Rose v. Foulk, No. 2:12-cv-03028-JKS

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtJAMES K. SINGLETON, JR. Senior United States District Judge
Decision Date15 September 2014
PartiesWAYNE LAVERNE ROSE, Petitioner, v. FRED FOULK, Warden, High Desert State Prison, Respondent.
Docket NumberNo. 2:12-cv-03028-JKS

FRED FOULK, Warden, High Desert State Prison,1 Respondent.

No. 2:12-cv-03028-JKS


September 15, 2014


Wayne Laverne Rose, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Rose is currently in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at High Desert State Prison. Respondent has answered. Rose has not replied.


In resolving his claims on direct appeal, the California Court of Appeal recounted the underlying facts of this case as follows:

Forty-eight-year-old Joy D. lived alone in her Stockton apartment and worked in the mailroom and another department of a school. According to her supervisor, Joy was a "special needs" person. A police officer who interviewed Joy described her as "[v]ery simple, somewhat slow. Child like, I guess."
In the early morning of December 27, 2006, Joy was awakened by banging on her front door. She went to the living room to investigate and heard a man talking through the front door. The man said there had been a break-in at the apartments, he worked for the apartment owner, and he had to check all of the apartments to make sure everything was okay.

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Joy opened the door slightly and said everything was okay. The man reiterated his claim and told Joy he had to come into her apartment. The man, whom Joy identified at trial as [Rose], entered the apartment even though Joy told him to come back in the daytime.
Joy then told [Rose] to get out and tried to push him back. [Rose] grabbed Joy by the right hand and took her to the bedroom. [Rose] pushed Joy onto the bed and said, "I want to just touch your breasts for a few moments before I leave."
[Rose] touched Joy's breasts and removed her clothes, overpowering her efforts to fight back. Next, [Rose] licked her breasts and put his penis in her mouth. When Joy began gagging, [Rose] got angry, told her to "shut up," and moved his penis to her vagina. [Rose] put his penis partially in Joy's vagina while she was on her back. He then put Joy on top of him, and repeated the act. [Rose] also placed Joy on all fours and had intercourse with her again. He also put his fingers in Joy's vagina. [Rose] did not dress and leave until the sun was coming out.
Joy had never had sex before. She was nervous and upset. Joy did not tell her neighbors because she did not want to scare them, did not call the police because she did not have change to use a pay phone, and did not tell her parents because she wanted to stop thinking about it.
After the attack, Joy started placing a garbage can in front of her apartment door so she could hear any intruders. On the evening of January 8, 2007, Joy was awakened by noises from outside the apartment. She went into the bathroom "frightened, but quietly," locked the door, and placed her body against it.
Joy heard noises coming from the area by her apartment's front window. She heard walking, then saw, through the space under the bathroom door, the bedroom light turn on. Her bathroom door was opened, and Joy saw [Rose], who grabbed Joy and took her to the bedroom.
As before, [Rose] disrobed Joy over her protests. [Rose] put his penis in Joy's mouth, had her pull on his penis with her hand, put his finger in her vagina, and penetrated her with his penis while she was on her back, her stomach, and all fours, and with her on top of [Rose]. [Rose] held her down so she could not move, and blocked the door when he let her go to the bathroom.
[Rose] pulled Joy into the living room, where he made her sit on his lap while he watched "Girls Gone Wild" on the television. He had Joy touch his penis; he placed his penis in her mouth, and touched her vagina and breasts; and he penetrated her vagina with his penis. He then forced Joy back to bed, put his fingers in her vagina, and had intercourse with her again.
[Rose] went to sleep with his arm across Joy. At some point he opened her refrigerator and commented she did not have very healthy food. He left in the morning.
Joy bathed and went to work, where she told her coworker and law enforcement what had happened. She had vaginal soreness and a black-and-blue mark. A sexual assault examination discovered no sperm. There were two small abrasions in the upper exterior area of her vagina, which were consistent with attempted penetration by a penis.
The screens over the front windows of Joy's apartment were removed, and her front window was cracked; neither the screens nor the window was damaged when she

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went to bed before the second assault. [Rose's] fingerprints and a palm print were found in six places, including the windows, the exterior sides of the windows, the window frame or screen frames, and the freezer door. [Rose's] DNA profile matched DNA from a semen stain on the comforter of Joy's bed. The possibility of a random match was one in 2.6 sextillion for African-Americans, one in 3.8 quintillion for Caucasians, and one in 21 quintillion for Hispanics.
[Rose] testified on his own behalf. In December 2006 he was homeless and living with his fiancée. In the summer of 2006 he visited friends who lived in Joy's apartment complex. He met Joy at this time and saw her on other visits. Prior to December 2006 they spoke "quite a few times," and [Rose] had gone into her apartment five or six times to talk. Joy voluntarily performed oral sex on him during one visit. [Rose] denied being inside her apartment complex in December 2006 or forcing his way into her apartment.
[Rose] admitted falsely telling a police officer that he was in custody in December 2006 and thus could not have committed the December 27 assault. He admitted to lying when telling the officer he was in Joy's apartment only once. [Rose] also lied when he told the officer he never had sexual contact with Joy.
[Rose] said he might have tried to replace Joy's screens two or three times. The comforter on Joy's bed was always on her when she was in her living room; [Rose] could not explain how his semen got on it.

People v. Rose, No. C063559, 2011 WL 2436210, at *1-3 (Cal. Ct. App. June 17, 2011).

Following a jury trial, Rose was convicted of three counts of forcible sexual penetration with a foreign object, two counts of forcible rape, three counts of forcible oral copulation, two counts of burglary, and a single count of attempted rape, along with one-strike enhancements for committing the sex offenses during the commission of a residential burglary. Id. at *1. He was sentenced to 127 years to life in state prison. Id.

Rose appealed through counsel, arguing that: 1) stationing a support person next to the victim while she was testifying violated his Sixth Amendment right to confrontation; 2) it was error to instruct the jury with CALCRIM No. 362; 3) CALCRIM No. 1190, given by the trial court, is unconstitutional; and 4) there was insufficient evidence to support several of the one-strike enhancements and one of his burglary convictions. Id. On June 17, 2011, the Court of Appeal affirmed Rose's judgment of conviction in a reasoned opinion. Id. at *8.

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Rose filed a counseled petition for review, arguing that: 1) the presence of the support person on the stand without a finding of necessity violated his right to due process and his right to confrontation; 2) CALCRIM No. 1190 is unconstitutional; and 3) the evidence was insufficient to support the burglary and one-strike findings. On August 24, 2011, the California Supreme Court summarily denied review.

Rose then filed a pro se petition for writ of habeas corpus with the superior court, in which he argued that: 1) his trial counsel was ineffective for failing to call an unidentified alibi witness who would testify that he was innocent; 2) trial counsel was ineffective for failing to present evidence that there was no bruising on the victim after the assault, no DNA found in the victim and no evidence that the victim's home was broken into; 3) trial counsel was ineffective for failing to investigate his claims that he knew the victim prior to the incident in question and that his fingerprints were on the window because he had visited her at her home; 4) trial counsel was ineffective for failing to properly cross-examine the complaining witness about why there was no evidence of forced entry and why she did not cry for help; 5) trial counsel was ineffective for failing to cross-examine the victim and other witnesses for the prosecution about inconsistencies in their testimony; and 6) the prosecutor committed misconduct by "coaching" the victim prior to trial. On June 25, 2011, the superior court denied relief in a reasoned opinion.

Rose subsequently filed a pro se petition for writ of habeas corpus with the Court of Appeal, in which he argued that: 1) trial counsel was ineffective for failing to call an alibi witness; 2) trial counsel was ineffective for refusing to present a declaration from the alibi witness who would state that Rose and his fiancée "were together in their car after a night of visiting with friends"; 3) trial counsel was ineffective for failing to move for a private

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investigator to seek out possible eyewitnesses to Rose's physical location on the evenings in question; 4) trial counsel failed to investigate witnesses who would testify as to the victim's habits and behaviors and failed to call twelve alibi witnesses; 5) the prosecutor committed misconduct in failing to produce...

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