Morales v. Scribner
| Decision Date | 25 November 2008 |
| Docket Number | No. 05-03545 JSW.,05-03545 JSW. |
| Citation | 621 F.Supp.2d 808 |
| Parties | Jesus MORALES, Petitioner, v. A.K. SCRIBNER, et al., Respondents. |
| Court | U.S. District Court — Northern District of California |
Robert Joseph Beles, Paul Gilruth McCarthy, Law Offices of Robert J. Beles, Oakland, CA, for Petitioners.
Morris Lenk, Attorney General's Office, San Francisco, CA, for Respondent.
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Now before the Court is the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Jesus Morales ("Petitioner"), a prisoner of the State of California. After consideration of Petitioner's claims on the merits, the petition for habeas corpus is DENIED.
On March 18, 2003, Petitioner was convicted of forcible rape, in violation of California Penal Code § 261(a)(2), and forcible sexual battery, in violation of California Penal Code § 243.4(c). (CT 220-23.) Petitioner was sentenced to eight years for the rape, plus two consecutive years for the battery, for a total of ten years. (CT 231-34.)1 Petitioner appealed his conviction to the California Court of Appeal which affirmed the judgment on December 13, 2004. People v. Morales, No. A102884, 2004 WL 2850547, at *1 (Cal.Ct.App. Dec. 13, 2004). Petitioner then filed a petition for writ of habeas corpus in the California Court of Appeal, which was denied on December 13, 2004. Id. at *10, n. 4. The California Supreme Court denied Petitioner's petition for review on February 23, 2005. People v. Morales, No. S130807, 2005 Cal. LEXIS 2151, at *1 (2005).
Petitioner filed his habeas corpus petition with this Court on September 1, 2005. On October 14, 2005 and January 6, 2006, this Court issued orders to show cause. On April 13, 2006, Respondent moved to dismiss the petition. The Court granted the motion to dismiss and granted Petitioner leave to amend on June 12, 2006. On November 13, 2006, Petitioner filed an amended petition, and on December 18, 2006, this Court issued another order to show cause. Respondent filed an answer and a memorandum of points and authorities and lodged exhibits with the Court on February 15, 2007. Petitioner filed a traverse to Respondent's answer on May 21, 2007.
The California Court of Appeal summarized the facts as follows:
The victim, Dianne, is related to defendant by marriage: defendant is married to Dianne's cousin Nary, and became her godfather on her 15th birthday in August of 1996. Their families were "really close," and Dianne often talked to defendant when they visited.
A few months after her 15th birthday Dianne and her mother went from their home in Tracy to visit defendant and Nary in Livermore, where they lived with their young daughter Cynthia. While Dianne and her mother were talking with Nary in the kitchen, defendant entered and asked if she "wanted to go look at" his new exercise equipment in the garage. Dianne declined because she "didn't want nothing to happen," but defendant was insistent and she finally agreed to accompany him to the garage.
The garage was through a door, which was left open, and two or three steps down from the kitchen. Dianne followed defendant, but stopped part way into the garage as he displayed the weights to her. Defendant repeatedly asked Dianne "to give him a hug." Although she was resistant, defendant told her "a hug wouldn't hurt nothing," so she "gave him a hug." Defendant grabbed Dianne "really tight and started brushing himself" on her. Dianne was able to feel his "private part" moving "up and down" against her. She pushed defendant away and asked, "What are you doing?" Defendant responded, "you know you like it." Dianne insisted that she "didn't," then retreated to the kitchen. She did not tell her mother or anyone else about the incident, but thereafter she tried to avoid defendant.
Just after her 18th birthday in August of 1999, Dianne moved to Livermore to live with her aunt Nelly to attend a different high school. On the morning of August 28, 1999, Dianne was taken by her mother to defendant's house so he could drive her to Granada High School to register. Only defendant, his daughter Cynthia, and Dianne's "baby nephew" were present at the house. Dianne was responsible for "baby sitting" her nephew that day.
Dianne briefly sat on the couch with the baby and watched television, but she "was tired," so defendant agreed to "watch the baby" for her while she rested in Cynthia's bedroom. Dianne closed the bedroom door, laid down on her stomach on the bed, and was "half way asleep" when she heard the door open and a "zipper go down." Dianne opened her eyes to see defendant in the room. He sat on the side of the bed, grasped her hand, and "swiped it" against "his private." Dianne sat up and told defendant to "let go," but he just said she "liked it." Defendant grabbed Dianne's arm, pushed her onto her back on the bed, and began "kissing" and "licking" her "everywhere" as he "pinned" her down with his hands and legs. Dianne yelled at defendant to "get off" as she squirmed and began "hitting him." Defendant repeated, "I know you like it." He lifted her shirt, removed her bra, pulled her pants off, and touched her "privates." Dianne continued to yell at defendant to "stop" and "get off" her. "He put his penis" in her "vagina" for "a few seconds," and Dianne realized that she "was all wet down there."
After defendant "got up," Dianne ran to the bathroom, crying, and noticed that she "was dripping blood." Dianne testified that she never experienced sexual intercourse before, and was frightened that she "was no longer a virgin." Before he left the bedroom, defendant directed Dianne "not to tell," and "promised it wouldn't happen again." He expressed to her that he "didn't want anybody to know what he did." Dianne cleaned herself in the bathroom, put on her clothes, and left the bedroom "to check up on the baby." Defendant went to his bedroom.
Later that morning, defendant drove Dianne to Granada High School to register. On the way, he "kept on promising" that "it wouldn't happen again," and implored her "not to tell." Defendant stated that he "had a daughter and he didn't want Nary finding out." Dianne considered reporting the assault to her parents and the police, but based upon a previous "incident that happened where [her] parents called the cops and later [she] found out that they dropped the charges," she "didn't want the same thin to happen again." Therefore, she did not tell anyone of the assault by defendant.
Dianne did not have any contact with defendant again until October 19, 1999, when he unexpectedly picked her up from school for lunch. When defendant arrived in his truck, Dianne "questioned why he was there." Defendant explained that Dianne's mother "told him to pick [her] up." Dianne stated, "I'm not going home with you." When defendant asserted, Dianne reluctantly got into the truck.
They stopped at Burger King to buy lunch, then proceeded to defendant's house. No one else was there. After Dianne ate her lunch, she called her friend Lindy and said she was alone in the house with defendant and "didn't want anything to happen." She asked Lindy to "stay on the phone" with her until she "had to go back to school." Lindy agreed, and they talked until Dianne "looked at the clock" and realized she needed a ride back to school.
Dianne searched the house for defendant, and found him in his bedroom. Defendant was lying on his bed, so Dianne yelled to him, When she kicked the bottom of his shoe, defendant stood up, grabbed her hand, and swung her onto the bed. Dianne shouted, "Knock it off," but defendant "put his body weight" on her and pushed her onto the bed on her back. As defendant straddled her with his knees on her sides, he fondled and kissed her "all over." He grabbed her breasts under her bra. She tried to push him away and managed to prevent him from removing her clothes. Dianne warned defendant that she "wasn't going to stay quiet no more," and if she missed school she "was going to tell" her parents "what he was doing." Defendant then "jumped off" Dianne and drove her back to school. He again promised her "that it will never happen again."
When Dianne reached school, she ran to her friend Nancy, who observed that she was crying. Nancy asked "what happened?" several times before Dianne finally told her a relative "tried raping her" that day during lunch. Officer John Foxx, a school resource officer for the Livermore police department, noticed Dianne "crying hysterically, uncontrollably" while being consoled by another student on campus. Officer Foxx asked, Dianne told him "nothing," but her friend Nancy convinced her to "to talk to him." Dianne then accompanied Foxx to his office, "still crying," but left for class without disclosing anything to him that day.
Foxx thereafter continued to encourage Dianne to "make a report on what happened to her." On October 29, 1999, Dianne told Foxx what occurred at lunch ten days before, but did not discuss any of the prior sexual assaults. She also advised Foxx that she "was ready" to press charges. Later the same day, defendant called Dianne at her aunt's house. Dianne advised him that she "was going to report him," and "press charges." Defendant stated that if she "did he would run away to Mexico" and never see his wife and daughter again, or "commit suicide."
Dianne later received a telephone call from defendant in which he stated, "I'm just calling you to apologize for what I did to you." Defendant did not "admit" what he had done, but repeatedly insisted that he wanted to "come over" to Dianne's house and apologize "face to face." Di...
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