Herrera v. Hartley

• Decision Date: 25 February 2015
• Docket Number: Case No.: 1:12-cv-01357-JLT
• Court: U.S. District Court — Eastern District of California
• Parties: RAUL HERRERA, Petitioner, v. JAMES D. HARTLEY, Respondent.

RAUL HERRERA, Petitioner,
v.
JAMES D. HARTLEY, Respondent.

Case No.: 1:12-cv-01357-JLT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

February 25, 2015

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1)

ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE FILE

ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY

Petitioner is in the custody of the California Department of Corrections and Rehabilitation serving a determinate sentence of eight years after having been convicted in the Fresno County Superior Court in 2010 for rape. In this habeas corpus petition, he claims there was insufficient evidence presented to support the charge. For the reasons set forth below, the Court will DENY the petition.

I. Factual Background

The Court adopts the Statement of Facts in the 5^th DCA's published/unpublished decision¹:

Introduction Appellant was convicted of the rape of M., the 34-year-old niece of his former girlfriend, Maria Q. The relationship between Maria Q. and appellant ended in 2008 because Maria Q.'s

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sons and appellant disliked one another.

Events Leading to the Charged Offense
In September 2009, M. went to Maria Q.'s Kerman home to stay over and to attend the Kerman Harvest Festival. On the evening of September 13, 2009, Maria Q., M., and M's two sisters, went to the festival. They encountered appellant at the festival. He followed them and tried to talk to Maria Q., but Maria Q. wanted him to go away. Appellant attempted to speak with Maria Q. for a period of time. Although police were patrolling the area, the four women did not contact officers, and appellant eventually went away. One of M.'s sisters heard appellant say in an angry manner that they were "gonna get it."

M. and Maria Q. left the festival a little before midnight. Both women went to M.'s cousin's house for a visit. Maria Q. departed for home after a few minutes at the cousin's house. M. left the cousin's house for the Maria Q. home at about 1:00 a.m. M. and Maria Q. shared a bed, their custom when M. visited Maria Q.'s home.

The Charged Offense
At 5:00 a.m., M. awakened and found someone on top of her engaged in intercourse. M. had gone to bed wearing a pair of jeans, but she was no longer wearing them. M., who stood 5 feet three inches tall and weighed 122 pounds, tried to push the man off of her for what "seemed [to be] five to seven minutes." She said she repeatedly shouted and yelled, "Who are you?" and "Get off." M. said appellant was engaged in intercourse with her, but she did not know whether he ejaculated. Although M. shouted, Maria Q. apparently did not hear her, even though she was asleep on the same bed. M.'s cousin, Daniel, and Daniel's friend, Rico, were sleeping on couches in the adjacent living room, but they did not hear her either. As the man engaged in intercourse, he instructed M., "Shhh, be quiet." The man eventually got off of M.

M. grabbed her pants from the bed, ran out of the bedroom, and went into a bathroom. On the way to the bathroom, she passed by her cousin, Daniel, who was asleep on one couch, and her sister's boyfriend, "Rico", who was asleep on another couch. M. said [she] "freaked out" and was hysterical and crying in the bathroom. She composed herself after a few minutes, went back to the bedroom, and turned on the light to determine the identity of the male in the bed. M. said her aunt was lying on the bed near the headboard, which was located against the bedroom wall. M. saw appellant lying on the covers of the bed.

M. started screaming and hitting the appellant. Her screams awakened her aunt, Daniel, and Rico. M. said she had been asleep in the bed with her head at the foot of the bed, and that appellant had been positioned the same way. When she returned from the bathroom, appellant's head was near Maria Q.'s head, at the top of the bed. Maria Q. said she heard M. scream, "Tia, Tia!" and awakened. Maria Q. said she saw M. strike appellant, who was on the floor looking for his shoes. Maria Q. ran to the bedroom door and closed it to keep Daniel and Rico from entering the bedroom to attack Herrera. Maria Q. also testified she opened the door to check on her son and saw Daniel and Rico still resting on the living room couches. At some point, appellant left Maria Q.'s home through the bedroom window.

M. told her aunt what appellant had done to her. Maria Q. walked to the nearby Kerman Police Station and also telephoned the police dispatch. While Maria Q. went for the police, M. started to run to her mother's home, which was located about a block away from Maria Q.'s home. Rico ultimately gave M. a ride to her mother's home. M. gathered her possessions together at her mother's home and then returned to Maria Q.'s home to gather the rest of her belongings. She intended to collect all of her possessions and then drive to her own home in Fresno. The Kerman Police were present when M. and Rico returned to Maria Q.'s home.

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At 6:00 a.m., Maria Q. met with Kerman Police Officer Sandra Mendoza at the police station. Officer Mendoza accompanied Maria Q. back to her residence. One person was asleep in the living room when Mendoza arrived. M. returned while Mendoza was present. M. was agitated and Mendoza took her to the police station for an interview. After the interview, Officer Mendoza summoned an ambulance to take M. to Community Regional Medical Center for examination. Mendoza said she spent several hours with M. at the hospital. Mendoza did not see any signs that M. was intoxicated but did say her demeanor alternated between anger and tears. Mendoza testified that M. was "pretty verbal about telling me what was going on, then she would just shut down, cry, and not answer my questions."

At 6:30 a.m. that same day, Kerman Police Officer Tom Chapman photographed some shoe prints in the soil under Maria Q.'s bathroom window. Officer Chapman found a cell phone, sandal, and shoe prints under the south window of Maria Q.'s bedroom and a size 11 shoe inside Maria Q.'s bedroom. The shoe prints outside the south bedroom window and the bathroom were consistent with the shoe Chapman found inside the bedroom.

Appellant was placed under arrest on September 14, 2009. Kerman Police Officer Ron Gaxiola collected the underwear appellant had been wearing at the time of arrest and booked that underwear into evidence. Officer Gaxiola also collected several cheek swabs from appellant.

Scientific Evidence
A. M.'s Vaginal Swabs

At 6:57 a.m. on September 13, 2009, M. met Karen Reid at the Community Regional Medical Center emergency room. Reid testified that she was a registered nurse and a SAFE R.N. (sexual assault forensic examiner). Reid conducted an interview with M. and collected four swabs from M.'s vagina and cervix. Three swabs were used to prepare slides. Reid examined one slide and saw no sperm. Reid also collected reference samples from M., including hair, saliva, urine, and blood. The slides, the four swabs, and the reference samples were sent to the crime lab.

Kiffin Nelson, a criminalist at the DOJ Fresno Regional Laboratory, received the sexual assault kit with the samples collected by Reid. First, Nelson stained and examined the slides to determine whether any sperm were found in M.'s vaginal area. Nelson observed epithelial cells, but no sperm. Next, Nelson tested the vaginal swabs for the presence of acid phosphatase, a component in seminal fluid. All four swabs were negative. Third, Nelson conducted a differential extraction with the material on two swabs to separate the sperm DNA from the non-sperm DNA. She used an enzyme intended to break open the vaginal epithelial cells, but leave any sperm intact. At this point, she examined the results of one swab on a slide and found what appeared to be a single sperm. A slide of the second swab revealed two sperm.

Nelson extracted the DNA from the vaginal swabs into sperm and non-sperm fractions. When she tested the sperm fraction, she determined that very low levels of male DNA (and high levels of female DNA) were present. In this situation, technology that specifically targets the Y chromosome, which is present only in males, can be used to analyze the low levels of male DNA. This technology tests for short tandem repeats (STR's) on the Y chromosome, ignoring any female DNA in the mixture.

Nelson arranged for a senior criminalist at the DOJ Fresno Regional Laboratory, Lora Bailey-Van Houton, to test the sperm fraction with "STR Y typing." When Bailey-Van Houton tested the sperm fraction, she determined that the sample contained DNA from two males, and appellant was not one of them. He was eliminated as a donor of sperm DNA. Bailey-Van Houton explained that the test was sensitive enough to detect sperm that had been present for up to a week or so.

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When Bailey-Van Houton tested the non-sperm fraction of the vaginal swab DNA, which was presumed to contain mostly female DNA, she determined that low levels of male DNA were present. She found that the genetic profile of the male DNA was consistent with appellant's genetic profile, which was expected to occur randomly in one in 1,047 Caucasian males and one in 561 Hispanic males. Bailey-Van Houton explained that the non-sperm male DNA could have come from saliva, blood, or seminal fluid (such as in pre-ejaculate). If during intercourse the male did not ejaculate, or had undergone a vasectomy, sperm would not likely be found with a vaginal swab.

B. Appellant's Underwear

Nelson also tested appellant's underwear. She swabbed the inside of the crotch and waistband. She examined a slide and saw no sperm, so she proceeded to extract the DNA from the swab. The DNA was analyzed at 15 different loci with STR testing. The results established that the sample was a mixture of at least two people, although in her opinion it contained only two. As expected, one genetic profile in the mixture was consistent with appellant's genetic profile. The other genetic profile was consistent with M.'s genetic profile, and

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