Delacruz v. Ndoh

JESUS DELACRUZ, Petitioner, v. ROSEMARY NDOH, Warden, Respondent.

Case No.: 18cv2597 CAB (WVG)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

August 19, 2019

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

I. INTRODUCTION

Petitioner Jesus Delacruz (Petitioner" or "Delacruz"), a state prisoner, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his San Diego Superior Court conviction in case number SCD254058 for seven counts of committing lewd acts on a child under the age of 14. (Pet. at 1, ECF No. 1 "Pet.")¹ The Court has reviewed the Petition, the Answer and Memorandum of Points and Authorities in Support of the Answer, the Traverse and Memorandum of Points and Authorities in

/ / /Support of the Traverse, the lodgments and all the supporting documents submitted by both parties. For the reasons discussed below, the Court the Petition is DENIED.

II. FACTUAL BACKGROUND

This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from those facts, are entitled to statutory presumption of correctness). The following facts are taken from the California Court of Appeal opinion:

A. Prosecution Case

1. The Family

M.R. (Mother) lived in El Salvador when her daughters, J. and M., were born in 2005 and 2002, respectively. Mother moved to the United States when J. was about seven months old, but the daughters remained in El Salvador in the care of their grandmother, S.M.

Mother met and married Delacruz in 2008. They were living together when J. and M., along with their grandmother, came to the United States in 2010 to live with them. Mother worked days as a housekeeper and Delacruz was a construction worker.

2. The First Reports of Molestation and the Investigation

On January 22, 2014, Vanessa Shaffer, a school counselor at the daughters' school, received a report of possible molestation of J. [Footnote 2: In the late afternoon of January 21, 2014, a teacher at J.'s school, received a visit from a woman who identified herself as J.'s grandmother and told the teacher she was there to report her suspicion that J. had been sexually abused. The teacher could not verify that J. attended the school, but told the visitor she would take down the information and give it to someone who could find out. The teacher reported the conversation to the counselor the next day. J.'s grandmother denied she visited J.'s school.] Shaffer called J. into her office, and asked J. if there was anything happening at home which made her feel uncomfortable, and J. said there was. Shaffer asked J. how long it had been happening, and when it last happened. J. toldher it had been going on for a year and that the last time was the previous Saturday. Shaffer contacted the child protective services department.

Maria Mosqueda, a child protective services worker employed with County of San Diego's Child Welfare Services (CWS), went to the school that same day to speak with J. After reassuring J. that she was not in trouble and was safe, Mosqueda showed J. a diagram of a woman's private areas and asked J. if anyone had touched her private parts. J. responded, "Yes, my stepfather," and said the incidents started when she was six years old, had occurred more than one time, and that the last time was about a week earlier. She described that Delacruz would ask her to sit on his lap, would start touching her legs and buttocks, and "went back and forth with his fingers" on her vagina, over her underwear. On one occasion, Delacruz kissed her on the mouth. Touching occurred when Mother was not home and J. did not feel safe when she was home alone with Delacruz. J. said the incidents sometimes occurred in the living room, but happened mainly in Delacruz's bedroom. Delacruz told J. that if she said anything to Mother, he and Mother would separate. [Footnote 3: Mosqueda also spoke with M. at the school. M. told Mosqueda that a long time ago, Delacruz touched her vagina, under her underwear, one or two times, but M. never told her mother because M. was afraid Mother and Delacruz would separate.]

J. indicated she eventually told her grandmother. J. and M. and Mother talked about it together, and Mother promised to protect them and it would never happen again. Mother talked to Delacruz and he did stop for a few months, but then resumed touching her. J. did not again talk to Mother about the abuse.

After interviewing J., Mosqueda contacted law enforcement. Mosqueda also did not feel safe sending J. home with Delacruz still in the house, so Mosqueda contacted Mother to meet with Mosqueda at the school. Mosqueda told Mother of J.'s allegations and explained they needed a plan to keep J. safe. Mother admitted she first learned of the abuse from her own mother in September or October of 2013 and confronted Delacruz about it. Mosqueda telephoned Delacruz that same day and asked if he was willing to move out of the house until the investigation was complete, and Delacruz agreed to move out.

On February 7 the girls were interviewed separately by Marison Olguin, a forensic interviewer with the Chadwick Center at Rady Children's Hospital. [Footnote 4: Mosqueda, along with Detective Maggie Gibbons,observed the interviews via two way mirror from another room.] In J.'s interview she told Olguin she lived with Mother and her sister and that Delacruz used to live with her but he left because "[h]e did stuff I didn't like" and, when asked to elaborate, J. said Delacruz would call her into his room and then touch her with his hand "where we go pee" and on her buttocks. This happened more than one time. Olguin asked J. when it started, and J. said she was six or seven years old and living in another house on 50th Street. [Footnote 5: The family lived in an apartment on 50th Street in San Diego before moving to their current residence on 39th Street in SanDiego.] On that occasion, Mother was working (but M. was home) and Delacruz only touched J.'s buttocks.

When asked about the most recent event, J. said she did not remember that time very well, but on further probing by Olguin, said she was in the living room, M. was in the kitchen washing dishes, and Mother was at work. Delacruz was sitting on the large couch when he summoned her over. She complied and Delacruz started touching her.

Olguin asked whether, while they lived on 50th Street, Delacruz touched her one time or more than one time, and J. said he touched her more than one time. J. gave the same answer when asked about incidents occurring when they lived on 39th Street. Olguin also asked whether Delacruz ever touched her "not on top of your clothes?" and J. said that on one occasion Delacruz called her into his room, tried to pull her pants down, and started touching her. He touched both her buttocks and vaginal area. She grabbed her underwear to prevent him from pulling them down, told him to stop, and Delacruz did stop. J. said that, in each house, Delacruz touched her more than once under her clothing.

Olguin asked if Delacruz ever mention whether J. should tell anybody about what was happening. J. responded that Delacruz told her that, if J. did not want Mother and Delacruz to separate, J. should not tell Mother. J. added, "[W]ell they've now separated and I now feel more comfortable at the house that he now doesn't, he doesn't do that to me anymore." J. also indicated that at one point she did talk to Mother, who said she would speak to Delacruz. Thereafter, some months went by without any incidents, but then the touching resumed.

Olguin spoke to M. after interviewing J. M. said that when she was ten or eleven years old, Delacruz asked the girls if anyone had touched them, then put his hand "like that." [Footnote 6: M., describing what Delacruzdid, said he put his hand on her private part, looked at her, and asked her, "Did anybody do this to you?" M. responded, "No." M. was in Delacruz's bedroom and was sitting on the bed with J. and Delacruz. The touching was under her clothes and underwear. Delacruz asked the girls if anyone had touched them, looked at M., touched her, and asked her again, but M. told him no one had touched her.] Mother learned about the touching and talked to Delacruz, and Delacruz apologized to the girls and said he did not mean to hurt them. This happened when they lived in another house.

3. The Challenged Admissions by Delacruz

On February 12 Mosqueda again phoned Delacruz and asked if he would come to her office to talk with her. Delacruz agreed and they made an appointment for the following day. Mosqueda then contacted Detective Maggie Gibbons, the lead investigator, to let her know the status of the CWS investigation. Detective Gibbons said she would be coming to the CWS office to arrest Delacruz, but would first give Mosqueda the opportunity to complete her interview.

When Delacruz arrived at the CWS office, he checked in at the reception desk. [Footnote 7: Detective Gibbons arrived before Delacruz and was waiting in another room to arrest him once Mosqueda finished her interview.] Mosqueda greeted him and escorted him to a private conference room. She told Delacruz she was the social worker for his daughters, that Delacruz had the right not to talk to her, and could decline to answer any questions which made him feel uncomfortable. After asking for some general background information, Mosqueda asked if Delacruz knew why he was there, and Delacruz replied "Yes."

Mosqueda told Delacruz she wanted to talk to him about the allegations. Delacruz responded, "I know I did wrong. It was an error." When Mosqueda asked Delacruz what he meant, he replied "Because I touched [J.] . . . in her vagina." Delacruz said he touched J. about four or five

...