Patrick v. Hubbard, 2:07-cv-0582 GEB GGH

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Decision Date06 February 2015
Docket NumberNo. 2:07-cv-0582 GEB GGH,2:07-cv-0582 GEB GGH
PartiesSCOTT PATRICK, Petitioner, v. SUSAN HUBBARD, Warden, Respondent.

SCOTT PATRICK, Petitioner,
SUSAN HUBBARD, Warden, Respondent.

No. 2:07-cv-0582 GEB GGH


February 6, 2015


Introduction and Summary

Petitioner, Scott Patrick, was convicted of 50 counts of lewd acts on a child (his adopted daughter) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury (Cal Penal Code section 288, subd, (b)), and four counts of aggravated sexual assault of a child (Cal. Penal Code section 269). He was sentenced to a determinate term of 300 years on the lewd acts charges as well as a consecutive term of 60 years to life on the sexual assault charges.

The petition in this case was filed on March 26, 2007. However, the operative petition in this case is the First Amended Petition filed June 23, 2008.1 The claims identified therein are:

1. Ineffective Assistance of Counsel (failure to adequately prepare for trial including

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failure to investigate potential witnesses; failure to develop a viable defense; failure to properly contest the duress aspect of the prosecution; conceding petitioner's guilt to the number of counts of sexual misconduct (54 in total); failure to call a critical witness (Det. Bayles); failure to object to the supplemental instruction involving the word "substantial;" failure to retain an expert "in an effort to provide a counter to the technical evidence of the accident (sic) in the prosecution's case.")2

2. Insufficient Evidence regarding force or duress for the lewd act charges as well as the acts which constituted aggravated sexual assault.

3. Petitioner's Right to be Present at Trial was violated.

4. Erroneous Instruction (definition of the word "substantial" in a supplemental instruction).

Previously, the undersigned issued an order declining to expand the record on the issue of ineffective assistance of counsel with respect to the sub-claims of: failure to adequately prepare for trial including failure to investigate potential witnesses, failure to develop a viable defense, conceding petitioner's guilt to the number of counts of sexual misconduct (54). In the motion to expand the record, petitioner presented evidence by way of declaration. Petitioner discussed some of his meetings with trial counsel; declared that he refused to testify because his former counsel believed this to be ill advised, and that he would have taken a plea offer of 35 years to life if he had known about it. Other declarations included those of his wife, Deborah (detailing that with her work schedule and petitioner's residency training, very little time (if any) existed when petitioner was alone with his adopted daughter/victim [hereafter "S"]); (also that petitioner admitted acts of molestation of S to her); declaration of S's grandmother (recounting how S had not told her about any molestations occurring and that S had stayed at her residence for 6 months during the overall time period in which the molestations occurred); declaration of trial counsel

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(detailing the "whys" of his trial strategy and some factual details about his meetings with petitioner and attempts at a plea bargain).

The Motion to Expand the Record was filed in conjunction with the traverse in this case. No request to expand the record was made with respect to those ineffective assistance sub-claims not mentioned immediately above, nor was any request to expand made with respect to any other of the issues in the case. Thus, with the denial of the Motion, the undersigned finds that further outside-the-record evidence may not be sought to be produced in this case, assuming any could be produced.

For the reasons set forth below, the petition for habeas corpus, although raising serious issues, should be denied.

Factual Background

Because in the AEDPA environment the decision(s) of the state court constitutes the lynchpin of the analysis, that background is given here.

Section 288, subdivisions (a) and (b), inter alia, make it a felony to commit a lewd act "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury," upon the body of a child under the age of 14 with the intent of arousing sexual desires. Section 269 (aggravated sexual assault), in pertinent part, and in effect increases the penalty for such conduct when the lewd act is oral copulation or sexual intercourse and the victim is 10 or more years younger than the perpetrator.

The charged offenses arise out of a hundred and more incidents in which the defendant committed lewd acts on his adopted daughter during the period between her eighth and twelfth birthdays.

The defendant conceded at trial that the charged acts occurred but denied they were accomplished by force, violence, duress, menace, or fear of immediate or unlawful bodily injury.

The prosecutrix gave the following general account of the defendant's depraved conduct. When she was eight, a few months after she was adopted, the defendant, naked, began entering the shower with her and washing her hair when her adoptive mother was at work. When they moved to a new house the defendant's conduct escalated to washing her entire body including her genitalia. She was then nine or ten. Eventually defendant had his daughter sit on his lap on a stool while he engaged in behavior such as kissing her body and inserting his fingers into her vagina.

Sometimes she would try to escape, but he would prevent her from leaving the bathroom by locking the door and blocking with his

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hands so that she could not unlock it and leave. Then he would take her hand and lead her back into the shower. Sometimes he would "corner" her before or after a shower, push her down on the bed, strip her and commit lewd acts, including oral copulation. On occasion she resisted by trying to choke him, she also pushed him and kicked him, to no avail, "[h]e would just continue on like nothing happened." When she tried to escape he would pull and sometimes drag her back to the bed. He sometimes ordered her to orally copulate him and would push her head down to his penis "so [she] couldn't get it back up." His digital violations of her vagina caused her "sharp pain." Defendant told her that if she disclosed these depredations it would not do her any good because she would lose her home.

When she was ten or eleven, the family moved again. The same conduct occurred in the new home. There was a hiatus when she was out of the home for six months, living in Montana with her grandparents. After she returned to the defendant's home his conduct escalated to a higher level, "doing more and more things." This included probably 50 occasions on which he required her to orally copulate him in the shower by putting his hands on her head and "hold[ing] it there so [she] couldn't really move it." The escalated behavior included coitus. This felt "sharp, and it was a very painful, kind of burning." She tried to fight him off on each of the 30 or so occasions when he engaged in coitus. Her struggles were usually ineffective, but she conceded that "every once in a while" she was able to frustrate him.

The defendant did not testify. His wife was called as a witness by the prosecution. She testified, inter alia, that after her daughter accused the defendant he conceded the sex acts occurred. She said when she confronted him with her daughter's assertions that she had resisted by hitting at him or trying to choke him he said: if she did that to him, that he would immediately stop and nothing else would happen."

People v. Scott Patrick, ECF No. 35, Resp't's Lod. Doc. 4 at 2-5.


The issues are encompassed within the petition, but certain issues will overlap in their discussion despite being separately put forth in different claims. For ease of analysis and reading, the undersigned assigns the issues in the following order:

1. Whether the trial court erred in its supplemental instruction to the jury regarding "substantial force" (includes the claim of ineffective assistance of counsel for failure to object to the supplemental instruction);

2. Insufficient evidence regarding force or duress for the lewd act charges as well as the acts which constituted aggravated sexual assault;

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3. Petitioner's right to be present at trial was violated;

4. Miscellaneous ineffective assistance of counsel issues other than the failure to object to the supplemental instruction.


A. AEDPA Standards

The AEDPA standards are well known, but will nevertheless be repeated here. The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the 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.

As a preliminary matter, the Supreme Court has recently held and reconfirmed "that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been 'adjudicated on the merits.'" Harrington v. Richter, 131 S.Ct. 770, 785 (2011). Rather, "when a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 784-785, citing Harris v. Reed, 489 U.S. 255, 265, 109 S.Ct....

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