Mcelvain v. Lewis
| Citation | 283 F.Supp.2d 1104 |
| Decision Date | 18 September 2003 |
| Docket Number | No. CV 01-5634-DOC(RC).,CV 01-5634-DOC(RC). |
| Parties | Michael Patrick MCELVAIN, Petitioner, v. Gail LEWIS, Warden, and Attorney General of the State of California, Respondents. |
| Court | U.S. District Court — Central District of California |
Kerry R. Bensinger, Bensinger, Ritt & Botterud, Pasadena, CA, for Petitioner.
Michael C. Keller, Deborah J. Chuang, CAAG—Office of Attorney General of California, Los Angeles, CA, for Respondents.
ORDER ADOPTING FINAL 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 Final 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 Final Report and Recommendation is approved and adopted; (2) the Final Report and Recommendation is adopted as the findings of fact and conclusions of law herein; and (3) 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 Final Report and Recommendation and Judgment by the United States mail on the parties.
IT IS ADJUDGED that the Petition for Writ of Habeas Corpus is denied and the action is dismissed with prejudice.
This Final Report and Recommendation is submitted to the Honorable David O. Carter, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 01-13 of the United States District Court for the Central District of California.
On May 28, 1998, in Los Angeles County Superior Court case no. YA034875, a jury convicted petitioner Michael Patrick McElvain of one count of forcible rape in violation of California Penal Code ("P.C.") § 261(a)(2), two counts of inflicting corporal injury on a cohabitant in violation of P.C. § 273.5(a), one count of assault with a deadly weapon and by means of force likely to produce great bodily injury in violation of P.C. § 245(a)(1), two counts of making terrorist threats in violation of P.C. § 422 and one count of vandalism in violation of P.C. § 594(a); however, the jury found petitioner not guilty of a separate forcible rape count, a count of false imprisonment by violence and a count of stalking. Clerk's Transcript ("CT") 372-384; Reporter's Transcript ("RT") 1650:20-1657:8. Petitioner was sentenced to 12 years and 4 months in state prison. RT 1667:3-1668:21.
The petitioner appealed his convictions to the California Court of Appeal, which affirmed the judgment in an unpublished opinion filed July 21, 1999. Answer, Exh. A. On August 30, 1999, petitioner filed a petition for review in the California Supreme Court, which denied the petition on September 29, 1999. Motion to Dismiss ("Motion"), Exhs. B-C.
On December 21, 1999, petitioner filed a petition for habeas corpus relief in the Los Angeles Superior Court, which denied the petition the same day. Motion, Exh. D. On January 21, 2000, petitioner filed a habeas corpus petition in the California Court of Appeal, which was denied on February 9, 2000. Motion, Exh. E. On March 16, 2000, petitioner, through his counsel, filed a petition for habeas corpus relief in the California Supreme Court, which was denied on June 28, 2000. Motion, Exhs. F-G.
Subsequently, petitioner filed a second petition for writ of habeas corpus in the California Supreme Court, which denied the petition on May 1, 2002, with citation to In re Clark, 5 Cal.4th 750, 21 Cal. Rptr.2d 509, 855 P.2d 729 (1993), In re Robbins, 18 Cal.4th 770, 780, 77 Cal. Rptr.2d 153, 959 P.2d 311 (1998), In re Dixon, 41 Cal.2d 756, 264 P.2d 513 (1953), and In re Miller, 17 Cal.2d 734, 112 P.2d 10 (1941).
In affirming petitioner's convictions, the California Court of Appeal made the following findings of fact:1 Petitioner, 33 years old, began dating the victim when she was 19 years of age. The off-again and on-again relationship (at one time including an engagement to be married) was tempestuous, as petitioner resented any time the victim spent with anyone other than himself. He would periodically physically abuse her. As time went by, petitioner became more violent and possessive. At one point, when the victim tried to end the relationship, petitioner threatened to disseminate copies of a videotape he had made, unbeknownst to her, of the two of them having sex.
On one occasion, petitioner made the victim clean the house late at night, on her hands and knees and in the nude. The abuse included forcible sexual relations and numerous beatings that left the victim badly bruised. During one forcible sexual episode, petitioner ejaculated on the victim's stomach and then urinated on her. The victim eventually left petitioner and obtained a restraining order, to which petitioner paid no attention other than to threaten to kill the victim. When petitioner accosted the victim at a public beach, a police officer came on the scene and arrested him. Petitioner soon telephoned the victim to threaten her with death. No prosecution ensued at this point.
Petitioner would continuously call the victim at her place of employment, sometimes several dozen times a day. His harassment included numerous public encounters. At one point, he extensively damaged her car by repeatedly slamming his pick-up door against the vehicle. When finally arrested on the charges that gave rise to this criminal prosecution, petitioner several times kicked the inside of the police car and threatened to kill the victim and her family.
This action commenced on June 26, 2001, when petitioner, through his counsel, filed his initial habeas corpus petition challenging his convictions. On August 16, 2001, respondents filed a motion to dismiss the habeas corpus petition, arguing six of the twelve grounds in the petition were not exhausted. On October 15, 2001, petitioner, again through his counsel, filed an amended habeas petition deleting four claims, and on October 16, 2001, this Court determined the amended petition to be fully exhausted and ordered respondents to answer the petition. On November 1, 2001, respondents answered the amended petition. Petitioner filed a traverse on November 29, 2001.
Subsequently, petitioner requested leave to file a second amended petition ("SAP") for habeas corpus relief, adding the previously deleted claims, and on October 18, 2002, the Court granted petitioner's motion. Respondents filed a supplemental answer on November 6, 2002.2 On April 21, 2003, petitioner filed a motion for summary judgment, with supporting memorandum of points and authorities and the supporting declaration of Kerry R. Benzinger, which this Court treats as a traverse. On May 2, 2002, respondents filed a request to treat their previously filed answer and supplemental answer as an opposition to petitioner's summary judgment motion. The Court grants that request.
The pending second amended petition raises the following claims:
Ground One—"The [prosecutor] violated Petitioner's rights by basing his conviction upon false evidence—[a] false representation that Petitioner confessed [to] rape[.]" (SAP at 6);
Ground Two—"The state violated Petitioner's rights by surreptitiously eliciting incriminating statements from him without counsel present[.]" (SAP at 6-7);
Ground Three—Petitioner received ineffective assistance of counsel when his "trial counsel failed to discover the falsity of evidence used against [him], object to it, or make [the] jury aware of the falsity[.]" (SAP at 7);
Ground Four—Petitioner received ineffective assistance of counsel when his "trial counsel failed to call Petitioner as a witness, even though Petitioner had clearly expressed [a] desire to testify." (SAP at Addendum);
Ground Five—Petitioner received ineffective assistance of counsel when his "trial counsel failed to present evidence, of which he was aware, that Petitioner was physically unable, because of diabetes and the use of medication, to commit rape." (SAP at Addendum);
Ground Six—Petitioner received ineffective assistance of counsel when his "trial counsel failed to investigate, interview and call witnesses and present evidence that would have impeached the alleged victim[.]" (SAP at Addendum);
Ground Seven—Petitioner received ineffective assistance of counsel when his "trial counsel failed to challenge the use of statements that were elicited from Petitioner in violation of his right to counsel." (SAP at Addendum);
Ground Eight—Petitioner received ineffective assistance of counsel when his "trial counsel failed to move to suppress the admission of statements that were elicited from Petitioner through coercion in violation of Petitioner's right against self-incrimination[.]" (SAP at Addendum);
Ground Nine—"The trial court erroneously admitted expert testimony on the Battered Women's Syndrome, depriving Petitioner of a fundamentally fair trial[.]" (SAP at Addendum);
Ground Ten—"The trial court erroneously admitted character evidence, depriving Petitioner of a fundamentally fair trial[.]" (SAP at Addendum);
Ground Eleven—Prosecutorial "misconduct deprived Petitioner of a fundamentally fair trial[.]" (SAP at Addendum); and
Ground Twelve—Petitioner received ineffective assistance of counsel when his "trial counsel repeatedly failed to object to the admission of improper evidence including but not limited to bad character evidence, and failed to request limiting instructions[.]" (SAP at Addendum).
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