Lopez v. Martel

• Decision Date: 09 October 2014
• Docket Number: Case No.: 1:10-cv-00390-AWI-JLT
• Court: U.S. District Court — Eastern District of California
• Parties: ANTHONY LOPEZ, Petitioner, v. MICHAEL MARTEL, Warden, Respondent.

ANTHONY LOPEZ, Petitioner, v. MICHAEL MARTEL, Warden, Respondent.

Case No.: 1:10-cv-00390-AWI-JLT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

October 9, 2014

FINDINGS AND RECOMMENDATIONS TO DENY FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS (Doc. 37)

ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN 21 DAYS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

PROCEDURAL HISTORY

Petitioner is in custody of the California Department of Corrections and Rehabilitation serving a determinate sentence of 12 years pursuant to a judgment of the Superior Court of California, County of Tulare (the "Superior Court") for his 2007 conviction following a jury trial of four counts of forcible oral copulation.

Petitioner filed a direct appeal in the California Court of Appeals, Fifth Appellate District (the "5^th DCA"), which affirmed Petitioner's conviction on November 26, 2008. (Lodged Documents ("LD") 4, Ex. A). Petitioner filed a petition for review in the California Supreme Court that was summarily denied it. (LD 6). After that Petitioner filed a state habeas petition in the California Supreme Court, which was denied with a citation to In re Dixon, 41 Cal.2d 756, 759 (1953). (LD 7).

On January 25, 2010, Petitioner filed the instant petition. (Doc. 1). Following a stay of proceedings, Petitioner filed a first amended petition on January 20, 2012 (Doc. 37), to which Respondent filed an answer (Doc. 44). On June 6, 2012, Petitioner filed his Traverse. (Doc. 48).

Respondent alleges Ground Two may be unexhausted, depending upon the Court's construction of the claim, and that Grounds Three and Four are procedurally defaulted. (Doc. 44, p. 9).

FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the 5^th DCA's unpublished decision¹:

J.S.'s mother married Lopez when J.S. was approximately nine years old. Lopez began molesting J.S. when she was a sophomore in high school. J.S. was molested approximately 30 times between 2002 and 2004 at her house and while she and Lopez stayed in motels during softball tournaments.

At first, Lopez began entering the bathroom for no apparent reason while J.S. was showering. A few weeks later, Lopez was in J.S.'s bedroom when he called her into the bedroom. Lopez was lying on the bed and told J.S. to sit next to him. Lopez began rubbing J.S.'s arms and legs while talking to her. Lopez took off his pants and placed J.S.'s hand on his penis and forced her to masturbate him until he ejaculated. Lopez became more affectionate towards J.S. after these incidents.

J.S. did not know why she was being molested by Lopez. She did not tell anyone because she was scared and embarrassed. In the past, Lopez had hit her and grabbed her so hard on the arms that he left bruises. Whenever her mother asked about the bruises, J.S. told her they were from playing softball.

On one occasion Lopez took J.S. into his bedroom and made her remove her pants. Lopez put J.S. on the bed, held her legs, and orally copulated her. Lopez told her to keep her mouth shut, and J.S. complied. J.S. weighed about 110 pounds at the time and, although she was strong, Lopez could overpower her.

On another occasion J.S. followed Lopez into his bedroom to ask a question. Lopez threw her down on the bed, lay next to her and began rubbing her back. Lopez took off his pants and made J.S. remove her shirt. Lopez rubbed J.S.'s breasts and then he grabbed her hair and forced her to orally copulate him. J.S. vomited on the floor. J.S. slipped and fell on her vomit as she tried to leave after Lopez ejaculated. Lopez told J.S. to stop crying and to clean up the mess she had made on the floor. J.S. kept crying and did not know what to do. J.S. did not call anyone and report the molestation because she was afraid she would get into trouble.

J.S., who excelled at softball, played on a traveling softball team while in high school. Lopez always would accompany her on trips, while her mother and sister also came along occasionally. Lopez and J.S. often would not stay at the same motel as other members of the team to save money. On one occasion, after a softball game, Lopez again forced J.S. to orally copulate him. On another occasion, Lopez told J.S. to get his pills while they were staying in a motel room for a softball tournament. Lopez was referring to his Viagra pills. Lopez took a pill and later forced J .S. to orally copulate him again.

The molestations occurred more frequently while at home. The other incidents were the same type of conduct and occurred either in her bedroom or in her parents' bedroom. No one saw any of the molestations.

J.S. had to ask Lopez for permission to do everything, including taking a shower or eating. If she did not ask permission, Lopez would yell at her or ground her. J.S.'s mother was working most of the time. Lopez was "always at home." J.S. was required to be home shortly after school. If she was late, Lopez would yell at her. Lopez also retained the right to approve any clothes purchases J.S. wanted to make and occasionally would pick out clothes for her.

Lopez attended all of J.S.'s softball practices and all of her games. He would yell at her during practice. On some occasions the comments would be designed to improve her game, and on other occasions J.S. felt as if Lopez was just being mean.

Lopez would not allow J.S. to date while she was in high school. She had a boyfriend while in high school named J.J. She first met J .J. when she was in the seventh grade and he was a freshman or sophomore in high school. J.J. was approximately two and one-half years older than J.S. She met him through his sister, with whom she played softball. Lopez knew that J.S. hung out with J.J., but forbade her from kissing J.J. When Lopez found out she had kissed J.J., he forbade her from seeing J.J. anymore. J.J. wrote a letter to her parents insisting he be allowed to continue seeing her. After the letter, her mother also forbade her from seeing J.J.

When J.S. started high school, she started seeing J.J. again. Neither Lopez nor J.S.'s mother knew that she was seeing him. She asked her friends not to tell Lopez she was seeing J.J.

,

Various colleges recruited J.S. to play softball. One was Mount Marty College in South Dakota. J.S. met with the coach, Clint Frederiksen. She told Frederiksen that she had a boyfriend and asked him not to tell her parents because she was not supposed to have one. J.J. was planning to move to South Dakota to be with her. J.S. asked Frederiksen if there were any schools nearby that were affordable for J.J. Frederiksen provided her with some information on other nearby colleges.

Problems developed when Frederiksen told J.S. her social security number and other information was not correct on some of the admission forms she submitted to the university. Eventually, Frederiksen lost interest in recruiting her and stopped responding to her e-mails.

On May 27, 2004, J.S. was at school when she received a phone call from Lopez. Lopez was upset. He said he had received a letter from Frederiksen stating that she was dating J.J. Lopez told her she had to come home immediately because she was in trouble. Lopez called her a whore. She called her mother, L.L., and told her she had been dating J.J. and Lopez was angry at her because he had learned of her relationship with J.J. She said she did not want to go home because she was scared. L.L. told her to stay at school until she (L.L.) could get home.

When J.S. arrived at home, L.L. and Lopez were present. Lopez started yelling at her, calling her a whore and stating she broke his rule because she was not supposed to be dating. Lopez told her she was not going to be able to live in the house anymore. L.L. said she did not have to move out. In the midst of this argument, J .S. told L.L. that Lopez had been making her do things she did not want to do. She exposed Lopez because he kept yelling that what she was doing was wrong, and she knew that what Lopez had been doing to her was wrong.

L.L. started crying and told Lopez he would have to leave. Lopez packed his bags and, as he was leaving, asked that he not be arrested until after J.S. graduated. He also stated that it was not J.S.'s fault. Lopez called his father to pick him up.

L.L. took J.S.'s cell phone after Lopez left. J.S. did not use that cell phone again. After Lopez left, J.S. and her mother spoke. The two then went to the police station. Lopez and his father

were at the police station when J.S. and L.L. arrived.

L.L. testified that she met Lopez at the business at which they both worked. They married in 1996. Initially, they had a good relationship. After Lopez stopped working because of various illnesses and disabilities, however, L.L. became the sole source of income for the family and had to work a lot of hours. The relationship started to become more difficult. Occasionally they were intimate, and Lopez would sometimes take a Viagra pill before they had intercourse. Lopez was able to achieve an erection.

J.S. and Lopez initially had a good relationship. Lopez started treating her differently around her sophomore year in high school. It appeared that Lopez did not want her talking to anyone. J.S. denied anything was happening between Lopez and her when L.L. asked. L.L. inquired because it appeared to her from comments that were made and looks Lopez would direct at J.S. that there might be something happening between the two. It appeared to L.L. that Lopez was totally focused on J.S. L.L. was suspicious that something might be going on, but both Lopez and J.S. denied it.

One morning, L.L. observed Lopez lying next to J.S. in her bed. J.S. appeared to be asleep, and Lopez was rubbing her back. L.L. yelled at Lopez, who explained that was how he woke J.S. in the mornings. L.L. told Lopez to stop such behavior.

L.L. also found Lopez's Viagra medication in his traveling bag when he returned from one of J.S.'s softball tournaments. When J.S. or L.L....