Melvin v. Clark

• Decision Date: 27 September 2012
• Docket Number: 1:09-cv-01950 MJS HC
• Court: U.S. District Court — Eastern District of California
• Parties: DAVID MELVIN, Petitioner, v. KEN CLARK, Warden, Respondent.

DAVID MELVIN, Petitioner,

v.KEN CLARK, Warden, Respondent.

1:09-cv-01950 MJS HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: September 27, 2012

ORDER DENYING PETITION FOR WRIT

OF HABEAS CORPUS AND DECLINING

TO ISSUE CERTIFICATE OF

APPEALABILITY

Petitioner is a state parolee proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent, Matthew Cate, as Secretary of the California Department of Corrections and Rehabilitation, is hereby substituted as the properly named respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Both parties have consented to Magistrate Judge jurisdiction under 28 U.S.C. § 636(c). (ECF Nos. 11, 18.)

I. PROCEDURAL BACKGROUND

Petitioner is currently on parole pursuant to a judgment of the Superior Court of California, County of Fresno, following his conviction by jury trial on December 9, 2005, of forcible sexual penetration and forcible oral copulation.¹ (CT² , Vol. 2 at 366-67.) The trial courtsentenced Petitioner to serve eight years in state prison. (Id.) Petitioner was released from custody on August 15, 2012, and is currently serving a five year parole term. (See ECF No. 31.)

Petitioner filed a direct appeal which was denied in a reasoned decision by the California Court of Appeal, Fifth Appellate District on October 3, 2007. (Lodged Doc. 1.) The California Supreme Court denied review on January 16, 2008. (Lodged Doc. 2.)

On April 9, 2008, Petitioner filed a habeas petition in the Fresno County Superior Court. (Lodged Doc. 3). The petition was denied on May 5, 2008. (Id.) Petitioner filed two additional petitions with the Fresno County Superior Court which were denied on May 29, 2008 and June 29, 2008, respectively. (Lodged Doc. 3.) Petitioner proceeded to file petitions for writ of habeas corpus with the Court of Appeal and California Supreme Court which were ultimately denied on July 22, 2009.

Petitioner filed the instant federal habeas petition on August 27, 2009. (Pet., ECF No. 1.) Petitioner raises the following nine claims for relief:

1. Improper denial of Petitioner's Wheeler/Batson motion based on the trial court finding no prima facie case of discrimination;

2. The trial court improperly reseated a juror that was previously subject to a peremptory challenge;

3. Insufficient evidence of guilt as to either offense for which Petitioner was convicted;

4. Improper application of the upper term sentence for each count;

5. The trial court improperly denied Petitioner's Marsden motion to obtain new trial counsel or proceed pro se;

6. Ineffective assistance of trial counsel;

7. Ineffective assistance of appellate counsel;

8. The abstract of judgment contains errors and improperly states restitution fines; and

9. Petitioner's parole term violates his constitutional rights.

Respondent filed an answer to the petition on September 16, 2010, and Petitioner filed a traverse on October 18, 2010. (Answer & Traverse, ECF Nos. 26, 28.)

II. FACTUAL BACKGROUND³

PROSECUTION EVIDENCE

Virginia, who was in her 50's, suffered from grand mal and petit mal epileptic seizures, rheumatoid arthritis, and a hip condition. Dr. Reinfurt, a psychologist with specialized training in neuropsychology, administered IQ and memory tests to Virginia and determined that her intellectual functioning was within the borderline range - not average, but not mentally retarded. Her overall processing was slow.

At the time of events, Virigina had lived in a retirement home in Kingsburg for years and had become very close friends with Marsha Melvin, [Petitioner's] wife. The two women habitually got together every Monday at the Melvin residence to exercise while watching Richard Simmons tapes. [Petitioner] was present and would help Virginia do the exercises.

At some point in November 2004, [Petitioner] telephoned Virginia and said he was coming over to fix her computer. He had helped her with her computer in the past, and she had called him earlier and asked if he would come, although she could not recall whether she asked him the same day as he came over. Once at her apartment, [Petitioner] worked on the computer and showed her some things she could do on it. He then asked if he could use the bathroom. When he came out, he saw the mirror on the dresser in the bedroom and said she could do her exercises there.[FN4] He suggested the two of them could do exercises; Virginia said okay, as it was not unusual for them to do exercises together, although they had done so at her apartment only a couple of times before, and then in the living room.

FN4. When Virginia exercised with [Petitioner] and Mrs. Melvin at their home, they used a mirror.

Virginia lay down on the bed and did some exercises, but then [Petitioner], who was at the foot of the bed, pulled off her slacks and nylons. Virginia said no and asked him what he was doing, but he just kept going. She knew why he was doing it, but she "just froze" and could not do anything to stop him.

[Petitioner] kissed Virginia on the cheek, then removed her panties and said he had brought oil from home. He pushed up her bra and shirt, kissed her breasts, and inserted a finger in her vagina. There was oil on his finger, and some of the oil spilled on her bed. She told him no, but he did not stop. "If [she] could have, [she] would have pushed him away and gotten him out of there somehow." She was scared.

When [Petitioner] stopped, he asked Virginia to move to the side of the bed, close to the edge, and to lift and hold her legs. She did so, as she did not know she could say no. She held her legs up in the air, whereupon he started licking her vagina. Horrified, she told him no several times and asked what he was going to tell his wife. He said not to tell Marsha; she would kill him.[FN5]FN5. On cross-examination, Virginia testified that, while she was doing an exercise, [Petitioner] had her remove her slacks and nylons, telling her she would be able to work better. Still later on cross-examination, she testified that her clothes were already off when she was doing the exercises. She then stated that after she got on the bed, [Petitioner] showed her some exercises, then removed the rest of her clothes, pushed up her shirt and bra, and used the oil with his finger. There was also testimony suggesting that at some point, Virginia put her clothes back on and went into the kitchen, but then returned to the bedroom when [Petitioner] asked why she had stopped trusting him. After she went into the bedroom the second time, "he was on [her.]." Virginia, who appeared to become quite confused during crossexamination, testified that she told the police everything she could remember.

As it was getting to the time Virginia had to go to lunch, [Petitioner] said it was lunchtime and stopped. She then asked him to trim her toenails, as she could not reach them and did not want them to rip her nylons when she got dressed. [Petitioner] cut her toenails for her, then he went home and Virginia went to eat. At lunch, she told a couple of the ladies who sat at her table what had happened. She told [Petitioner's] wife the next day. Although Virginia never contacted the police, she talked to them at her home a few days later, not long after she reported the events to her mother. Virginia did not contact the police on the day of the assault because Mrs. Melvin was a very close friend of hers, and she did not want to lose that friendship. Virginia denied having an affair with [Petitioner] or agreeing to any sexual contact with him, although she admitted they had tried to kiss on one previous occasion.

Kingsburg Police Officer Quiroz interviewed Virginia on November 13, 2004. Virginia, who appeared to be upset, said the incident had occurred three days earlier in her bedroom, and that she had not slept in there since it happened. Quiroz found a green sheet on the bed that had a large, circular, shiny spot on it. The spot and the whole room smelled like baby oil. During this interview, Quiroz asked whether [Petitioner] had threatened Virginia. She said no.

After the initial interview, Quiroz had Virginia come to the police department the next day for a second interview, which was videotaped.[FN6] In this interview, Virginia said she had not asked [Petitioner] to come and fix the computer that day. When he first set up her computer, he told her that he would have to come back because something would not connect, and he told her to call to remind him, but she never did. When he came over this time, he downloaded a computer program and then showed her how to do various things with it. He then asked to use her bathroom. Virginia related that she was in the living room, but then he called her in to where the mirror was and said she could watch herself when she did her exercises. She did some exercises, then walked into the kitchen to make coffee. He again called her in and said she could really see herself doing the exercises. He wanted her to do an exercise, and the next she knew, she was on the bed. Virginia related that [Petitioner] got on the bed. Thinking he was going to fall off, she grabbed, not with both arms around him, but so he could scoot over a little. Then he was kissing her before she knew what was going on, and just "at [her]" before she knew what was happening. He went down toward the end of the bed and was massaging her breast area. He had pushed up her bra and was kissing her nipples. She felt she could not leave. She did not know what to do. He then removed her slacks and rubbed her, then removed her nylons and said he could not feel the places he needed to rub. She was frozen with fear. When he pulled down her clothing, she thoughtshe would just pull her pants back on and leave. He told her no, that he did not want her dressed. She asked him what he was going to tell his wife. He said that if this got back to her, he would be in trouble. He pressed "extra hard" on Virginia after saying, "If this gets back to her."

FN6. A redacted videotape

...