Heron v. Clay
| Decision Date | 13 April 2009 |
| Docket Number | Case No. CV 08-0087-ABC (RC). |
| Parties | Damone D. HERON, aka Damone Dante Heron, Petitioner v. Ivan D. CLAY, Respondent. |
| Court | U.S. District Court — Central District of California |
Damone D. Heron, Jamestown, CA, pro se.
Felicity A. Senoski, CAAG Office of Attorney General of California, San Diego, CA, for Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, as well as petitioner's objections, and has made a de novo determination.
IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as the findings of fact and conclusions of law herein; (3) petitioner's request to stay these proceedings is denied; and (4) Judgment shall be entered denying the petition for writ of habeas corpus and dismissing the action with prejudice.
IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on petitioner.
This Report and Recommendation is submitted to the Honorable Audrey B. Collins, Chief United States District Judge, by Magistrate Judge Rosalyn M. Chapman, 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 January 27, 2005, in San Bernardino County Superior Court case no. FVA021733, a jury convicted petitioner Damone Heron, aka Damone Dante Heron, of one count of continuous sexual abuse in violation of California Penal Code ("P.C.") § 288.5(a) (count 1) and three counts of lewd act upon a child in violation of P.C. § 288(a) (counts 2-4), and, as to count 4, the jury found petitioner personally inflicted great bodily injury within the meaning of P.C. § 12022.7(a). Clerk's Transcript ("CT") 25-29, 166-70, 172-73. On March 9, 2005, the trial court sentenced petitioner to an aggregate term of 29 years in state prison. CT 176-78; Reporter's Transcript ("RT") 342:10-343:6.
The petitioner appealed his convictions and sentence to the California Court of Appeal, CT 179, which affirmed the judgment in an unpublished opinion filed August 2, 2006, 2006 WL 2147697. Lodgment nos. 2-6. On September 8, 2006, petitioner, proceeding through counsel, filed a petition for review in the California Supreme Court, which, on October 11, 2006, denied the petition "without prejudice to any relief [petitioner] might be entitled after the United States Supreme Court determines in Cunningham v. California ... the effect of Blakely v. Washington ... and United States v. Booker ... on California law." Lodgment nos. 7-8.
The California Court of Appeal, in affirming the judgment, made the following findings of fact:1 Petitioner's stepdaughter, Jane Doe, was born in 1990. Doe's mother and petitioner began living together in 1993 and were married by 1996. Although Doe initially lived with a cousin, in 1996, she began living with her mother and petitioner in Gardena. Doe was six years old. At about that time, the molestations began when petitioner exposed his penis to Doe while watching a pornographic movie. Petitioner touched Doe's genital area and had her touch his penis.
In 1998, Doe briefly lived with her biological father but later returned to her mother's home. Doe's family, which now included two younger siblings, moved to Rialto. When Doe was nine years old, petitioner began having sexual intercourse with her. While living in Rialto, petitioner had sex with Doe more than three times.
The family moved to Fontana when Doe was in the seventh grade. Petitioner continued having sexual intercourse with Doe. Doe agreed to have sex with petitioner in exchange for certain privileges, including being excused from punishment. Petitioner would release Doe from being grounded and allow her to play outside. Doe also had sex with petitioner to avoid getting a whipping. Doe remembered having sex with petitioner more than five times while living in Fontana. Doe estimated that she had sex with petitioner more than 50 times altogether.
Although the family usually lived in small apartments, the sexual encounters always occurred at the family home. They occurred even while Doe's mother or siblings were at home. Petitioner fathered a total of four children with Doe's mother. When petitioner suffered a head injury and required in-home nursing services, petitioner continued to have sex with Doe while the nurse was present in the home.
Doe's mother discovered that Doe was pregnant when she was 12 years old. Doe told her mother that a boy from school was the child's father. When the school alerted the police concerning the pregnancy, the police interviewed Doe. During the interview, Doe explained that she had sex with her boyfriend, "Brandon," at school. Later in the interview, however, Doe broke into tears and admitted that petitioner had impregnated her. Doe explained that the sexual contacts occurred about twice a week at certain times. The most recent incident occurred in January or February of 2003.
Doe had a late-term abortion. Blood taken from petitioner and the fetal tissue indicated a 99.99 percent probability of paternity.
Effective January 2, 2008, petitioner, proceeding pro se, filed the pending habeas corpus petition under 28 U.S.C. § 2254 and a supporting memorandum of points and authorities ("Memo."). On May 16, 2008, respondent filed his answer, and on August 20, 2008, petitioner filed his reply.
The petitioner raises two claims:
Ground One—"The imposition of upper terms and consecutive sentences violated ... petitioner's federal constitutional rights to a jury trial and due process of law." (Memo. at 3-7); and
Ground Two—"Insufficient evidence supported the jury's finding that petitioner inflicted great bodily injury on Jane Doe by impregnating her, and the enhancement should be stricken." (Memo. at 7-13).
The petitioner also requests a stay, which he has erroneously labeled as Ground Three to the petition. (Memo. at 13-17).
District courts have authority to stay habeas corpus proceedings and to hold such proceedings in abeyance while a petitioner exhausts his state court remedies, but only "where such a stay would be a proper exercise of discretion." Rhines v. Weber, 544 U.S. 269, 276, 125 S.Ct. 1528, 1534, 161 L.Ed.2d 440 (2005); Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir.), cert. dismissed, ___ U.S. ___, 129 S.Ct. 621, 172 L.Ed.2d 473 (2008). "[S]tay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Rhines, 544 U.S. at 277, 125 S.Ct. at 1535; Wooten, 540 F.3d at 1023; Jackson v. Roe, 425 F.3d 654, 660-61 (9th Cir.2005). "Stays are also improper when the unexhausted claims are `plainly meritless' or where the petitioner has engaged in `abusive litigation tactics or intentional delay.'" Jackson, 425 F.3d at 661 (quoting Rhines, 544 U.S. at 278, 125 S.Ct. at 1535); cf. Wooten, 540 F.3d at 1023 ().
In his habeas corpus petition, petitioner requests this Court to stay his action and hold it in abeyance while he exhausts the following new claims: (1) "trial counsel's performance fell woefully below any reasonable standard of professionalism ... [in that] Counsel failed to investigate the case"; (2) "[t]he prosecutors [sic] agents impermissibly intercepted confidential communications between [petitioner] and his attorney in violation of the Sixth Amendment"; and (3) 2 Memo. at 16.
Here, petitioner has not shown good cause to stay these proceedings. See Neville v. Dretke, 423 F.3d 474, 479-80 (5th Cir.2005) (). Indeed, petitioner has offered no cogent explanation for his failure to exhaust the proposed new claims, and he has made absolutely no showing of the merit of these claims.3 See Jackson v. Conway, 550 F.Supp.2d 382, 384 (W.D.N.Y.2008) (). Although petitioner was clearly aware of these claims at the time he filed the pending habeas corpus petition, he has not made any attempt to exhaust these claims in the California courts either prior or subsequent to filing this action, which suggests intentional delay. Rhines, 544 U.S. at 278, 125 S.Ct. at 1535; Beaty v. Schriro, 554 F.3d 780, 785 & n. 3 (9th Cir.2009). Petitioner's lack of diligence should not be rewarded. See Rhines, 544 U.S. at 277, 125 S.Ct. at 1534 ( ...
To continue reading
Request your trial