Morse v. Koenig, 2:21-cv-01667-TLN-KJN P

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
PartiesROBERT TODD MORSE, Petitioner, v. CRAIG KOENIG, Respondent.
Docket Number2:21-cv-01667-TLN-KJN P
Decision Date01 August 2022


CRAIG KOENIG, Respondent.

No. 2:21-cv-01667-TLN-KJN P

United States District Court, E.D. California

August 1, 2022



I. Introduction

Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his December 4, 2017 conviction for forcible rape and lewd acts upon three children. Petitioner was sentenced to 90 years to life plus six years in state prison. Petitioner raises the following claims: (1) prosecutorial misconduct for misstating the presumption of innocence during closing argument; (2) denial of motion to sever counts 12 and 13 violated his due process rights; (3) admission of prior sexual offenses violated his due process rights; (4) errors were cumulatively prejudicial; (5) insufficient evidence to support conviction on count 1; (6) denial to hear and rule on defendant's motion for a new trial violated his due process rights: (7) ineffective assistance of counsel for failing to present witnesses and exculpatory evidence; (8) ineffective assistance of counsel for failing to file a motion for a new trial based on errors in jury verdict forms; (9) these additional errors were


cumulatively prejudicial. After careful review of the record, this Court concludes that the petition should be denied.

II. Procedural History

On October 16, 2017, a jury found petitioner guilty of forcible rape and lewd acts upon three children. (ECF No. 12-7.) On August 6, 2018, petitioner was sentenced to 90 years to life plus six years in state prison. (Id.)

Petitioner appealed the conviction to the California Court of Appeal, Third Appellate District. (ECF Nos. 12-10 to 12-11.) The Court of Appeal affirmed the conviction on July 16, 2019. (ECF No. 12-12.)

Petitioner filed a petition for review in the California Supreme Court, which was denied on September 18, 2019. (ECF Nos. 12-13 to 12-14.) He also filed states habeas petitions, which the state courts denied. (ECF Nos. 12-15 to 12-21.)

Petitioner filed the instant petition on September 1, 2021. (ECF No. 1.) Respondent filed an answer on January 21, 2022. (ECF Nos. 11 and 12.)

III. Facts[1]

After independently reviewing the record, this court finds the appellate court's summary accurate and adopts it herein. In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

In 2015, after a program at school, K. told one of her teachers she had been inappropriately touched and fondled when she was younger. She wanted advice on whether she should tell her parents. The teacher reported the allegations. As a result of this report, Sergeant Brandon Bean investigated the matter. During the course of investigating, Bean learned defendant also molested K.'s older sister, Ke. Bean ran a full background check on defendant and learned defendant had a prior conviction from New York for sexual offenses committed against his niece, D. Bean spoke with D. in 2015 and learned defendant had also committed crimes against D. in 1989 or 1990 in California that had never been reported
D.'s Testimony
D. lived in New York. In 1989 or 1990, when she was 12 years old, she visited her grandmother in California. On this trip defendant raped her for the first time. While at her grandmother's home, D. slept on the sectional couch in the living room. Everyone in the house went to bed except defendant, who was still in the living room with D. He passed her a note asking if she had ever had intercourse. She answered she did not know what that was. After passing more notes, she left the room to change. When she returned to the living room, defendant was watching a pornographic movie. She turned the movie off. The next thing D. remembered, she was on the couch, defendant had climbed on top of her, and put his penis in her vagina. As she was crying, he put his fingers on her lips, and promised her it would not hurt. It was a few years before D. saw defendant again.
Later, defendant lived in New York, about 30 minutes away from D.'s home. She would see him regularly at family gatherings and holidays. During this time, defendant forced D. to have sex with him on multiple occasions. This included when she would spend the night at defendant's girlfriend's house after babysitting for them. He would come into her bedroom in the middle of the night and have sex with her. He also forced her to have sex at her 14th or 15 th birthday party. At that party, they were riding four wheelers in a field, D. ended upon the ground with no one else around. Defendant took her pants down, put his penis in her vagina, and “pleasured himself.”
When D. was 16 years old, defendant raped her again. The day before the rape, he had asked her to stay home from school and she refused because she knew he intended to have sex with her, as he had on many other occasions. When she got home from school, she heard the door open and panicked, because she knew what was going to happen. He came to her bedroom, started kissing her, fondling her breasts, and undressed her. She resisted and told him to stop, but he did not. He pushed her down on the bed and orally copulated her, then he removed his pants and put his penis in her vagina. He pulled his penis out, ejaculated on her stomach, got dressed and left. He told her not to say anything. D.'s boyfriend called her shortly after defendant had left and she told him what happened. She also told her parents and called the police. As a result of this assault, defendant was convicted of sexual abuse in the first degree in New York.
Defendant acknowledged he lived in California in 1989 and 1990 when D. came to visit his mother, her grandmother. He remembered D. visiting, but denied he had ever asked her to watch a movie or had sexual intercourse with her in California. He admitted he had sexual intercourse with her a couple of times later in New York, but denied he had forced her to have sex. He claimed she first initiated sex with him by orally copulating him after she babysat his son.
Ke. & K.
Ke. and K.'s aunt1 and her live-in boyfriend, defendant, babysat the sisters after school and during the day in summer. Although they did not call him uncle, they viewed the relationship with him as an uncle.
When Ke. was between 9 and 14 years old and K. was between 6 and 10 years old, they would go to defendant's house after school and would be there for a couple of hours. During summer, K. would spend full days there. The home had a pool and defendant would swim with Ke., K., and their cousin.
[N.1 The aunt was Ke. and K.'s stepmother's sister.]
Defendant repeatedly molested both Ke. and K. in the pool. When Ke. was between 10 and 12 years old, defendant regularly grabbed her breasts from behind her when they were in the pool. In the pool, he pulled her against him from behind and put his hands down her shorts, touched her vagina, and rubbed her clitoris. He also came up behind her and grabbed and pinched her butt. Ke. estimated the molestations occurred once or twice a week in the summer over the course of a few summers.
Defendant also repeatedly molested K. in the pool. Once, when she was eight or nine years old, defendant was wearing goggles in the pool, defendant swam under the water and moved K.'s bathing suit bottom to look at her vagina. She felt him hook his finger under the band of her bathing suit and move it. His head was approximately 18 inches away from her vagina. The cousin was also in the pool, but was swimming around so he did not see this happen. Another time, when K. was around the same age, defendant held her floating on her back, and positioned K. with her legs over the side of the pool and the jet of the pool streaming onto her vagina. He asked her if it felt good. She answered no and swam away. Defendant also threw K. in the pool. Before throwing her, he positioned her on his lap in such a way she could feel the pressure of his penis against her bottom and his hands lingered on her bottom.
Defendant molested K. and Ke. on other occasions in the home. One time while K. was playing a Game Boy in the cousin's bedroom, defendant came in the room, standing behind her, he started rubbing K.'s arms and shoulders, then put his fingers in her shirt and lifted it to look down her shirt. Defendant would also walk by Ke. in the house, and grab her butt and “stuff like that,” a lot.
Defendant used a vibrator with both K. and Ke. When Ke. was 12 or 13 years old, her aunt had left to take her boys to a soccer game and left Ke. with defendant at the house. Ke. fell asleep on the couch. She woke up with defendant next to her, touching her on her genitals, and rubbing her vagina and clitoris under her pants. She told him to stop and he told her, “Shut up, you know you like it.” He went into his bedroom, got a sex toy and came back with a vibrator with a remote control attached to it. It was small, oval shaped, and pink or purple. He was kneeling in front of her, put the vibrator down her pants, turned it on, and kept moving it up and down. He did not stop until he heard footsteps coming up the stairs as her aunt, K., and the cousin came home. She did not tell anyone because she did not think they would believe her, particularly because at that time her aunt always thought she was lying. When K. was between 8 and 10 years old, during a game of hide and seek, while K. was hiding in a chair with her lower back exposed, defendant came up behind her and put a
silver small bullet shaped vibrator against her lower back, just above

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