1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WILLIAM ROBERT BOLDUC, ) Case No. EDCV 16-2601-AG (JPR) 11 ) Petitioner, ) 12 ) ORDER ACCEPTING FINDINGS AND v. ) RECOMMENDATIONS OF U.S. 13 ) MAGISTRATE JUDGE ROSEMARY NDOH, Warden, ) 14 ) Respondent. ) 15 ) 16 17 The Court has reviewed the Petition, records on file, and 18 Report and Recommendation of U.S. Magistrate Judge. See 28 19 U.S.C. § 636(b)(1). On August 27, 2019, Petitioner filed 20 objections to the R. & R., in which he mostly simply repeats 21 arguments from his Petition and Traverse. A few of his 22 contentions warrant discussion, however. 23 The Magistrate Judge did not “overlook[]” that In re Dixon’s 24 procedural bar, see 41 Cal. 2d 756, 762 (1953), did not apply to 25 Petitioner’s ineffective-assistance-of-counsel claims. (Objs. at 26 3-4.) To the contrary, she recognized that as the state court 27 found, although the merits claims raised in those grounds were 28 procedurally defaulted under Dixon, the corresponding 1 1 ineffective-assistance arguments were reviewable. (See R. & R. 2 at 23-25.) The R. & R. considered each of those arguments. (See 3 generally id. at 27-61.) The Magistrate Judge also rightly held 4 that ground 10 was barred under the invited-error doctrine 5 because Petitioner failed to register a timely objection to the 6 challenged ruling. (Id. at 25-27.) He maintains that his 7 objection was “timely” (Objs. at 32), but the R. & R. endorsed 8 the court of appeal’s sound explanation for why it wasn’t (see 9 R. & R. at 25-26). In any event, as the Magistrate Judge noted 10 (id. at 24-25, 26-27), by not contesting either procedural bar in 11 his Traverse, Petitioner forfeited any argument that they didn’t 12 apply. 13 As the R. & R. found, most of Petitioner’s ineffective- 14 assistance claims fail because he has not demonstrated that 15 either trial or appellate counsel rendered deficient performance. 16 For instance, Petitioner asserts that the Magistrate Judge erred 17 in allegedly finding that no objection to the prosecutor’s 18 summation was warranted because he properly told the jury that it 19 “could convict [Petitioner] as long as it found [his] theory 20 reasonable.” (Objs. at 5.) But the Magistrate Judge actually 21 said the exact opposite: the prosecutor’s remarks were 22 appropriate because “nowhere . . . did he state that the jury 23 could convict him as long as it found the prosecution’s theory 24 reasonable.” (R. & R. at 32.) The prosecutor’s argument that 25 the “only reasonable conclusion” based on “all of the evidence” 26 was that Petitioner was guilty was appropriately evidence based, 27 see United States v. Weatherspoon, 410 F.3d 1142, 1147 (9th Cir. 28 2005), and did not shift the burden of proof from the prosecution 2 1 (see Objs. at 5-6). 2 Petitioner’s newfound suggestion that counsel should have 3 objected when the prosecutor “analogized the burden of proof to 4 putting a puzzle together” (id. at 6) was not raised before the 5 Magistrate Judge. In any event, the remark made no reference to 6 the burden of proof and was an appropriate comment on the jury’s 7 task. Cf. People v. Centeno, 60 Cal. 4th 659, 670 (2014) 8 (disapproving of use of physical puzzle as visual aid because it 9 “depict[ed] an actual and familiar object unrelated to the 10 evidence”). 11 The R. & R. correctly found that trial counsel was not 12 ineffective for not challenging the admission as a “fresh 13 complaint” of a voicemail JD1 attempted to leave for Petitioner 14 or requesting a limiting instruction related to Tom T.’s fresh- 15 complaint testimony about JD2. As to JD1’s voicemail, which 16 Petitioner apparently never received, he reiterates that it was 17 inadmissible because the “fresh complaint doctrine requires the 18 disclosure to be made” to — and received by — another person. 19 (Objs. at 26.) But once again he has failed to offer any support 20 for that assertion, which is not addressed in People v. Brown, 8 21 Cal. 4th 746 (1994), the only case he cites. Because a victim’s 22 disclosure of a sexual assault may be admissible in the 23 government’s case-in-chief to show “that the disclosure was made 24 and the circumstances under which it was made,” Brown, 8 Cal. 4th 25 at 750, the fresh-complaint doctrine’s focus is on the declarant, 26 not the recipient, and there is no principled reason for 27 admissibility to hinge on whether the complaint was actually 28 received by the intended party. 3 1 As for Tom T.’s testimony about JD2’s revelation of sexual 2 assault, Petitioner claims that the R. & R. overlooked how 3 “extensive[]” it was. (Objs. at 22.) But the R. & R. considered 4 the extent of Tom T.’s testimony, citing the three transcript 5 pages comprising it, and noted that it was limited to an account 6 of “how [JD2’s] allegations of sexual abuse came to light.” 7 (R. & R. at 57.) Thus, as to both forms of fresh-complaint 8 evidence, the Magistrate Judge did not “misunderstand” the 9 doctrine (see Objs. at 23) because her findings were based on the 10 evidence’s ability to shed light on the relevant circumstances as 11 opposed to the substance of the complaints themselves. Of 12 course, as the Magistrate Judge also found, any undue prejudice 13 from that evidence was blunted because JD1 and JD2 both 14 testified, allowing the jury to assess their credibility 15 firsthand. (See R. & R. at 58.) 16 The Magistrate Judge correctly found that the jury 17 instructions Petitioner now challenges were proper and that 18 therefore counsel were not ineffective for not challenging them. 19 For instance, she did not “overlook[]” the constitutional scope 20 of Petitioner’s challenge to CALCRIM 1190 (Objs. at 14), as she 21 expressly rejected that claim (R. & R. at 45-47). And although 22 Petitioner faults her for relying on cases that “lack 23 applicability,” he does not identify a basis for that assertion 24 and the Court doesn’t see one. (See Objs. at 14-15.) Similarly, 25 he agrees that any objection to CALCRIM 1193 “would have been 26 overruled” (id. at 17) but maintains that “trial counsel should 27 still have objected” (id.). That assertion is baseless. See, 28 e.g., Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (noting 4 1 that “failure to take a futile action can never be deficient 2 performance”). 3 To be sure, as the Magistrate Judge recognized, Petitioner 4 identified several instances when an objection from counsel might 5 have been appropriate. (See R. & R. at 36 (prosecutor’s 6 “exhortation to the jury to ‘[s]top’” Petitioner from committing 7 sex crimes “border[ed] on misconduct” (citation omitted)), 42 8 (prosecutor’s statements that defense expert’s opinion “was so 9 far from the truth” that he “felt it was necessary” to call 10 expert to rebut it had “no evidentiary basis and were likely 11 improper”).) But the Magistrate Judge rightly concluded that 12 Petitioner failed to establish that counsel’s silence wasn’t 13 strategic. There were several discernible strategic reasons why 14 he might have held off on objecting to the few improper summation 15 remarks. (See, e.g., id. at 37.) Under these circumstances, 16 Petitioner’s failure to obtain a declaration from trial counsel 17 to counter the “strong presumption” that his silence was “for 18 tactical reasons rather than . . . sheer neglect,” Yarborough v. 19 Gentry, 540 U.S. 1, 8 (2003) (per curiam), proved fatal to his 20 claims, see Gentry v. Sinclair, 705 F.3d 884, 899-900 (9th Cir. 21 2012) (as amended Jan. 15, 2013). 22 For the same reason, the R. & R.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WILLIAM ROBERT BOLDUC, ) Case No. EDCV 16-2601-AG (JPR) 11 ) Petitioner, ) 12 ) ORDER ACCEPTING FINDINGS AND v. ) RECOMMENDATIONS OF U.S. 13 ) MAGISTRATE JUDGE ROSEMARY NDOH, Warden, ) 14 ) Respondent. ) 15 ) 16 17 The Court has reviewed the Petition, records on file, and 18 Report and Recommendation of U.S. Magistrate Judge. See 28 19 U.S.C. § 636(b)(1). On August 27, 2019, Petitioner filed 20 objections to the R. & R., in which he mostly simply repeats 21 arguments from his Petition and Traverse. A few of his 22 contentions warrant discussion, however. 23 The Magistrate Judge did not “overlook[]” that In re Dixon’s 24 procedural bar, see 41 Cal. 2d 756, 762 (1953), did not apply to 25 Petitioner’s ineffective-assistance-of-counsel claims. (Objs. at 26 3-4.) To the contrary, she recognized that as the state court 27 found, although the merits claims raised in those grounds were 28 procedurally defaulted under Dixon, the corresponding 1 1 ineffective-assistance arguments were reviewable. (See R. & R. 2 at 23-25.) The R. & R. considered each of those arguments. (See 3 generally id. at 27-61.) The Magistrate Judge also rightly held 4 that ground 10 was barred under the invited-error doctrine 5 because Petitioner failed to register a timely objection to the 6 challenged ruling. (Id. at 25-27.) He maintains that his 7 objection was “timely” (Objs. at 32), but the R. & R. endorsed 8 the court of appeal’s sound explanation for why it wasn’t (see 9 R. & R. at 25-26). In any event, as the Magistrate Judge noted 10 (id. at 24-25, 26-27), by not contesting either procedural bar in 11 his Traverse, Petitioner forfeited any argument that they didn’t 12 apply. 13 As the R. & R. found, most of Petitioner’s ineffective- 14 assistance claims fail because he has not demonstrated that 15 either trial or appellate counsel rendered deficient performance. 16 For instance, Petitioner asserts that the Magistrate Judge erred 17 in allegedly finding that no objection to the prosecutor’s 18 summation was warranted because he properly told the jury that it 19 “could convict [Petitioner] as long as it found [his] theory 20 reasonable.” (Objs. at 5.) But the Magistrate Judge actually 21 said the exact opposite: the prosecutor’s remarks were 22 appropriate because “nowhere . . . did he state that the jury 23 could convict him as long as it found the prosecution’s theory 24 reasonable.” (R. & R. at 32.) The prosecutor’s argument that 25 the “only reasonable conclusion” based on “all of the evidence” 26 was that Petitioner was guilty was appropriately evidence based, 27 see United States v. Weatherspoon, 410 F.3d 1142, 1147 (9th Cir. 28 2005), and did not shift the burden of proof from the prosecution 2 1 (see Objs. at 5-6). 2 Petitioner’s newfound suggestion that counsel should have 3 objected when the prosecutor “analogized the burden of proof to 4 putting a puzzle together” (id. at 6) was not raised before the 5 Magistrate Judge. In any event, the remark made no reference to 6 the burden of proof and was an appropriate comment on the jury’s 7 task. Cf. People v. Centeno, 60 Cal. 4th 659, 670 (2014) 8 (disapproving of use of physical puzzle as visual aid because it 9 “depict[ed] an actual and familiar object unrelated to the 10 evidence”). 11 The R. & R. correctly found that trial counsel was not 12 ineffective for not challenging the admission as a “fresh 13 complaint” of a voicemail JD1 attempted to leave for Petitioner 14 or requesting a limiting instruction related to Tom T.’s fresh- 15 complaint testimony about JD2. As to JD1’s voicemail, which 16 Petitioner apparently never received, he reiterates that it was 17 inadmissible because the “fresh complaint doctrine requires the 18 disclosure to be made” to — and received by — another person. 19 (Objs. at 26.) But once again he has failed to offer any support 20 for that assertion, which is not addressed in People v. Brown, 8 21 Cal. 4th 746 (1994), the only case he cites. Because a victim’s 22 disclosure of a sexual assault may be admissible in the 23 government’s case-in-chief to show “that the disclosure was made 24 and the circumstances under which it was made,” Brown, 8 Cal. 4th 25 at 750, the fresh-complaint doctrine’s focus is on the declarant, 26 not the recipient, and there is no principled reason for 27 admissibility to hinge on whether the complaint was actually 28 received by the intended party. 3 1 As for Tom T.’s testimony about JD2’s revelation of sexual 2 assault, Petitioner claims that the R. & R. overlooked how 3 “extensive[]” it was. (Objs. at 22.) But the R. & R. considered 4 the extent of Tom T.’s testimony, citing the three transcript 5 pages comprising it, and noted that it was limited to an account 6 of “how [JD2’s] allegations of sexual abuse came to light.” 7 (R. & R. at 57.) Thus, as to both forms of fresh-complaint 8 evidence, the Magistrate Judge did not “misunderstand” the 9 doctrine (see Objs. at 23) because her findings were based on the 10 evidence’s ability to shed light on the relevant circumstances as 11 opposed to the substance of the complaints themselves. Of 12 course, as the Magistrate Judge also found, any undue prejudice 13 from that evidence was blunted because JD1 and JD2 both 14 testified, allowing the jury to assess their credibility 15 firsthand. (See R. & R. at 58.) 16 The Magistrate Judge correctly found that the jury 17 instructions Petitioner now challenges were proper and that 18 therefore counsel were not ineffective for not challenging them. 19 For instance, she did not “overlook[]” the constitutional scope 20 of Petitioner’s challenge to CALCRIM 1190 (Objs. at 14), as she 21 expressly rejected that claim (R. & R. at 45-47). And although 22 Petitioner faults her for relying on cases that “lack 23 applicability,” he does not identify a basis for that assertion 24 and the Court doesn’t see one. (See Objs. at 14-15.) Similarly, 25 he agrees that any objection to CALCRIM 1193 “would have been 26 overruled” (id. at 17) but maintains that “trial counsel should 27 still have objected” (id.). That assertion is baseless. See, 28 e.g., Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (noting 4 1 that “failure to take a futile action can never be deficient 2 performance”). 3 To be sure, as the Magistrate Judge recognized, Petitioner 4 identified several instances when an objection from counsel might 5 have been appropriate. (See R. & R. at 36 (prosecutor’s 6 “exhortation to the jury to ‘[s]top’” Petitioner from committing 7 sex crimes “border[ed] on misconduct” (citation omitted)), 42 8 (prosecutor’s statements that defense expert’s opinion “was so 9 far from the truth” that he “felt it was necessary” to call 10 expert to rebut it had “no evidentiary basis and were likely 11 improper”).) But the Magistrate Judge rightly concluded that 12 Petitioner failed to establish that counsel’s silence wasn’t 13 strategic. There were several discernible strategic reasons why 14 he might have held off on objecting to the few improper summation 15 remarks. (See, e.g., id. at 37.) Under these circumstances, 16 Petitioner’s failure to obtain a declaration from trial counsel 17 to counter the “strong presumption” that his silence was “for 18 tactical reasons rather than . . . sheer neglect,” Yarborough v. 19 Gentry, 540 U.S. 1, 8 (2003) (per curiam), proved fatal to his 20 claims, see Gentry v. Sinclair, 705 F.3d 884, 899-900 (9th Cir. 21 2012) (as amended Jan. 15, 2013). 22 For the same reason, the R. & R. correctly found that 23 Petitioner failed to demonstrate that trial counsel was 24 ineffective for not introducing evidence of his good character. 25 (See Objs. at 19-21.) As the Magistrate Judge noted, counsel may 26 have “strategically decided that ‘the inherent credibility, 27 reliability, negative association, and bias problems associated 28 with . . . ex-girlfriends[] outweighed any potential benefit’” of 5 1 calling Metoyer as a character witness (R. & R. at 60 (citation 2 omitted)), including the possibility that if he had the jury 3 would have been charged with a good-character instruction (see 4 Objs. at 20). The R. & R. relied partly on Gentry in 5 recommending denial of Petitioner’s claims on that score (see 6 R. & R. at 59), undermining his assertion that it “cite[d] no 7 authority requiring that [he] submit a declaration from trial 8 counsel” (Objs. at 19). 9 Gentry also makes plain the fallacy in Petitioner’s 10 suggestion that the Magistrate Judge wrongly failed to credit the 11 Petition’s factual assertions and impermissibly speculated about 12 reasons for counsel’s silence. (See id. at 11-12.) The cases 13 Petitioner relies on to make that point are state direct-appeal 14 cases discouraging judges from speculating about an attorney’s 15 decisionmaking before the appellant has had an opportunity to 16 develop the factual record in a state habeas proceeding. (Id. at 17 12 (citing People v. Diaz, 3 Cal. 4th 495, 557-58 (1992), and 18 People v. Lucero, 23 Cal. 4th 692, 728-29 (2000)).) Here 19 Petitioner had the opportunity and indeed the responsibility to 20 develop the record and still has failed to meet his burden. 21 In any event, assuming Petitioner’s allegations about 22 counsel’s performance were true — namely, that without good cause 23 he failed to object at various times — the Magistrate Judge 24 correctly recognized that any error was not prejudicial given the 25 convincing evidence of Petitioner’s guilt and the limiting 26 instructions; that conclusion is buttressed by Petitioner’s 27 acquittal of sexually assaulting John Doe. (See R. & R. at 37- 28 39, 44-45, 61.) 6 1 The Magistrate Judge properly resolved the Petition’s other 2 claims. For instance, the R. & R. did not “overlook[]” that 3 evidence of Petitioner’s uncharged sex crimes may have affected 4 the jury’s verdict and that the prosecutor stressed Petitioner’s 5 propensity to commit sex crimes. (Objs. at 24-25.) Rather, it 6 noted that when relevant, California law “permits the jury to 7 infer” — and a prosecutor to argue — “that a defendant is 8 predisposed to commit sex crimes” and that no clearly established 9 federal law holds otherwise. (R. & R. at 35; see also id. at 64- 10 65.) The R. & R. also acknowledged potential ambiguities in the 11 jury instructions pertaining to the uncharged-crimes evidence 12 (see Objs. at 28-30) but correctly found that “the 13 court of appeal was not objectively unreasonable in finding that 14 the instruction was not so ambiguous that the jury was reasonably 15 likely to have misapplied it” (R. & R. at 72). 16 Nor did the Magistrate Judge “overlook[]” Petitioner’s claim 17 that if “Jane Doe 1 could not remember the incident, then she 18 could not testify as to whether she consented” to sex with him. 19 (Objs. at 30 (emphasis omitted).) The Magistrate Judge found 20 that as the court of appeal held, “ample evidence supported the 21 jury’s conclusion that Petitioner should have known or did know 22 that JD1 was incapable of giving legal consent.” (R. & R. at 23 83.) In doing so, she rejected Petitioner’s argument that 24 “because [JD1] didn’t remember the sexual contact, he couldn’t be 25 convicted of assaulting her” (id. at 82 (citation omitted)), 26 finding that “[e]ven if [JD1] had amnesia and even if she seemed 27 to consent . . . a rational trier of fact still could have found 28 beyond a reasonable doubt that she was not ‘capable of exercising 7 the degree of judgment a person must have in order to give legally cognizable consent’ . . . and that Petitioner must have 3] known that” (id. at 83 (citation omitted)). 4 Having reviewed de novo all portions of the R. & R. to which 5 || Petitioner objected, the Court accepts the findings and 6 | recommendations of the Magistrate Judge. 7 IT THEREFORE IS ORDERED that the Petition is denied and 8 |} Judgment be entered dismissing this action with prejudice. 9 Ce fe 10 |} DATED: November 11, 2019 ANDREW GU RD 11 U.S. DIST T JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28