McCarthy v. Koenig

• Decision Date: 13 July 2020
• Docket Number: Case No. 16-cv-06820-HSG
• Parties: JAMES T MCCARTHY, Petitioner, v. CRAIG KOENIG, Respondent.
• Court: U.S. District Court — Northern District of California

JAMES T MCCARTHY, Petitioner, v. CRAIG KOENIG, Respondent.

Case No. 16-cv-06820-HSG

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

July 13, 2020

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY

Before the Court is the pro se amended petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by petitioner James T. McCarthy challenging the validity of a judgment obtained against him in state court. Dkt. No. 34. For the reasons set forth below, the petition is denied.

PROCEDURAL HISTORY

A. Conviction and Sentencing

On November 26, 2012, the Alameda County District Attorney filed an information charging petitioner with fourteen counts: Count one alleged continuous sexual abuse of a child (Cal. Penal Code § 288.5(a)); counts two through twelve alleged aggravated sexual assault of a child (Cal. Penal Code § 269(a)(4), (5)); count thirteen alleged forcible oral copulation (Cal. Penal Code § 288a(c)(2)(A)); and count fourteen alleged forcible rape (Cal. Penal Code § 261(a)(2)). Answer, Ex. 1 ("CT") at 61-77.¹ On February 13, 2013, the trial court granted the prosecutor's motion to dismiss count two. CT 164; Answer, Ex. 2 ("RT") at 704.

On February 15, 2013, the jury found petitioner guilty of all the remaining counts. CT264-76, 280-85; RT 961-70. On March 18, 2013, the trial court sentenced petitioner to an aggregate term of 150 years to life plus 32 years. CT 326-32; RT 997-1001.

B. Post-Conviction Appeals and Collateral Attacks

Petitioner appealed. He raised the following issues on appeal: (1) the trial judge engaged in judicial misconduct by interjecting herself into the proceedings; (2) there was insufficient evidence of duress to sustain the convictions; and (3) the trial court erred in denying disclosure of sealed records. The California Court of Appeal affirmed the judgment of conviction in 2015, and the California Supreme Court denied review three months later. Answer, Exs. F, J.

Petitioner later filed petitions for writ of habeas corpus in the Alameda County Superior Court, California Court of Appeal, and California Supreme Court in which he raised the following issues: (1) prosecutorial misconduct on multiple grounds; (2) ineffective assistance of trial counsel on multiple grounds; and (3) trial court error in excluding testimony and other evidence. Dkt. No. 1 at 10-26, Dkt. No. 1-1 at 1-34, Dkt. No. 1-2 at 5-9. The superior court denied the petition as untimely and for failure to state a prima facie case for relief. Answer, Ex. K.

The California Court of Appeal denied all three of petitioner's state habeas claims as untimely and for failure to sufficiently set forth his claims. See Answer, Ex. L, citing In re Clark, 5 Cal. 4th 750, 782-99 (1993) (timeliness); In re Robbins, 18 Cal. 4th 770, 780 (1998) (timeliness); In re Swain, 34 Cal. 2d 300, 303-04 (1949) (insufficient pleading of claim). It also specifically held that Claim 1 was barred by In re Dixon, 41 Cal. 2d 756, 759 (1953) (failure to raise claim on direct appeal) and In re Seaton, 34 Cal. 4th 193, 199-200 (2004) (forfeiture for failing to object at trial). See Answer, Ex. L. The court held that portions of Claim 3 that were not argued on appeal were barred by Dixon and that portions of Claim 3 that were argued on appeal were barred by In re Waltreus, 62 Cal. 2d 218, 225 (1965) (issue rejected on appeal cannot be renewed on habeas). See Answer, Ex. L.

Finally, the California Supreme Court denied petitioner's claims. Like the California Court of Appeal, the California Supreme Court cited Dixon, Swain, and Waltreus in its denial. Answer, Ex. M. It also cited People v. Duvall, 9 Cal. 4th 464, 474 (1995), which, like Swain, is a dismissal for failure to state a claim with particularity and to support it with documentaryevidence. Id.

C. Federal Court Proceedings

On November 28, 2016, petitioner filed the instant action, raising the following six claims for relief: (1) prosecutorial misconduct on multiple grounds; (2) ineffective assistance of trial counsel on multiple grounds; (3) trial court error in excluding testimony and other evidence; (4) judicial bias; (5) insufficient evidence to support his convictions; and (6) trial court error in denying disclosure of sealed records. On January 4, 2017, the Court issued an Order to Show Cause. Dkt. No. 6. On January 23, 2017, petitioner filed a supplemental brief with leave of court. Dkt. No. 8. Respondent filed an answer on March 28, 2017. Dkt. No. 11. Petitioner filed a traverse on April 24, 2017. Dkt. No. 12. Although respondent's answer addressed the merits of the claim, respondent also argued that Claims 1 and 3 were procedurally barred and unexhausted and that Claim 2 was unexhausted. Id.

On December 1, 2017, the Court dismissed Claim 1 as procedurally barred and dismissed Claims 2 and 3 as unexhausted. Dkt. No. 15. The Court directed petitioner to elect how he wished to deal with the unexhausted claims. Id. On April 25, 2018, the Court denied petitioner's motion for reconsideration and again directed petitioner to elect how he wished to deal with the unexhausted claims. Dkt. No. 20. On September 25, 2018, the Court granted petitioner's motion for a stay and abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (2005). Dkt. No. 26. The Court stayed the petition and administratively closed the case while petitioner returned to state court to exhaust state remedies on Claims 2 and 3. Id. On September 19, 2018, the California Supreme Court denied the new petition, citing In re Miller, 17 Cal.2d 734, 735 (1941), which bars repetitious presentation in California state court of claims already presented in an earlier petition. See Dkt. No. 35 at 4. On October 1, 2018, petitioner alerted the Court that he had exhausted all claims in the California Supreme Court. Dkt. No. 27. On October 31, 2018, the Court granted petitioner's motion to reopen the action and directed petitioner to file an amended petition. Dkt. No. 33.

Petitioner filed an amended petition on November 20, 2018. Dkt. No. 34. The amended petition omits Claim 1, which as noted above, had been dismissed. The amended petition includesthe newly exhausted Claims 2 and 3 without material change, as well as Claims 4, 5 and 6 without material change. On November 29, 2018, respondent notified the Court that he intended to submit the matter based on his already filed answer. Dkt. No. 35. Petitioner has not objected. Accordingly, the Court deems the matter submitted on the answer, supplemental brief, and traverse already on file. Dkt. Nos. 8, 11, 12.

STATEMENT OF FACTS

The following background facts describing the crime and proceedings at trial are taken from the April 16, 2015 opinion of the California Court of Appeal:²

Prosecution Evidence

Doe was 18 years old at trial. She testified that when she was six years old, appellant, her adoptive father, showed her his penis and put her hand on it. She said this happened multiple times each week. She would whine and complain that she did not want it to happen. When asked why she did it, she responded: "Because he was supposed to be my dad, and he told me to do it. If you don't do something your dad tells you to do, usually you get in trouble for it." She described her father as a disciplinarian and said that to discipline her, he would give her a time out, take something away, or sometimes she would be spanked. She complied with his requests so she would not be disciplined and because she was "afraid." She said appellant told her it was their "little secret" and asked her to promise not to tell anyone. She thought if she told anyone, she would get in trouble.

Doe was forced to perform oral sex on appellant more than once a week from the time she was eight years old until she was 15 years old. This would sometimes cause her pain because appellant would pull on her hair. When Doe was seven years old, appellant touched her vagina with "[h]is fingers. Sometimes his mouth." Doe remembered appellant inserted his fingers into her vagina when she was 10 years old. She said she performed these acts due to "fear" and it was a "matter of safety." She was afraid to tell anyone because "I didn't know what [appellant] could have done ... "I was scared out of my mind that he would murder my mother if she found out. I was also worried he would beat me."

When Doe was 15 years old, she was the victim of a sexual assault by a stranger. She began going to therapy but did not tell the therapist about appellant's abuse. She testified she could talk about the stranger's assault because there was no fear of consequences, but she knew if she talked about appellant, the therapist could not keep it confidential. She testified she strategized ways to avoid being alone with appellant including locking herself in the bathroom.

When Doe began a sexual relationship with another 16-year-old, appellant became angry. Doe's mother testified that appellant "was really, really scary angry. I mean, I thought hewas gonna hurt her." She testified that appellant was so enraged he was "hitting [Doe]." Doe testified appellant expressed his anger by "rap[ing]" her. He came into her room while she was dressing and dropped a red condom on the bed. She knew appellant wanted to have sex with her and she felt afraid. Appellant handed her the open condom to put on his penis and then he had sex with her.

Doe began collecting appellant's ejaculations. After appellant ejaculated in her mouth, she would spit it into a tissue and save the tissue. She collected five tissues in the box and turned them over to the police. She also included a note so "he wouldn't get away with it, even if something had happened to me." She said she had periods where she was suicidal due to the abuse. The Oakland Police Department criminologist conducted a DNA analysis of the five tissues and concluded they contained semen and sperm. Three of tissues also showed the presence of saliva. The criminologist matched the DNA on the tissue to

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