McMillan v. M D Biter, CV 13-6910-MAN
| Decision Date | 18 July 2014 |
| Docket Number | NO. CV 13-6910-MAN,CV 13-6910-MAN |
| Court | U.S. District Court — Central District of California |
| Parties | PATRICK MAURICE McMILLAN, Petitioner, v. M D BITER, Respondent. |
On September 18, 2013, Petitioner, a California state prisoner, filed a habeas petition, which pleaded three claims ("Petition"). On November 19, 2013, Respondent filed a motion to dismiss the Petition on the ground that it was "mixed," because Ground Two was unexhausted.
On November 21, 2013, the Court1 issued an Order in which it: concluded that Ground Two was not fairly presented in Petitioner's appeal and, thus, the claim was unexhausted and the Petition was "mixed"; advised Petitioner of his four options given the "mixed" nature of the Petition; and directed Petitioner to file a response, advising the Court of his elected option. On December 4, 2013, Petitioner filed a response to the Court's November 21 Order, in which he voluntarily dismissed Ground Two, without prejudice, on the ground that the claim is unexhausted.On December 6, 2013, the Court ordered Ground Two of the Petition dismissed without prejudice, deemed the Petition to be amended to consist only of Grounds One and Three, and denied the motion to dismiss as moot.
On February 20, 2014, Respondent filed an Answer to the Petition.2 On May 9, 2014, Petitioner filed a Response to the Answer. The matter is fully briefed and under submission to the Court.
On March 5, 2010, a Santa Barbara County Superior Court jury found Petitioner guilty of first degree residential robbery, first degree burglary with a person present, forcible rape, sexual penetration by foreign object, cruelty to a child by endangering health, and dissuading a witness. The jury also found true numerous gang, personal use of a firearm, and personal infliction of great bodily injury enhancement allegations. (Lodg. No. 1, Clerk's Transcript ("CT") 564-89.) In addition, the jury found that Petitioner committed the rape and sexual penetration offenses during the course of a residential burglary within the meaning of California Penal Code § 667.61 (California's "One Strike" law). (CT 572-75.) In a separate proceeding outside the presence of the jury, Petitioner admitted, and the trial court found true, allegations that Petitioner had suffered two prior convictions (and related prison terms) within the meaning of California Penal Code § 667.5(b). (CT 710-12.) Petitioner thereafter was sentenced to a total term of 38 years plus 57 years to life. (CT 736-39, 803-06; Lodg. No. 9 at 2.)3
Petitioner appealed and raised Grounds One and Three of the Petition. (CT 793; Lodg. Nos. 4, 7.) On March 7, 2012, the California Court of Appeal affirmed Petitioner's convictions in a written, reasoned decision, although it reversed his sentence on the dissuading a victim conviction and remanded the case for resentencing on that conviction. (Lodg. No. 9.) Petitioner sought review in the California Supreme Court. (Lodg. No. 10.) On June 13, 2012, the California Supreme Court denied review summarily. (Lodg. No. 12.)
"Jane Doe"5 grew up in Lompoc, California, and was still living there in October 2008. She lived with Troy Grant, her boyfriend, and their son Dante, who was a year and a half old, and Dasha, Grant's child from a previous relationship, who was six years old. (Lodg. No. 3, Reporter's Transcript ("RT") 291-93, 648-49.) Doe had met codefendant Coleman a few times prior to October 15, 2008, including at the home of her friend Bridgette Oliver, but Doe was not Coleman's friend. Doe had not seen Petitioner before October 15, 2008. (RT 344-45.). Oliver was acquainted with Coleman and had seen Petitioner with Coleman on several occasions. (RT 75657.) Grant went to the same high school as Petitioner and had seen Coleman around, but Grant was not a friend of either man. (RT 650.)
On October 15, 2008, Grant left home to work a night shift. Doe remained at home and put the two children to bed around 9:30 p.m. (RT 299-300, 655.) Oliver, who was Doe's best friend at the time, was at the house and they watched television. Oliver left around 11:00 p.m.,and Doe went to bed 15 minutes later. (RT 300-02.)
Doe fell asleep but woke when she heard a "fidgeting" sound coming from her front door knob. She sat up, got out of bed, and heard a "big boom." Two men ran into the room: one -- who Doe identified as Petitioner -- had a "net" stocking over his face; and the other wore a gorilla mask and was holding a bat and a firearm. Both men were wearing gloves and referred to each other as "Cuz," a term Doe understood to be a name that members of the Crips gang call each other. Petitioner grabbed Doe from behind and used his elbow to put pressure on her neck. (RT 301-09, 342-43.)
The two men demanded money and "weed," i.e., marijuana. Petitioner was choking Doe so "hard" that she started to lose sight and could not breathe. Petitioner knelt Doe over the bed, facedown, and told the other man to get something to tie up her feet. Doe felt someone attempt to tie her ankles with a wire. (RT 309-11.) One of the intruders pulled Doe's pants down. She felt both men's hands on her. One of the men penetrated her vaginally with his penis, and it was painful. Thereafter, she was penetrated vaginally by a plastic object. (RT 311-15.)
Petitioner stood up and again asked Doe for the location of money and weed, and Doe told him the items were in the car and also in a jacket belonging to Grant. The man in the gorilla mask obtained a backpack from the car, which contained the marijuana; however, there was no money in Grant's jacket. Petitioner again asked for money, and Doe told him it was in her son's room, in a jacket in his closet. During this time, Petitioner had Doe in a chokehold. He forced her to go to her son Dante's room, and the man in the gorilla mask retrieved the money from a jacket and went outside. Approximately $1,100 was taken. Dante was awake as this occurred. (RT 315-18.) Petitioner took Doe into the hallway and said she had the option of either being tied up or knocked out. Doe was crying and said, "just let me go." Petitioner walked her into Dasha's bedroom, knelt her over the bed, and told her to not move and to count to a thousand. Dasha was awake and crying. Petitioner left. (317-19.)
Shortly after Petitioner left Dasha's room, Doe gathered the children and her purse and left in her car. She called Grant and told him what happened, and he told her to bring the children to his workplace, which Doe did. All of them then went to the hospital. Grant called Oliver, who came and stayed with Doe, and Grant took the children to Doe's mother. (RT 319-21, 657-59.)
Thereafter, a SART (Sexual Assault Response Team) nurse examined Doe. (RT 330, 333, 846-48.) Although Doe had difficulty breathing and swallowing, because her throat and neck felt crushed due to the chokehold, she was able to describe the attack and the intruders to Grant. (RT 332-33, 660, 865, 868.) Doe had bruising and abrasions in numerous areas of her body, her vaginal area was painful and tender, and the back of her neck was red, swollen, and tender. (RT 334-38, 859-62, 868-69, 874, 877-79.) Doe described the incident to the SART nurse and to a police officer who interviewed her at the SART location. (RT 854-73, 1028-36.)
Doe went to her parents' home after she left the SART location. Oliver showed up 30 minutes later. (RT 339.) Doe described the incident to Oliver, including the assailants' appearances. They looked at the MySpace website, Doe saw a photograph of Petitioner, and she recognized him as the man who wore the net stocking mask. Doe called Detective Clancy, who had interviewed Doe at the SART location, and both Doe and Oliver told Clancy that: when Doe described the assailants, Oliver said she thought she knew who one of them was; Oliver brought up Petitioner's photograph on MySpace; and Doe said right away that the man depicted was one of the assailants. (RT 340-44, 1064-65.)
Petitioner was arrested on October 17, 2008. (RT 933-34) He had $1,250.50 on his person when he was arrested. (RT 1077.) Detective Clancy interviewed Petitioner a few days later, and Petitioner stated that: after he finished work on October 15, 2008, he came to Lompoc to visit with various people, although could not remember who he visited other than Aundrice Dixon; he visited with Dixon until 11:00 p.m., then he went to pick up Gloria Thomas, and they drove to his home in Santa Maria; he and Thomas stayed the night at his Santa Maria home; thenext morning, he went to work; and after he finished work, he picked Thomas up at his Santa Maria residence and brought her back to Lompoc, and he then returned to Santa Maria. (RT 1074-76.)
A week later, Detective DeLauretis interviewed Dixon. She told him that she had seen Petitioner and Coleman on the afternoon of October 15, 2008, walking through her apartment complex, and they stopped by her residence at around 4:00 or 5:00 p.m. (RT 941-42.)
On November 3, 2008, Detectives Clancy and DeLauretis interviewed Thomas. (RT 948.) Some time after October 16, 2008, Thomas, who had read an article about the crime in the newspaper, asked Petitioner if he was involved, and he responded, "I was not there." Thomas asked Petitioner if Doe has been raped, and he said, "Not to my knowledge." (RT 951-52.) Thomas thereafter started to cry during the interview and said she was scared. She said that, during the same conversation with Petitioner, he told her she needed to get his car and remove some clothing from his house (which she did), and he also said, "We did go in the house." (RT 952-53, 1058.) Petitioner asked Thomas to get a message to Coleman, who had not yet been located by the police, "to stay where he's at and not come in," and to have her boyfriend give a false alibi for Coleman. (RT 953-55, 1058.) Thomas stated...
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