Andrade v. Borders

• Decision Date: 01 August 2019
• Docket Number: Case No. 17-cv-04331-VC (PR)
• Parties: GLEISTON PORCINODE ANDRADE, Petitioner, v. DEAN BORDERS, Respondent.
• Court: U.S. District Court — Northern District of California

GLEISTON PORCINODE ANDRADE, Petitioner, v. DEAN BORDERS, Respondent.

Case No. 17-cv-04331-VC (PR)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

August 1, 2019

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY

Gleiston Porcinode Andrade filed a pro se petition for a writ of habeas corpus challenging the validity of his state criminal conviction. The petition and a certificate of appealability are denied.

PROCEDURAL BACKGROUND

On February 6, 2012, a jury found Andrade guilty of six counts of forcible oral copulation and seven counts of forcible rape. 2 Clerk's Transcript ("CT") 514-21; 523-27; ECF No. 21-3 at 524-31; 533-37. The jury found true the allegation that Andrade committed the offenses against multiple victims. Id. The trial court sentenced Andrade to 15 years to life with the possibility of parole for each count, for a total of 195 years to life with the possibility of parole. Id. at 608, 610.

Andrade appealed and, on July 24, 2015, the California Court of Appeal, in a published opinion, ordered a correction of a clerical error in the abstract of judgment but otherwise affirmed the judgment. People v. Andrade, 238 Cal. App. 4th 1274, 1311 (2015). On October 14, 2015, the California Supreme Court denied a petition for review. Ex. 10.

BACKGROUND

The California Court of Appeal summarized the evidence presented at trial as follows:

A. Rape of Jane Doe I

On April 17, 2009, 20-year-old Jane Doe I had been visiting with her sister at a friend's house in Oakland. When it was time for Jane Doe I's sister to go back home to Sacramento, she dropped Jane Doe I off near the Fruitvale Bay Area Rapid Transit (BART) station. Jane Doe I admitted that she had done some prostituting, but testified that she was not working that night. As Jane Doe I was walking to the station, she saw a black two-door Mercedes drive by in the opposite direction. The car parked, and a man, later identified as appellant, got out and began walking behind her. Appellant soon caught up with her, grabbed her arm, and put a gun in her back. He told Jane Doe I not to say anything, pulled her back to the Mercedes, and put her in the passenger seat. Once in the car, appellant pointed the gun at Jane Doe I's leg. Then he started to drive, stopping at two places, but moving on again, apparently uncomfortable with the amount of lighting in those areas. At some point, Jane Doe I asked appellant why he was doing this, and appellant struck her in the face. Eventually, after crossing High Street, he turned onto Tidewater Street and stopped in an industrial area. He demanded that Jane Doe I perform oral sex on him. He used a condom. Eventually, he said that was enough, climbed over to the passenger side, pulled off Jane Doe I's shorts and underwear, and began having vaginal intercourse with her. At one point, he said he could not feel anything, so he took off the condom, and then put his penis back in Jane Doe I's vagina. Appellant ejaculated into a napkin, which he threw out the window, along with the condom.

Appellant then drove the car to an alley. Appellant told Jane Doe I that he used to work for the Oakland Police Department, and that he would find her if she told anyone. He told her to get out of the car. Jane Doe I began walking towards the BART station in a daze. Some passersby came to her aid and drove her to Highland Hospital, where she was examined.

Lauri Paolinetti, a physician's assistant at Highland Hospital, testified as an expert in sexual assault examinations. She performed a sexual assault exam on Jane Doe I around 2:25 a.m. on April 18. Jane Doe I complained of mouth pain, and she had bruising and tenderness on her arms. There was also an abrasion to her right upper lip and bruising on her neck. Paolinetti noticed an injury to Jane Doe I's posterior fourchette, which she explained was the most commonly injured area in sexual assault cases.¹ Paolinetti collected oral, vaginal, and rectal swabs from Jane Doe I, as well as the clothing she was wearing.

Oakland Police Department Officer Michael Stolzman took Jane Doe I's statement at the hospital. Afterwards, he used her description to find the location he believed was the scene of her rape, which was a "very industrial street with just commercial buildings; no retail shops." However, he was unable to locate any evidence there.

Investigators showed Jane Doe I photo lineups on three occasions. In the first two lineups, which occurred April 29 and 30, Jane Doe I did not recognize any suspects. In the third lineup, which Jane Doe I saw on October 28, she identified appellant as the man who raped her.

B. Rape of Jane Doe II

On the evening of April 19, 2009, 16-year old Jane Doe II was working as a prostitute near 46th Avenue and International Boulevard in Oakland. She saw a "bluish . . . Toyota or [ ] Chevrolet" truck pull up. Jane Doe II got in and noticed that the interior was leather, with bench-style seating in the front. She asked the driver, later identified as appellant, whether he was an undercover officer, and appellant responded that he was not. Jane Doe II did not have a condom with her and asked to get one. Appellant drove her to a liquor store, where Jane Doe II purchased a condom.

Appellant then drove Jane Doe II down High Street, saying he knew of a "little place" where they could park that was "comfortable." He drove through a place with "nothing but a bunch of trucks and then just trees and dirt," eventually stopping in an isolated area Jane Doe II asked for the money. Appellant reached underneath his seat and pulled out a black gun, then pointed it at Jane Doe II's head. Jane Doe II panicked but could not open her door. Appellant told her to take her clothes off. He demanded that Jane Doe II perform oral sex on him, and Jane Doe II complied. Appellant was wearing a condom. Appellant then got on top of her and had vaginal intercourse with her. Eventually, he took the condom off and told her he had not finished. He placed his penis in Jane Doe II's mouth, then her vagina, then her mouth again, where he ejaculated. He threw the condom out the window.

As appellant began to drive Jane Doe II back to where he had picked her up, he said, "I do this to a lot of the girls. . . . I take them back there." When Jane Doe II got out of the truck, appellant told her, "No matter who you run to or tell, I don't exist." Jane Doe II went to a gas station, where a lady let her use her phone and drove Jane Doe II home. Later, Jane Doe II went to the hospital.

Denae Reed, a physician's assistant at Highland Hospital, performed a sexual assault exam on Jane Doe II. Reed testified as an expert on such exams. Using a special dye, Reed opined that Jane Doe II had sustained a minor injury to her posterior fourchette. Reed collected swabs and Jane Doe II's clothing.

Oakland Police Department Officer David Mathison took Jane DoeII's statement. He went to the location that Jane Doe II had described, which was the 4300 block of Tidewater Street. He was unable to locate a condom. Later, Jane Doe II was shown four photo lineups. She did not identify anyone in the first two. In the third, she identified an individual who looked similar to her rapist, but she said that it was not him. In the fourth lineup on October 30, 2009, she identified a picture of appellant as her rapist. She cried and shook as she made the identification.

C. Rape of Jane Doe III

On July 6, 2009, 25-year-old Jane Doe III was in Oakland hanging out with her friends. Later that evening, while she was alone and waiting for a ride on a side street near International Boulevard, she saw a small, light-colored, two-door car, possibly a Honda or Toyota pull up nearby. The driver and sole occupant of the car, later identified as appellant, asked if Jane Doe III "ha[d] anything." Jane Doe III believed he was asking for drugs. Jane Doe III was carrying about $10 worth of crack cocaine. As she and appellant were talking, they saw some police officers pass nearby. Appellant told her to get in the car, and Jane Doe III complied.

Once Jane Doe III was inside the car, she agreed to sell appellant crack cocaine, and she asked to see the money. Appellant reached towards the driver's side door and drew a black gun, which he pointed at Jane Doe III's stomach. Scared, Jane Doe III threw the drugs on his lap. Appellant told her to look forward and he began driving. During the drive, he told Jane Doe III he was a police officer. At one point, he spoke into a walkie-talkie. He showed Jane Doe III a silver badge. Jane Doe III noticed a FasTrak device in the middle of the front windshield.

Appellant parked the car in an industrial area near High Street. He told Jane Doe III to pull her pants down, and he threatened to kill her if she did not cooperate. Jane Doe III complied, and appellant pulled his own pants down. Appellant was wearing a condom and demanded that she perform oral sex on him. Jane Doe III was crying so hard that she was unable to do as she was commanded. Appellant then told Jane Doe III to get on her hands and knees; he got behind her in the passenger seat, and began having vaginal intercourse with her. When appellant was finished, he told Jane Doe III to put her clothes on and he threw the condom out the door.

Appellant drove Jane Doe III a short distance, then made a U-turn and stopped the car. He told her to get out and run the opposite direction that the car was facing. He had taken Jane Doe III's phone from her at some point, and returned it after wiping off his fingerprints with his shirt. Jane Doe III ran to a nearby McDonalds, where someone let her use their phone to call her friend, as Jane Doe III's cell phone battery had gone dead. Jane Doe III did not call 911 because she believed appellant was a police officer. Jane Doe III's friend picked her up and drove her to a family member's house in Richmond. Later that night, she wentto the hospital.

Martin Moran, a physician's assistant at Highland Hospital,

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