Velasquez v. Ndoh

• Court: District Court, N.D. California
• Decided: September 27, 2019
• Docket: 4:16-cv-02666
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 EDGAR ENRIQUE VELASQUEZ, Case No. 16-cv-02666-HSG

8 Plaintiff, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 9 v. Re: Dkt. No. 1 10 ROSEMARY NDOH, 11 Defendant.

12 13 Pending before the Court is a petition for a writ of habeas corpus under 28 U.S.C. § 2254. 14 See Dkt. No. 1. Petitioner Edgar Velasquez challenges the validity of his state court sentence. 15 Having carefully considered the parties’ arguments, the Court DENIES the petition. 16 I. BACKGROUND 17 A. State Court Proceedings 18 On March 1, 2013, Petitioner pled no contest to forcible oral copulation upon a child under 19 Cal. Pen. Code § 288a(c)(2)(B); forcible lewd acts upon a child under Cal. Pen. Code § 288(b)(1); 20 and four counts of lewd acts upon a child under Cal. Pen. Code § 288(a). See Dkt. No. 9-1 21 (“Clerk’s Transcript” or “CT”) at 114–20; Dkt. No. 9-2 (“Reporter’s Transcript” or “RT”) at 5–6.1 22 He further admitted enhancement allegations that he had substantial sexual conduct with a child 23 under the age of 14, Cal. Penal Code § 1203.066(a)(8), and that he was at least 16 years old at the 24 time he committed the offenses, Cal. Welf. & Inst. Code § 707(d)(1). See CT at 114; RT at 4–5. 25 At the time of Petitioner’s plea, the court confirmed his understanding that the maximum sentence 26 1 All references to exhibits are to those submitted by Respondent in support of the answer, see 27 Dkt. No. 9, unless otherwise indicated. The Clerk’s Transcript and Reporter’s Transcript are, in 1 was twenty years. RT at 3. 2 The sentencing hearing was held that same day. See CT at 114. During the hearing, the 3 victim’s father, Serafin Del Torro, assisted by an interpreter, made a personal statement. See RT 4 at 6–9. Mr. Del Torro stated: 5 Before saying that I want to say in reference to this case, so that you 6 may understand what this has affected me—my daughter [the victim, Jane Doe], she was born in Mexico. Before she was born, my wife 7 had a lot of pregnancy issues.

8 I asked her on many occasions to have an abortion. She never wanted to. So when she was being born, the doctors had told me that she was 9 a girl. I didn’t know that she was a girl.

10 I had told three doctors—the gynecologist, the anesthesiologist—that I didn’t want a girl. The reason was because I knew as a child that 11 my sister had been raped two times. My father had tried to rape her when she was a child two times. 12 And I knew as a child that my father had tried to abuse of his own 13 sister. My own mother suffered physical, emotional abuse from my father, who abandoned us when I was three or four years old. My 14 mother was so sick that my neighbor or would take of us. She would breast feed me. 15 I also learned that she, who had been like my mother, had been raped 16 when she was eight or 12 years old. None of these people received punishment ever. 17 When this happened with my daughter, I had many problems. I lost 18 two houses. My oldest son, he knows that he was drugged and raped. Nobody helped me. Nobody helped him. Nobody helped my wife. 19 When I found out about my daughter, I know that he owes something 20 to my daughter and to all women, to all the women that I love so much. The only thing I asked him was to get away from my home. 21 One or two times I kicked him out of the house also. He was like a son to me because I loved him very much. 22 I think on one time I gave him a guitar as a gift because he was a 23 friend of my son’s. I didn’t want to cause any more harm to his parents or to him; but I owed something to my daughter and to all 24 women.

25 When I made the report and before my daughter received psychological help, we were taking care of her because she tried to 26 kill herself five or ten times. She wouldn’t sleep; and neither would we. 27 her in the bathroom with scissors trying to cut her veins. 1 When—what happened to my son, I never received help because I 2 wanted my wife and my son to see that I was strong. I was trying to recover when this happened with my daughter. Even so, I haven’t 3 asked for psychological help because—I thought I could take more of this; but it’s too much. 4 I want to—this paper—it says “emotional impact, economic, and a 5 recommendation for sentencing.” I don’t think you can ever repay me for what my daughter has suffered; so I didn’t have to fill it out. 6 Economic—(crying) I don’t ask for anything economic. Who is going to pay me? His parents? They’re suffering as I am. 7 I only ask of you to do what you need to do. I don’t ask for anything 8 else. I see many cases like these where the people say “I forgive him.” I don’t forgive you. I will never forgive what you did to me. I loved 9 you very much.

10 I’m sorry—that’s all I have to say. My wife did not want to fill out this paper for respect to his family; and even though I respect them— 11 don’t wish them anything bad—I had to come. I had to let them know what had happened to us. And I would want to know what would 12 they put down on this paper. That’s all. 13 14 Id. at 7–9. The victim, although not present, also wrote—and the court read aloud—that “[s]ince 15 this incident I have been suffering from depression. I have trouble being around and getting along 16 with people.” Id. at 9–10. Petitioner’s counsel then urged the court to impose a six-year sentence, 17 arguing in mitigation that Petitioner was only 17 at the time of the crimes; cooperated with police; 18 understood, once he was older, the impact of his actions on the victim; had no other priors; and 19 had since become employed and married. Id. at 11–13. 20 The court sentenced Petitioner to a total of eight years in state prison. See CT at 114, 119– 21 20; RT at 13–18. In doing so, the court explained:

22 All right. I have listened carefully to Mr. Del Torro. He in particular was an incredibly moving witness. I am aware that [Petitioner] has 23 many loving family members out here who care for him very much.

24 One of the reasons this came to me with a reduced posture is I am also aware of the fact that many youth at the age of 17 make all sorts of 25 mistakes in their lives and they don’t grow and mature until they are pretty much in their mid 20’s. That was one of the factors that brought 26 this from what originally was brought to me somewhat as a 12 year case to somewhere between six to eight years. And six would be half 27 of what the People offered. know the impact. The impression I had – and I don’t blame the 1 defense attorney, but the impression I had was that the victim was sympathetic to the defendant, didn’t want to see him go to prison; and 2 I almost got the sense that there was not the severe damage that he had caused. 3 In listening to Mr. Del Torro it is clear – and should have been obvious 4 to me even without the testimony – that a ten year old child – and she was a child – should never have been treated in this way. And having 5 that mark – when we speak of a 17 year old being youthful, a child that is hurt at ten is still wounded at 50. 6 There is not a time in her life that she will forget this, that it won’t 7 mark her in some ways – in the way that she relates to trusting other, particularly men; in the way she relates as a mother if she has a 8 daughter. The way Mr. Del Torro spoke so poignantly about the wounds that he saw when he learned other women that he loved had 9 been raped – and this child, even if she hears of a rape at 20, 30, or 40 will recall hers. 10 11 RT at 15–16. When asked by the court, Mr. Del Torro confirmed that the victim’s attempted 12 suicide was due to the sexual abuse. Id. at 9. Following the sentence, Petitioner’s counsel stated 13 that “this is the first we have heard of any suicide attempts by the victim. I believe them to be 14 true; but it is in fact the first time the family or I have heard that.” RT at 18. 15 On appeal, Petitioner claimed that (1) the sentencing court acted unreasonably in imposing 16 the eight-year sentence; and (2) alternatively, trial counsel was ineffective for failing to request a 17 continuance. Dkt. No 9-4, Ex. D at 18–21. On December 9, 2014, the California Court of Appeal 18 affirmed Petitioner’s conviction in an unpublished opinion. Dkt. No 9-5, Ex. E at 27–31. In 19 rejecting Petitioner’s ineffective assistance of counsel (“IAC”) claim, the Court of Appeal 20 reasoned: 21 Appellant next contends his trial counsel was ineffective for failing to 22 either request a continuance to investigate the father’s statements or attempt to neutralize his statements through the presentation of 23 information demonstrating bias, a motion to strike irrelevant portions of his statement, or cross-examination. We disagree. 24 For purposes of an ineffective assistance of counsel claim, 25 “[p]rejudice is shown when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would 26 have been different.’” (In re Thomas (2006) 37 Cal.4th 1249, 1256.) Appellant has not shown any reason to doubt the victim’s father’s 27 statements about the impact of appellant’s crime on Jane Doe. As reasonable probability that any investigation, cross-examination, or 1 other conduct by trial counsel would have resulted in a different sentence. 2 Appellant also notes trial counsel advised appellant against making a 3 statement at the sentencing hearing. The record indicates the statement appellant wished to make was to the victim’s father. Trial 4 counsel told the court: “[Appellant] has expressed his desire to make an apology statement. I told him that would have to come at a different 5 time through writing or therapy. I didn’t think it was an appropriate time for him to address the father. He would like to do so.” Again, 6 appellant has failed to show prejudice resulting from any deficient performance. The trial court was aware of appellant’s remorse. There 7 is no basis to conclude the sentence would have been any different had appellant apologized to Jane Doe’s father at the sentencing 8 hearing. 9 Id. at 29–31. 10 Petitioner filed a petition for review, raising the same claims as on appeal. Compare Ex. D 11 at 18–21, with Ex. E at 18–24. The California Supreme Court summarily denied review on 12 February 18, 2015. See Ex. E at 2 (“The petition for review is denied.”). Petitioner did not pursue 13 state collateral review. 14 B. Habeas Proceedings 15 The instant petition was filed on May 17, 2016. See Dkt. No. 1 (“Pet.”). Petitioner sought 16 two grounds for relief: First, Petitioner claimed he was denied his right to due process under the 17 Fourteenth Amendment when the sentencing judge imposed “an eight year prison sentence based 18 on the unreliable and unsubstantiated statement of Jane Doe’s father.” Pet. at 14–19. Second, and 19 in the alternative, Petitioner claimed that his trial counsel provided ineffective assistance of 20 counsel when he failed to request a continuance following the father’s statements in order to 21 ascertain their veracity. See id. at 7–8. The Court compared the instant federal habeas petition 22 with the petition for review filed in the California Supreme Court and determined that Petitioner 23 had failed to exhaust his due process claims. See Dkt. No. 18 at 2–5. The Court, therefore, 24 directed Petitioner to determine whether he wanted to proceed with the single, exhausted IAC 25 claim, or dismiss the action in its entirety and return to state court to exhaust all claims. See id. at 26 5–6. Petitioner elected to dismiss the unexhausted due process claim and proceed in this action 27 with only his IAC claim. See Dkt. No. 19. Petitioner’s pending habeas petition therefore contains 1 II. LEGAL STANDARD 2 A petition for a writ of habeas corpus is governed by the Antiterrorism and Effective Death 3 Penalty Act of 1996 (“AEDPA”). This Court may entertain a petition for a writ of habeas corpus 4 “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that 5 he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 6 § 2254(a). 7 A district court may not grant a petition challenging a state conviction or sentence on the 8 basis of a claim that was reviewed on the merits in state court unless the state courts adjudication 9 of the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable 10 application of, clearly established Federal law, as determined by the Supreme Court of the United 11 States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in 12 light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). 13 A state court decision is “contrary to” clearly established Supreme Court precedent if it 14 “applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases,” or if it 15 “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] 16 Court and nevertheless arrives at a result different from [its] precedent.” Williams, 529 U.S. at 17 405–06. “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if 18 the state court identifies the correct governing legal principle from [the Supreme] Court’s 19 decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. 20 “[A] federal habeas court may not issue the writ simply because that court concludes in its 21 independent judgment that the relevant state-court decision applied clearly established federal law 22 erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. 23 Section 2254(d)(1) restricts the source of clearly established law to the Supreme Court’s 24 jurisprudence. “[C]learly established Federal law, as determined by the Supreme Court of the 25 United States” refers to “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions 26 as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. “A federal court 27 may not overrule a state court for simply holding a view different from its own, when the 1 (2003). 2 The state court decision to which § 2254(d) applies is the “last reasoned decision” of the 3 state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803–04 (1991).2 Because, as noted above, the 4 California Supreme Court summarily denied Petitioner's petition for review, the California Court 5 of Appeal was the highest court to have reviewed the claims in a reasoned decision. It is therefore 6 the Court of Appeal’s decision that this Court reviews herein. 7 III. DISCUSSION 8 A. Ineffective Assistance of Counsel 9 Petitioner contends that his counsel was ineffective because he failed to seek a continuance 10 to evaluate the veracity of the statements made by the victim’s father, Mr. Del Torro, to the court 11 during sentencing. Alternatively, Petitioner contends that defense counsel could have, even 12 without seeking a continuance, (1) presented information regarding Mr. Del Torro’s bias as the 13 victim’s father; (2) asked the court to strike irrelevant portions of Mr. Del Torro’s testimony; or 14 (3) cross-examined Mr. Del Torro regarding his testimony. See Pet. at 7. Specifically, Petitioner 15 posits that Mr. Del Torro’s testimony regarding the victim’s multiple suicide attempts led the court 16 to sentence Petitioner to eight—rather than six—years in prison, and that his counsel “did 17 nothing” to prevent this. See Pet. at 19–20. 18 A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth 19 Amendment right to counsel, which guarantees not only assistance, but effective assistance of 20 counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The benchmark for judging any 21 claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning 22 of the adversarial process that the trial cannot be relied upon as having produced a just result. Id. 23 In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, a petitioner must 24 2 Although Ylst was a procedural default case, the “look through” rule announced there has been 25 extended beyond the context of procedural default. Barker v. Fleming, 423 F.3d 1085, 1091 n.3 (9th Cir. 2005). The look through rule continues as the Ninth Circuit held that “it is a common 26 practice of the federal courts to examine the last reasoned state decision to determine whether a state-court decision is ‘contrary to’ or ‘an unreasonable application of’ clearly established federal 27 law” and “it [is] unlikely that the Supreme Court intended to disrupt this practice without making 1 establish two things: 2 First, he must establish that counsel’s performance was deficient, i.e., that it fell below an 3 “objective standard of reasonableness” under prevailing professional norms. Id. at 687–88. This 4 requires showing that counsel made errors so serious that counsel was not functioning as the 5 “counsel” guaranteed by the Sixth Amendment. Id. at 687. The relevant inquiry is not what 6 defense counsel could have done, but rather whether the choices made by defense counsel were 7 reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). Judicial scrutiny of 8 counsel’s performance must be highly deferential, and a court must indulge a strong presumption 9 that counsel’s conduct falls within the wide range of reasonable professional assistance. See 10 Strickland, 466 U.S. at 689; Cullen v. Pinholster, 563 U.S. 170, 196 (2011) (“Strickland 11 specifically commands that a court must indulge [the] strong presumption that counsel made all 12 significant decisions in the exercise of reasonable professional judgment.” (quotation omitted)). 13 Moreover, “[i]n assessing an attorney’s performance, a reviewing court must make every effort to 14 eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s 15 challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” 16 Summerlin v. Stewart, 341 F.3d 1082, 1094 (9th Cir. 2003) (quotation omitted). 17 Second, he must establish that he was prejudiced by counsel’s deficient performance, i.e., 18 that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the 19 proceeding would have been different.” Id. at 694. A reasonable probability is a probability 20 sufficient to undermine confidence in the outcome. Id. 21 This Strickland framework for analyzing ineffective assistance of counsel claims is 22 considered to be “clearly established Federal law, as determined by the Supreme Court of the 23 United States” for the purposes of 28 U.S.C. § 2254(d) analysis. See Daire v. Lattimore, 812 F.3d 24 766, 767–68 (9th Cir. 2016); see also Cullen, 563 U.S. at 189. Nevertheless, a “doubly” 25 deferential judicial review is appropriate in analyzing ineffective assistance of counsel claims 26 under § 2254. See Cullen, 563 U.S. at 190; Harrington v. Richter, 562 U.S. 86, 88–89 (2011) 27 (same); Premo v. Moore, 562 U.S. 115, 122 (2011) (same). The general rule of Strickland, i.e., to 1 in reasonably applying that rule, which in turn “translates to a narrower range of decisions that are 2 objectively unreasonable under AEDPA.” Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 3 2010). When § 2254(d) applies, “the question is not whether counsel’s actions were reasonable. 4 The question is whether there is any reasonable argument that counsel satisfied Strickland’s 5 deferential standard.” Harrington, 562 U.S. at 105. 6 Here, Petitioner fails to show how defense counsel’s decision not to challenge Mr. Del 7 Torro or the veracity of his statement to the court constituted deficient attorney performance or 8 unsound legal strategy. Strickland, 466 U.S. at 687–88. To the contrary, the record indicates that 9 defense counsel’s choice not to seek additional time to question or otherwise attack the veracity of 10 the statement was based on “professional judgment” and “strategic choices.” Id. at 681. 11 Petitioner’s counsel strategically relied on Petitioner’s remorse and acceptance of his actions as a 12 mitigating factor during sentencing. See RT at 11–13. Defense counsel urged the court to impose 13 a lower sentence by emphasizing that Petitioner fully cooperated with police and confessed to the 14 crimes, at times in even more detail than the victim recalled. See RT at 11–12. Defense counsel 15 further explained that seven years later, and as an adult, Petitioner “realize[d] the actual impact on 16 the victim” and “the amount of damage that he was doing to her” in a way he did not at age 17 seventeen. Id. at 12. Thus, challenging Mr. Del Torro’s statement—and by extension, the trauma 18 to the victim—may ultimately have been detrimental to Petitioner and the length of his sentence. 19 Cf. Parker v. Scott, 394 F.3d 1302, 1322 (10th Cir. 2005) (reasoning that defense counsel did not 20 provide ineffective assistance of counsel when he decided not to challenge the veracity of a child 21 victim’s statement because “rebuttal of this testimony is not necessarily helpful or necessary to 22 [the criminal defendant’s] defense”). 23 The Court has carefully reviewed the record and finds no evidence that counsel’s 24 performance fell below an objective standard of reasonableness under prevailing professional 25 norms. Because Petitioner “cannot even establish incompetence under the first prong,” the Court 26 need not address the prejudice prong of the Strickland test. Siripongs v. Calderon, 133 F.3d 732, 27 737 (9th Cir. 1998). But as the California Court of Appeal explained, even if counsel had sought a 1 in fact inaccurate. Mr. Del Torro’s explanation that the victim attempted suicide because of the 2 abuse is corroborated by the victim’s own statement, in which she said she suffered from 3 depression as a result. See RT at 9–10. Indeed, defense counsel noted after sentencing that he 4 believed Mr. Del Torro’s representations to be true. See RT at 18. In a single sentence in his 5 petition, Petitioner alludes to the fact that he sought to address Mr. Del Torro during sentencing 6 but his defense counsel advised him against doing so. See Pet. at 19. Yet as the California Court 7 of Appeal found, the record is clear that Petitioner merely intended to apologize to Mr. Del Torro. 8 See RT at 13. The trial court, however, was already aware of Petitioner’s remorse before 9 sentencing. Id. at 11–13. 10 And even if defense counsel could have otherwise neutralized Mr. Del Torro’s statement 11 (e.g., through cross examination or demonstrating bias, as Petitioner suggests), Petitioner already 12 admitted to the egregious acts against the victim. As the state court explained, “it should have 13 been obvious . . . even without the testimony – that a ten-year-old child – and she was a child – 14 should never have been treated in this way.” RT at 15–16. The court further noted the enduring 15 impact of Petitioner’s conduct: “There is not a time in her life that she will forget this, that it 16 won’t mark her in some ways – in the way she relates to trusting other, particularly men; [and] in 17 the way she relates as a mother if she has a daughter.” Id. And the so-called “bias” of the father 18 of a young girl who was the victim of sexual assault would be obvious to the sentencing court. In 19 short, the court’s explanation indicates that it was Petitioner’s conduct and the age of the victim 20 that directed its sentencing choice. 21 In sum, Petitioner has failed to demonstrate ineffective assistance of counsel. The state 22 court’s denial of the ineffective of assistance claims did not result in a decision that was contrary 23 to, or involved an unreasonable application of, clearly established federal law, as determined by 24 the Supreme Court. Nor was the state court’s denial of this claim based on an unreasonable 25 determination of the facts. Federal habeas relief is denied on this claim. 26 B. Certificate of Appealability 27 The federal rules governing habeas cases brought by state prisoners require a district court 1 appealability. See Rules Governing § 2254 Case, Rule 11(a). A judge shall grant a certificate of 2 || appealability “only if the applicant has made a substantial showing of the denial of a constitutional 3 || right,’ 28 U.S.C. § 2253(c)(2), and the certificate must indicate which issues satisfy this standard. 4 || Id. § 2253(c)(3). “Where a district court has rejected the constitutional claims on the merits, the 5 showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that 6 || reasonable jurists would find the district court’s assessment of the constitutional claims debatable 7 || or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 8 Here, Petitioner has not made such a showing, and, accordingly, a certificate of 9 appealability will be denied. 10 IV. CONCLUSION 11 Accordingly, the Court DENIES the petition for a writ of habeas corpus, and DENIES a 12 || certificate of appealability. The Clerk shall enter judgment in favor of Respondent and close the 5 13 case. IT IS SO ORDERED. 3 15 || Dated: 9/27/2019 Alapurrl 3 Mbt). HAYWOOD S. GILLIAM, JR. 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28