Moreno v. Allison
| Docket Number | 1:23-cv-00789-SKO (HC) |
| Decision Date | 30 August 2023 |
| Parties | JESSE MORENO, Petitioner, v. KATHLEEN ALLISON, Respondent. |
| Court | U.S. District Court — Eastern District of California |
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS
[THIRTY DAY OBJECTION DEADLINE]
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is currently in state prison serving a life sentence for 35 felony offenses arising from his molestation of his daughter between the ages of 11 to 17. He raises numerous claims challenging his conviction and sentence. As discussed below, the Court finds the claims to be without merit and recommends the petition be DENIED.
On September 22, 2017, a Fresno County jury found Petitioner guilty of the following 35 counts: two counts of committing a lewd or lascivious act on a child under 14 years of age (Cal. Pen. Code, § 288(a); counts 1-2); two counts of aggravated sexual assault of a child under 14 years of age and seven or more years younger (Cal. Penal Code § 269(a)(4); counts 3-4); 12 counts of forcible oral copulation on a minor 14 years or older (former Cal. Penal Code § 288a(c)(2)(C); counts 5-16); 11 counts of oral copulation by means of intoxication (former Cal. Penal Code § 288a(i); counts 17-18, 20-23, 27-30 & 33); four counts of rape by means of intoxication (Cal. Penal Code § 261(a)(3); counts 19, 24, 31 & 32); two counts of sexual penetration by means of intoxication (Cal. Penal Code § 289(e); counts 25 & 34); one count of attempted sodomy by means of intoxication (Cal. Penal Code §§ 664/286(i); count 26); and one count of using a minor for sex acts (Cal. Penal Code § 311.4(c); count 35). See People v. Moreno, 2021 WL 2025021, at *1 (Cal.Ct.App. 2021). On March 1, 2018, the court sentenced him to a total determinate term of 159 years and a total indeterminate term of 30 years to life, for an aggregate prison term of 189 years to life in prison. Id.
Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). On May 21, 2021, the appellate court affirmed the judgment. Id. Petitioner filed a petition for review in the California Supreme Court. On July 28, 2021, the California Supreme Court summarily denied the petition. (Doc. 7-3 at 205.[1])
On June 21, 2022, Petitioner filed a habeas petition in the Fresno County Superior Court. (Doc. 7-4 at 9-16.) On August 24, 2022, the court denied the petition. (Doc. 7-4 at 6-8.) On September 12, 2022, Petitioner filed a habeas petition in the Fifth District Court of Appeal. (Doc. 7-4 at 68.) On November 17, 2022, the petition was denied on procedural grounds. (Doc. 7-4 at 67.) On January 12, 2023, he filed a habeas petition in the California Supreme Court. (Doc. 7-4 at 78.) The petition was denied on April 26, 2023. (Doc. 7-4 at 77.)
On May 23, 2023, Petitioner filed the instant habeas petition for writ of habeas corpus in this Court. (Doc. 1.) Respondent filed an answer on July 3, 2023. (Doc. 8.) Petitioner did not timely file a traverse.
Petitioner and A.M. had one child together, S.M. Their relationship ended when S.M. was four or five years old, and S.M. visited Petitioner most weekends. When S.M. was 11 years old, Petitioner began talking to her about sex. He exposed his penis to her, showed her pornography and demonstrated how to put on a condom. He told her he wanted to teach her “how to be a good girlfriend,” by which he meant knowing how to perform oral sex.
The first instance of abuse S.M. recalled was Petitioner putting his mouth on her vagina and asking her to touch his penis. She was 11 or 12 years old. She did not recall when Petitioner first had her orally copulate his penis, but she testified he told her that boys would like her if she knew how to do it. Although it was all “a blur,” she stated that something sexual in nature occurred every time she visited him over the six-year period between the ages of 11 and 17 years old.
S.M. did not see Petitioner every weekend, but during middle school and into the beginning of high school prior to when she turned 14, her visits involved sexual touching and oral copulation. Petitioner told S.M. he had a medical condition that caused him to be unable to urinate and if she did not help him urinate by orally copulating him, he would have to go to the hospital.
When S.M. was 14 or 15 years old, Petitioner began making her eat chocolate-covered strawberries that tasted like alcohol and drink alcohol mixed with red punch afterward. S.M. could see “very small” “black pebbles” in the drink that looked like a black powder to her. Petitioner told her the strawberries would make her pass out and the alcohol would keep her awake. S.M. testified that the drink made her dizzy and confused, and it caused her to have complete memory loss.
Petitioner began engaging in sexual intercourse with S.M. when she was 16 years old. She recalled one incident when Petitioner made her ingest the drink and she woke up the next morning wearing only a long T-shirt that did not belong to her. She recalled telling Petitioner she did not want to have sex with him and then waking up with him on top of her. She began to cry, and he told her not to cry. When she woke up the next morning, she felt ill, her vagina and lower abdomen were very sore, and her pubic hair had been shaved off. She had no memory of what happened other than when she woke to Petitioner on top of her and started to cry, but Petitioner told her they had had intercourse that night and asked if she was “okay down there.”
S.M. testified that Petitioner had a camera he would hold in the bathroom. She would tell him to stop, and he would tell her it was not on and put it down on the counter. He always picked it back up again, though, and she knew he recorded their sexual acts because he would later watch the recordings on the television.
When S.M. was 17 years old, she disclosed the abuse to a friend and then to her mother, who reported it to police. S.M. thereafter made two recorded phone calls to Petitioner, which were played for the jury. Petitioner did not deny the crimes; he denied having bad intentions and stated he “apologize[d] for everything that ... [she felt] was not right” and for “bringing] [her] into something that ... [she was] not ready for ....”
When police executed the search warrant, they located 107 pornographic videos of Petitioner and S.M., along with still images that lacked any identifying information. They also located red punch; Smirnoff vodka, which S.M. said Petitioner sometimes poured in her drinks; and chocolate-covered strawberries in the refrigerator. They did not locate any black powder and did not confiscate or test the strawberries.
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Fresno County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997) (). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the petitioner can show that the state court's adjudication of his claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 412-413.
A state court decision is “contrary to” clearly established federal law “if it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or “if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405406).
In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that an “unreasonable application” of federal law is an objective test that turns on “whether it is possible that fairminded jurists could disagree” that the state court decision meets the standards set forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Cullen v Pinholster, 563 U.S. 170, 203 (2011). The petitioner “must show far more than that the state court's decision was ‘merely wrong' or ‘even clear error.'” Shinn v. Kayer, __ U.S.__, __, 141 S.Ct. 517, 523, 2020 WL 7327827, *3 (2020) (quoting Virginia v. LeBlanc, 582 U.S. 91, 93, 137 S.Ct. 1726, 1728 (2017) (per curiam)). ...
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