Hawes v. Holland, 2:14-cv-02715-KJM-GGH

• Decision Date: 06 July 2015
• Docket Number: No. 2:14-cv-02715-KJM-GGH,2:14-cv-02715-KJM-GGH
• Citation: Hawes v. Holland, No. 2:14-cv-02715-KJM-GGH (E.D. Cal. Jul 06, 2015)
• Court: U.S. District Court — Eastern District of California
• Parties: MARK JOSEPH HAWES, Petitioner, v. KIM HOLLAND, Respondent.

MARK JOSEPH HAWES, Petitioner, v. KIM HOLLAND, Respondent.

No. 2:14-cv-02715-KJM-GGH

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

July 6, 2015

ORDER AND FINDINGS AND RECOMMENDATIONS

INTRODUCTION AND SUMMARY

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of lewd and lascivious acts with a child, unlawful sexual intercourse with a child more than three years younger, oral copulation with a child under 18, sexual penetration by foreign object with a child under 18, sodomy with a victim under 18, and engaging in three or more sex acts with a child under 14. Petitioner challenges his conviction on the following grounds: 1) trial counsel rendered ineffective assistance of counsel by, inter alia, failing to perform forensic testing of physical evidence, failing to investigate or call witnesses, failing to subpoena medical records, failing to object to privileged testimony, and failing to communicate with petitioner; 2) the trial court violated petitioner's Sixth Amendment right to counsel when it failed appoint new counsel at the Marsden hearing; 3) the admission of Angela Bryant's testimony regarding her sexual relationship with petitioner violated petitioner'sright to due process; 4) there was insufficient evidence to convict petitioner of oral copulation of K.; and 5) the prosecution withheld exculpatory material evidence from petitioner. In conjunction with his ineffective assistance of counsel claims, petitioner has requested an evidentiary hearing be held.

Upon careful consideration of the record and the applicable law, the request for an evidentiary hearing is denied and undersigned recommends that petitioner's application for habeas corpus relief be denied.

BACKGROUND

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the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

Defendant was in law enforcement from 1990 to 2001, then went to work for United Parcel Service. When he married the victims' mother, she had three small children: two little girls and a boy. He took charge of the family, and the children complied with his orders. For the girls, this meant years of subjugation and sexual abuse. Their testimony at trial was harrowing.

The Victims

M. was 17 when she testified. The abuse began when she was nine. She was lying in her bed when defendant began rubbing her leg and then her vagina. The prosecutor asked her to chronical the molestations—oral, vaginal, and anal sex—that occurred during the two-year period that preceded her disclosure.

As for the molestations, she estimated that defendant would rub her leg and vagina as he tucked her in at night at least twice a week. He threatened her, telling her she would never see her mother again if she ever told anyone. If she said no, he would stomp off, slam the door, retreat to his room, and not speak to anyone for days. He molested her while the family watched television or went swimming. On four occasions, he instructed her to pretend she was sick and unable to go to church with her mother. When the family was gone, he would molest her. On another occasion he jumped out of the closet in her room while other family members were outside swimming, and touched her vagina underneath her clothes.

M. estimated that she put her mouth on defendant's penis 8 to 10 times, and he put his mouth on her vagina 10 to 15 times. The oral copulation occurred in both her bed and his. On one occasion, he came into her room, pulled down his pajama bottoms, began rubbing his penis, and then, holding the bars on her bed, thrust his penis into her mouth. When she tried to move her head, he movedit back and held it there. On other occasions, he would kneel beside her bed or get on the bed on his knees, hold the bars, and put his mouth on her vagina and lick it.

During the same two-year period, defendant had sexual intercourse with M. 10 to 15 times. If she grimaced, he made her smile. If she cried, he made her stop. Sometimes he made her masturbate in front of him before sexual intercourse because, he said, it made him hard and got him in the mood. One of the mornings when he made her pretend to be sick, he went into her bedroom and instructed her to come into his room. When she walked into the room, he was lying naked on the bed. He made her sit on him, and eventually he penetrated her vagina.

Defendant put his fingers inside M.'s vagina about 30 times over those two years. She described one incident when the rest of the family was in the backyard swimming: she and defendant were in the living room with the blinds closed, and he started kissing her neck and forehead. Eventually he placed his hands down her shorts and his fingers in her vagina.

Frequently, defendant asked M. to wear a skirt with no underwear. Once, he ordered her downstairs to try something different. He put her on the couch with her buttocks up on him. Standing, he put his penis in her "butt." She told him to stop because it hurt, but he assured her the pain would only last a few minutes. On another occasion, he put his penis in her anus and she bled.

Although during this time defendant was having very little sex with his wife, he was having sex regularly with not only M., but her younger sister K. as well. Following a back injury, defendant had difficulty sustaining an erection. Although he told his wife he had discontinued the medication he was taking for this condition because of the side effects, in fact he refilled the prescription many times. Empty and near-empty bottles were found among his things.

K. was only four or five years old when defendant began exploiting her. Her account, like that of her sister, is gut wrenching. She was 12 at the time of trial. When she was four or five she would pretend to be a princess by taking off all her clothes and wrapping herself in a Mickey Mouse blanket as her gown. Defendant would kiss her neck and put his finger in her private every time her mother left the house. She estimated it was more than 100 times. Defendant also made her grab on to his penis, and he licked her vagina several times. When K. was in about third grade and under 10 years old, defendant had her take off her pants and underwear and sit on his shoulders with his face toward her vagina. He shoved her against the wall and started licking her vagina. She remembered that this incident occurred in defendant's bedroom.

The many other incidents were equally sordid. While her aunt was out of town, defendant and K. went to her house, and on multiple occasions, he made her give him a "big kissy," licked her vagina, and put his finger in her vagina. While K. was naked, defendant would "spank" her by rubbing her bare buttocks and putting hisfingers in her vagina. He made her look at his penis, even though she told him she did not want to see it.

K. described some of the things her father said to her when she was doing things he made her do, such as, "[Y]ou didn't think this was creepy a few years ago and now you are all freaked out." Referring to her ability to make his penis hard, he said, "[O]h, [K.], baby you are making me feel so good." After every encounter, he warned her never to tell anyone.

On one occasion, defendant made K. get on her hands and knees like a dog, placed his penis in her vagina, and went back and forth with it. He instructed her to "[l]et it go." When he finished, he made her "pinky promise" not to tell anyone.

Defendant's charade all fell apart before a family pizza and movie night on Friday, August 20, 2010. K. testified that after she arrived home from school, defendant instructed her to wear a skirt without shorts on underneath. He signaled her to come into his bedroom, and locked the door. He made K. kiss him on the mouth and get on the bed. He put a vibrator inside K.'s vagina and started moving it around, all the while instructing her to "[l]et it go" and to just "go crazy." He put his fingers in her vagina and touched her buttocks and breasts. He orally copulated her. Before leaving, defendant made K. give him another "big kiss."

M. accompanied her mother to pick up the pizza. En route, M. encouraged her mother to divorce defendant. When her mother resisted, M. told her that defendant had touched her. He mother was horrified and shocked. She dropped M. off at a family friend's house and went home to confront her husband. He denied having any inappropriate physical contact with M.

M. was interviewed and defendant was arrested. As her mother explained to her why defendant had been arrested, K. blurted out that defendant had "been doing that to me for years." K. was later interviewed at a special assault forensic evaluation (a SAFE interview). The video of the SAFE interview was played for the jury.

Other Women Step Forward

The victims were not the only ones to testify to defendant's creepy behavior. Kr., his daughter from a previous marriage, lived with defendant and his new family for a couple of years. She testified she had observed seven- or eight-year old M. on the top bunk of her bed with her legs dangling over the side with each of her legs on defendant's shoulders. She saw her father's face between M.'s legs, and M. was giggling. When he realized Kr. was there, he angrily ordered her to go downstairs. She also testified on another occasion she observed her father supervising her younger siblings and cousins, all running around through the sprinklers naked. He was the only adult present, and although Kr. told him it "was not right," he told her he thought it was funny.

In the early 1990's defendant had a sexual relationship with Angela B. She testified that before and during her brief marriage to defendant, he had her act like a little girl during sex. He had her wear short clothing and put her hair in pigtails. Then they would play-act. He would have her get into bed. While she

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