Rodrigues v. Barnes

MICHAEL JOHN RODRIGUES, Petitioner, v. RON BARNES, Respondent.

CASE NO. 12-cv-02831-YGR

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

November 20, 2018

ORDER DENYING AMENDED PETITION FOR WRIT OF HABEAS CORPUS

INTRODUCTION

Petitioner Michael John Rodrigues, a state prisoner, brings the instant petition for writ of habeas corpus pursuant to 28 U.S.C. section 2254, challenging his 2009 conviction. (Dkt. No. 10.) A San Benito County jury convicted Petitioner, a former San Benito County Sheriff's Department Sergeant, of three counts of forcible rape (Cal. Penal Code § 261(a)(2)), and one count of spousal rape (§ 262) involving three complaining witnesses. Petitioner raises twelve grounds for the petition, alleging ineffective assistance of counsel on various bases, as well as erroneous admission and exclusion of evidence by the trial court.

Respondent Ron Barnes has filed an answer and a memorandum of points and authorities in support thereof. (Dkt. No. 36.) Petitioner has filed a traverse. (Dkt. No. 43.) Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby DENIES the petition for the reasons set forth herein.

PROCEDURAL HISTORY

Petitioner was found guilty of three counts of forcible rape (Cal. Penal Code § 261(a)(2)), and one count of spousal rape (§ 262) involving three complaining witnesses. The jury acquitted petitioner on three other sex offense charges involving a fourth complaining witness. On November 20, 2009, petitioner was sentenced to four consecutive terms of 15 years to life imprisonment, or 60 years to life, in state prison under the One Strike Law, California Penal Code section 667.61, subds. (b) and (e)(4).

Petitioner appealed from that conviction and filed a petition for writ of habeas corpus with the California Court of Appeal. (Original Federal Habeas Petition, Attachment 2.) On May 18, 2011, the California Court of Appeal affirmed the judgment of conviction and denied the petition for writ of habeas corpus. (Respondent's Exhibits Lodged February 21, 2013 ["REL"], Exh. 4.) On August 24, 2011, the California Supreme Court denied the petition for review of the direct appeal (REL Exh. 6) and denied the petition for review of the habeas corpus petition.

On June 1, 2012, petitioner filed his original federal petition for writ of habeas corpus. (Dkt. No. 1.) On January 31, 2013, petitioner filed a first amended petition for writ of habeas corpus, adding six claims, and thereafter requested a stay pending the exhaustion of state remedies as to his unexhausted claims, which this Court granted. (Dkt. No. 10.)

Petitioner filed a second petition for writ of habeas corpus in the San Benito County Superior Court. (Respondents' Supplemental Exhibits Lodged September 15, 2017 ["RSEL"], Dkt. No. 36-3, Exh. 11.) On October 16, 2016, the Superior Court found the second petition to be timely and otherwise denied the petition. (See RSEL Exh. 12, Dkt. No. 36-4 at 18.) Petitioner then filed a petition for writ of habeas corpus with the California Court of Appeal. (RSEL Exh. 12.) That petition was summarily denied on February 1, 2017. (RSEL Exh. 13.) On March 29, 2017, the California Supreme Court denied the petition for review. (RSEL Exh. 14.)

Once those additional claims were exhausted, the First Amended Petition herein was deemed filed as of January 31, 2013. (Dkt. No. 22 ["First Amended Petition"].)

On May 13, 2017, this Court issued an Order to Show Cause as to the First Amended Petition. Respondent filed its answer and brief in support thereof on September 15, 2017. (Dkt. No. 36, ["Oppo."].) Petitioner filed his traverse on February 15, 2018. (Dkt. No. 43["Traverse"].)

The Amended Petition raises twelve claims: (1) ineffective assistance of counsel ("IAC") based upon trial counsel failing to object to improper expert testimony on rape trauma syndrome; (2) IAC based upon trial counsel failing to cross-examine prosecution rape trauma syndrome expert adequately; (3) IAC based upon trial counsel failing to investigate and present experttestimony on rape trauma syndrome adequately to counter the prosecution expert's testimony; (4) IAC based upon trial counsel failing to investigate and present expert testimony on witness reliability; (5) IAC based upon trial counsel failing to impeach Doe 1's credibility adequately; (6) the trial court's erroneous exclusion of a declaration from petitioner's former wife, "Kristi" impeaching her trial testimony in violation of petitioner's constitutional rights to confront the witnesses against him, to present a defense, and to due process of law; (7) IAC based upon trial counsel failing to seek admission of those portions of Kristi's declaration relevant to impeach her trial testimony, her other statements to the police, and her credibility; (8) the trial court's erroneous admission of evidence of prior sex offenses to prove criminal disposition in violation of due process; (9) prosecutorial misconduct during argument in violation of petitioner's constitutional rights to the effective assistance of counsel and to due process of law; (10) IAC based upon trial counsel failing to object adequately to prosecutorial misconduct during argument; (11) IAC based upon appellate counsel failing to raise meritorious claims of prosecutorial misconduct; and (12) cumulative prejudice in violation of due process based upon all the foregoing.

UNDERLYING FACTS

The Court adopts as its account of the facts the summary set forth in the last reasoned opinion in this matter, the California Court of Appeal's decision on direct review of Petitioner's conviction.¹ This summary is presumed correct. See Hernandez v. Small, 282 F.3d 1132, 1135 n.1 (9th Cir. 2002); 28 U.S.C. § 2254(e)(1).

Counts I and II

Jane Doe met [petitioner] in 1999 when he was looking for a missing dog in the apartment complex where she lived. They eventually entered into an intimate relationship. [Petitioner] typically visited Jane at her apartment in the early morning hours after his shift. He would arrive in his patrol car, wearing his uniform. One day, Jane received a telephone call from a woman who identified herself as [petitioner]'s wife, Kristi. Jane told Kristi that she knew that the Mikey Rodrigues she was going out with was not married. Approximately two months into Jane's relationship with [petitioner], after she got to know him better, she told[petitioner] that she did not want to see him anymore. He then called her several times a day wanting to still see her, and he came to her apartment repeatedly and knocked on her door.

Sometime in middle to late 1999, [petitioner] came to Jane's apartment and insisted on coming inside, even after she told him that she did not want him to. He repeatedly rang the doorbell, opened and closed the mail slot, and pounded on the door until she let him in. He came inside and, while they were talking, he walked Jane backwards into her bedroom. She sat down on the bed and told him that they had to break off their relationship. He proposed marriage and she told him no. He tore off her underwear and penetrated her vagina with his penis even though she said that she did not want to have sex with him. Afterwards, she was able to push him away. He laughed and left the apartment, and she locked the door behind him.

A similar thing happened months later, in the winter of 2000. Jane was on her break at work when [petitioner] called her on her cell phone and insisted on seeing her on her lunch hour. She agreed to meet him at her apartment. When she got there, she told him again that she did not want to see him anymore. Once again he proposed marriage. He pushed her against the couch in her apartment and pulled down her pants. He took off her underwear and penetrated her vagina with his penis even though she said, "No. Don't. Leave me alone." However, this time when Jane pushed [petitioner] away, he hit his head on the edge of a chair. He got up, got dressed and left. Jane did not see [petitioner] again.

Jane never reported the two incidents involving [petitioner] until a Hollister police officer came to her home one day and questioned her about him.

Count 3

Kristi met [petitioner] in September or October 1994. She was driving home from a baby-sitting job when she noticed a patrol car following her. When she pulled over, she asked [petitioner], the officer in the patrol car, if she had done something wrong. They had a conversation and began dating shortly thereafter. They married in May 1996.

About four years later, Kristi noticed some unfamiliar phone numbers on [petitioner]'s cell phone bill. She called one of the numbers that had showed up more than once, which turned out to be Jane Doe's work number. Kristi asked Jane Doe why the phone bill showed the number being called "in the wee hours of the morning." Jane Doe said that [petitioner] had been calling and visiting her. In the summer of 2005, John Klauer, a licensed private investigator, advised Kristi on how to look up information about people online. Kristi had told John that [petitioner] had been unfaithful to her.

Kristi testified that one night in February 2006, she and [petitioner] were in bed, starting to have sex, when "[i]t got a little scary, weird kind of." [Petitioner] acted like "someone I had never seen before." He pulled off herclothes and grabbed her hair. "[H]e held my hair and asked me if I liked it like that." She responded "No. No." She told him to stop and she tried to push him away but he continued. He held her down and he forced her legs open with his hands, causing a bruise on her inner thigh. He penetrated her vagina with his penis, ejaculated, and then went to sleep. She was frightened and "in shock." "[L]ike I said, I never saw that side" of him. The next morning, Kristi told Anisha Klauer what had happened. Anisha told her that it was a form of rape and that she needed to report it. Kristi did not report it because "[i]t was my husband."

Anisha testified

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