Frank v. Yates, 1:11–CV–01175 LJO GSA HC.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtLAWRENCE J. O'NEILL
Citation887 F.Supp.2d 958
PartiesKenneth A. FRANK, Petitioner, v. James A. YATES, Warden, Respondent.
Docket NumberNo. 1:11–CV–01175 LJO GSA HC.,1:11–CV–01175 LJO GSA HC.
Decision Date07 August 2012

887 F.Supp.2d 958

Kenneth A. FRANK, Petitioner,
James A. YATES, Warden, Respondent.

No. 1:11–CV–01175 LJO GSA HC.

United States District Court,
E.D. California.

Aug. 7, 2012.

[887 F.Supp.2d 963]

Kenneth A. Frank, McFarland, CA, pro se.




LAWRENCE J. O'NEILL, District Judge.

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

On June 13, 2012, the Magistrate Judge issued a Findings and Recommendation that recommended the petition be DENIED WITH PREJUDICE. The Findings and Recommendation was served on all parties and contained notice that any objections were to be filed within thirty (30) days of the date of service of the order.

On July 13, 2012, Petitioner filed objections to the Findings and Recommendation. Respondent did not file a reply. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file and having considered the objections, the Court concludes that the Magistrate Judge's Findings and Recommendation is supported by the record and proper analysis, and there is no need to modify the Findings and Recommendations based on the points raised in the objections.

A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, and an appeal is only allowed in certain circumstances. Miller–El v. Cockrell, 537 U.S. 322, 335–36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:

(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.

(b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings.

(c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from—

(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or

(B) the final order in a proceeding under section 2255.

(2) A certificate of appealability may issue under paragraph (1) only if

[887 F.Supp.2d 964]

the applicant has made a substantial showing of the denial of a constitutional right.

(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).

If a court denies a petitioner's petition, the court may only issue a certificate of appealability “if jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller–El, 537 U.S. at 327, 123 S.Ct. 1029;Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). While the petitioner is not required to prove the merits of his case, he must demonstrate “something more than the absence of frivolity or the existence of mere good faith on his ... part.” Miller–El, 537 U.S. at 338, 123 S.Ct. 1029.

In the present case, the Court finds that reasonable jurists would not find the Court's determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Petitioner has not made the required substantial showing of the denial of a constitutional right. Accordingly, the Court hereby DECLINES to issue a certificate of appealability.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendation issued June 13, 2012, is ADOPTED IN FULL;

2. The Petition for Writ of Habeas Corpus is DENIED WITH PREJUDICE;

3. The Clerk of Court is DIRECTED to enter judgment; and

4. The Court DECLINES to issue a certificate of appealability.


GARY S. AUSTIN, United States Magistrate Judge.

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.


Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a judgment of the Superior Court of California, County of Kern, following his conviction by jury trial on December 20, 1989, of two counts of rape by means of an intoxicating or anesthetic substance in violation of Cal.Penal Code § 261(3). ( See Petition at 2.) Prior to sentencing, Petitioner absconded. Sixteen years later, Petitioner was arrested in Israel and extradited to the United States. On December 3, 2007, Petitioner was sentenced to twelve years in prison. ( See Petition at 2.)

Petitioner appealed. On January 22, 2009, the California Court of Appeal, Fifth Appellate District (“Fifth DCA”), affirmed Petitioner's judgment in a reasoned decision. ( See Lodged Doc. No. 7.) Petitioner then filed a petition for review in the California Supreme Court. ( See Lodged Doc. No. 8.) The petition was summarily denied on April 15, 2009. ( See Lodged Doc. No. 9.)

Petitioner next filed a petition for writ of habeas corpus in the Kern County Superior Court on April 23, 2010. ( See Lodged Doc. No. 10.) On June 23, 2010, the superior court denied the petition in a reasoned opinion. ( See Lodged Doc. No. 11.) Petitioner

[887 F.Supp.2d 965]

then filed a petition in this Court on July 6, 2010, in case no. 1:10–CV–01212 GSA HC. On August 3, 2010, 2010 WL 3057628, the Court dismissed the petition without prejudice for failure to exhaust state remedies; however, one of the claims was dismissed for failure to state a federal question. Petitioner then filed a habeas petition in the Fifth DCA, but the petition was summarily denied. ( See Lodged Doc. Nos. 12, 13.) He then filed a habeas petition in the California Supreme Court, but the petition was denied without comment. ( See Lodged Doc. Nos. 14, 15.)

On July 11, 2011, Petitioner filed the instant federal habeas petition. On December 20, 2011, the Court dismissed Petitioner's first ground as successive to the claim the Court had dismissed in the previously-filed federal petition. On April 3, 2012, Respondent filed an answer to the petition. On April 27, 2012, Petitioner filed a traverse.


Count 1.

“On Friday, February 7, 1986, Dr. Ilene P., a clinical psychologist and teacher at a local college, went to Todd's Bar. There she saw Frank whom she recognized as a physician she had met at a reception for a local judge and whom she had spoken to on business matters. She approached Frank, joined him, and had two drinks. When she declined his invitation to go to a movie, Frank decided to accompany her to temple. Frank then took Dr. P. to a meeting at the medical center where he worked. After dinner, Dr. P. accepted Frank's invitation to watch a video at his apartment but made it clear she was not interested in sex. They arrived at his apartment about 11:30 p.m.

“Dr. P. declined Frank's offer of wine but accepted some Cafe Vienna. She expressed distaste at its sweetness. Frank twice urged her to drink the whole cup which she eventually did. Shortly thereafter, Dr. P. became very drowsy and fell asleep on the couch while watching the video. She remembered the two of them leaving his apartment about 1:30 a.m. but was not fully conscious until 6 p.m. on Saturday, when she was awakened by the ringing of the telephone and, to her surprise, found herself naked in bed with Frank. Frank left shortly thereafter and Dr. P., too groggy to work as planned, slept until 7 a.m. the next morning, Sunday.

“Dr. P. cancelled a date for hiking with Frank but agreed to have breakfast with him and told him she suspected she had been drugged or gotten food poisoning. Throughout the day Dr. P. continued to feel tired, nauseous, and ‘headachy.’ In the late afternoon, Frank told her that they had had sexual relations and that he put a drug in her coffee thinking it would relax her.

“The following morning, Dr. P. could not recall the name of the drug Frank had mentioned. She called his office; he told her it was Ativan. She submitted to a urine and blood test that afternoon; the test was negative for Ativan.

“Dr. P. subsequently recalled several things that happened between 1:30 a.m. and 6 p.m. on Saturday: She recalled being in a shower with Frank and being in bed with him. She also remembered

[887 F.Supp.2d 966]

Frank lying on top of her with his penis in her vagina.

“When police investigated Dr. P.'s complaint, Frank admitted being with her but denied any use of drugs. He admitted using Cafe Vienna with tranquilizers to quiet his dogs and put them to sleep. Cafe Vienna was seized from Frank's apartment with his consent, but tested negative for Ativan. There were no dogs in the apartment.

Count 2.

“On October 12, 1985, Ms. Beverly R., a student at San Joaquin Valley College, and a female friend went to a local bar for a glass of wine. About 2:20 a.m. they went to another bar where the friend introduced Ms. R. to Frank and his brother. Shortly thereafter Frank agreed to drive Ms. R. home but stopped first at his apartment ‘to get something.’ At Frank's suggestion, they smoked a pipeful of marijuana. When Ms. R. commenced coughing, Frank fixed her a drink that tasted like coffee but was very sweet and which he told her contained cognac.


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