Cuevas v. Sullivan, Case No. 1:18-cv-01281-NONE-JDP

• Decision Date: 30 September 2020
• Docket Number: Case No. 1:18-cv-01281-NONE-JDP
• Court: U.S. District Court — Eastern District of California
• Parties: JOSE LUIS KELLY CUEVAS, Petitioner, v. J. SULLIVAN, Respondent.

JOSE LUIS KELLY CUEVAS, Petitioner, v. J. SULLIVAN, Respondent.

Case No. 1:18-cv-01281-NONE-JDP

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

September 30, 2020

FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR A WRIT OF HABEAS CORPUS AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY

OBJECTIONS DUE WITHIN 30 DAYS

ECF No. 8

Petitioner Jose Luis Kelly Cuevas, a state prisoner proceeding without counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2254.¹ ECF No. 8. Petitioner claims that he received: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; and (3) a disproportionate sentence. See id. The California Court of Appeal rejected his claim of ineffective assistance of trial counsel on the merits, see People v. Cuevas, No. F071956, 2016 Cal. App. Unpub. LEXIS 9031 (Dec. 15, 2016); ECF No. 36-12, and the California SupremeCourt denied review of his ineffective assistance of trial and appellate counsel claims in a subsequent habeas petition, see Cuevas on H.C., No. S242714 (Cal. Aug. 23, 2017); ECF No. 36-15 at 1. Petitioner's disproportionate sentence claim was rejected summarily by the California Supreme Court in response to a habeas petition. ECF No. 41 at 113. For the reasons set forth below, we recommend that the court deny the petition.

I. Background

In 2015, a jury sitting in Fresno County convicted petitioner of three counts of sexual intercourse or sodomy with a child under ten years of age and two counts of copulation or sexual penetration of a child under ten years of age. ECF No. 36-12 at 2. Petitioner was sentenced to 105 years to life in state prison. Id. at 5.

The court sets forth below the pertinent facts of the underlying offenses, as summarized by the California Court of Appeal. A presumption of correctness applies to these facts. See 28 U.S.C. § 2254(e)(1); Crittenden v. Chappell, 804 F.3d 998, 1010-11 (9th Cir. 2015).

Defendant's daughter, N., was eight years old when she testified at trial. N. testified that defendant "put his private in mine." She was referring to her "back private," which she uses to "do the restroom." N. testified defendant had done this about seven times, beginning when she was five years old.

N. testified defendant "usually always does that when he's drunk" and fights with her mother. N. testified that it "feels hard" and "hurts" when defendant did this to her, but she did not scream although she was scared. When defendant was done, he would tell N. to "never tell anybody."

N. testified that defendant "put his private one time in my front private." On another occasion, defendant put his fingers inside her "front private" and she could feel him "scratching." This stung and hurt. Defendant also made N. "suck" his "front private" when he was drunk; it "felt nasty" and made N. feel like she was going to choke.

N. never told her mother what was happening because she was scared her mother would not want to live with her anymore and would run away. N. told her sister and later her three cousins. The three cousins told their mother, R.R., who became aware of the incidents in 2014 about a year prior to the trial. R.R. recorded a conversation with N., which was played at trial and a transcript provided. In the tape, N. stated defendant would come to her room and do "something nasty" to her; that defendant makes her "suck his thing" and "he licks his fingers and puts it in her front butt." N.described some of the incidents in detail. While defendant was engaged in these acts against N., he would be watching pornography, which ended up on N.'s iPod.

N. did not want defendant to live with her anymore. N. also told her aunt that defendant told her not to tell anyone or he would hit her with his belt. R.R. described N. as appearing "real scared" that defendant would find out she had told someone about the abuse and he would hit her with the belt.

R.R. told her mother, N.'s grandmother, about what N. stated defendant had done to her. The day after this taped conversation, they took N. to the hospital.

M.R., N.'s mother, testified that when she and defendant fought, she would not allow him to sleep in their bedroom. M.R. and defendant both worked, but not always the same shift and there were times defendant was alone with N. M.R. first became aware of what was happening between defendant and N. when her sister, R.R., told her.

Tonya Franklin, a hospital social worker, interviewed N. After completing her interview with N., which lasted about 30 minutes, Franklin contacted the Firebaugh Police Department and a medical doctor at the hospital.

Firebaugh Police Officer Brett Miller went to the hospital to interview N. Once Miller determined N. knew the difference between a lie and the truth, he proceeded to interview her. N. provided details to Miller of the time, place, and ways in which defendant had touched her inappropriately.

Miller and another officer then interviewed defendant. Defendant initially denied ever getting kicked out of the bedroom he shared with M.R., then later admitted this happened. When he was not sleeping in the same room as M.R., defendant would sleep in N.'s bed, but denied ever touching N. inappropriately.

Jaylene Osena, a nurse practitioner at the hospital, conducted a physical examination of N. N.'s anus and hymen appeared normal. Osena testified she could not determine medically one way or the other whether sexual abuse had taken place. Osena also interviewed N. N. told Osena that defendant put his "privates" in her "behind," mouth, and "front part of privates."

Christina Valencia, another social worker at the hospital, spoke with N. N. told Valencia that "her father had put his privates in her privates."

Firebaugh Police Officer Magda Martinez arranged for an "MDIC interview" of N. The recorded interview was played for the jury and a transcript of the interview included as an exhibit. N. told the interviewer that defendant put his "private" in her "behind" more than five times and would watch "nasty videos" on his phone while he did so; put his finger in her "front private;" put his "private" inher "front butt;" and forced her to lick and suck on "his private."

David Love, a licensed therapist, testified as an expert on Child Sexual Abuse Accommodation Syndrome. Love testified to each of the five components of the syndrome: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed, conflicting, unconvincing disclosure; and (5) retraction.

ECF No. 36-12 at 2-4.

II. Discussion

A. Federal Habeas Standard of Review

A federal court can grant habeas relief when a petitioner shows that his custody violates federal law. See 28 U.S.C. §§ 2241(a), (c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 374-75 (2000).² Section 2254 of Title 28, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), governs a state prisoner's habeas petition. See Harrington v. Richter, 562 U.S. 86, 97 (2011). To decide a § 2254 petition, a federal court examines the decision of the last state court to have issued a reasoned opinion on petitioner's habeas claims. See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). In general, § 2254 requires deference to the state court system that determined the petitioner's conviction and sentence.

Under AEDPA, a petitioner can obtain relief on federal habeas claims that have been "adjudicated on the merits in state court proceedings" only if he shows that the state court's adjudication resulted in a decision (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "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). The petitioner's burden is great. See Harrington v. Richter, 562 U.S. 86, 103 (2011) ("[To gain relief under § 2254(d)(1), the petitioner] must show that the state court's ruling . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement"); see Davis v. Ayala, 576 U.S. 257, 271 (2015) (quoting § 2254(e)(1)) (Under§ 2254(d)(2), "[s]tate-court factual findings . . . are presumed correct; the petitioner has the burden of rebutting the presumption by 'clear and convincing evidence.'").

If obtaining habeas relief under § 2254 is difficult, "that is because it was meant to be." Richter, 562 U.S. at 102. As the Supreme Court has put it, federal habeas review "disturbs the State's significant interest in repose for concluded litigation, denies society the right to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority." Id. at 103 (citation omitted). Our habeas review authority serves as a "guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Id. at 102-103.

B. Ineffective Assistance of Counsel

a. Standard of Review

The two-step inquiry from Strickland v. Washington governs a federal habeas petitioner's claim of ineffective assistance of counsel. 466 U.S. 668, 687 (1984). First, a criminal defendant must show some deficiency in performance by counsel that is "so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Id. We must ask whether his strategic choices were reasonable under "prevailing professional norms" and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 688-89. The entire performance of the attorney must be considered; it is "difficult to establish ineffective assistance when counsel's overall performance indicates active and capable advocacy." See Richter, 562 U.S. at 111 (2011). Second, the defendant must show that the deficient performance caused him...