Serrano v. Butler, No. 5:2006cv04433 - Document 19 (N.D. Cal. 2010)
Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge James Ware on December 20, 2010. (jwlc1, COURT STAFF) (Filed on 12/20/2010)
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Serrano v. Butler Doc. 19 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 SAN JOSE DIVISION 9 Mark Serrano, 10 NO. C 06-04433 JW Petitioner, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY 11 For the Northern District of California United States District Court v. 12 Mary Butler, Chief Prob. Officer for Napa Cnty., California, 13 Respondent. / 14 15 I. INTRODUCTION 16 This matter is now before the Court for consideration of Mark Serrano’s (“Petitioner”) 17 Petition for a Writ of Habeas Corpus under 28 U.S.C. § 22541 concerning his 2003 conviction in 18 Napa County Superior Court. For the reasons set forth below, the Petition is DENIED as to all 19 claims. In addition, no certificate of appealability will be issued for Petitioner’s claims. 20 21 II. BACKGROUND A. Facts 22 The California Court of Appeal summarized the facts of Petitioner’s case as follows:2 23 [Petitioner] met and became friends with the victim, Carrie H., while they were both students at a college in North Carolina. [Petitioner] moved to California after his graduation. Carrie telephoned [Petitioner] in the Fall of 2002 and told him of her 24 25 1 26 27 28 (Verified Petition for a Writ of Habeas Corpus; Exhibits; Supporting Memorandum, hereafter, “Petition,” Docket Item No. 1.) 2 (Memorandum of Points and Authorities in Support of Answer, hereafter, “Answer,” Ex. A, Opinion of the California Court of Appeal, hereafter, “Appeal,” Docket Item No. 8; see also Notice of Lodging Exhibits with Court, Docket Item No. 9.) Dockets.Justia.com 1 2 3 professional interest in the wine industry in the Napa Valley, where [Petitioner] worked. [Petitioner] offered to let Carrie stay at his house and to show her around during her visit. Carrie stayed with [Petitioner] for two and a half weeks, during which time she accepted a job in the Napa Valley and commenced an intimate relationship with [Petitioner]. [Petitioner] offered to let Carrie stay at his house while she looked for a permanent place to live, and Carrie accepted the offer. 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 The two got along well initially but eventually began to argue. On one occasion in February 2003, [Petitioner] got mad and hit Carrie because he did not like the music she played on the car stereo. She moved out of [Petitioner’s] home on March 1. The two continued to date until April 15th when Carrie ended the relationship. Over the next several days, [Petitioner] left voice mail messages for Carrie, which she did not return. When Carrie finally answered a telephone call from [Petitioner] on April 22, he was angry that she had not returned his earlier calls. Carrie told [Petitioner] that their relationship was over. [Petitioner] said that he wanted to see her one more time, but Carrie refused. [Petitioner] then told Carrie that he wanted to make a video recording of the two of them engaging in sexual acts as she had done with a previous boyfriend. The next morning, [Petitioner] telephone[d] Carrie and told her he had stolen the video she had made with her old boyfriend (the prior video) from her car. He stated that if she did not make a sex video with him he would e-mail copies of the prior video to her employer, her school contacts and to amateur pornography websites. [Petitioner] said he would return the prior video to her if she made a new sex video with him. Carrie asked [Petitioner] why he was doing this to her, but he did not respond. [Petitioner] told Carrie that something worse would happen to her if she went to the police about his demand. 15 16 17 Carrie did not want the prior video to be revealed to others because she was embarrassed about it and was afraid that it could mar her professional relationships to the extent that she would lose her job. She considered making a sex video with [Petitioner] for these reasons. Instead, Carrie reported [Petitioner’s] threats to the Napa police. 18 19 20 21 22 23 24 25 Carrie provided the police with a copy of an e-mail message that [Petitioner] had sent her. The e-mail from [Petitioner] originated from the address “Carrie[victim’s last name]@hotmail.com.” The message explained that [Petitioner] would use that address to e-mail the prior video to her various contacts, and that the longer Carrie took to comply with his demands “the more personal the recipients [would] be. In addition, graphic intensity of the file will increase.” [Petitioner] also explained that he was coercing her to pay her back for disrespecting him and [the] other men she previously dated. [Petitioner] wrote that they should follow through on his plan the next day. The police recorded “pretext telephone calls” between Carrie and [Petitioner] discussing his ultimatum. During one of these telephone calls, [Petitioner] arranged for Carrie to come to his home at 7 p.m. to make the video. Police officers who served a search warrant on [Petitioner’s] residence at the designated time found [Petitioner] at home with music playing, candles lit, two wine glasses set out, a video camera on a tripod aimed at the bed, and an assortment of sex toys displayed. The police also found an 26 27 28 2 1 explicit three-act script of sexual activities for the new sex video as well as two copies of a video recording of Carrie engaged in sexual acts with another man. 2 (Appeal at 1-3.) 3 B. Case History 4 On April 28, 2003, the Napa County District Attorney charged Petitioner with attempted rape 5 under Cal. Pen. Code §§ 261(a)(2) (“Section 261”) and 664.3 On September 18, 2003, the jury 6 “found [Petitioner] guilty of attempted rape under the theory that he tried to coerce the victim to 7 engage in sexual intercourse by threatening to disseminate a sex video the victim had previously 8 produced with a prior boyfriend.” (Appeal at 1.) On November 3, 2003, the court suspended 9 imposition of a sentence and placed Petitioner on three years of probation. (Id.) 10 (Petition at 4.) On March 17, 2005, the California Court of Appeal affirmed the trial court’s For the Northern District of California United States District Court On November 3, 2003, Petitioner appealed his conviction to the California Court of Appeal. 11 12 judgment and sentence. (Appeal at 1.) On June 29, 2005, the California Supreme Court denied 13 review. (Petition at 4.) On July 20, 2006, Petitioner filed his Petition. (See Petition.) 14 III. STANDARDS 15 Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a district 16 court may entertain a petition for writ of habeas corpus “on behalf of a person in custody pursuant to 17 the judgment of a State court only on the ground that he is in custody in violation of the Constitution 18 or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The petition may not be granted with 19 respect to any claim adjudicated on the merits in state court proceedings unless the adjudication: 20 “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly 21 established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in 22 a decision that was based on an unreasonable determination of the facts in light of the evidence 23 presented in the State court proceeding.” Id. § 2254(d). 24 A state court has “adjudicated” a petitioner’s constitutional claim “on the merits” for 25 purposes of § 2254(d) when it has decided the petitioner’s right to post-conviction relief on the basis 26 27 28 3 (Petition at 2; Answer at 1.) 3 1 of the substance of the constitutional claim advanced, rather than deciding the claim on the basis of a 2 procedural rule. Barker v. Fleming, 423 F.3d 1085, 1092 (9th Cir. 2005); Lambert v. Blodgett, 393 3 F.3d 943, 969 (9th Cir. 2004). 4 A. 5 “Clearly Established Supreme Court Law” Clearly established federal law, as determined by the Supreme Court of the United States 6 refers to the holdings, as opposed to the dicta, of the Supreme Court’s decisions as of the time of the 7 relevant state-court decision. See Williams (Terry) v. Taylor, 529 U.S. 362, 412 (2000); Barker, 423 8 F.3d at 1093. “A federal court may not overrule a state court for simply holding a view different 9 from its own, when the precedent from [the Supreme Court] is, at best, ambiguous.” Mitchell v. Esparza, 540 U.S. 12, 17 (2003). If there is no Supreme Court precedent that controls on the legal 11 For the Northern District of California United States District Court 10 issue raised by a petitioner in state court, the state court’s decision cannot be contrary to, or an 12 unreasonable application of, clearly-established federal law. See Stevenson v. Lewis, 384 F.3d 13 1069, 1071 (9th Cir. 2004). 14 The fact that Supreme Court law sets forth a fact-intensive inquiry to determine whether 15 constitutional rights were violated “obviates neither the clarity of the rule nor the extent to which the 16 rule must be seen as ‘established’ by the Supreme Court.” Williams, 529 U.S. at 391 (referring to 17 case-by-case analysis applicable to ineffective assistance of counsel claims); see, e.g., Jackson v. 18 Giurbino, 364 F.3d 1002, 1009 (9th Cir. 2004). There are, however, areas in which the Supreme 19 Court has not established a clear or consistent path for courts to follow in determining whether a 20 particular event violates a constitutional right; in such an area, it may be that only the general 21 principle can be regarded as “clearly established.” Lockyer v. Andrade, 538 U.S. 63, 64 (2003). 22 When only the general principle is clearly established, it is the only law amenable to the “contrary 23 to” or “unreasonable application of” framework. Id. at 73. 24 Circuit decisions may still be relevant as persuasive authority to determine whether a 25 particular state court holding is an “unreasonable application” of Supreme Court precedent or to 26 assess what law is “clearly established.” Clark v. Murphy, 331 F.3d 1062, 1070-71 (9th Cir.), cert. 27 denied, 540 U.S. 968 (2003); Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 1999). 28 4 1 B. 2 “Contrary To” While the “contrary to” and “unreasonable application” clauses have independent meaning, 3 they often overlap. See Van Tran v. Lindsey, 212 F.3d 1143, 1149-50 (9th Cir. 2000), overruled on 4 other grounds, Lockyer, 538 at 70-73 (2003). 5 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court 6 arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the 7 state court decides a case differently than [the Supreme Court] has on a set of materially 8 indistinguishable facts.” Williams, 529 U.S. at 413; see also Early v. Packer, 537 U.S. 3, 8 (2002) 9 (per curiam). A “run-of-the-mill state-court decision” that correctly identifies the controlling Supreme Court framework and applies it to the facts of a prisoner’s case “would not fit comfortably 11 For the Northern District of California United States District Court 10 within § 2254(d)(1)’s ‘contrary to’ clause.” Williams, 529 U.S. at 406. Such a case should be 12 analyzed under the “unreasonable application” prong of § 2254(d). See Weighall v. Middle, 215 13 F.3d 1058, 1062 (9th Cir. 2000). 14 C. 15 “Unreasonable Application” “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the 16 state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but 17 unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 18 412-13; see also Brown v. Payton, 544 U.S. 133, 141-43 (2005). 19 “[A] federal habeas court may not issue the writ simply because that court concludes in its 20 independent judgment that the relevant state-court decision applied clearly established federal law 21 erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. 22 at 411; Middleton v. McNeil, 541 U.S. 433, 436 (2004) (per curiam); Woodford v. Visciotti, 537 23 U.S. 19, 25 (2002) (per curiam) (“unreasonable” application of law is not equivalent to “incorrect” 24 application of law). 25 The objectively unreasonable standard is not a clear error standard. Lockyer, 538 U.S. at 26 75-76. After Lockyer, “[t]he writ may not issue simply because, in [the federal court’s] 27 determination, a state court’s application of federal law was erroneous, clearly or otherwise. While 28 5 1 the ‘objectively unreasonable’ standard is not self-explanatory, at a minimum it denotes a greater 2 degree of deference to the state courts than [the Ninth Circuit] ha[s] previously afforded them.” 3 Clark, 331 F.3d at 1068. Thus, deciding whether the state court decision was unreasonable may 4 require analysis of the state court’s method as well as its result. Nunes v. Mueller, 350 F.3d 1045, 5 1054 (9th Cir. 2003). 6 Finally, habeas relief is warranted only if the constitutional error at issue is a structural error 7 or had a “‘substantial and injurious effect or influence in determining the jury’s verdict.’” Penry v. 8 Johnson, 532 U.S. 782, 795-96 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). 9 Where, as in this writ, the California Supreme Court denies review of Petitioner’s claim without explanation, the Court looks to the last reasoned state court decision in conducting habeas 11 For the Northern District of California United States District Court 10 review. See Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000) (citation omitted) 12 (holding that the district court “looks through” the unexplained California Supreme Court decision 13 to the last reasoned state court decision), cert. denied, 534 U.S. 944 (2001). The California Court of 14 Appeal rendered the last reasoned state court decision in Petitioner’s case. 15 IV. DISCUSSION 16 Petitioner contends that the California Court of Appeal erred in finding that Section 261 was 17 not unconstitutionally vague as applied to him and provided Petitioner “fair warning” that his 18 conduct could constitute attempted rape. (Petition at 14.) 19 A. 20 21 22 Fair Warning At issue is whether the Court of Appeal properly applied the rules governing the federal constitutional right to due process of law regarding statutory vagueness and “fair warning.” A state criminal statute may be challenged as unconstitutionally vague or overbroad by way 23 of a petition for a writ of habeas corpus by a prisoner convicted under the statute. See Vlasak v. 24 Superior Court of California, 329 F.3d 683, 688-90 (9th Cir. 2003). A statute may be 25 unconstitutional “on its face” or “as applied.” A successful challenge to the facial constitutionality 26 of a statute invalidates the statute itself whereas a successful as-applied challenge does not render 27 28 6 1 the statute itself invalid but only the particular application of the statute. Foti v. City of Menlo Park, 2 146 F.3d 629, 635 (9th Cir. 1998). 3 A criminal statute that does not define a crime with sufficient certainty violates the 4 constitutional guarantee of due process of law under the Fourteenth Amendment. United States v. 5 Lanier, 520 U.S. 259, 266 (1997). The vagueness doctrine “bars enforcement of a statute which 6 either forbids or requires the doing of an act in terms so vague that men of common intelligence 7 must necessarily guess at its meaning and differ as to its application.” Id. In evaluating a vagueness 8 claim, the “touchstone is whether the statute, either standing alone or as construed, made it 9 reasonably clear at the relevant time that the defendant’s conduct was criminal.” Id. at 267. The United States Constitution also prohibits retroactive enlargement of the reach of criminal 11 For the Northern District of California United States District Court 10 statutes by judicial interpretation. Rogers v. Tennessee, 532 U.S. 451, 455-56 (2001); Poland v. 12 Stewart, 117 F.3d 1094, 1099 (9th Cir. 1997). “If a judicial construction of a criminal statute is 13 unexpected and indefensible by reference to the law which had been expressed prior to the conduct 14 in issue, the construction must not be given retroactive effect.” Rogers, 532 U.S. at 457 (discussing 15 Bouie v. City of Columbia, 378 U.S. 347 (1964)). 16 The guiding principle established in Bouie is that a state law must give “fair warning” of the 17 conduct that it makes a crime. See Rogers, 532 U.S. at 457-60. Therefore, unforeseeable judicial 18 enlargement of a criminal statute violates the defendant’s due process right to “fair warning.” Clark 19 v. Brown, 450 F.3d 898, 911 (9th Cir. 2006). Fair warning is not violated unless judicial 20 construction of a criminal statute represents a “radical and unforeseen” departure from former law. 21 Webster v. Woodford, 369 F.3d at 1062, 1069 (9th Cir. 2004). The beginning point for a Bouie 22 analysis is the statutory language at issue, its legislative history and judicial construction of the 23 statute. 24 Here, the Court of Appeal examined California state law—Section 261 of the California 25 Penal Code—to determine whether Petitioner’s constitutional right to “fair warning” was violated by 26 the trial court’s application of the allegedly vague rape statute. Thus, the Court looks to whether the 27 28 7 1 Court of Appeal’s determinations regarding the statutory language, legislative history and case law 2 pertaining to Section 261 were reasonable. 3 An interpretation of state law made by an intermediate appellate court must be followed and 4 may not be “disregarded by a federal court unless it is convinced by other persuasive data that the 5 highest court of the state would decide otherwise.” Hicks v. Feiock, 485 U.S. 624, 629 (1988). 6 1. Statutory Language 7 Section 261(a)(2) of the California Penal Code defines rape as an act of non-consensual 8 sexual intercourse “accomplished against a person’s will by means of force, violence, duress, 9 menace or fear of immediate and unlawful bodily injury on the person or another.” Cal. Penal Code § 261(a)(2). “Duress” is defined in Section 261 as “a direct or implied threat of force, violence, 11 For the Northern District of California United States District Court 10 danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform 12 an act which otherwise would not have been performed, or acquiesce in an act to which one 13 otherwise would not have submitted.” Id. § 261(b). The total circumstances, including the age of 14 the victim and his or her relationship to the defendant, are factors to consider in appraising duress. 15 Id. 16 The Court finds that the Court of Appeal was not unreasonable in concluding that Section 17 261 provided Petitioner with “fair warning” that his actions would constitute rape. Petitioner’s 18 “threat” to e-mail the victim’s sex tape to her work, school and amateur porn sites was an act of 19 “retribution,” which is one basis for “duress” as defined by the statute. Cal. Penal Code § 261(b). 20 Given the professional and personal consequences that could result from the revelation of a sex tape, 21 the Court finds that a “reasonable person” in the victim’s situation would have felt “compelled to 22 perform an act which otherwise would not have been performed.” Id. Indeed, the victim herself 23 testified that she was considering submitting to Petitioner’s demands. (Appeal at 2.) Thus, because 24 Section 261(a)(2) explicitly criminalizes sexual intercourse accomplished through duress, the Court 25 of Appeal was reasonable in finding that Petitioner’s demand for filmed sexual intercourse with his 26 victim constitutes attempted rape and that the statute provided Petitioner “fair notice” that the 27 conduct would be criminalized. Id. § 261(a)(2). 28 8 1 Petitioner contends, however, that duress under Section 261(a)(2) has an immediacy 2 requirement and that threats of future action can only be charged under Section 261(a)(6), which is 3 limited to physical harm.4 (Petition at 14.) In rejecting this contention, the Court of Appeal relied 4 on the plain language of Section 261(a)(2), which states that rape may be accomplished “by means 5 of force, violence, duress, menace, or fear of immediate and unlawful bodily injury.” (See Appeal at 6 7.) Following the plain language of Section 261(a)(2), the Court of Appeal reasonably determined 7 that the term “immediate” in Section 261(a)(2) only modifies threats of “bodily injury.” (Id.) 8 Further, the Court of Appeal noted that Petitioner was properly charged under Section 261(a)(2) 9 rather than Section 261(a)(6), because Section 261(a)(6) only applies to threats to “kidnap, inflict extreme pain, serious bodily injury or death,” none of which were present in Petitioner’s case.5 The 11 For the Northern District of California United States District Court 10 Court of Appeal was reasonable in recognizing this distinction between the Sections because the 12 specific actions described in Section 261(a)(6) did not apply to Petitioner. 13 Accordingly, upon consideration of the plain language of the statute, the Court finds that the 14 Court of Appeal’s determination that the statutory text was not unconstitutionally vague and 15 provided fair warning was reasonable. 16 2. 17 In 1990, the term “duress” was added to the list of prohibited methods of accomplishing 18 unwanted sexual intercourse in Section 261(a). Sen. Bill No. 2586, 3d reading (1989-1990 Reg. 19 Sess. July 7, 1990); compare Cal. Penal Code § 261(a) (1989) with Cal. Penal Code § 261(a) (1990). 20 The addition of the term duress to Section 261 suggests a legislative intent to expand the scope of Legislative History 21 22 23 24 25 4 Section 261(a)(6) states that non-consensual sexual intercourse constitutes rape “where the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat.” As used in the paragraph, “threatening to retaliate” means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury or death. Id. 5 27 (Id.) Petitioner contends that a reading of duress that does not require immediacy of the threat renders Section 261(a)(6) superfluous, in violation of basic principles of statutory construction, because non-immediate duress could include a threat of future retaliation by, e.g., kidnaping. The Court of Appeal implicitly denied this contention, finding that California state court precedent does not require immediacy. (See Appeal at 7.) 28 9 26 1 the statute to encompass unwanted sexual intercourse not accomplished by physical force or 2 violence. To that end, the definition of “duress” includes the broad term “retribution.” This 3 supports the Court of Appeal’s conclusion that interpreting duress narrowly to only encompass 4 physical coercion would make “retribution” redundant with the terms force, violence, menace, or 5 fear of bodily injury also listed in Section 261(a)(2). (Appeal at 6.) 6 Accordingly, the Court finds that the Court of Appeal’s determination that the legislative 7 history expanded the scope of Section 261 sufficient to give Petitioner “fair warning” that his actions 8 could constitute attempted rape and that the statute was therefore not unconstitutionally vague was 9 reasonable. 3. 11 For the Northern District of California United States District Court 10 Case Law The Court of Appeal considered several California state court decisions in evaluating 12 whether state court precedent gave Petitioner sufficient warning that his actions were punishable 13 under Section 261. (See Appeal at 3-13.) First, the Court of Appeal concluded that the cases gave 14 Petitioner fair warning that non-immediate threats could be the basis for an attempted rape 15 conviction.6 Second, the Court of Appeal concluded that the cases gave Petitioner fair warning that 16 psychological coercion may properly support an attempted rape conviction.7 The Court finds that 17 the cases examined by the Court of Appeal lend strong support for concluding that Petitioner had 18 fair notice that his non-immediate psychological threats could constitute attempted rape. 19 20 21 22 Accordingly, the Court finds that the Court of Appeal’s determination that California case law gave Petitioner “fair warning” was reasonable. In sum, the Court finds that the Court of Appeal was reasonable in determining that Petitioner’s due process right to “fair warning” was not violated by the application of Section 23 6 24 25 (See Appeal at 6 (citing People v. Ward, 188 Cal. App. 3d 459, 466 (Cal. Ct. App. 1986) (upholding conviction under Section 261 where defendant threatened to harm victim’s mother even though there was no evidence that defendant could immediately fulfill his threat).) 7 26 27 28 (See Appeal at 6 (citing People v. Cardenas, 21 Cal. App. 4th 927, 929 (Cal. Ct. App. 1994) (upholding conviction for sexual assault under California statute with similar language to Section 261 where defendant used his status as a “faith healer” to coerce victim to submit to sexual contact).) 10 1 261(a)(2). The Court of Appeal examined each issue raised by Petitioner, and its final determination 2 is supported by the plain language of the statute, the legislative history and California state court 3 precedent. Thus, the Court of Appeal made a reasonable determination that the statute provided 4 Petitioner with fair warning and that the statute was not unconstitutionally vague as applied to 5 Petitioner.8 Accordingly, Petitioner is not entitled to habeas relief on his claims. 6 B. Certificate of Appealability 7 At issue is whether the Court should issue a certificate of appealability. 8 The federal rules governing habeas cases brought by state prisoners require a district court 9 that denies a habeas petition to grant or deny a certificate of appealability in the ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (effective December 1, 2009). To 11 For the Northern District of California United States District Court 10 obtain a certificate of appealability, a petitioner must make “a substantial showing of the denial of a 12 constitutional right.” 28 U.S.C. § 2253(c)(2). Specifically, if a court denies a petition, a certificate 13 of appealability may only be issued “if jurists of reason could disagree with the district court’s 14 resolution of his constitutional claims or that jurists could conclude the issues presented are adequate 15 to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see 16 also Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the 17 merits of his case, he must demonstrate “something more than the absence of frivolity or the 18 existence of mere good faith on his . . . part.” Miller-El, 537 U.S. at 338. The Ninth Circuit recently 19 described this standard as lenient. See Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en 20 banc). 21 Here, the Court finds that Petitioner has not made a substantial showing of the denial of his 22 right to due process. Reasonable jurists could not disagree with the Court of Appeal’s holding that 23 Section 261 was not unconstitutionally vague as applied to Petitioner and provided Petitioner with 24 fair warning that his conduct could constitute attempted rape by duress. There is little room for 25 disagreement that the Court of Appeal reasonably analyzed the relevant statutory provisions, as well 26 8 27 28 In light of the Court’s finding that there is no error, the Court does not reach Petitioner’s contention that the error was structural and merits automatic reversal of his conviction. 11 1 as the legislative history and case law as not requiring that the duress be “immediate.” Additionally, 2 the Court of Appeal’s manner of distinguishing Section 261(a)(6) was straightforward and followed 3 directly from the specific terms used in that Section. Thus, the Court finds no basis for granting a 4 certificate of appealability. 5 Accordingly, the Court will not issue a certificate of appealability. 6 7 8 V. CONCLUSION The Court DENIES the Petition for Writ of Habeas Corpus as to all claims. A certificate of appealability will not be issued. Judgment shall be entered accordingly. 9 Dated: December 20, 2010 JAMES WARE United States District Judge 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 1 THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO: 2 Dennis Patrick Riordan dennis@Riordan-Horgan.com Donald Meredith Horgan don@riordan-horgan.com Stan Michael Helfman stan.helfman@doj.ca.gov 3 4 Dated: December 20, 2010 Richard W. Wieking, Clerk 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By: /s/ JW Chambers Elizabeth Garcia Courtroom Deputy
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