Gracia v. Haws

• Decision Date: 06 June 2011
• Docket Number: 1:10-CV-00273 GSA HC
• Court: U.S. District Court — Eastern District of California
• Parties: ROBERT MEJIA GRACIA, Petitioner, v. F. HAWS, Warden, Respondent.

ROBERT MEJIA GRACIA, Petitioner,

v.F. HAWS, Warden, Respondent.

1:10-CV-00273 GSA HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: June 6, 2011

ORDER DENYING PETITION FOR WRIT OF

HABEAS CORPUS

ORDER DIRECTING CLERK OF COURT TO

ENTER JUDGMENT FOR RESPONDENT

ORDER DECLINING ISSUANCE OF

CERTIFICATE OF APPEALABILITY

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have consented to the jurisdiction of the magistrate judge pursuant to 28 U.S.C. § 636(c).

BACKGROUND¹

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Tulare, following his conviction by jury trial on July 13, 2007, of five counts of forcible oral copulation (Cal. Penal Code § 288a(c)(2)), one count of kidnapping to commit forcible sex crimes (Cal. Penal Code § 209(b)(1)), and one count of forcible rape (Cal. Penal Code § 261(a)(2)). The trial court reduced the forcible rape conviction to assault with intent to commit rape. Petitioner was sentenced to seven years plus six consecutive 25 years-to-life terms in state prison.

Petitioner filed a timely notice of appeal. On March 27, 2009, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), remanded the case to the superior court to: strike the one-year prior prison term for the prior burglary conviction: stay the sentence for kidnapping; and determine whether the previously stayed count of forcible oral copulation should be reinstated. Judgment was affirmed in all other respects. Petitioner then filed a petition for review in the California Supreme Court. The petition was summarily denied on June 17, 2009.

On February 18, 2010, Petitioner filed the instant federal habeas petition. He presents the following claims: 1) He alleges the trial court abused its discretion by denying his post-conviction Marsden² motion, because Petitioner had presented sufficient proof of ineffective assistance of counsel; 2) He contends the evidence is insufficient to support the convictions; and 3) He alleges the prosecution failed to prove all elements of the offense of kidnapping with intent to commit sexual offenses. On June 21, 2010, Respondent filed an answer to the petition. Petitioner did not file a traverse.

STATEMENT OF FACTS³

On October 8, 2006, Heather M., Samantha S., and Melina C. were standing outside an outreach shelter in Tulare when Samantha received a phone call. Shortly thereafter, a van pulled up, driven by a man named Johnny. Appellant was in the passenger seat.

The girls thought they were on their way to a hotel room to "get high." While in the van, appellant told Samantha that she "owed him." Appellant asked Heather if she had any knowledge of computers, as appellant explained that he needed to steal money from certain accounts and was having trouble with the person who was supposed to help him do so. Appellant also asked Heather if she knew how to make fraudulent checks. Heather told appellant she knew a lot about computers.

Appellant asked Heather if she was a Bulldog gang member. He told her she "look[ed] good, and he would have fun with [her]." Appellant stated that it would not be good if Heather was a Bulldog gang member because he was a Norteno gang member. Heather noticed that the van was headed out of town and she became afraid. She asked appellant where they were going, but he said not to worry.

They eventually arrived at Benito Munoz's garage in Porterville. The metal door to the garage was broken. To open it required manually lifting the heavy garage door and propping it up with a bucket filled with dirt and cement. To enter or leave the garagerequired crawling under the door through the low opening. There were two couches in the garage.

Once in the garage, appellant asked Heather if she was afraid. Appellant told Samantha to tie up Heather. Samantha complied and tied Heather's feet and hands with her shoelaces and used a belt to connect her hands and feet. Appellant again asked Heather if she was afraid. Johnny and Munoz were also in the garage.

Appellant removed Heather's sweatshirt, lifted her T-shirt and bra, grabbed her breasts, and pinched her nipples. Appellant told Samantha to untie Heather, which she did.

Appellant then grabbed Heather's arm and took her outside. He pinned her against the fence, tried to kiss her, and accused her of being a cop and wearing a wire. Heather told appellant she was not a cop, and he insisted she prove it by doing what he ordered. He told her that if she was a cop she would "end up in a field in Pixley." He further told Heather he would "represent" her, meaning he was going to initiate her into his gang. Heather told appellant she would do whatever he wanted with computers if he did not hurt her.

Appellant brought Heather back into the garage where Samantha took Heather's identification and social security card out of her purse and gave them to appellant. Appellant said he would hold onto her identification because it had her name and address on it. Heather did not struggle because there were seven gang members in the garage at that time.

Appellant left with Melina, and the other men in the garage drank alcohol and smoked methamphetamine. Heather also smoked methamphetamine.

While in the garage, Heather saw a lead pipe. Munoz had a handgun wrapped in duct tape. Munoz pointed the gun at Heather and explained that after he used the gun, he would peel off the duct tape to remove fingerprints.

Heather told appellant that her mother called each day to check on her at the shelter and that she would know something was not right if Heather was not back soon. Appellant decided to take Melina back to the shelter and have her answer the phone and lie to Heather's mother if she called.

That night, Heather and Munoz went to a gaming casino where Heather played the slot machines for about 30 minutes.

The next morning, Samantha said she owed appellant money and needed to go back to Tulare to get some credit cards and checks. Appellant drove Heather, Samantha, and Melina back to Tulare to drop off Melina. At the shelter, appellant told Heather to get her belongings and to look for checkbooks and checking account numbers there. He warned her that if she did not come back, he would hurt Samantha. While at the shelter, Heather told Melina that if she did not call her later that day, Melina should call the police. When Heather returned without any checkbooks or account numbers, appellant and Samantha were mad. They took Heather back to Porterville.

Once back at the garage, appellant insisted that Heather orally copulate him or he would kill her. He also said he would kill her entire family. At one point, appellant slapped her face "really hard." Heather resisted, but after he threatened her again, she orally copulated appellant.

That afternoon, Heather overheard appellant tell people on the phone that he had a girl they could use sexually for money or drugs. Munoz's brother Steven arrived later that afternoon. Appellant told Heather to orally copulate Steven. When she said no, appellant hit her and said he would kill her. Heather screamed and both appellant and Samantha yelled at her and told her to cooperate if she wanted to live. Samantha also slapped Heather in the face. Eventually, Heather orally copulated Steven. Heather saw Steven give appellant $50 and give Munoz some "dope."

After Steven left, the garage door was open and Heather tried to scream. But appellant tackled her and choked her. He then insisted that she again orally copulate him, which she did.

Munoz told Heather that he liked to "bump and run," which he described as when he would drive down the street, see an attractive female, clip her with a car, put her into the back seat, take her to the garage, and tie her up and rape her. Appellant and Munoz laughed, and appellant said he had done this to three girls he had assaulted in the garage for long periods of time.

Later that day, appellant brought Robert Gonzales, or ET as he was known, and told Heather she had to have sex with him. When appellant left Heather and Gonzales in the garage, Heather begged Gonzales to leave her alone. Gonzales told Heather not to worry, that he was not going to do anything to her and would not tell appellant. When appellant came back to the garage and asked if they were through, Gonzales said they were and left.

Appellant then left Heather with Munoz. Heather begged Munoz to let her go home. Munoz said he did not like the situation because his wife would find out, but that it was appellant's "thing" and he had no control over it.

Appellant came back and told Heather to orally copulate Munoz, and he threatened to kill her if she didn't. Appellant took Heather into Munoz's house. Heather cried and pleaded and told Munoz she wanted to leave, but Munoz again responded that this was appellant's "thing." Heather then orally copulated Munoz.

Appellant later took Heather to Munoz's bedroom and told her to have intercourse with Munoz. Heather told Munoz she did not want to have sex with him, but by this time "begging and pleading wasn't getting anywhere," and she was afraid they would kill her. Munoz undressed Heather, who was crying, laid her on the bed, held her down by her arms, and placed his penis into her vagina.

Appellant took Heather back to the garage where Samantha gave her a couple of pills to make her sleep. Heather laid down on the couch while appellant and Samantha had sex next to her. Appellant tried to take Heather's pants off several times, but Heather was able to keep him from doing so. The three then went to sleep.

The next morning, appellant heard noises and thought the police were coming. He told Heather and Samantha to hide. After 10 minutes, appellant said he needed more drugs, so he took Heather's rings, called someone, and sold the rings for $50.

Appellant, Munoz, Samantha, and Heather then went in Munoz's car

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