Garrett v. Grounds, 2:14-cv-1973 JAM DB P

• Decision Date: 03 August 2017
• Docket Number: No. 2:14-cv-1973 JAM DB P,2:14-cv-1973 JAM DB P
• Parties: HOLLIE GARRETT, Petitioner, v. R. GROUNDS, Respondent.
• Court: U.S. District Court — Eastern District of California

HOLLIE GARRETT, Petitioner, v. R. GROUNDS, Respondent.

No. 2:14-cv-1973 JAM DB P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

August 3, 2017

FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on August 26, 2011 in the Sacramento County Superior Court on one count of forcible oral copulation of a child and four counts of forcible oral copulation of a child in concert with another. In his original petition, petitioner seeks federal habeas relief on the grounds that: (1) none of his convictions are supported by substantial evidence; (2) the judgment must be reversed to remedy the jury's exposure to evidence the victim offered to take a polygraph test; (3) his trial counsel was ineffective for failing to object to the polygraph evidence; (4) the trial court erred in instructing the jury regarding aider and abettor liability; (5) the prosecutor committed misconduct by advising the jury that an aider and abettor is "just as guilty as" the perpetrator; (6) his convictions must be reversed because the DNA evidence upon which they are based is

//// unreliable; and (7) his trial counsel was ineffective in failing to move for a separate trial or separate jury.¹

Recently, petitioner filed a new habeas petition in this court alleging claims that the trial court violated his right to a fair and impartial jury when it denied his Batson/Wheeler motion and his appellate counsel was ineffective for failing to raise this issue on appeal. The court construed petitioner's new filing as a motion to amend his current petition. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's motion to amend be denied and his application for habeas corpus relief be denied.

FACTUAL BACKGROUND

In its unpublished memorandum and opinion affirming petitioner's and co-defendant Hamilton's judgments of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual and procedural summary:

In mid-July 2000, 14-year-old C.G. went to the movies with her boyfriend Cameo, a guy named "Chris," and her neighbor. During the movie, C.G. orally copulated Cameo. A couple of days later, on the evening of July 18, Chris showed up at C.G.'s mother's apartment and invited C.G. to watch a movie at his grandmother's home. As C.G. walked to the car with Chris, she noticed there was another person inside the car. Once inside the car, she saw Chris wave to two occupants of another car, who then followed them to a nearby park. When they arrived, C.G. asked Chris why they were at the park and not at his grandmother's house, and he told her not to worry, and that they would go to his grandmother's later. C.G. and the four men sat at a table in front of the restroom. All of the men were African-American and were in their late teens or early twenties.

While they were sitting at the table, Chris told C.G. that he needed to talk to her, took her by the wrist, and led her into the restroom. Once inside, Chris stood in front of the door, pulled his pants down, pushed C.G. down, and inserted his penis in her mouth. She slapped his legs and attempted to stand up, but he "kept pushing it." At thatpoint, she "started getting scared because in the bathroom it was real dark." After several minutes, one of the three other men from the table entered the restroom. She could not recall which one.

The second man pulled out his penis and began to "play" with himself. At that point, Chris and the second man "were over [C.G.] with their penises out." At some point Chris ejaculated, moved to the side, and the second man placed his penis in C.G.'s mouth. C.G. did not feel free to leave because Chris and the second man were holding her. She attempted to resist the second man, but he and Chris laughed and made derogatory comments directed at her. As C.G. was being forced to orally copulate the second man, Chris left for a while. C.G. was not sure whether the second man ejaculated.

When Chris returned, the other two men from the table were with him. At that point, there were "four people surrounding" C.G. in the restroom. She was scared. She tried to leave, but they would not let her. She did not know what they were going to do, so she just complied. A third man put his penis in her mouth while the other men laughed. She attempted to push the third man away. One of the men stopped after she slapped at his legs, but she could not recall which one. At trial, C.G. testified that she was sure she was forced to orally copulate three of the men but was unsure whether she was forced to orally copulate the fourth.

When the men finished forcing C.G. to orally copulate them, all four men stood over her and masturbated as she squatted down on the floor, and at least three of them ejaculated on her. At some point, Chris told the other men, "Her mom's on us. So we got to be cool," or something like that.

When the men were through, they allowed C.G. to leave the restroom. When she left, she rolled around on the grass in an attempt to get the semen off her clothes and hair. The men left in their respective cars. As they drove away one man shouted, "[T]hat's what you get for being so trusting, bitch," and another flipped her off. C.G. estimated that she was in the restroom for about an hour.

After rolling in the grass, C.G. began walking to her mother's apartment. On the way, she ran into a man who asked her if she was okay, and when she responded that she was not, he drove her home. When C.G. returned home, her hair and clothing were "all messed up" and she was crying. She told her mother she had been "violated," and that "they" had taken her to a park, drug her into a restroom, and "performed sexual acts on her." Her mother summoned the police and C.G.'s brother's girlfriend. The girlfriend arrived about five minutes later, before the police. C.G. was distraught and crying. C.G. told the girlfriend that she was in the restroom with some boys, and they made her perform oral sex on them.

Sacramento Police Officer Darrel Johnson was dispatched to C.G.'s mother's apartment at 9:40 p.m. When he arrived, C.G. was sitting on the floor with her hands covering her face and crying. She hadscratches on her shoulder and white stains on the right thigh and left knee areas of her pants. C.G. told Johnson that she had gone to a park with "Chris, and another suspect who met up with another group of male blacks in another car," and she was forced to orally copulate "[a]ll four suspects." She also told him "that two of the suspects began rubbing their penises in their hands and ejaculated on her." Johnson transported C.G. to U.C. Davis Medical Center for an evidentiary exam.

C.G. arrived in the emergency department at 11:00 p.m. and was examined for approximately two and one-half hours by Sheridan Miyamoto, a nurse practitioner with the Child and Adolescent Resource and Evaluation Diagnostic and Treatment Center. When Miyamoto asked her what had happened, C.G. stated that "she had gone to the park with a male she called Chris and some of his friends, and ... he had taken her into a bathroom and forced oral copulation on her. Then his friends came in and all of them forced oral copulation on [her]." C.G. also told Miyamoto that there were four men in the bathroom and that "all four of them began oral copulation and two actually stopped once she struck out at them and hit them." When taking notes during her examination, Miyamoto detailed the perpetrators by number so she could keep them straight. C.G. told Miyamoto that "number one and number two ejaculated and wouldn't stop despite [C.G.'s] protests. Number three and number four began to do oral copulation but stopped when [C.G.] hit them." She further indicated that three of the four men "ejaculated on to her body" after masturbating. Miyamoto collected C.G.'s clothing and scanned her body with a black light, looking for "any kind of a dried secretion on her skin." Miyamoto took samples of the dried secretions found on C.G.'s skin and cuttings from her hair. Miyamoto also collected C.G.'s clothing, placing each piece in a separate bag. The samples and the clothing then were sent to the Sacramento County crime lab.

Initially, the police were unable to identify any of the men, and C.G. "gave up" and attempted to block the incident from her mind. Eight years later, in 2008, she was contacted by Retired Reserve Officer Peter Willover, who works "cold" cases for the Sacramento Police Department. Willover advised C.G. that there had been a DNA "match" as to one of the men who assaulted her but did not tell her the individual's name. He asked her to look at a photographic lineup, and when she did so, she pointed to Hamilton. She told Willover, "I know this guy, but it's not [from] that. The guy, Chris, looks similar to him." C.G. later explained that her cousin had introduced her to Hamilton in 2004 or 2005, the two became friends and were intimate a couple of times. At no point during the time she was intimate with Hamilton did she think he was the person she knew as "Chris" from the park. She cried when she learned that the DNA found on her following the incident was a match for Hamilton and said she could not believe that Chris and Hamilton was the same person. At trial, C.G. identified Hamilton as the person she formerly knew as "Chris."

Officer Willover interviewed Hamilton on November 6, 2008, while Hamilton was in custody at Rio Consumnes CorrectionalCenter. Willover explained that he worked cold cases and that Hamilton's name "ha[d] come up as a suspect in a sexual assault that occurred back in 2000, involving a 14-year-old girl in a park rest room at Wood Park on Bodine Circle." Willover also showed Hamilton a photograph of the victim, whom Hamilton immediately recognized as

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