Groen v. Busby
| Decision Date | 27 July 2012 |
| Docket Number | Case No. CV 10–9904–CJC (SP). |
| Citation | 886 F.Supp.2d 1150 |
| Court | U.S. District Court — Central District of California |
| Parties | Niek GROEN, Petitioner, v. T. BUSBY, Warden, Respondent. |
OPINION TEXT STARTS HERE
Niek Groen, Blythe, CA, pro se.
Viet H. Nguyen, CAAG-Office of Attorney General of California, Los Angeles, CA, for Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, records on file, and the Report and Recommendation of the United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which petitioner has objected. The Court accepts the findings and recommendation of the Magistrate Judge.
IT IS THEREFORE ORDERED that Judgment will be entered denying the Petition and dismissing this action with prejudice.
JUDGMENTPursuant to the Order Accepting Findings and Recommendation of United States Magistrate Judge,
IT IS HEREBY ADJUDGED that the Petition is denied and this action is dismissed with prejudice.
This Report and Recommendation is submitted to the Honorable Cormac J. Carney, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05–07 of the United States District Court for the Central District of California.
On December 23, 2010, petitioner Niek Groen, a California prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (“Petition”), challenging a 2008 state court conviction for child molestation. Petitioner asserts two grounds for relief: (1) his right to due process was violated when the trial court admitted evidence of his two prior sexual offenses; and (2) his right to due process was violated when the trial court admitted into evidence “a non-pornographic book and two non-pornographic digital video discs (DVDs) depicting merely semi-naked youths.” Pet., P. & A. at 5. On March 4, 2011, respondent filed an Answer to the Petition (“Answer”). No reply was filed by petitioner.
Petitioner's first claim is Teague-barred, as it asks this court to announce a new rule of constitutional law, that admission of prior sexual offenses violates due process. Further, both of petitioner's claims are largely challenges to evidentiary rulings under state law that are not cognizable on federal habeas review. And in any event, neither claim establishes that admission of the evidence in question rendered the trial fundamentally unfair so as to violate the Due Process Clause. Accordingly, the Petition should be denied.
In 2004, petitioner was released from prison after serving a sentence for child molestation. In 2007, while living in a trailer park, petitioner became acquainted with 11–year–old Dylan D. who lived in the same trailer park with Richard Arce, Dylan's mother's boyfriend. Petitioner's trailer sat directly across a parking area from Arce's trailer. Dylan's mother lived in a car parked outside her mother-in-law's trailer in the same park.
In the fall of 2007, when his mother was jailed, Dylan began living in a foster home. He continued in foster care even after his mother's incarceration ended but visited her and his grandmother at the trailer park. Dylan's older brother Mikey sometimes visited his family at the trailer park on the same days that Dylan did. Occasionally some of the boys who lived in the same foster care home accompanied Dylan to the trailer park. After visiting with his mother, Dylan and the other boys usually played ball games in the parking area between petitioner's and Arce's trailers.
Petitioner was friendly with Dylan's mother but they were not romantically involved. He took Dylan and his mother to Knott's Berry Farm and sometimes bought Dylan's mother clothes and other gifts. Petitioner also took them for meals at Norms, Sizzlers, and Burger King. Over the course of a few months petitioner gave Dylan several gifts, including a computer game, a cell phone, clothes, and bicycles. He gave Dylan the cell phone for his birthday on December 1, 2007.
Petitioner occasionally picked Dylan up from the foster home and brought him to the trailer park to see his family. On one occasion petitioner gave the foster mother carpet samples from the carpet company where he was employed.
When visiting his mother, Dylan often went into petitioner's trailer to use the bathroom, get a drink, rest, or watch movies.
A few days before Christmas 2007, petitioner called to Dylan to come into his trailer. Dylan complied and lay down because his back hurt. After massaging Dylan's back with a massager, petitioner put his hand down Dylan's pants and fondled his buttocks, then turned Dylan over onto his back, unbuttoned his pants, and touched his penis. Dylan told petitioner to stop and tried to push petitioner's hand away but petitioner kept his hand on Dylan's penis, and told him to be quiet. Dylan ran out of the trailer and down the street. He later returned to the trailer and petitioner drove him back to his foster home. Dylan told no one about what happened because he felt it was his fault.
Over the next few days, Dylan saw and spoke to petitioner several times without incident. On Christmas Day, Dylan, his mother, brother, sister, and Arce visited petitioner's trailer to celebrate the holiday. Petitioner gave Dylan a bicycle and presentedeach of Dylan's family members with gifts as well.
A day or so after Christmas, petitioner played an adult pornographic video for Dylan. He watched only part of it and asked petitioner to take him home. Petitioner complied. A few days later Dylan and his brother Mikey were playing football in the parking area of the trailer park. When Dylan went into petitioner's trailer to use the bathroom, petitioner stopped Dylan, held onto Dylan's shoulder, and placed his hand down the front of Dylan's pants. Dylan ran outside and rejoined his brother. Later that day, the boys were still playing ball when petitioner called out to Dylan. Dylan entered the trailer and sat down. Petitioner touched Dylan's penis under Dylan's underwear with his hand. Dylan told him to stop, and said that it did not “feel right,” but petitioner pushed Dylan's hand away. Dylan fled the trailer and called out for his brother.
Again, Dylan told no one. He was afraid that if he disclosed what happened he would not be able to spend time with his brother.
After this incident petitioner called Dylan on his cell phone nearly every day but Dylan did not answer because he did not want to talk to him. When his bicycle broke, however, he called petitioner for help. They drove to a bicycle shop where, at Dylan's request, petitioner bought him a new bicycle.
On January 16, 2008, Dylan telephoned his mother and told her that petitioner had touched him inappropriately. Later, when Arce and his mother arrived at the foster home, Dylan told them what had transpired in more detail. Although Arce and Dylan's mother told the foster mother to keep Dylan away from petitioner, they did not call the police.
Leaving the foster home, Arce went directly to petitioner's trailer and called for him to come out. Arce cursed at petitioner, called him “a sick mother something,” a “punk,” and smashed the windshield of petitioner's truck with a shovel. From inside the trailer petitioner said, “ ‘I'm sorry, I'm sorry, I'm sorry.’ ” Within minutes, police arrived and arrested Arce for vandalism. Police also detained petitioner.
On January 17, 2008, police interviewed Dylan at his elementary school. The next day police executed a search warrant on petitioner's trailer where they found a framed photograph of Dylan on a bedside table, a massager, a book entitled “The American Boy” containing photographs of young teenage boys, and two DVDs entitled “Crimean Vacation.” The DVDs depicted young boys, between the ages of 11 and 13, naked or in bathing suits, playing in either the ocean or in a sauna or Jacuzzi. A portion of one of the DVDs was played for the jury at trial.
John W. was called as a witness by the prosecution. He testified that he met petitioner in the early 1980s when he was between nine and eleven years old. Petitioner was the coach of his soccer team and often drove him home from practice in his van. While circling the park, driving home, or before letting him out of the van, petitioner would have John remove his pants or unzip the zipper of his pants and petitioner would masturbate John or orally copulate him. At petitioner's direction, he would then perform the same acts on petitioner.
Once, John, one of his friends, his mother, and petitioner shared a cabin in Big Bear. John was in bed with his mother when petitioner approached and tried to turn John over. John resisted petitioner by clinging to his mother. On another occasion, petitioner took John to the soccer shop that petitioner's brother owned and petitioner told him to pick out anything that he wanted. In the back room of the shop, petitioner asked John if he knew what semen looked like and made John masturbate him until petitioner ejaculated. On another occasion, petitioner visited John's home where the two roughhoused and threw eggs at each other. Petitioner took John into the shower to wash him off and petitioner orally copulated and masturbated him.
At some point, John's older brother realized what was happening and alerted neighbors who apparently notified police.
In 1982, petitioner was charged with molesting John. He pleaded guilty to those charges.
Another victim, Brian B., was also called as a witness by the prosecution. He testified that he met petitioner in 1977 or 1978 when he was five or six years old. Petitioner coached his older brother's soccer team and, because they shared...
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