Kumar v. Yates

JASMEEL MANOJ KUMAR Petitioner,

v.JAMES YATES, Respondent.

No. CIV S-09-2455 JAM CHS P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: June 7, 2011

FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Kumar, a state prisoner, proceeds pro se with a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Petitioner stands convicted of various sex offenses involving four victims in the Sacramento County Superior Court, case number 01F01700, for which he is currently serving an indeterminate term of 100 years to life in prison, plus an additional determinate term of 145 years. Based on a thorough review of the record and applicable law, it is recommended that the petition be denied.

II. 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The following recitation of facts is taken from the unpublished opinion of the California Court of Appeal, Third District, on direct review of petitioner's convictions.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 Kumar] 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 four of the eight victims: Lori, C.W., and Rebecca, and A.T. Evidence was presented at trial with respect to the offenses against those victims as follows:

Lori S.

Counts 34 to 47

On the night of February 21, 2001, 17-year-old Lori S. went to a pool hall in Modesto with her sister and her cousin. They met her sister's friends there and went to the home of one of the friends and drank wine coolers. Around midnight, Lori had a fight with her sister and left the house. She found herself alone in an unfamiliar neighborhood, in a bad area of Modesto. She was chased by aGerman Shepherd dog, that took one of her sandals. Lori ran to a schoolyard; the dog was barking and she was crying.

A gold Honda drove by and stopped. Inside were five men: Amit Narayan, who lived in Modesto, and four of the defendants. Deo was the driver, Narayan was in the front passenger seat, Kumar was behind the driver, and Nalesh Prasad was in the middle. Prasad was Amit Narayan's brother-in-law and Narayan and Amit Narayan were related. Deo had borrowed the car earlier that day from Narayan's employer at an Arby's Restaurant.

When the car stopped, Kumar got out and retrieved Lori's sandal for her. He seemed nice and offered her a ride, so she got in the car. The men spoke to each other in a language other than English and Lori thought they were Indian. They dropped off Amit Narayan.

The car went to a Chevron gas station where they bought gas. Kumar got out and bought some water or gum. The car then made a wrong turn to take Lori home. When she pointed this out, she was told one of the men was late for work, so they had to take him to work first. They got on Highway 99 and drove north. While on the highway the men smoked out of a glass pipe. They got off the highway somewhere past Harney Lane and drove around for five minutes.

The car stopped by the side of the road. Kumar grabbed Lori's breasts and she nudged him off. Deo said, "Shut the fuck up, bitch. Do what we say. We have a gun." Kumar stretched out her shirt and ripped her bra so she took them off. Prasad grabbed her arms and Kumar pulled off her pants and underwear. Lori would not open her legs so Kumar grabbed her neck until she opened them.

Kumar put his mouth on Lori's vagina and then put his fingers inside her. Lori begged him to stop, telling him she was only 15 and a virgin. Kumar raped her and grabbed her breasts. Lori

testified, "It hurt so bad."

Deo got in the car and told Lori he would take her home after he was done. He raped her and grabbed her breasts.

Nalesh Prasad was next; he stuck his penis in her. When he was finished raping her, he got out of the car.

Narayan got in, pulled down his pants, and played with his penis. He took Lori's head and forced her mouth on his penis, saying: "suck my dick." Lori started to gag and lifted up. Narayan put her legs over his shoulders and raped her. He grabbed her breasts.

Narayan took Lori out of the car and ordered her to suck Prasad's penis. He forced her mouth on Prasad's penis and she gagged.

Narayan tried to put his penis in her anus. Then he put it in her vagina and raped her.

When another car came by the men forced Lori back into the car and told her to put her clothes on. Someone gave her a sweater. They drove off, getting lost before they found the highway. They told Lori to put her head down. While her head was on Narayan's lap, he grabbed her hand and put it on his penis for a second.

When the car stopped, Kumar, Deo and Prasad got out. Narayan still held Lori's head down. Kumar got in the car and drove around the corner. Lori got in the front seat and Narayan drove to a Shell gas station. The car stopped next to a black truck. Narayan and Lori got out of the car and Kumar got out of the truck. Kumar handed Narayan a tin box and said, "here's the stuff." Inside the tin box were baggies containing a white substance. Kumar said he had to drop the car off and would return. He drove the gold car away. Kumar returned the car to Narayan's boss.

After the others left, Lori was crying in the truck. Narayan said he felt bad; he was sorry and would like to take her to breakfast. Lori said she needed to go to the bathroom. She got out of the truck and walked slowly to the gas station. When she saw a woman she began crying. She went to the clerk, whispered she had just been raped, and asked him to call 911. The woman took the license plate number of the truck. A tape of the 911 call was played to the jury.

The police responded and arrested Narayan. Kumar was arrested that evening. Deo was arrested March 1.

Narayan was interviewed that day. His videotaped statement was played only to Narayan's jury. In it, Narayan recounted picking up a crying Lori. He described the assault: "Jaz fucked, Ravin fucked, my cousin fucked ... and then I did." According to Narayan, Jaz took her clothes off; he told her he had a gun.

A sexual assault examination revealed Lori's labia was reddened from the 10-to 3-o'clock positions. There was a tear at the 6 o'clock position. Her cervix was reddened and her vaginal walls were tender and painful. The injuries were acute. The findings were consistent with her history of a forced sexual assault. Bruises on Lori's legs were consistent with her assailant prying her legs apart. A hair was found in her cervix.

A fiber analysis found fibers similar to those of the Honda's seat on Lori's clothing. Fibers similar to her red fleece top were found on Kumar and Narayan's clothing. A fiber similar to Narayan's shirt was found on Lori's clothing.

DNA analysis of a swab from Lori's neck matched Deo's profile. The probability of finding another individual with the same DNAprofile was 1 in 10,000 East Indians, 1 in 460,000 African Americans, and 1 in 35,000 Hispanics. ^FN3 DNA analysis of the hair matched Narayan's profile, with a probability of 1 in 30 trillion. FN4 The confidence rate for all statistical analysis of DNA matches was 10-fold, meaning the actual probability was within the range of 10 times less or 10 times greater.

FN3. The probability statistics for mixed samples containing DNA of both the victim and the assailant were recalculated, deleting from the product rule alleles that were shared by the victim and the assailant, resulting in significantly lower numbers than first reported.

FN4. In determining which databases to use for statistical purposes, the district attorney offered to use only the lowest frequency without mention of the ethnicity of the database. Only Narayan accepted this proposal. For the other defendants, three databases were used: East Indian, African American, and Hispanic. The defense was invited to present the Caucasian database or any other database they choose.

Deo, Kumar and Narayan were convicted of four counts of sexual battery. (Pen.Code, § 243.4, subd. (a).) Narayan was convicted of another count of sexual battery, of which Deo and Kumar were acquitted. Deo, Kumar and Narayan were convicted of five counts of rape in concert (Pen.Code, § 264.1), three counts of oral copulation in concert (Pen.Code, § 288a, subd. (d)), and one count of penetration with

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