumps of hair soaked in blood. Clothing was in the road, 100 to 150 feet from the Toyota.

Silvey observed Allen on top of [T.] in the brush, 10 to 15 feet away

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from the Toyota. Allen was in a kneeling position, holding a blue coat over [T.], who was lying on her side in a fetal position. When he saw Silvey, Allen, who was wearing nothing except a T-shirt, ran to the Toyota.

Silvey and Dixon approached [T.], who was huddled in the coat and crying. [T.] asked Silvey and Dixon for help and to take her away. She had twigs and sticks in her hair and a bald spot. She also had scrapes, bruises and blood, mostly dried, on her face and legs.

Silvey and Dixon picked up [T.]'s clothing and drove her back to her house. As Silvey drove, [T.] was shaking and crying, trying to cover up and hide her face. Dixon called 911 from [T.]'s house.

The police arrived and [T.] made a statement to Officer Jerrin Gill. Silvey drove back to where [T.]'s Toyota was parked and another officer followed him. When Allen saw them coming, he left the Toyota and ran into the brush. The police later found Allen lying in the brush and took him into custody.

B. [T.]'s Statement to the Police and Medical Examination

A video recording of [T.]'s statement to Gill was played for the jury at trial. Gill asked [T.] what happened and [T.] replied: "Just drove us out there. I don't know, like I said before. He just drove us out there. Uhm, I don't know. We just, he just kept me out there. And took me out into the woods or whatever. Out into the brush. He, right. He proceeded to take my clothes off. My shoes, threw them. My pants, ripped my pants off me. My clothes. Kept me out there. Uhm, sodomized me. Uhm, tried smothering me, killing me, choking me. Uhm ripping my insides from the inside out. Uhm, just I don't know, he just goes crazy. He's just trying to kill me. Basically, trying to kill me and hurt me. Rape me. Wanting me to, uhm, do, give him oral sex or whatever. Tried to force me to give him oral sex. Just kept me out there."

[T.] said that Allen had taken her to Pacific Shores about 1:00 or 1:30 in the morning. Allen hit her with "chunks of wood" that were on the ground and tried stuffing rocks into her mouth. When they arrived at Pacific Shores, Allen "basically drug me out of the car. Had me out on the ground. Drug me outta the car. Tried to, you know, force me to give him oral sex." Allen then "proceeded to rip my clothes off. Threw my shoes out in the brush." [T.] continued: "He took my shoes, threw them ou[T.] He ripped my pants off. My underwear. He, uhm. He inserted his hands inside my insides. [¶] He forced his fingers in to my rectum and was pulling on my insides. [¶] He tried smothering me and choking me."

[T.] said that Allen tried choking her with his hands and smothering her with his jacket. She reached the point that she couldn't breathe because of what Allen was doing. [T.] was begging Allen to stop and yelling for help. She believed that Allen had stuffed debris inside of her.

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At one point Allen's pants were down and [T.] was able to get back into the Toyota. [T.] wanted to drive away, but was unable to start the vehicle. She locked the doors and made a phone call, but Allen broke the driver's side window. [T.] told Gill: "He's done this to me, he's taken me out there before. He's taken my phone, he's been taking clothes and leaving me out there. (unintelligible) but this is the worst time he's raped me. This is the worst."

[T.] was taken to the hospital where she was treated by Dr. George Isenhart. [T.] told Isenhart that she had been assaulted, had been beaten with sticks and fists, and had been assaulted vaginally and rectally. Isenhart noted tenderness on [T.]'s scalp, neck, abdomen and sacrum. [T.] had bruises on her back, thighs, and legs and abrasions on her buttocks. Isenhart observed rectal tenderness and a hemorrhoid that could have been caused by Allen inserting his fingers into her rectum and pulling.

C. Allen's Phone Calls from Jail

Recordings of 11 phone calls that Allen made from jail were played for the jury at trial. In one call, Allen told [T.] to inform Silvey and Dixon that they could have his Jeep if they did not testify. Allen told [T.]: "[W]e were asleep when [Silvey and Dixon] showed up." In another call, Allen told [T.] to talk to an attorney "and see what he says about if you can change your story." In yet another conversation, Allen told [T.], "[I]f you go down and change your statements I wouldn't have to worry about being gone that long. You have to do it before I fucking—before we start going to court, though. [¶] Just walk in and tell them we were on fucking crystal meth and we were drunk and on pain pills. . . . [¶] You could get an attorney and go down and change your statements. Just tell them everything was consensual and there ain't nothing they can do but drop the charges."

[T.] also told Allen in the telephone conversations about what he did to her during the night in question: "Yeah, my head, the whole right top of my head is completely bald from where you pulled all my hair out. . . . My whole back side is just road rash from you dragging me around." She told Allen that he caused her "permanent damage," that he "[p]ulled [her] rectum inside out" 10 times, and that he "[slugged her in her] stomach as hard as [he] could" four times.

D. [T.]'s Testimony at Trial

At trial, [T.] testified that when she spoke to Gill, "I believe what I told him was what I felt was the truth, but exaggerated." Before driving to Pacific Shores on the night in question, she and Allen drank a half-gallon bottle of whiskey and used methamphetamine. She said that she and Allen drove to Pacific Shores to make out and talk and that they were there between four and six hours. They did not have sexual intercourse and Allen never forced her to do anything that was sexual in nature.

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At one point, [T.] went back to the truck because she was cold and didn't want to be outside any longer. When she entered the truck, she locked the doors because she was thinking about leaving Allen there. She also locked the doors so she would have time to make a phone call to her son. She did not have the key to the truck and she needed help from her son to find the keys and get a ride home. Up to that point, Allen had not been angry with her, but she felt scared being there in the dark and Allen "was in some hallucinatory state of mind thinking there was other people out there that were going to . . . get me or him." Allen was talking to people she couldn't see and this started about an hour before she got into the truck. Allen banged on the window of the truck and then broke it. [T.] exited the truck from the passenger side; Allen did not force

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