Cogswell v. Beard

• Decision Date: 22 January 2014
• Docket Number: Civil No. 11cv1559-MMA (WVG)
• Citation: Cogswell v. Beard, Civil No. 11cv1559-MMA (WVG) (S.D. Cal. Jan 22, 2014)
• Court: U.S. District Court — Southern District of California
• Parties: HENRY IVAN COGSWELL, Petitioner, v. DR. JEFFREY BEARD, Secretary, Respondent.

HENRY IVAN COGSWELL, Petitioner, v. DR. JEFFREY BEARD, Secretary, Respondent.¹

Civil No. 11cv1559-MMA (WVG)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

January 22, 2014

REPORTAND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE DENYING PETITION FOR A WRIT OF HABEAS CORPUS

This Report and Recommendation is submitted to United States District JudgeMichae M. Anello pursuant to 28 U.S.C. § 636(b)(1)andLocal CivilRule HC.2 of the United States District Court for the Southern District of California.

I.FEDERAL PROCEEDINGS

Henry Ivan Cogswell(hereinafter "Petitioner"), is a state prisoner proceeding pro se with a First Amended Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.(ECF No. 43.)Petitioner was convicted by a San Diego County Superior Court jury of three counts of forcible rape, one count of rape by a foreign object, and one count of forcible oral copulation.(Lodgment No. 28, Clerk's Tr. ["CT"]at 196-99.)The jury returned true findings on sentenceenhancement allegations that Petitioner was previously convicted of forcible rape and therefore qualified as a habitual sex offender, was on parole at the time he committed the instant offenses, was previously convicted of a serious felony which constituted a "strike" under California's Three Strikes law, and had served a prison term but had not remained free of custody or free of an offense resulting in a violent felony conviction for ten years thereafter.(CT 202-03.)He was sentenced to 105 years-to-life in state prison.(CT 118.)

Petitioner alleges here that his state and federal constitutional rights were violated because: (1)he was unable to confront and cross-examine the victim due to the trial court's erroneous ruling that she was an unavailable witness and that her preliminary hearing testimony could therefore be used in lieu of live testimony; (2) evidence of prior uncharged sex offenses was erroneously admitted; (3) two jurors and a witness committed misconduct by communicating outside the courtroom during the trial; (4) the cumulative effect of the errors undermined the fundamental fairness of the trial; (5) the sentence constitutes cruel and unusual punishment; (6) evidence of Petitioner's prior drug use and parole status was erroneously admitted; (7) trial counsel provided ineffective assistance by failing to request a mistrial based on the admission of evidence of Petitioner's prior drug use and parole status; (8) trial counsel provided ineffective assistance when counsel elicited testimony about Petitioner's prior drug use and parole status; (9) trial counsel provided ineffective assistance when counsel failed to request the jury be instructed on lesser included offenses; (10)the trial court erred in failing to sua sponte instruct the jury on lesser included offenses; and (11) the cumulative effect of the errors amounts to a violation of due process.(First Amended Petition["FAP"]at 3-4.²)Petitioner also requests an evidentiary hearing.(Id. at 4.)

Respondent has filed an Answer ("Ans.") to the Petition along with an incorporated Memorandum of Points and Authorities in support ("Ans.Mem."), and has lodged portions of the state court record.(ECFNos. 14-15, 53-54.)Respondent contends that federal habeas relief is unavailable because the adjudication by the state court of Petitioner's claims did not involvean objectively unreasonable application of clearly established federal law, and that Claim 10 is procedurally defaulted and does not present a claim that is cognizable on federal habeas.(Ans. at 2-3;Ans. Mem.at 18-47.)Petitioner has filed a Traverse.(ECF No. 59.)

For the following reasons, the Court finds that Petitioner is not entitled to habeas relief because the adjudication of his claims by the state court did not involve an objectively unreasonable application of clearly established federal law.The Court also finds that an evidentiary hearing is unnecessary.The Court therefore RECOMMENDS the Petition be DENIED without holding an evidentiary hearing.

II.STATE PROCEEDINGS

In a five-count Information filed in the San Diego County Superior Court on October 18, 2005, Petitioner was charged with three counts of forcible rape in violation of California Penal Code section 161(a)(2), one count of forcible oral copulation in violation of Penal Code section 288a(c)(2), and one count of rape by a foreign object in violation of Penal Code section 289(a)(1).(CT 1-7.)The Information also alleged that Petitioner had been previously convicted of forcible rape within the meaning of Penal Code section 667.61(a)(c)(d), had served a prior prison term within the meaning of Penal Code section 667.5(a), that he qualified as a habitual sex offender within the meaning of Penal Code section 667.71(a), and that he had committed the offenses while on parole within the meaning of Penal Code section 1203.085(b).(Id.)

The victim was declared an unavailable witness and her preliminary hearing testimony was read to the jury in lieu of her live testimony, over a defense objection, after the prosecutor indicated that the victim had refused to appear at trial and the prosecution had taken all the steps available to secure her appearance, short of ordering her taken into custody and threatening to have her held in contempt, because state law prevented incarcerating or punishing a sexual assault victim for refusing to testify.On February 15, 2006, Petitioner was convicted on all five counts.(CT 195-99.)On February 16, 2006, following a bifurcated trial, the jury returned true findings on the enhancement allegations.(RT 202-03.)A motion for a new trial was denied on June 9, 2006, and Petitioner was sentenced on July 14, 2006.(RT 373-75.)

Petitioner appealed, raising Claims 1-4 presented here.(LodgmentNos. 1, 30.)On October 31, 2007, the state appellate court, in a published opinion, reversed the conviction on the basis that state law does not excuse sexual assault victims from the ordinary duty to testify when subpoenaed, and they may be punished for refusing to testify, thus, in failing to take the victim into custody after she refused to voluntarily appear at trial, the prosecution had not used "every reasonable means" to secure the attendance of "an essential witness" whose "appearance was crucial."People v. Cogswell, 68 Cal.Rptr.3d 28, 40-41(Cal.App.Ct.2007), reversed byPeople v. Cogswell, 48 Cal.4th 467(2010).The California Supreme Court reversed, finding that the prosecution had in fact exercised reasonable diligence in attempting to secure the victim's attendance at trial, in that the prosecutor was in a unique position to determine that taking the victim into custody would not have altered her resolve to refuse to testify, and since state law provides that sexual assault victims cannot be held in contempt and jailed until they agree to testify, the prosecutor reasonably concluded it would have been a waste of time and resources to have her taken into custody.People v. Cogswell, 48 Cal.4th 467, 478-79(2010).The case was remanded for consideration of Petitioner's other claims, which had not been addressed by the appellate court.Id. at 480.

On remand, the appellate court denied Claim 2-4 on their merits and affirmed the conviction in an unpublished opinion filed on August 12, 2010.(LodgmentNo. 4.)Petitioner's subsequent petition for review was denied by the California Supreme Court on December 6, 2010.(LodgmentNos. 5-6.)His petition for a writ of certiorari was denied by the United States Supreme Court on June 6, 2011.Cogswell v. California, 131 S.Ct. 2961(2011).

Petitioner filed a habeas petition in the superior court on January 18, 2011, raising Claim 1 presented here, along with a claim (not presented here) which involved the difference between a general and specific intent crime.(LodgmentNo. 10.)The appellate court denied the habeas petition on March 4, 2010, on the basis that the state supreme court had already rejected Claim 1, and because the general/specific intent claim should have been raised on direct appeal.(LodgmentNo. 11.)

On July 12, 2011, after Petitioner initiated this federal habeas action, he filed a second habeas petition in the state superior court raising Claims 5-8 and 11.(LodgmentNo. 12.)The superior court denied relief on September 21, 2011, on the basis that: (1) the claims should have been raised on direct appeal; (2)they were improperly presented in a successive habeas petition; and (3)Petitioner had failed to make a prima facie showing of specific facts which would entitle him to relief.(LodgmentNo. 13.)

Petitioner filed a habeas petition in the state appellate court on December 1, 2011, in which he raised Claims 5-11 presented here.(LodgmentNo. 14.)That petition was denied on December 20, 2011, on the basis that: "Petitioner has failed to include any documentation supporting his contentions.(People v. Duvall(1995)9 Cal.4th 464, 474.)"(LodgmentNo. 15)(italics in original).This Court granted Petitioner's motion for stay and abeyance on December 20, 2011, and stayed this action for the purpose of allowing Petitioner to exhaust his state court remedies as to Claims 5-11.(ECF No. 16.)

On February 27, 2012, Petitioner filed another habeas petition in the appellate court in which he again presented Claims 5-11, but in which he also provided record citations in support of the claims.(LodgmentNo. 16.)That petition was denied by an order filed on March 22, 2012, in which the state appellate court addressed the merits of Claims 5-8 and 11, but declined to address Claims 9 and 10 (related to the failure to instruct on lesser included offenses) on the basis that they had not been presented to the trial court.(LodgmentNo. 17.)On August 10, 2012, Petitioner filed a habeas petition in the state appellate court in which he again presented Claims 9-10, and explained that they had in fact been addressed by the trial court during the trial.(Lodgment...