Jordan v. Diaz

378 F.Supp.3d 888

Andrew JORDAN, Petitioner,

v.Ralph DIAZ, Acting Secretary, California Department of Corrections and Rehabilitation, Respondent.

Case No. 2:18-cv-10297-ODW (AFM)

United States District Court, C.D. California.

Signed May 2, 2019

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

OTIS D. WRIGHT, II, UNITED STATES DISTRICT JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus, records on file and the Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which Petitioner has objected. The Court accepts the findings and recommendation of the Magistrate Judge.

IT THEREFORE IS ORDERED that Judgment be entered (1) denying the Petition; and (2) dismissing the action with prejudice.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ALEXANDER F. MacKINNON, UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable Otis D. Wright, II, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

INTRODUCTION

Petitioner faced charges of human trafficking. Pursuant to California law enacted to protect victims of human trafficking, the trial court precluded Petitioner from cross-examining the two victims about their history of prostitution prior to meeting Petitioner. ( Cal. Evid. Code § 1161(b).) Petitioner contends that this restriction on cross-examination deprived him of his rights under the Confrontation Clause of the Sixth Amendment. For the following reasons, Petitioner is not entitled to relief under either AEDPA's deferential review or de novo review.

PROCEDURAL BACKGROUND

Petitioner was charged with pandering by procuring, pimping, human trafficking, infliction of corporal injury to a cohabitant, and aggravated assault. The following evidence was presented at trial.¹

A. N.F.

In 2009, Jordan began a relationship with N.F. and persuaded her to work for him as a prostitute. Jordan would drive N.F. to San Fernando, where she worked under rules he set. She had to remain in a certain area and could not speak with African–American males, and had to text Jordan before and after each sex act and charge specified amounts depending on how much time she spent with a customer. Jordan required that N.F. make $ 400 a day, after which he would pick her up. Jordan threatened to hurt N.F., her family, or her dog if she disobeyed, sometimes making good on those threats by beating her. For example, he once hit N.F. with a screwdriver when she looked at African–American males, purportedly a violation of one of his rules. Jordan coerced N.F. into chopping off her hair, and she had his name tattooed on her neck and wrist. He sometimes kicked her out of their residence or left her on the streets, often after beating her and taking her possessions. The relationship ended in 2014.

B. Julie T.

In December 2014, Jordan answered Julie T.'s ad on Craigslist seeking a "sugar daddy," and they exchanged emails and began a relationship, eventually moving in together. Jordan forced Julie to work as a prostitute. He drove her to working locations and dictated where she could walk, what text messages to send when she engaged a customer, what hotel rooms to use, how much time to spend with each customer, and how much to charge for each sex act. He would drive back and forth while she worked, monitoring her. Jordan forced Julie to work until she made $ 400. If she did not, or if she broke one of his rules, he beat her. On one occasion, Jordan struck Julie several times with a wooden brush, causing her to sustain a black eye and scratches on her forehead. On several other occasions he hit Julie in the face, leaving marks and bruises. Jordan coerced Julie to have his name tattooed on her chest and wrist, and demanded that she give him her income tax refunds and the financial aid money she received for attending technical school. Julie complied with his demands out of fear that he would beat her and destroy the ashes of her father and brother, which she kept in urns.

C. Arrest and Conviction

Jordan was arrested and charged with human trafficking ( Pen. Code, § 236.1, subd. (b) ), aggravated assault (§ 245, subd. (a)(4)), infliction of corporal injury to a cohabitant (§ 273.5, subd. (a)); pandering by procuring (§ 266i, subd. (a)(1)), and pimping (§ 266h, subd. (a)).

Before trial, the People moved in limine to exclude evidence that N.F. and Julie T. worked as prostitutes before they met Jordan. The court granted the motion on the ground that subdivision (b) of Evidence Code section 1161 (hereafter subdivision (b)) precludes admission of evidence of a human trafficking victim's history of commercial sexual conduct. During trial, the court several times sustained prosecution objections aimed at excluding similar evidence.

N.F. testified that she and Jordan were in a relationship for five years, living in various motels. The relationship was good at first, and she loved him and agreed to work as a prostitute because they needed money. When asked whether she wanted to work as a prostitute, she testified, "Yes and no."

Julie testified she had posted ads on Craigslist.org asking for a "sugar daddy," which she claimed was a man who would pay a young woman for nonsexual companionship. She stated in the ad that she was a "good kisser" and "drug and disease free." She posted these ads on the "casual encounters" board at Craigslist, where, "the working girls post, ... like prostitutes." Julie admitted she used false names to obtain motel rooms for her and her "clients."

(Respondent's Notice of Lodging, Lodgment 6 at 2-5.)

Petitioner was sentenced to state prison for a term of twenty-one years and four months. He appealed his conviction to the California Court of Appeal, which affirmed the judgment, but modified the sentence to twenty-one years in state prison. (Lodgment 6.) The California Supreme Court subsequently denied petitioner's petition for review. (Lodgment 8.)

On December 12, 2018, Petitioner, who is represented by counsel, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Respondent filed an answer to the petition on January 28, 2019. (ECF No. 10 ) On March 5, 2019, petitioner filed a reply. (ECF No. 14.)

PETITIONER'S CLAIM

Petitioner alleges that he was deprived of his Sixth Amendment rights to confrontation and cross-examination by the trial court's exclusion of evidence that the victims worked as prostitutes before meeting Petitioner. (ECF No. 1 at 5.)

STANDARD OF REVIEW

A federal court may not grant a writ of habeas corpus on behalf of a person in state custody

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.

28 U.S.C. § 2254(d).

As used in section 2254(d)(1), the phrase "clearly established federal law" includes only the holdings, as opposed to the dicta, of Supreme Court decisions existing at the time of the state court decision. Howes v. Fields , 565 U.S. 499, 505, 132 S.Ct. 1181, 182 L.Ed.2d 17 (2012) (citing Williams v. Taylor , 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ).

Under section 2254(d)(1), a state court's determination that a claim lacks merit precludes federal habeas relief so long as "fairminded jurists could disagree" about the correctness of the state court's decision. Harrington v. Richter , 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting Yarborough v. Alvarado , 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ). This is true even where a state court's decision is unaccompanied by an explanation. In such cases, the petitioner must show that "there was no reasonable basis for the state court to deny relief." Harrington , 562 U.S. at 98, 131 S.Ct. 770. Review of state court decisions under § 2254(d)(1) "is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster , 563 U.S. 170, 180, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011).

Under section 2254(d)(2), relief is warranted only when a state court decision based on a factual determination is "objectively unreasonable in light of the evidence presented in the state-court proceeding." Stanley v. Cullen , 633 F.3d 852, 859 (9th Cir. 2011) (quoting Davis v. Woodford , 384 F.3d 628, 638 (9th Cir. 2004) ). Further, state court findings of fact – including a state appellate court's factual summary – are presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1) ; see Vasquez v. Kirkland , 572 F.3d 1029, 1031 n.1 (9th Cir. 2009).

Here, petitioner's claims were denied in reasoned decisions by the California Court of Appeal. The California Supreme Court then summarily denied review. Thus, the California Court of Appeal's decision constitutes the relevant state court adjudications on the merits for purposes of the AEDPA standard of review. See Berghuis v. Thompkins , 560 U.S. 370, 380, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010) (where state supreme court denied discretionary review of decision on direct appeal, the decision on direct appeal is the relevant state-court decision for purposes of the AEDPA standard of review).

DISCUSSION

1. Procedural background.

Prior to trial, the prosecution filed a motion to preclude the defense from cross-examining the victims regarding the sexual history, including their history of commercial sexual acts both prior to and after their relationships with Petitioner. (Lodgment 2 (Clerk's Transcript ["CT"] ...