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OCT 24 1996






Petitioner, ) No. C 96-3192 CAL


vs. )




Respondent )

________________________________________ )

Petitioner, a prisoner of the State of California, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. � 2254.[footnote 1] For purposes of this petition, petitioner is represented by attorney Lawrence Teeter of Los Angeles, California. Venue is proper in this district because the conviction was obtained in a county in this district. 28 U.S.C. � 2241(d).


The following facts are alleged in the petition. Petitioner was convicted by a jury in Santa Clara County Superior Court of forcible oral copulation, spousal battery and false imprisonment. On August 28, 1991, he was sentenced to six years in state prison for the forcible oral copulation, along with a concurrent term of three years for the spousal battery and two years for the false imprisonment.

Petitioner appealed his conviction to the California Court of Appeal, which on June 14, 1993 affirmed the conviction in all respects except that the two year term for false imprisonment was ordered stayed under California Penal Code � 654. The Court of Appeal denied a timely petition for rehearing on July 6, 1993. A timely petition for review was denied by the Supreme Court of California on September 23, 1993, and the Supreme Court of the United States denied a timely petition for a writ of certiorari on March 21, 1994. Petitioner was released from physical custody on June 20, 1994 and is currently on parole until June 20, 1997.


Petitioner now seeks federal habeas corpus relief by raising the following claims: (1) he was denied due process by the prosecutor's mischaracterization of the burden of proof during closing argument; (2) his right to a fair trial was compromised by the introduction of irrelevant and prejudicial evidence in violation of the First and Fourteenth Amendments; (3) the prosecution engaged in a pattern of prosecutorial misconduct which denied him a fair trial in violation of the Due Process Clause at the Fourteenth Amendment; (4) his conviction is in violation of the Equal Protection Clause; (5) his forcible oral copulation, false imprisonment and spousal battery convictions are supported by insufficient evidence; and (6) he was denied effective assistance of trial counsel. Petitioner's record indicates that he has exhausted his state remedies as to these claims.


A criminal defendant's due process rights are violated when a prosecutor's misconduct renders a trial "fundamentally unfair." Darden v. Wainwright, 477 U.S. 168, 181 (1986); Smith v. Phillips, 455 U.S. 209, 219 (1982) ("the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor"). Petitioner alleges several grounds for prosecutorial misconduct: (1) the prosecutor mischaracterized the burden of proof necessary to find petitioner guilty of the crimes charged; (2) the prosecutor's closing argument appealed to the jury's passion and prejudice; (3) the prosecutor repeatedly asked questions in bad faith by accusing petitioner of being a bigamist, which he knew to be false, and (4) the prosecutor repeatedly expressed his personal belief in petitioner's guilt.

Prosecutorial comments which allegedly shift the burden of proof to the defendant may be considered as evidence of prosecutorial misconduct in violation of a defendant's right to a fair trial. .See, e.g., United States v. Manning, 56 F.3d 1188, 1199 (9th Cir 1995); United States v. Williams, 990 F.2d 507, 510 (9th Cir.), cert. denied, 114 S. Ct. 333 (1993). A closing argument which improperly appeals to juror's fears and passions may also constitute prosecutorial misconduct, see United States v. Koon, 34 F.3d 1416, 1443-46 (1994), aff'd in nart and rev'd on other grounds, 116 S. Ct. 2035 (1996), as may the prosecutor's use of potentially prejudicial questions asked without a good-faith basis, see United States v. Davenport, 753 F.2d 1460, 1463-64 (9th Cir. 1985). And a prosecutor may not express his personal opinion of the defendant's quilt. United States v. McKoy, 771 F.2d 1207, 1210-11 (9th Cir. 1985). Petitioner's allegations present cognizable claims for prosecutorial misconduct.


The admission of evidence which is so arbitrary or prejudicial that it renders a trial fundamentally unfair is a violation of due process. See Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Terrovona v. Kincheloe 852 F.2d 424, 429 (9th Cir. 1988); Colley v. Sumner, 784 F.2d 984, 990 (9th Cir.), cert. denied, 479 U.S. 839 (1986). Petitioner's allegations that the trial court erroneously admitted evidence of his ideas and lifestyle which was irrelevant to the crimes with which he was charged and prejudiced the jury against him presents a cognizable due process claim.


Petitioner claims that his convictions on charges of forcible sodomy and oral copulation violate equal protection because of California's arbitrary distinction between those crimes and spousal rape. Specifically, California Penal Code � 262 provides that a prosecution for forced sexual intercourse amounting to spousal rape may only be commenced if it is reported to certain agencies or individuals within one year after the date of the violation. � 262(b). Penal Code �� 286 and 288a, prohibiting the crimes of forced sodomy and oral copulation, contain no such limitation. Petitioner argues that because there is no rational basis for the distinction between the crimes of forced vaginal penetration and forced sodomy or oral copulation, his prosecutions for the latter two crimes -- which were not reported by his wife within the allowable time period for spousal rape -- violate equal protection.

A federal court may review an equal protection challenge to a state criminal statute in a petition for a writ of habeas corpus. See Burnett v. Municipality of Anchorage, 806 F.2d 1447, 1450 (9th Cir. 1986). Under a rational basis test, legislation is entitled to a presumption of validity and will be upheld unless the varying treatment of different groups or persons is so unrelated to any legitimate purpose that the court can only conclude that the legislature's actions were irrational. Id. Petitioner's allegation that the lack of a statutory reporting requirement for forcible acts of sodomy and oral copulation serves no legitimate purpose when the forcible spousal rape statute contains such a requirement presents a cognizable equal protection claim.


Petitioner alleges that his forcible oral copulation, false imprisonment and spousal battery convictions are supported by insufficient evidence. The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 365 (1970); Leavitt v. Vasquez 875 F.2d 260, 261 (9th Cir.) (state must prove every element of crime beyond a reasonable doubt), cert. denied, 493 U.S. 866 (1989). A state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt therefore states a constitutional claim, Jackson v. Virginia, 443 U.S. 307, 321 (1979), which, if proven, entitles him to federal habeas relief, id. at 324. Accordingly, petitioner's allegations present a cognizable claim for relief.


Finally, petitioner alleges that trial counsel's failure to request proper jury instructions and to call a favorable defense witness amounted to ineffective assistance of counsel. A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). First, petitioner must show that counsel's performance was deficient. Id. at 6887[sic]. Second, petitioner must show that counsel's errors were so serious as to deprive him of a fair trial, a trial whose result is reliable. Id. at 688.

The allegations of counsel's errors in conjunction with petitioner's allegation that, but for these errors, it is reasonably probable the jury would have reached a more favorable result, present a cognizable claim for the ineffective assistance of counsel.


For the foregoing reasons and for good cause shown, the court orders the following:

1. The clerk of the court shall serve by certified mail a copy of this order and the petition and all attachments thereto upon the respondent and the respondent's attorney, the Attorney General of the State of California. The clerk shall also serve a copy of this order on petitioner's counsel.

2. Respondent shall file with this court and serve upon petitioner's counsel, within sixty days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. The respondent shall file with the answer a copy of all portions of the state trial record that have been transcribed previously and that are relevant to a determination of the issues presented by the petition.

3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the court and serving it upon the respondent within thirty days of his receipt of the answer.


DATED: 10/24/96


United States District Judge


1. 1) This petition was originally filed on April 22, 1996 as case number C 96-20305 RPA. It was reassigned to the undersigned on September 3, 1996 as case number C 96-3192 CAL.



jewn McCain

ASSASSIN of JFK, Patton, many other Whites

killed 264 MILLION Christians in WWII

killed 64 million Christians in Russia

holocaust denier extraordinaire--denying the Armenian holocaust

millions dead in the Middle East

tens of millions of dead Christians

LOST $1.2 TRILLION in Pentagon
spearheaded torture & sodomy of all non-jews
millions dead in Iraq

42 dead, mass murderer Goldman LOVED by jews

serial killer of 13 Christians

the REAL terrorists--not a single one is an Arab

serial killers are all jews

framed Christians for anti-semitism, got caught
left 350 firemen behind to die in WTC

legally insane debarred lawyer CENSORED free speech

mother of all fnazis, certified mentally ill

10,000 Whites DEAD from one jew LIE

moser HATED by jews: he followed the law Jesus--from a "news" person!!

1000 fold the child of perdition


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