Singh v. Martel

• Decision Date: 03 May 2011
• Parties: ASHMINDAR JEET SINGH, Petitioner, v. MICHAEL MARTEL, Respondent.
• Court: U.S. District Court — Eastern District of California

ASHMINDAR JEET SINGH, Petitioner,

v.MICHAEL MARTEL, Respondent.

No. CIV S-09-1453 GEB CHS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: May 3, 2011

FINDINGS AND RECOMMENDATIONS

INTRODUCTION

Petitioner Singh, a state prisoner, proceeds pro se with an amended petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Petitioner stands convicted of various sex offenses in the Sacramento County Superior Court, case number 01F01700, for which he is currently serving an aggregate prison term of 39 years to life.

BACKGROUND

The following recitation of facts is taken from the unpublished opinion of the California Court of Appeal, Third District, on direct review of petitioner's convictions. Since these facts have not been rebutted with clear and convincing evidence, they are presumed correct.

28 U.S.C. § 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004).

From August 2000 to February 2001, a group of young men picked up prostitutes on Stockton Boulevard in Sacramento, kidnapped and sexually assaulted them. Their crime spree ended after they picked up a teenager who was not a prostitute. She escaped after the sexual assault and called the police. One of her attackers was arrested at the scene and the others shortly thereafter.

In a 68-count information, the People charged six defendants with various crimes arising from serial gang rapes against eight victims. The court severed the trial of one defendant, and the case proceeded to trial against the remaining five defendants [including petitioner Singh] with two juries. Seven counts involving one victim were dismissed after she failed to appear at trial. The two juries convicted defendants of most, but not all, of the charged offenses. Each defendant was sentenced to a lengthy prison term, including a life sentence.

As with most sexual assault cases, this case turned on the credibility of the victims, both as to what crimes occurred and who the perpetrators were. All of the victims' credibility was bolstered by the number of victims; seven women told very similar stories. Corroboration was also provided by DNA and other forensic evidence. In the case of Naryan, who had a separate jury, the prosecution also presented his three statements to the police in which he admitted some of the conduct at issue. The strength of the evidence varied as to each victim. The prosecution did not present the case in chronological order; rather, the strongest case, in which the victim was not a prostitute and reported the assault immediately, was presented first.

People v. Deo, et al., 2008 WL 2404210 at 1 (Cal. Ct. of App. 3rd Dist. June 13, 2008).

Petitioner was charged and convicted in connection with only one of the victims, named Jennifer. Evidence was presented at trial with respect to the offenses against Jennifer (Counts 27 to 33) as follows:

Shortly after midnight, on the morning of February 21, 2001,-about 24 hours before [another victim]'s assault-33-year-old Jennifer S. was working as a prostitute on Stockton Boulevard between 47th and 65th Streets. A car pulled up and she asked the man if he wanted a date. He said yes and she got in. The man said he had $60 and a place around the corner. He turned on 65th Street and drove to the end of Savings Place. He said it was safe; he had been there before. The car door opened and three men with jackets over their heads appeared; two had knives. Jennifer looked to the driver, who just smiled. They put her in the back seat. When she screamed, they put a knife to her face and told her to shut up and do what theysaid.

Then they drove out into the country. She told them she had a son and begged them not to kill her. They said they were taking her to a friend's party. One man told her they would not kill her; she would not get hurt.

The bald man next to Jennifer, Narayan, had her fondle him and orally copulate him. The men in the front seats passed a crank pipe. The car turned onto a gravel road, at the end of which was a car and a bright light. They turned around and returned to Savings Place.

There two men walked her to an abandoned car. One man held her arm tight and told her not to run or try anything stupid because they had guns and would kill her. She got in the car and Narayan followed. He told her to remove her pants and asked if she had a condom. She did not because one of the other men had taken it from her earlier. Narayan got on top and raped her. He made her promise not to tell the others that he had not used a condom. He ejaculated. During the rape, Narayan's penis slipped out at least twice and he reinserted it.

The next guy (Singh) got in. He put on a condom and had her orally copulate him until he ejaculated. She removed his condom and threw it out the window of the car.

The driver (Deo) got in front and told her to come up front. Since she did not have a condom, he said she could orally copulate him. He fondled her breasts. When he ejaculated, she spit it on the floor board of the car. He told her the fourth guy would be coming; he was the mean one. He told her not to try to get away because they had guns and would kill her. Once she heard a car drive off, she took off running. The men had taken her two silver rings. She had given them her money, fifty cents.

When she got home she did not call the police because she had outstanding warrants and could not bear the thought of going to jail after she had been raped. When she calmed down somewhat, she called the police, but the officer could not guarantee no arrest, so she did not report the assault. Jennifer reported it the next morning to Detective Sophia McBeth-Childs. She met McBeth-Childs and took her to the abandoned car. Jennifer refused to go to the hospital; saying she had been poked and prodded enough. She did give the detective the clothing she wore during the assault.

Jennifer selected Kumar's photograph from a lineup and said it looked like one of the assailants. At trial, she identified Narayan as the first assailant and Singh and Deo as two of her attackers.

DNA analysis was conducted on the condom, a napkin, the floor mat and Jennifer's jeans. DNA on the inside of the condom matched Singh's profile. The probability of another match was at least 1 in a quadrillion. DNA on the napkin and the floor mat matched Deo; the probability of another match on the napkin was over 1 in several billion, and the probability of another match for the mixed sample on the floor mat was 1 in 500,000 for East Indians, 1 in 45 million for African Americans and 1 in 15 million for Hispanics. DNA on the jeans matched Narayan's profile with a probability of 1 in 30 trillion.

In a videotaped interview played to Narayan's jury, he described one assault where they used two knives to scare the victim.

Deo and Narayan were convicted of robbery, but Singh was acquitted on this count. All three men were convicted of sexual battery. They were convicted of three counts of rape in concert and two counts of oral copulation in concert. Kidnapping enhancements were found true as to all three; multiple victim enhancements were found true as to Deo and Narayan. The jury found true an enhancement for personal use of a weapon only as to Narayan. The jury was unable to reach a unanimous verdict as to Kumar on any of these counts and the court declared a mistrial.

Id. at 6-7.

For his defense at trial, petitioner's counsel attacked the DNA evidence but also claimed the sex acts were consensual: she was a prostitute doing her job. Id. at 11.

Petitioner was acquitted of robbery but convicted of sexual battery, three counts of rape in concert and two counts of oral copulation in concert. The jury found true a kidnapping enhancement. Petitioner was sentenced to 14 years plus 25 years to life in prison.

Petitioner and three of his codefendants appealed to the California Court of Appeal, Third District; each appellant filed his own brief. In an unpublished opinion, the state appellate court affirmed petitioner's judgment and sentence. A petition for review to the California Supreme Court was denied. Petitioner sought habeas corpus relief in the California state courts where relief was likewise denied. The parties agree that petitioner has exhausted state remedies with respect to all grounds presented in the petition.

GROUNDS FOR RELIEF

The pending federal petition presents fifteen grounds for relief. Each will be separately set forth and discussed herein. Petitioner claims, verbatim:

I. The erroneous misjoinder of petitioner's trial with codefendants was unusually prejudicial, rising to the level of deprivation of due process of law, a fair trial, and the right to the assistance of counsel.

II. Petitioner's rape in concert convictions are unsupported by substantial evidence of force or violence, denying petitioner due process of law.

III. The court erred prejudicially in admitting evidence of photographs or codefendants pointing guns at themselves and each other, denying petitioner due process of law and a fai[r] trial.

IV. The prosecutor committed incurable prejudicial misconduct or prosecutorial error in arguing the counts against the other defendants to rebut petitioner's claim Jennifer S. consented, denying petitioner due process of law and a fair trial.

V. The instructions given in this case improperly directed the jury to make an in concert finding if it found that petitioner was a[n] aider and abettor o[f] the sexual offenses committed by others in this case.

VI. The trial court committed prejudicial error by failing to instruct the jury sua sponte that evidence of a pre[]-offense statement in the nature of an admission by petitioner should be viewed with caution.

VII. The court erred in instructing the jury with CALJIC No. 2.21.2, because the instruction improperly permitted evaluation of the pivotal prosecution testimony by a probability standard, denying petitioner due process of law.

VIII. The cumulative effect of the errors discussed throughout deprived petitioner of

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