(HC) Rackley v. Pollard ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LOY LOUIS RACKLEY, No. 2:21-cv-01784-DAD-EFB (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 13 v. PETITION FOR HABEAS RELIEF ON THE MERITS 14 MARCUS POLLARD, Warden, (Doc. Nos. 1, 23) 15 Respondent. 16 17 Petitioner is a state prisoner proceeding with counsel on a petition for writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On June 1, 2023, the assigned magistrate judge issued findings and recommendations 21 recommending that the pending petition for federal habeas relief be denied on the merits. (Doc. 22 No. 23.) The findings and recommendations were served on petitioner with notice that any 23 objections thereto were to be filed within fourteen (14) days of the date of their service. (Id. at 24 17.) After receiving an extension of time in which to do so (Doc. No. 25), petitioner’s objections 25 to the pending findings and recommendations covering twenty pages were timely filed by his 26 counsel on July 14, 2023. (Doc. No. 26.) On July 17, 2023, respondent filed a reply to 27 petitioner’s lengthy objections, merely stating that respondent rested on its answer to the petition. 28 (Doc. No. 27.) 1 In petitioner’s objections, his counsel challenges a number of the magistrate judge’s 2 findings. (Doc. No. 26.) Each of petitioner’s specific objections to the pending findings and 3 recommendations will be addressed below. 4 In his second claim for relief, petitioner argued that he was provided ineffective assistance 5 when his trial counsel failed to obtain a photograph taken of the victim by a sexual assault 6 examiner and failed to present a defense sexual assault expert. (Doc. No. 1 at 41–46.) The 7 magistrate judge recommended that relief be denied as to this claim because the California 8 Supreme Court had a reasonable basis for rejecting it since the petitioner had failed to 9 demonstrate that he had suffered any prejudice as a result of the alleged ineffective assistance.1 10 (Doc. No. 23 at 13.) In his objections, petitioner argues that the undersigned should reject the 11 magistrate judge’s finding in this regard. (Doc. No. 26 at 1–8.) Specifically, petitioner contends 12 that in his state habeas petition, he presented persuasive evidence (on what he characterizes as the 13 central issue) challenging the notion that the victim’s genitalia were in any way abnormal in the 14 form of a declaration from expert Dr. Crawford-Jakubiak (Doc. No. 1-6) and that the magistrate 15 judge’s characterization of this evidence as weak should be rejected. (Doc. No. 26 at 3–4.) In 16 addition, petitioner argues that it is irrelevant that the prosecution did not emphasize the exam, 17 and the condition of the victim’s genitals as determined thereby, because the trial judge relied 18 upon such evidence, in part, in finding petitioner guilty. (Id. at 4–8.) Petitioner’s objections in 19 this regard are unpersuasive. 20 First, as the magistrate judge noted, Dr. Crawford-Jakubiak agreed that the image he 21 reviewed reflected that on the day of the sexual assault examination, the victim was suffering 22 from mild genital redness. (Doc. No. 1-6 at 3–5.) It was simply the doctor’s stated opinion that 23 the image he reviewed was not abnormal from a forensic standpoint, did not confirm that sexual 24 abuse had occurred in the past, and that there were many non-abuse related reasons for mild 25 genital redness. (Id. at 4–5.) Such evidence does not appear to necessarily be inconsistent with 26 the examiner’s finding of “non-specific: may be caused by sexual abuse or other mechanism.” 27 1 The California Supreme Court summarily denied habeas relief as to this ineffective assistance 28 of counsel claim. (Doc. No. 17-16.) 1 (Id. at 4.) As the findings and recommendations note is even more important, the trial judge did 2 not rely on the exam-related evidence in finding petitioner guilty. (Doc. No. 23 at 13.) Petitioner 3 argues otherwise. (Doc. No. 26 at 6.) However, a review of the record reflects that in 4 announcing his decision finding petitioner guilty of the charges, the trial judge made findings 5 spanning seven pages of the reporter’s transcript. (Doc. No. 17-3 at 187–93.) Nowhere in those 6 findings did the trial judge refer to the sexual assault exam findings. Rather, in a single sentence, 7 the trial judge observed only that the victim’s mother had testified that the victim’s vaginal area 8 was red and inflamed following her staying with petitioner. (Id. at 189: 5–7.) Notably, the 9 remainder of the trial judge’s findings were devoted to detailing all of the reasons, supported by 10 the evidence introduced at trial, why the court found the prosecution’s evidence credible and 11 defendant’s testimony to lack credibility. Given this record, it is apparent that petitioner has 12 failed to show that there was no reasonable basis for the California Supreme Court to deny habeas 13 relief as to this aspect of his ineffective assistance of counsel claim. See Harrington v. Richter, 14 562 U.S. 86, 99 (2011); Fauber v. Davis, 43 F.4th 987, 999 (9th Cir. 2022) (“We hold that the 15 state court’s rejection of Fauber’s Strickland claim was not objectively unreasonable because the 16 California Supreme Court could conclude that Fauber failed to establish Strickland prejudice.”) 17 Next, petitioner objects to the recommendation that federal habeas relief be denied as to 18 his Brady claim. (Doc. No. 26 at 9–13.) Specifically, petitioner objects to the magistrate judge’s 19 conclusion that there was a reasonable basis upon which the California Supreme Court could 20 conclude that there was no reasonable probability petitioner would have been acquitted had the 21 prosecution provided to the defense the single photo taken of the victim at the sexual assault 22 examination.2 (Id. at 9–14) (citing Doc. No. 23 at 15). The undersigned concludes that 23 petitioner’s objection in this regard is also unpersuasive. As explained above, the victim’s mother 24 testified at petitioner’s trial that the victim’s vaginal area was red and inflamed following her 25 staying with petitioner. In his habeas petition, petitioner offered only the declaration of a medical 26 expert opining that while the photo taken as part of the sexual assault examination did depict the 27 2 The California Supreme Court also summarily denied habeas relief as to petitioner’s Brady 28 claim. (Doc. No. 17-16.) 1 victim as having mild genital redness, that condition was not abnormal from a forensic 2 standpoint, did not confirm that sexual abuse had occurred in the past, and there were many non- 3 abuse-related reasons for mild genital redness. (Doc. No. 1-6 at 3–5.)3 Moreover, and as also 4 noted above, the mother’s testimony regarding the redness of the victim’s genitals cannot be 5 fairly characterized as critical to the trial judge’s finding of petitioner’s guilt. Rather, the 6 compelling strength of the evidence relied upon by the trial judge in finding petitioner guilty 7 would have remained materially unaffected by the introduction of evidence relating to the exam 8 photograph. See Richter, 562 U.S. at 99. 9 Finally, petitioner objects to the conclusion reached in the findings and recommendations 10 rejecting his claims regarding: the sufficiency of the evidence; the alleged ineffective assistance 11 provided by his counsel in failing to call two witnesses; and new evidence of witness coaching at 12 his trial. (Doc. No. 26 at 14–18.) The pending findings and recommendations addressed these 13 same arguments advanced by petitioner appropriately and in considerable detail. (Doc. No. 23 at 14 8–11, 13–16.) 15 In short, none of the arguments presented in petitioner’s objections provides any basis to 16 question the analysis set forth in the findings and recommendations which appropriately 17 addressed each of petitioner’s contentions on the merits. In accordance with the provisions of 28 18 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review of the case. Having carefully 19 reviewed the entire file, including petitioner’s objections, the undersigned concludes that the 20 magistrate judge’s findings and recommendations are supported by the record and proper 21 analysis. Therefore, the findings and recommendations will be adopted. 22 In his objections, petitioner also requests the issuance of a certificate of appealability. 23 (Id. at 19–20.) A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal 24 a district court’s denial of his petition, and an appeal is only allowed in certain circumstances. 25 Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); 28 U.S.C. § 2253. If a court denies a habeas 26 petition on the merits, the court may only issue a certificate of appealability if “jurists of reason 27 3 In light of this record, the court will assume, without deciding, that the photograph in question 28 was evidence favorable to the accused. 1 | could disagree with the district court’s resolution of [the petitioner’s] constitutional claims or that 2 | jurists could conclude the issues presented are adequate to deserve encouragement to proceed 3 | further.” Miller-El, 537 U.S. at 327; see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). 4 | While the petitioner is not required to prove the merits of his case, he must demonstrate 5 | “something more than the absence of frivolity or the existence of mere good faith on his . . . part.” 6 | Miller-El, 537 U.S. at 338. In the present case, the court concludes that reasonable jurists would 7 | not find the court’s determination that the petition should be denied debatable or wrong, or that 8 | the issues presented are deserving of encouragement to proceed further. Therefore, the court will 9 | decline to issue a certificate of appealability. 10 Accordingly: 11 1. The findings and recommendations issued June 1, 2023 (Doc. No. 23), are adopted 12 in full; 13 2. The petition for writ of habeas corpus (Doc. No. 1) is denied; 14 3. The court declines to issue a certificate of appealability (28 U.S.C. § 2253(c)); and 15 4. The Clerk of the Court is directed to close this case. 16 IT IS SO ORDERED. 'T | Dated: _ October 26, 2023 Dae A. 2, eyel 18 DALE A. DROZD 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28