Gardner v. Holland

• Decision Date: 28 October 2016
• Docket Number: Case No. 15–cv–04695–SI
• Citation: 218 F.Supp.3d 1048
• Parties: Jonathan Micah GARDNER, Petitioner, v. Kim HOLLAND, Respondent.
• Court: U.S. District Court — Northern District of California

218 F.Supp.3d 1048

Jonathan Micah GARDNER, Petitioner,

v.Kim HOLLAND, Respondent.

Case No. 15–cv–04695–SI

United States District Court, N.D. California.

Signed October 28, 2016

Jonathan Micah Gardner, Soledad, CA, pro se.

Pamela K. Critchfield, CA State Attorney General's Office, San Francisco, CA, for Respondent.

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

SUSAN ILLSTON, United States District Judge

INTRODUCTION

Jonathan Micah Gardner filed this pro se action for a writ of habeas corpus under 28 U.S.C. § 2254. The court issued an order to show cause why the writ should not be granted. Respondent has filed an answer and Gardner has filed a traverse. For the reasons below, the petition will be GRANTED on the Confrontation Clause claim.

BACKGROUND

Following a jury trial in Alameda County Superior Court, Jonathan Micah Gardner was convicted of forcible oral copulation and rape. On August 29, 2012, he was sentenced to 18 years consecutive to 25 years to life in prison. Gardner appealed to the California Court of Appeal and his conviction was affirmed in 2015. The California Supreme Court denied his petition for review in 2015.

The California Court of Appeal described the facts of this case as follows:

In September 2008, Oakland Police Officer Herbert Webber became involved in the investigation of an alleged forcible rape against Jane Doe in January 2002. The case was assigned to Webber when defendant's DNA came up as a cold case hit for DNA collected from the condom at the scene of the alleged rape. Webber contacted Jane Doe and took a recorded statement from her in January 2010. Webber showed Jane Doe a photo lineup with six photographs and she identified defendant as the person who raped her. Webber also contacted defendant, who had been placed under arrest. In May 2011, defendant was charged in this matter.

On April 30, 2012, at the conclusion of trial, the jury was unable to reach a verdict, and the court declared a mistrial.

The case was retried in July 2012.

Jane Doe's Testimony

On the night of January 15, 2002, Jane Doe left home to meet two friends at a pizzeria on the corner of 35th Avenue and International Boulevard in Oakland. She was 15 years old. Around her neck she was wearing a Mickey Mouse pendant on a gold chain. She planned to take a bus with her friends to Jack London Square to see a movie. Jane Doe was running late because she had to wait until her mother was asleep so she could leave without her mother knowing.

By the time Jane Doe arrived, her friends were not there. She waited a few minutes, decided they must have left already, and got change to use the pay phone in front of the pizzeria. She called her brother's friend Marcus, who agreed to give her a ride home from the pizzeria. He estimated he would be there in about 10 to 15 minutes.

Defendant, who had been released from jail only the day before, asked Jane Doe for her phone number when she went into the pizzeria for change. She "brushed him off" and ignored him because she did not know him.

After calling Marcus, Jane Doe went back inside the pizzeria to wait. After 15 or 20 minutes, she called Marcus again from the pay phone; he confirmed he was on the way. While she was on the phone, defendant asked her more than once for the time. Jane Doe was annoyed with him for interrupting her conversation. She hung up the phone, intending to go back into the pizzeria to wait.

As soon as the call was over, defendant grabbed her and forced her to walk along the side of the pizzeria up 35th Avenue. He told her not to run and not to make any noise. She felt something cold and hard pressed up against her side; she thought it was a gun. Defendant told her she was going to be his "bitch" and make him lots of money. Jane Doe tried to get away, but he pulled her back by her braids.

Defendant took her down an alleyway behind an apartment building. It was dark and she was afraid. A woman came to an upstairs window and looked out. Defendant told Jane Doe not to say anything, and because she was scared, she was quiet until the woman turned out the light and left the window.

Defendant gave Jane Doe a condom and told her to "give him head." When she refused, he got aggressive and loud. He picked up a board and threatened to "beat [her] ass with it." He demanded oral sex, but Jane Doe refused repeatedly and threw the condom on the ground. Defendant then pulled her hair, bringing Jane Doe to her knees. Jane Doe continued to protest, but defendant forced her to perform oral sex on him. This continued for a few minutes. Defendant did not ejaculate.

Defendant then told Jane Doe to take off her pants. She refused. Defendant was "extremely upset" and hit her on the left side of her face, but she still refused to take off her pants. He slapped her at least twice, then started pulling her pants down. She resisted but defendant eventually overpowered her. She felt defendant's weight on her from behind as she was pushed up against some tires that were in the yard. He grabbed her by the throat and choked her, breaking the chain and pendant she was wearing. Defendant inserted his penis into her vagina against her will. While doing this, he also bit Jane Doe on her face or neck.

Jane Doe knew defendant wore a condom. She "begged" him to wear one. Jane Doe thought he ejaculated because "he made a noise, and then he pulled it out." After he raped her, Jane Doe realized she no longer had the Mickey Mouse pendant or chain and did not know where they were.

At trial, Jane Doe identified the broken gold chain and the broken Mickey Mouse pendant she had been wearing that night. An evidence technician with the Oakland Police Department found the broken pendant when she was processing the crime scene. The evidence technician also found a used condom and a condom wrapper at the scene.

After defendant ejaculated, he pulled his pants up and told Jane Doe to pull hers up, too. He told Jane Doe that "for [her] age, [she] should have been better," but he was still going to make her his prostitute and make money. With his arms around her and holding her tightly, defendant walked Jane Doe back to 35th Avenue and then north on 35th to a bus stop. Before getting on the bus, defendant warned her not to say anything or ask anyone for help.

While they were on the bus, defendant told Jane Doe they were going to see a friend of his who would pay $500 for a "date" with her, which she understood to mean that the friend would pay to have sex with her. She told defendant she did not want to do that. When they got off the bus, they went into a liquor store because defendant wanted Jane Doe to buy him a beer. She told him she was not old enough to buy beer. While defendant waited at the front of the store, Jane Doe got the beer for defendant and a soda for herself; defendant paid for the drinks with her money. She did not say anything to the clerk working in the store because she did not believe he would help her.

As they left the store, Jane Doe saw a police officer sitting in a police car in the parking lot. Jane Doe was afraid and did not think she could get the officer's attention.

They left the store and walked for several blocks, turning several times. It seemed to Jane Doe that defendant was lost. Defendant kept talking about the $500 "date." After about 20 to 30 minutes, they stopped at a house but defendant did not knock on the door. After sitting on the curb for 5 or 10 minutes, Jane Doe started crying. Defendant asked what was wrong with her, which she thought "was a pretty stupid question." Jane Doe told him she "didn't want to be there;" she "didn't want to date;" she "just wanted to go home."

Defendant was "silent for a moment," just sitting there, and then said, "okay, you can leave." Jane Doe was confused and scared to move. Defendant told her to "walk across the street and not turn around." Jane Doe was afraid he was going to shoot her. She started walking across the street, then started running. She looked back and defendant was running after her. She ran to the nearest house that had a porch light on, banged on the door and asked the occupants to call 911.

Law Enforcement and Medical Response

Jane Doe told the responding police officer what had happened. The officer took her back to the location where she was raped. The evidence technician who processed the crime scene spoke with Jane Doe and noticed minor swelling over her left eyebrow.

The police took Jane Doe to the hospital for a rape examination. She was uncomfortable because she had never been to the doctor without her mother. After the examination, the police took her home. It was after midnight. Jane Doe never told her mother or anyone else what happened that night. She did not want her mother to be mad at her for going out without permission, and she blamed herself and felt ashamed.

Jane Doe stopped following up with the police because they told her they could not talk to her about the case without talking to her mother. Jane Doe did not want her mother to know what had happened, so she told the police she did not want to pursue it. In the eight years that followed the incident, Jane Doe did not talk to anyone about the events of that night other than her therapist and her fiancé until she gave her statement to Officer Webber in 2010.

The physician's assistant who examined Jane Doe at the hospital found injuries to her genital area that were consistent with sexual assault. He could not determine with "scientific certainty" that they were caused by a sexual assault, but it was his opinion that such injuries were much more common in a sexual assault than in consensual sex. The injuries were consistent with Jane Doe's description of what had happened.

Defendant's Prior Sexual Offenses

Aaliyah Doe testified pursuant to Evidence Code section 1108 [footnote 2 omitted] about sexual offenses that defendant committed in February 2002, one month after the alleged rape of Jane Doe. Aaliyah Doe met defendant on a telephone party chat line. She told him she was 15,

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