(HC) McLaughlin v. Ndoh

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 JEREMY JEROME MCLAUGHLIN, No. 2:19-cv-0141 DAD AC P

12 Petitioner,

13 v. FINDINGS AND RECOMMENDATIONS

14 ROSEMARY NDOH,

15 Respondent.

16

17 Petitioner is a California state prisoner proceeding pro se with an application for a writ of

18 habeas corpus pursuant to 28 U.S.C. § 2254. The action proceeds on the petition which

19 challenges petitioner’s 2013 conviction for kidnapping, assault with a deadly weapon, rape, and

20 oral copulation by force. ECF No. 1. Respondent has answered (ECF No. 10) and petitioner has

21 filed a traverse (ECF No. 12).

22 BACKGROUND

23 I. Proceedings in the Trial Court

24 A. Preliminary Proceedings

25 Petitioner was charged in Sacramento County Superior Court with kidnapping for the

26 purpose of committing rape and oral copulation (Count One, Cal. Penal Code § 209(b)(1));

27 assault with a deadly weapon (Count Two, Cal. Penal Code § 245(a)(1)); rape (Count Three, Cal.

28 Penal Code, § 261(a)(2)); oral copulation by force (Count Four, former Cal. Penal Code

1 § 288a(c)(2)); and kidnapping (Count Five, Cal. Penal Code § 207(a)). 2 CT 592-951 (Amended

2 Information) (ECF No. 11-2 at 233-36). Counts Three and Four included enhancements for using

3 a deadly weapon and tying or binding the victim. Id. Petitioner pled not guilty and not guilty by

4 reason of insanity and two doctors appointed to examine defendant opined that he was legally

5 insane when he committed the crimes. 1 CT 31 (ECF No. 11-1 at 48); 2 CT 421-22, 482 (ECF

6 No. 11-2 at 78-79, 124). The case proceeded to trial.

7 B. The Evidence Presented at Trial

8 The jury heard evidence of the following facts.2

9 Victim Jane Doe dated petitioner, off and on, for over one year during which time Doe

10 broke up with her previous boyfriend but petitioner remained with his wife. After Doe and

11 petitioner broke up, they remained friends and regularly engaged in sexual relations. Doe also

12 helped petitioner by babysitting his children while he worked.

13 During the evening on January 4, 2010, Doe went to petitioner’s apartment to babysit his

14 children. When she arrived, the children were not there. Petitioner asked Doe if she wanted to

15 have sex, but she declined. Petitioner seemed upset.

16 Doe went with petitioner to help him with a large item in the garage. Once they got into

17 the garage, petitioner pulled out two switchblades, holding one in front of Doe’s face and the

18 other behind her back. He said he was in control. He put duct tape around Doe’s face and head,

19 covering everything except her nose and eyes and he zip-tied her hands behind her back.

20 Petitioner produced a large duffel bag, locked Doe inside the duffel bag, and left the garage,

21 leaving Doe on the floor of the garage in the duffel bag. Approximately ten minutes later,

22 petitioner moved the duffel bag containing Doe into a van.

23 About two hours later, petitioner returned to the garage, let Doe out of the bag, and

24 removed the tape and cut the zip ties. But he did not let Doe leave; instead, he forced her to sleep

25 1 “CT” refers to the Clerk’s Transcript on Appeal, Volumes 1 through 4 (Lodged Docs. 1-4 (ECF

26 Nos. 11-1 to 11-4)).

2 This summary is adapted from the opinion of the California Court of Appeal. Lodged Doc. 11

27 at 2-3 (ECF No. 11-11 at 2-3); People v. McLaughlin, No. C075870, 2017 WL 4768461, at *1-2,

2017 Cal. App. Unpub. LEXIS 7246, at *2-3 (Oct. 23, 2017). The undersigned finds it to be

28 accurate.

1 with him in the back of his van in the garage. He still had a switchblade, which he put on the bed.

2 The next morning, petitioner orally copulated and raped Doe in the van in the garage.

3 Stilled armed, petitioner took Doe back to his apartment, where they changed clothes.

4 Petitioner then drove Doe to Foresthill as petitioner explained that they were going to live in an

5 underground bunker he had built in the forest.

6 They arrived at a partially finished cinder block building built in a hole, and petitioner put

7 Doe to work filling cinder blocks with dirt. In the evening, petitioner took Doe in the car away

8 from the bunker, saying they needed to get supplies and get her belongings from her home.

9 They stopped at the Taco Bell drive-through in Auburn. When petitioner leaned out of the

10 car to get their order, Doe bolted from the car and ran into the Taco Bell, where she asked for and

11 received help.

12 C. Outcome

13 On Count One, a jury found petitioner not guilty of kidnapping for the purpose of

14 committing rape and oral copulation but guilty of the lesser included offense of simple

15 kidnapping. On Counts Two through Five, the jury found petitioner guilty of assault with a

16 deadly weapon, rape, oral copulation, and kidnapping, with a determination that petitioner used a

17 deadly weapon in the rape and oral copulation. The jury did not find that petitioner bound the

18 victim during the rape and oral copulation.

19 The same jury sat for the trial on petitioner’s sanity plea but was unable to reach a verdict,

20 deadlocking at a vote of eleven to one favoring a verdict that petitioner was insane when he

21 committed the crimes. After the mistrial on the insanity plea, petitioner elected to represent

22 himself and withdrew his insanity plea.

23 D. Sentencing

24 The trial court sentenced petitioner to a determinate term of five years for the first

25 kidnapping conviction (Count One) and a consecutive one year and eight months for the second

26 kidnapping conviction (Count Five). 4 CT 920 (ECF No. 11-4 at 21). The court sentenced

27 petitioner to a consecutive indeterminate term of fifteen years to life each for the rape (Count

28 Three) and forcible oral copulation convictions (Count Four). 4 Ct 922 (ECF No. 11-4 at 23).

1 Finally, the court stayed sentencing for the assault with a deadly weapon (Count Two). Id. In

2 total, the court imposed a determinate term of six years and eight months, followed by an

3 indeterminate term of thirty years to life.

4 II. Post-Conviction Proceedings

5 Petitioner timely appealed, and the California Court of Appeal reversed the conviction in

6 Count Five for kidnapping and struck the determinate term imposed for that conviction. Lodged

7 Doc. 11 (ECF No. 11-11 at 20). The judgment was otherwise affirmed as modified. Id. The

8 California Supreme Court denied review on January 10, 2018. Lodged Doc. 13 (ECF No. 11-13).

9 Petitioner did not petition the United States Supreme Court for certiorari or file any state habeas

10 petitions. ECF No. 1 at 2.

11 The instant federal petition was filed January 18, 2019. ECF No. 1. Respondent

12 answered (ECF No. 10) and petitioner filed a traverse (ECF No. 12).

13 STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA

14 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of

15 1996 (“AEDPA”), provides in relevant part as follows:

16 (d) An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a state court shall not be

17 granted with respect to any claim that was adjudicated on the merits

in State court proceedings unless the adjudication of the claim –

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(1) resulted in a decision that was contrary to, or involved an

19 unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

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(2) resulted in a decision that was based on an unreasonable

21 determination of the facts in light of the evidence presented in the

State court proceeding.

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23 The statute applies whenever the state court has denied a federal claim on its merits,

24 whether or not the state court explained its reasons. Harrington v. Richter, 562 U.S. 86, 99

25 (2011). State court rejection of a federal claim will be presumed to have been on the merits

26 absent any indication or state-law procedural principles to the contrary. Id. (citing Harris v. Reed,

27 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a

28 decision appearing to rest on federal grounds was decided on another basis)). “The presumption

1 may be overcome when there is reason to think some other explanation for the state court's

2 decision is more likely.” Id. at 99-100.

3 The phrase “clearly established Federal law” in § 2254(d)(1) refers to the “governing legal

4 principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade, 538

5 U.S. 63, 71-72 (2003). Only Supreme Court precedent may constitute “clearly established

6 Federal law,” but courts may look to circuit law “to ascertain whether . . . the particular point in

7 issue is clearly established by Supreme Court precedent.” Marshall v. Rodgers, 569 U.S. 58, 64

8 (2013).

9 A state court decision is “contrary to” clearly established federal law if the decision

10 “contradicts the governing law set forth in [the Supreme Court’s] cases.” Williams v. Taylor, 529

11 U.S. 362, 405 (2000). A state court decision “unreasonably applies” federal law “if the state

12 court identifies the correct rule from [the Supreme Court’s] cases but unreasonably applies it to

13 the facts of the particular state prisoner’s case.” Id. at 407-08. It is not enough that the state court

14 was incorrect in the view of the federal habeas court; the state court decision must be objectively

15 unreasonable. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003).

16 Review under § 2254(d) is limited to the record that was before the state court. Cullen v.

17 Pinholster, 563 U.S. 170, 180-81 (2011). The question at this stage is whether the state court

18 reasonably applied clearly established federal law to the facts before it. Id. at 181-82. In other

19 words, the focus of the § 2254(d) inquiry is “on what a state court knew and did.” Id. at 182.

20 Where the state court’s adjudication is set forth in a reasoned opinion, §2254(d)(1) review is

21 confined to “the state court’s actual reasoning” and “actual analysis.” Frantz v. Hazey, 533 F.3d

22 724, 738 (9th Cir. 2008) (en banc). A different rule applies where the state court rejects claims

23 summarily, without a reasoned opinion. In Richter, supra, the Supreme Court held that when a

24 state court denies a claim on the merits but without a reasoned opinion, the federal habeas court

25 must determine what arguments or theories may have supported the state court’s decision, and

26 subject those arguments or theories to § 2254(d) scrutiny. Richter, 563 U.S. at 102.

27 ////

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1 DISCUSSION

2 I. Claim One: Denial of Right to Be Present at All Critical Stages of Trial

3 A. Petitioner’s Allegations and Pertinent State Court Record

4 Petitioner alleges that his rights were violated under the Sixth and Fourteenth

5 Amendments when testimony was read back to the jury during deliberations while he was absent,

6 and that he did not waive his right to be present during the read back. ECF No. 1 at 4. Petitioner

7 contends the reading back of testimony to a jury is a critical stage in a criminal prosecution at

8 which he has a federal constitutional right to be present. ECF No. 12.

9 Immediately after the jury retired to deliberate, the trial court asked: “Counsel, do you

10 stipulate that if the jurors want read back or have any questions that I may send in the answer or

11 send in the court reporter with read-back without us meeting here in open court?” 2 RT 1923

12 (ECF No. 11-6 at 192). Counsel for both sides answered in the affirmative. Id. The jury later

13 submitted the following request for readback:

14 Cassandra’s testimony under direct exam regarding placement of

knife during intercourse – Morning of Jan. 5.

15

Cassandra’s testimony under cross exam regarding removal of

16 shirt—and re-direct testimony regarding removal of shirt.

17 2 CT 586 (ECF No. 11-2 at 227).

18 The court notified counsel of the request and that the readback would take place the

19 following morning. 2 CT 558 (ECF No. 11-2 at 199). Neither party objected. Id. The following

20 morning, the reporter conducted the readback in the deliberation room. 2 CT 587 (ECF No. 11-2

21 at 228).

22 B. The Clearly Established Federal Law

23 The United States Supreme Court has recognized “the right to personal presence at all

24 critical stages of the trial . . . [is a] fundamental right[] of each criminal defendant.” Rushen v.

25 Spain, 464 U.S. 114, 117 (1983); Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (the Constitution

26 guarantees a criminal defendant “the right to be present at any stage of the criminal proceeding

27

28 3 “RT” refers to the Reporter’s Transcript on Appeal, Volumes 1-3 (Lodged Docs. 5-7).

1 that is critical to its outcome if his presence would contribute to the fairness of the procedure”).

2 The “privilege of presence is not guaranteed ‘when presence would be useless, or the benefit but a

3 shadow.’” Stincer, 482 U.S. at 745 (quoting Snyder v. Massachusetts, 291 U.S. 97, 106-07

4 (1934)).

5 C. The State Court’s Ruling

6 This claim was raised on direct appeal. Because the California Supreme Court denied

7 discretionary review, the opinion of the California Court of Appeal constitutes the last reasoned

8 decision on the merits and is the subject of habeas review in this court. See Ylst v. Nunnemaker,

9 501 U.S. 797 (1991); Ortiz v. Yates, 704 F.3d 1026, 1034 (9th Cir. 2012).

10 The state appellate court ruled in pertinent part as follows:

11 Defendant’s Absence During Readback of Testimony

12 Defendant contends the reading back of testimony to a jury is a

critical stage in a criminal prosecution at which he has a federal

13 constitutional right to be present. He asserts the trial court violated

this constitutional right by not allowing him to be present for the jury

14 readback. We conclude, as defendant concedes, that the California

Supreme Court has held that jury readback is not a critical stage in a

15 criminal prosecution, and the United States Supreme Court has not

held otherwise.

16

Immediately after the jury retired to deliberate, the trial court asked:

17 “Counsel, do you stipulate that if the jurors want read back or have

any questions that I may send in the answer or send in the court

18 reporter with read-back without us meeting here in open court?”

Counsel so stipulated. Later, the jury requested a readback of Doe’s

19 testimony concerning the sexual offenses. The court notified counsel

that the readback would take place the following morning, and no

20 one objected. The following morning, the reporter did the readback

in the jury room.

21

“[T]he right to personal presence at all critical stages of the trial” is

22 a “fundamental right[] of each criminal defendant.” (Rushen v.

Spain (1983) 464 U.S. 114, 117 [78 L.Ed.2d 267, 272], fn. omitted.)

23 However, the California Supreme Court has specifically rejected the

notion that jury readback is a critical stage of the prosecution.

24 (People v. Cox (2003) 30 Cal.4th 916, 963, disapproved on another

ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People

25 v. Ayala (2000) 23 Cal.4th 225, 288; People v. Horton (1995) 11

Cal.4th 1068, 1120-1121; see also People v. McCoy (2005) 133

26 Cal.App.4th 974, 982-983.) The California Supreme Court’s

decisions are binding on us. (Auto Equity Sales, Inc. v. Superior

27 Court (1962) 57 Cal.2d 450, 455.)

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1 Nevertheless, defendant argues that the jury readback outside his

presence, and without his personal waiver, violated his right to be

2 present at all critical stages of the prosecution. In support, he cites

precedent of the Ninth Circuit of the United States Court of Appeals.

3 (See Turner v. Marshall (9th Cir. 1995) 63 F.3d 807, 815, overruled

on other grounds in Tolbert v. Page (9th Cir. 1999) 182 F.3d 677,

4 685.) But the Ninth Circuit recognizes that the United States

Supreme Court has never held that jury readback is a critical stage of

5 the prosecution. (La Crosse v. Kernan (9th Cir. 2001) 244 F.3d 702,

708.)

6

In any event, we reject defendant’s contention based on the

7 California Supreme Court precedent.

8 Lodged Doc. 11 at 7-8 (ECF No. 11-11 at 7-8).

9 D. Objective Reasonableness Under § 2254(d)

10 The United States Supreme Court “has never addressed whether readback of testimony to

11 a jury is a ‘critical stage[] of the trial’ triggering a criminal defendant’s fundamental right to be

12 present,” La Crosse v. Kernan, 244 F.3d 702, 708 (9th Cir. 2001), and the Ninth Circuit has “held

13 broadly that the right personally to be present at a readback of testimony is not ‘clearly

14 established’ according to Supreme Court jurisprudence,” Fisher v. Roe, 263 F.3d 906, 916 (9th

15 Cir. 2001), overruled on other grounds by Payton v. Woodford, 346 F.3d 1204, 1217 n.18 (9th

16 Cir. 2003) (en banc)).

17 In La Crosse, the petitioner alleged that “his right to be present during all critical stages of

18 his trial was violated when testimony was read back to the jury outside of his presence.” Id. at

19 704. The Ninth Circuit held that, “[g]iven the divergence of opinion on this issue and the lack of

20 clear guidance from the United States Supreme Court, [it could not] say that the California court’s

21 [denial of the claim] was contrary to or an unreasonable application of clearly established federal

22 law.” Id. at 708. Five months later, in Fisher v. Roe, the Ninth Circuit found that the trial court’s

23 readback of testimony without the knowledge or consent of the defendants or their attorneys

24 violated the defendants’ right to be present. 263 F.3d at 915-17. In so holding, the Fisher court

25 explicitly distinguished its holding from that in La Crosse, stating

26 there is a critical and dispositive difference between LaCrosse and

the present case: LaCrosse’s attorney not only was aware of the

27 readback procedure proposed by the judge, but the attorney was

consulted by the court and agreed to the proposed procedure and

28 stipulated that his client need not be present. Here, of course, the

1 district court found that the readback occurred not only in the absence

of the defendants and their lawyers, but without their knowledge and

2 participation. In short, they had been completely and unilaterally

excluded from that part of the trial. These distinctive facts

3 demonstrate that LaCrosse does not provide us with the answer in

this case.

4

5 Id. at 916. The instant case is analogous to La Crosse. In this case, both defense counsel and the

6 prosecutor agreed in advance that readbacks could take place without their presence. They were

7 further notified of the jury’s readback request and that it would take place the following morning

8 and offered no objections.

9 Absent controlling United States Supreme Court authority, and in light of the Ninth

10 Circuit’s holding in La Crosse, the undersigned finds that the state court’s decision was not

11 contrary to, or an unreasonable application of, clearly established federal law, and petitioner is not

12 entitled to relief. Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam) (absent

13 controlling Supreme Court authority, there can be no unreasonable application of clearly

14 established federal law.

15 II. Claim Two: Insufficient Evidence to Support Rape and Forcible Oral Copulation

Convictions

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17 A. Petitioner’s Allegations and Pertinent State Court Record

18 Petitioner alleges that there was insufficient evidence to show that the victim did not

19 consent to the acts that formed the basis for the forcible rape and oral copulation charges, because

20 the evidence showed that he reasonably believed the victim had consented. ECF No. 1 at 4.

21 B. The Clearly Established Federal Law

22 Due process requires that each essential element of a criminal offense be proven beyond a

23 reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). In reviewing the sufficiency of

24 evidence to support a conviction, “the relevant question is whether, after viewing the evidence in

25 the light most favorable to the prosecution, any rational trier of fact could have found the essential

26 elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

27 (1979). If the evidence supports conflicting inferences, the reviewing court must presume “that

28 the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that

1 resolution.” Id. at 326. “A reviewing court may set aside the jury’s verdict on the ground of

2 insufficient evidence only if no rational trier of fact could have agreed with the jury.” Cavazos v.

3 Smith, 565 U.S. 1, 2 (2011) (per curiam).

4 C. The State Court’s Ruling

5 This claim was exhausted on direct appeal, and the last reasoned state court decision is the

6 opinion of the Court of Appeals. That opinion is therefore the subject of review under § 2254(d).

7 Ortiz, 704 F.3d at 1034.

8 The state appellate court ruled in pertinent part as follows:

9 Sufficiency of Evidence of Rape and Oral Copulation

10 Defendant contends the evidence was insufficient to support the

convictions for rape and oral copulation because, specifically, the

11 evidence established, contrary to the jury’s verdicts, that defendant

entertained a reasonable and good faith belief that Doe consented to

12 the sexual acts. We conclude that the evidence was sufficient to

sustain the jury’s verdicts.

13

A. Legal Principles

14

Consent is a defense to both the rape allegation and the oral

15 copulation allegation in this case. (Pen. Code, §§ 261, subd. (a)(2);

288a, subd. (c)(2)(A).) At trial, defendant relied on what is

16 sometimes termed “the reasonable belief in consent defense,” or the

“Mayberry defense” after People v. Mayberry (1975) 15 Cal.3d 143.

17 This defense differs from actual consent in that it “‘permits the jury

to conclude that both the victim and the accused are telling the truth.

18 The jury will first consider the victim’s state of mind and decide

whether she consented to the alleged acts. If she did not consent, the

19 jury will view the events from the defendant’s perspective to

determine whether the manner in which the victim expressed her lack

20 of consent was so equivocal as to cause the accused to assume that

she consented where in fact she did not.’” (People v. Rhoades (1987)

21 193 Cal.App.3d 1362, 1367.) “The reasonable belief defense derived

from Mayberry is founded upon evidence showing the defendant

22 acted under a mistake of fact sufficient to harmonize his assertion of

consent with the victim’s story that consent was lacking.

23 [Citations.]” (Id. at p. 1369.)

24 The trial court instructed the jury with CALCRIM Nos. 1000 and

1015 that defendant is not guilty of rape or oral copulation if he

25 “actually and reasonably believed that the woman consented to the

[act].” Ordinarily, this involves a determination of credibility and a

26 question of fact—namely, the defendant’s mental state. (See, e.g.,

People v. Coddington (2000) 23 Cal.4th 529, 583, overruled on

27 another ground in Price v. Superior Court (2001) 25 Cal.4th 1046,

1069, fn. 13.) However, even if the jury concludes the defendant

28 honestly believed that the victim consented, the jury must determine

1 whether that belief was reasonable under the circumstances.

“[R]egardless of how strongly a defendant may subjectively believe

2 a person has consented to sexual intercourse, that belief must be

formed under circumstances society will tolerate as reasonable”

3 (People v. Williams (1992) 4 Cal.4th 354, 361 (Williams).)

4 B. Facts

5 Defendant, who was married to someone else, and Doe had a

preexisting relationship. They had been dating, but Doe broke up

6 with defendant in September 2009, causing defendant to break down

and cry. Even after that, they maintained what Doe referred to as a

7 “friends with benefits” relationship, meaning they still engaged in

sexual activities together. At first, they had sex about once a week,

8 but it decreased after that because Doe was uncomfortable with the

nature of the relationship.

9

In December 2009, defendant invited Doe for a Christmas meal, but

10 Doe declined. After trying to negotiate with Doe to get her to accept

the invitation, defendant eventually got angry. However, Doe

11 assisted defendant late in December by babysitting his children while

he was at work. Once or twice during that time, Doe and defendant

12 had sex when he returned home from work.

13 On January 4, 2010, Doe went to defendant’s apartment to babysit

defendant’s children, but she found that the children were not there

14 when she arrived. Defendant asked Doe if she wanted to have sex,

but she declined. Defendant seemed upset. Defendant asked Doe to

15 go with him from his apartment to his garage unit located a few

hundred yards away to help carry a large item. She went with him.

16

Inside the garage, defendant closed the door and pulled out two

17 opened switchblades, holding one in front of Doe’s face and the other

behind her back. He told her that he was in control and was sick of

18 what she was doing to him after all he had given her. He said he

would hurt her if she caused any problems. She was terrified.

19

Defendant pulled a roll of duct tape from his car and instructed her

20 to put tape around her head and cover her mouth. Doe pleaded with

him, but he said she had pushed him too far. She began taping

21 herself, but he became frustrated and took over, winding the tape

around several times to cover all but her nose and eyes. She had

22 trouble breathing. Defendant bound Doe’s hands tightly behind her

back with zip ties, hurting her.

23

Defendant pulled a duffel bag out of his car and told Doe to get inside

24 the bag. She reluctantly complied. Defendant zipped up the bag and

put three or four padlocks on the bag to lock the bag. Defendant put

25 the bag, with Doe inside, on the concrete floor of the garage and

dragged the bag up against a wall. He moved some plywood around,

26 and one of the pieces hit Doe in the face.

27 After approximately 10 minutes, defendant placed Doe, still in the

bag, in the back of his van, on the floor. Defendant used duct tape

28 around the outside of the bag to restrict Doe further. He also patted

1 the bag, saying, “I love you, sweetie,” which Doe found very creepy.

He told her to try to fall asleep. Defendant left the garage. Still

2 bound and taped up inside the bag, Doe had difficulty breathing and

felt like she might die.

3

After about two hours, defendant returned to the garage. He opened

4 the bag far enough for Doe’s head to be outside of it. Eventually,

defendant took the tape off Doe’s face and told Doe that he was

5 taking Doe to live in an underground bunker he had built in the forest.

She said she did not want to go, but he replied that she had to.

6 Defendant cut the zip ties and allowed her to move out of the bag to

the bed in the back of the van, but he told Doe that they had to stay

7 the night in the van. Doe tried to act as if she loved him because she

was afraid he would put her back in the bag.

8

Defendant and Doe spent the night in the van. Doe wanted to escape,

9 but defendant placed one of the switchblades next to him on the bed

and he told her not to try anything “stupid.” Defendant tried to

10 cuddle with Doe, but Doe shrugged him off and went to sleep.

11 When Doe woke up the next morning, defendant was undoing the

drawstring on her pants. He took off her pants and underwear and

12 began performing oral sex on her. While defendant was removing

her pants, Doe removed her sweatshirt, under which she was not

13 wearing anything. Doe testified that they commonly engaged in oral

sex when they were dating, but she did not want him to do it because

14 she felt like his prisoner. She had her head turned to the side and did

not make any noise. After about 10 minutes she felt some kind of

15 painful cramp, so she pushed him off. Defendant took off his pants,

got on top of her, and put his penis in her vagina. Again, Doe did

16 nothing to indicate she was enjoying the experience. After about 10

minutes, defendant said, “Sweetie, what’s wrong?” She indicated to

17 him that she was not enjoying it. He got off her and put his pants on,

mumbling that it was typical of her to use him.

18

Eventually, Doe and defendant left the garage and walked back to the

19 apartment. Defendant was holding Doe’s arm and had a pocket knife

in his pocket. Doe told defendant that what happened in the van felt

20 like rape. He answered that it was not rape and pointed out that she

took off her sweatshirt. He was angry that she would suggest that it

21 was rape. Later, in a pretext call, defendant said to Doe that he

stopped because she said it felt like rape and that, “in all fairness, you

22 were all for it at first.”

23 Also in the pretext call, Doe indicated that defendant had a

switchblade next to him in the van while he engaged in sexual

24 activities. He said, “No, I moved it, so it was out of the way.” And

she responded that it was still right next to him.

25

C. Analysis

26

We will assume for the purpose of argument, without finding, that

27 defendant honestly believed that Doe consented to the oral

copulation.

28

1 After summarizing the evidence relevant to whether defendant

reasonably believed that Doe consented to the oral copulation and

2 intercourse, defendant argues: “In the context of the sexual

relationship that [defendant] and Ms. Doe had pursued with one

3 another during the several months after she broke up with him, it was

reasonable for [defendant] to believe she consented to have sex in the

4 van on January 5th. This is true in spite of the fact that she had

declined to have sex earlier that evening, and had endured several

5 hours of maltreatment before it occurred. As explained above,

[defendant] and Ms. Doe had a history of engaging in sexual acts

6 even when their relationship was rocky. Given that history, it was

reasonable for [defendant] to believe Ms. Doe consented to have sex

7 absent a clear indication from her that she did not. In fact, Ms. Doe

conceded that he immediately stopped the act of intercourse that

8 morning and got dressed when she told him she was not enjoying it.”

9 This is an argument that defendant could and did make to the jury.

But on appeal he is arguing that the evidence was insufficient to

10 sustain the conviction. In other words, he is arguing that there was

no substantial evidence that defendant’s belief that Doe consented to

11 oral copulation and intercourse was unreasonable. To the contrary,

the evidence of unreasonableness was substantial.

12

“The Mayberry defense has two components, one subjective, and one

13 objective. The subjective component asks whether the defendant

honestly and in good faith, albeit mistakenly, believed that the victim

14 consented . . . . In order to satisfy this component, a defendant must

adduce evidence of the victim’s equivocal conduct on the basis of

15 which he erroneously believed there was consent.” (Williams, supra,

4 Cal.4th at pp. 360-361, fn. omitted.) Evidence of the defendant’s

16 state of mind may be circumstantial. (People v. Thomas (2011) 52

Cal.4th 336, 355.)

17

“In addition, the defendant must satisfy the objective component,

18 which asks whether the defendant’s mistake regarding consent was

reasonable under the circumstances. Thus, regardless of how

19 strongly a defendant may subjectively believe a person has consented

. . . , that belief must be formed under circumstances society will

20 tolerate as reasonable in order for the defendant to have adduced

substantial evidence giving rise to a Mayberry instruction.

21 [Citation.]” (Williams, supra, 4 Cal.4th at p. 361.)

22 In this case, defendant’s argument fails because his belief Doe

consented was not “formed under circumstances society will tolerate

23 as reasonable.” (Williams, supra, 4 Cal.4th at p. 361.) Defendant

taped Doe’s face, bound her wrists, and shoved her into a bag for two

24 hours. She had difficulty breathing and feared for her life. Defendant

brandished a weapon, which Doe knew he had with him during the

25 entire episode, and he threatened to use it. He told her he was in

control. She declined his advances before going to the garage, and

26 she shrugged him off in the van. However, he forced her to sleep by

his side, and he warned her not to do anything “stupid.” Then he

27 began his sexual attack when she was asleep. She was his prisoner,

and he took advantage of that situation to orally copulate her and

28 have intercourse with her. The prior relationship and Doe’s self-

1 preservationist instinct not to resist under these circumstances do not

establish that defendant’s belief in consent was reasonable. Instead,

2 his belief was morally reprehensible and indefensible. The jury got

it right.

3

4 Lodged Doc. 11 at 8-13 (ECF No. 11-11 at 8-13).

5 D. Objective Reasonableness Under § 2254(d)

6 Although the state court did not cite Jackson v. Virginia or explicitly apply the standard it

7 prescribes, this court may not grant relief unless the state court’s analysis was objectively

8 unreasonable under Jackson. See Early v. Packer, 537 U.S. 3, 8 (2002) (per curium) (state court

9 need not cite or even be aware of governing United States Supreme Court precedent for AEDPA

10 deference to apply). Because the Jackson standard is itself deferential, the AEDPA creates a

11 “double dose of deference.” Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011). The question

12 is not whether this court finds the evidence insufficient or that the state court made a mistake, but

13 whether “the state court’s determination that a rational jury could have found that there was

14 sufficient evidence of guilt, i.e., that each required element was proven beyond a reasonable

15 doubt, was objectively unreasonable.” Id. at 965.

16 In this case, the court of appeal presumed that petitioner had an honest belief that the

17 victim consented to the alleged acts but, after viewing the evidence in the light most favorable to

18 the judgment and considering all reasonable inferences in support of that judgment, found that

19 there was substantial evidence that that belief was unreasonable. The jury heard petitioner’s

20 theory that his belief the victim consented was reasonable and rejected in in the face of evidence

21 of the conditions in which petitioner held the victim and his accompanying threats. There is

22 nothing objectively unreasonable in the conclusion that the verdict was not irrational.

23 Accordingly, the state court’s resolution of the issue may not be disturbed by the federal court.

24 See Boyer, 659 F.3d at 964.

25 III. Claim Three: Consecutive Terms of Fifteen Years to Life Constitute Cruel and

Unusual Punishment

26

27 A. Petitioner’s Allegations and Pertinent State Court Record

28 Petitioner alleges that consecutive terms of fifteen years to life are cruel and unusual

1 because the victim stated that petitioner acted like the intercourse was consensual and when she

2 said she was not enjoying the intercourse he immediately stopped, he had no prior criminal

3 record, and he was employed as a licensed vocational nurse prior to arrest. ECF No. 1 at 5.

4 B. The Clearly Established Federal Law

5 The Eighth Amendment forbids the imposition of “cruel and unusual punishments.” U.S.

6 Const. amend. VIII. The Supreme Court has held that “[a] gross disproportionality principle is

7 applicable to sentences for terms of years.” Lockyer v. Andrade, 538 U.S. 63, 72 (2003);

8 Rummel v. Estelle, 445 U.S. 263, 271 (1980) (“[T]he Eighth Amendment prohibits imposition of

9 a sentence that is grossly disproportionate to the severity of the crime.” (citations omitted)). Such

10 instances are “exceedingly rare” and occur in only “extreme” cases. Andrade, 538 U.S. at 73;

11 Rummel, 445 U.S. at 272. “[F]ederal courts should be ‘reluctan[t] to review legislatively

12 mandated terms of imprisonment and ‘successful challenges to the proportionality of particular

13 sentences’ should be ‘exceedingly rare.’” Hutto v. Davis, 454 U.S. 370, 374 (1982) (quoting

14 Rummel, 445 U.S. at 272, 274).

15 C. The State Court’s Ruling

16 This claim was exhausted on direct appeal, and the last reasoned state court decision is the

17 opinion of the Court of Appeals. That opinion is therefore the subject of review under § 2254(d).

18 Ortiz, 704 F.3d at 1034.

19 The state appellate court ruled in pertinent part as follows:

20 Cruel and Unusual Punishment

21 Defendant contends the consecutive indeterminate terms of 15 years

to life imposed for the rape (Pen. Code, § 261, subd. (a)(2)) and oral

22 copulation (Pen. Code, § 288a, subd. (c)(2)) violate the federal and

state constitutional proscriptions on cruel and unusual punishment

23 because the punishment is disproportionate to the crimes. The

contention is without merit.

24

A. Legal Principles

25

A punishment violates the Eighth Amendment of the United States

26 Constitution if it is “‘grossly disproportionate to the severity of the

crime.’” (Ewing v. California (2003) 538 U.S. 11, 21 [155 L.Ed.2d

27 108, 117].) A punishment may amount to cruel or unusual

punishment under article I, section 17 of the California Constitution

28 if “it is so disproportionate to the crime for which it is inflicted that

1 it shocks the conscience and offends fundamental notions of human

dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) We

2 construe our state constitutional provision separately from its

counterpart in the federal Constitution. (People v. Carmony (2005)

3 127 Cal.App.4th 1066, 1085.)

4 To assess proportionality under the state proscription of cruel or

unusual punishment, we (1) examine the nature of the offense and

5 the offender, (2) compare the sentence with punishments for more

serious offenses in the same jurisdiction, and (3) compare the

6 sentence with punishments for the same offense in other

jurisdictions. (In re Lynch, supra, 8 Cal.3d at pp. 425-427.) The

7 assessment is nearly identical under the federal proscription of cruel

and unusual punishment, in which we analyze “(i) the gravity of the

8 offense and the harshness of the penalty; (ii) the sentences imposed

on other criminals in the same jurisdiction; and (iii) the sentences

9 imposed for commission of the same crime in other jurisdictions.”

(Solem v. Helm (1983) 463 U.S. 277, 292 [77 L.Ed.2d 637, 650].)

10

“In examining ‘the nature of the offense and the offender,’ we must

11 consider not only the offense as defined by the Legislature but also

‘the facts of the crime in question’ (including its motive, its manner

12 of commission, the extent of the defendant’s involvement, and the

consequences of his acts); we must also consider the defendant’s

13 individual culpability in light of his age, prior criminality, personal

characteristics, and state of mind. [Citations.]” (People v. Crooks

14 (1997) 55 Cal.App.4th 797, 806.)

15 B. Procedural and Factual Background

16 Because defendant used a deadly weapon when committing the

sexual offenses, the sentencing provisions found in Penal Code

17 section 667.61, subdivision (e)(3) (which was subdivision (e)(4) at

the time of defendant’s crimes (Stats. 2006, ch. 337, § 33)) applied,

18 providing for an indeterminate term of 15 years to life for each of the

two sexual offenses. The trial court imposed those two terms

19 consecutive to the determinate term for kidnapping and fully

consecutive to each other. (Pen. Code, § 667.6, subd. (d).)

20

C. Analysis

21

Defendant focuses on the mitigating circumstances relating to him

22 personally in making his argument that the 15-year-to-life

consecutive sentences for rape and oral copulation were cruel and

23 unusual. He cites the probation report, which states that he has no

prior criminal record, he was fully employed, and he was honorably

24 discharged from the Navy after service in Iraq. He also cites

evidence from the trial on his sanity, which ended in a hung jury.

25 The doctors at that trial opined that he was legally insane when he

committed the crimes. They found evidence of major depressive

26 disorder and posttraumatic stress disorder. We conclude that, even

considering these allegedly mitigating circumstances, defendant’s

27 crimes against Doe were of a nature demanding the harsh punishment

imposed.

28

1 “‘Our Supreme Court has emphasized “the considerable burden a

defendant must overcome in challenging a penalty as cruel or

2 unusual. The doctrine of separation of powers is firmly entrenched

in the law of California, and a court should not lightly encroach on

3 matters which are uniquely in the domain of the Legislature. Perhaps

foremost among these are the definition of crime and the

4 determination of punishment. While these intrinsically legislative

functions are circumscribed by the constitutional limits of article I,

5 section 17 [of the California Constitution], the validity of enactments

will not be questioned ‘unless their unconstitutionality clearly,

6 positively, and unmistakably appears.’” [Citation.]’ [Citation.]”

(People v. Sullivan (2007) 151 Cal.App.4th 524, 569.)

7

Here, defendant raped and orally copulated Doe while in possession

8 of a deadly weapon. The California Legislature has determined that

such conduct merits harsh punishment—an indeterminate term of 15

9 years to life for each crime. Defendant exhibited the weapon early

in his crimes against Doe. In fact, at the beginning, he had two

10 switchblades, holding one in front of Doe’s face and the other behind

her back, both menacing and fear-inducing acts, telling her he was in

11 control. When he and Doe were in the van, he placed one of the

switchblades on the bed next to him and told Doe not to try anything

12 “stupid.” With the switchblade within reach, he began his assault on

Doe while she was asleep. As we noted before, any belief on his part

13 that the rape and oral copulation were consensual was reprehensible

under the circumstances he placed Doe in.

14

Defendant attempts to analogize his case to People v. Dillon (1983)

15 34 Cal.3d 441. In that case, the defendant was a 17-year-old high

school student who shot and killed a man during an attempted

16 robbery at a marijuana farm. (Id. at pp. 451-452.) A jury convicted

him of first degree felony murder. (Id. at p. 450.) The high court

17 there found that the sentence of 25 years to life violated the

proscription of the California Constitution against cruel and unusual

18 punishment. (Id. at p. 489.) The court stressed the defendant’s age,

lack of criminal record, immaturity, and the fact that the attempted

19 robbery was the product of “youthful bravado.” (Id. at pp. 482, 488.)

In particular, the court focused on the fact that the shooting occurred

20 when the defendant and one of his companions were surprised by the

victim, who was guarding the plants and appeared suddenly through

21 some bushes behind them aiming a shotgun at them. (Id. at pp. 482-

483.) The court concluded that the defendant feared for his life,

22 panicked, and fired the shots because of a situation from which he

could not extricate himself. (Id. at p. 488.)

23

This case does not compare well to Dillon. While defendant had no

24 prior criminal record, he was 28 years old when he committed these

offenses, old enough to understand the gravity of what he was doing.

25 There was no element of reacting to an unanticipated situation.

Instead, defendant planned the crimes carefully and committed them

26 over a long period of time. Defendant asserts that we must consider

that psychologists in his inchoate insanity trial opined that he was

27 suffering from some psychological difficulties when he committed

the crimes. But he was unsuccessful in convincing a jury that he was

28 insane when he committed the crimes. The facts, as we have

1 recounted them above, show the actions of a mature individual who

carried out a meticulous and cruel plan to victimize his former

2 girlfriend over a long period of time, including the two sexual

offenses committed in the van, while using a deadly weapon. As the

3 Legislature has determined, these crimes should be punished harshly.

4 Therefore, considering the nature of the sexual offenses, committed

with a deadly weapon, and the nature of the offender who was a

5 mature man and someone the victim should have been able to trust,

the motive, manner of commission, extent of the defendant’s

6 involvement, and consequences of his crimes justify the two

consecutive 15-year-to-life terms for rape and oral copulation while

7 armed with a deadly weapon. (People v. Crooks, supra, 55

Cal.App.4th at p. 806.)

8

Defendant’s arguments on the cruel and unusual punishment issue

9 are without merit under both federal and state standards.

10 Lodged Doc. 11 at 14-18 (ECF No. 11-11 at 1984-88).

11 D. Objective Unreasonableness Under § 2254(d)

12 Petitioner has failed to demonstrate that this is one of the rare cases which supports an

13 inference of gross disproportionality. The United States Supreme Court has held that a life

14 sentence is constitutional, even for a non-violent property crime. In Rummel, the Supreme Court

15 upheld a life sentence with the possibility of parole, imposed under a recidivist statute, for a

16 defendant convicted of obtaining $120.75 by false pretenses, which was normally punishable by

17 imprisonment for two to ten years. 445 U.S. at 265-66. In Harmelin, the Supreme Court upheld a

18 mandatory sentence of life without the possibility of parole for a defendant convicted of

19 possessing more than 650 grams of cocaine, even though it was his first felony offense. Harmelin

20 v. Michigan, 501 U.S. 957, 961, 994-96 (1991). The crimes underlying the immediate conviction

21 are obviously more serious than the ones at issue in Rummel and Harmelin, as this case involves

22 sex offenses committed with a deadly weapon. Based on the foregoing, the court of appeal’s

23 rejection of this claim was not contrary to or an unreasonable application of Supreme Court

24 precedent.

25 IV. Claim Four: Trial Court Abused Its Discretion at Sentencing

26 A. Petitioner’s Allegations and Pertinent State Court Record

27 Petitioner alleges that the trial court abused its discretion when it determined that Counts

28 Three and Four (rape and forcible oral copulation) were separate offenses, leading to the

1 imposition of consecutive sentences on the two counts. ECF No. 1 at 5.

2 B. The Clearly Established Federal Law

3 Sentencing is governed by state law, and errors related to the application of state law do

4 not support federal habeas relief. Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas

5 corpus relief does not lie for errors of state law.” (citations omitted)). A state sentencing error

6 violates a defendant’s federal constitutional rights, and supports habeas relief, only where the

7 error is “so arbitrary or capricious as to constitute an independent due process or Eighth

8 Amendment violation.” Richmond v. Lewis, 506 U.S. 40, 50 (1992).

9 C. The State Court’s Ruling

10 This claim was exhausted on direct appeal, and the last reasoned state court decision is the

11 opinion of the Court of Appeals. That opinion is therefore the subject of review under § 2254(d).

12 Ortiz, 704 F.3d at 1034.

13 The state appellate court ruled in pertinent part as follows:

14 Consecutive Sentencing

15 Defendant also contends that the trial court abused its discretion by

imposing fully consecutive indeterminate terms for the two sexual

16 offenses. To the contrary, imposition of consecutive sentencing was

well within the discretion given to the trial court.

17

The trial court must impose a “full, separate, and consecutive term”

18 for rape and oral copulation “if the crimes . . . involve[d] the same

victim on separate occasions.” (Pen. Code, § 667.6, subd. (d).) That

19 statute supplies the standard for the trial court to apply: “In

determining whether crimes against a single victim were committed

20 on separate occasions under this subdivision, the court shall consider

whether, between the commission of one sex crime and another, the

21 defendant had a reasonable opportunity to reflect upon his or her

actions and nevertheless resumed sexually assaultive behavior.

22 Neither the duration of time between crimes, nor whether or not the

defendant lost or abandoned his or her opportunity to attack, shall be,

23 in and of itself, determinative on the issue of whether the crimes in

question occurred on separate occasions.” (Ibid.) A momentary

24 pause between crimes may be sufficient for a defendant to reasonably

reflect on his actions and then resume the assault. (People v. King

25 (2010) 183 Cal.App.4th 1281, 1325 [defendant had reasonable

opportunity to reflect when he saw lights of car driving by and

26 momentarily paused to look around uneasily before resuming his

sexual assault].)

27

We may reverse a finding that the defendant committed offenses on

28 separate occasions under Penal Code section 667.6, subdivision (d)

1 “only if no reasonable trier of fact could have decided the defendant

had a reasonable opportunity for reflection after completing an

2 offense before resuming his assaultive behavior.” (People v. Garza

(2003) 107 Cal.App.4th 1081, 1092.)

3

Here, the trial court stated it had discretion to impose consecutive or

4 concurrent sentencing, and it imposed consecutive sentencing

because the rape and the oral copulation, in the court’s words, were

5 “clearly two separate acts.” The court added: “I can make it

concurrent if I thought that it was appropriate. And I considered my

6 discretion to make that concurrent, but I determined that the facts and

the circumstances warrant that sentence run consecutive.” Still later,

7 after argument by defendant, the court said: “The factors determining

consecutive [terms] were that they were separate offenses or separate

8 intents separated by time.”

9 Defendant argues that the trial court abused its discretion because the

oral copulation and rape did not involve separate intents and were

10 not separated in time. To the contrary, the facts supported the trial

court’s determination.

11

Defendant, armed with a switchblade, orally copulated Doe until she

12 pushed him off. At that point, defendant removed his pants, got on

top of Doe, and raped her. Having been pushed off and with his pants

13 still on, defendant “had a reasonable opportunity to reflect upon his

. . . actions” before resuming the sexually assaultive behavior. (Pen.

14 Code, § 667.6, subd. (d).) Therefore, under the statutory standard, a

fully consecutive term was appropriate.

15

In making his contention that imposing fully consecutive terms was

16 an abuse of discretion, defendant fails even to mention the statutory

standard in Penal Code section 667.6, subdivision (d), quoted above.

17 Instead, he argues that we should apply a Supreme Court case

interpreting the “single occasion” rule as it relates to a part of Penal

18 Code section 667.61 now repealed. (People v. Jones (2001) 25

Cal.4th 98, interpreting Pen. Code, § 667.61, former subd. (g).) In

19 that case, which involved interpretation of the term “single

occasion,” rather than “separate occasions,” the Supreme Court

20 declined to apply the statutory definition of the latter phrase found in

Penal Code section 667.6, subdivision (d), because both the wording

21 and the circumstances of application were different. (Id. at pp. 105-

107.) Accordingly, the opinion in that case, interpreting a different

22 term used in a different statute, is not persuasive in this case. That

statutory standard prevails.

23

24 Lodged Doc. 11 at 18-20 (ECF No. 11-11 at 18-20).

25 D. Objective Unreasonableness Under § 2254(d)

26 The court of appeal’s determination that the rape and forcible oral copulation constituted

27 “separate occasions” within the meaning of California law is a matter of state law interpretation

28 and this court is bound by its holding. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We

1 have repeatedly held that a state court’s interpretation of state law, including one announced on

2 direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”

3 (citations omitted)); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (habeas relief “is

4 unavailable for alleged error in the interpretation or application of state law”); Miller v. Vasquez,

5 868 F.2d 1116, 1118-19 (9th Cir. 1989) (declining to address “[w]hether assault with a deadly

6 weapon qualifies as a ‘serious felony’ under California’s sentence enhancement provisions

7 [because it] is a question of state sentencing law”). There is no indication that the state court’s

8 decision was arbitrary or capricious, as the court of appeal carefully considered the facts of the

9 case and the applicable state law before coming to its conclusion that the two offenses constituted

10 “separate occasions.” Accordingly, petitioner does not present a cognizable basis for federal

11 habeas relief even if the state court misapplied California law. Christian v. Rhode, 41 F.3d 461,

12 469 (9th Cir. 1994) (“Absent a showing of fundamental unfairness, a state court’s misapplication

13 of its own sentencing laws does not justify federal habeas relief.” (citations omitted)).

14 CONCLUSION

15 For all the reasons explained above, the state courts’ denial of petitioner’s claims was not

16 objectively unreasonable within the meaning of 28 U.S.C. § 2254(d).

17 Accordingly, IT IS HEREBY RECOMMENDED that the petition for writ of habeas

18 corpus be DENIED.

19 These findings and recommendations are submitted to the United States District Judge

20 assigned to the case, pursuant to the provisions of 28 U.S.C. §636(b)(l). Within twenty-one days

21 after being served with these findings and recommendations, any party may file written

22 objections with the court and serve a copy on all parties. Such a document should be captioned

23 “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections,

24 he shall also address whether a certificate of appealability should issue and, if so, why and as to

25 which issues. See 28 U.S.C. § 2253(c)(2). Any reply to the objections shall be served and filed

26 ////

27 ////

28 ////

1 | within fourteen days after service of the objections. The parties are advised that failure to file

2 || objections within the specified time may waive the right to appeal the District Court’s order.

3 || Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991).

4 | DATED: May 2, 2024 ~

5 Htttenr— Lhor—e_

ALLISON CLAIRE

6 UNITED STATES MAGISTRATE JUDGE

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