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Vasquez v. McCain

United States District Court, W.D. Louisiana, Lafayette Division

October 29, 2018

FRANCISCO VASQUEZ #634805
v.
S W MCCAIN

          REPORT AND RECOMMENDATION

          CAROL B. WHITEHURST UNITED STATES MAGISTRATE JUDGE

         Pro se petitioner Francisco Vasquez (“Vasquez”), an inmate in the custody of Louisiana's Department of Corrections, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §2254 on January 11, 2018. Petitioner attacks his 2016 conviction for molestation of a juvenile, in violation of La. R.S. 14:81.2, and the subsequent twenty year sentence imposed thereon by the 15th Judicial District Court, Lafayette Parish. This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. §636 and the standing orders of the Court.

         Statement of the Case

         I. Factual Background

         The facts, as set forth by the Louisiana Third Circuit Court of Appeal, State v. Vasquez-Ramirez, 2016-325 (La.App. 3 Cir. 12/28/16) 210 So.3d 521');">210 So.3d 521, 523-26, are as follows:

         Alejandra Hargrave, a teacher at Ridge Elementary School in Duson, Louisiana, noticed that the victim, Y.M.R., and her sister were absent from school for three weeks before Easter 2014. When Mrs. Hargrave learned the girls were at their aunt's house in Pennsylvania, she contacted the aunt, the girls' mother (who had been deported to Guatemala), and a lawyer about obtaining guardianship of the girls. When the girls' mother signed the paperwork, Mrs. Hargrave and her husband went to Pennsylvania to get the girls. The girls returned to Louisiana the last week of May 2014. Sometime after the girls returned, Mrs. Hargrave noticed a yellow fluid on the victim's underwear and noticed the victim was “itching all the time.” The victim's sister told Mrs. Hargrave that the victim was sexually molested by a man at their old house.

         When Mrs. Hargrave asked the victim, the victim said she was raped by a man named “Francisco.” Mrs. Hargrave called the girls' mother in Guatemala and learned that Francisco's full name was Francisco Vasquez-Ramirez. According to Mrs. Hargrave, the victim said Francisco touched her vagina and “butt” with his fingers and penis. The victim told Mrs. Hargrave the touching started when she was in the second grade, which would have been in 2013. Mrs. Hargrave called the police.

         Detective George Crowder with the Lafayette Parish Sheriff's Office testified that the victim told him Francisco touched her vagina every day when she and her sister came home from school. Detective Crowder witnessed the victim's Hearts of Hope interview, at which time the victim gave the same or similar statements to the interviewer.

         The victim's interview took place at Hearts of Hope on August 27, 2014. The victim was eight years old at the time of the interview. The victim stated that before her present living arrangement, she lived with a lot of adult men in one house, and every day when she returned from school, one of the men touched her bottom. The victim said the man's name was Francisco, and he would touch her with his “pee pee” underneath her clothes and inside her bottom. According to the victim, it happened more than one time-every day when she came home from school. The victim's sister would also be in the room. When asked if Francisco touched her with any other part of his body, the victim said, “No.” Later in the interview, the victim said Francisco used his hand to touch her in her “front bottom” and “back bottom.” When asked if Francisco did anything else to make her feel uncomfortable, the victim said he kissed her on her mouth twice. At trial, the victim identified the Defendant as the Francisco that had done the things she described in her Hearts of Hope interview.

         In the interview, when asked if anyone else tried to do something to her, the victim said the brother of her mom's boyfriend did the same thing to her as Francisco. The victim said it was easier to call this other person “F.” When asked if “F” did the exact same thing to her as Francisco or something different, the victim said something different. The victim also said that “F” did these things to her at the same house where Francisco touched her. When asked what part of “F's” body touched her, the victim said the same as Francisco-inside her bottom and her front bottom. Again, only her sister saw this happen. According to the victim, her mom was in Guatemala when this happened. The victim said that “F” was on television and was suspected of doing the same thing to other kids.

         On March 30, 2015, an interpreter was appointed for the Defendant and jury selection began. On cross-examination at trial, the victim explained that before she moved to Duson, Louisiana, she lived in North Carolina with her biological mom (Aldalena) and her biological dad (Tierfalo). According to the victim, her mom left her biological father, but she did not know why. When the victim moved to Duson in 2012, Orbelio (her mom's boyfriend) and Jaime (a male), lived in the house with her. The victim did not remember if the Defendant lived in the house at that time. Between 2012 and 2014, Felencio (the brother of her mom's boyfriend) lived in the house. When specifically asked if the Defendant was living in the house at any point, the victim said he was already living in the house when she arrived in 2012. Although the victim did not know the Defendant's name at that time, she later learned his name was Francisco Vasquez-Ramirez. The victim testified that her mom's boyfriend (Orbelio Ramirez) was the Defendant's nephew. According to the victim, the brother of her mom's boyfriend would normally open the door for them after school. When the boyfriend of the victim's mom would return from work, “Mr. Ramirez” would be with him.

         On cross-examination, it was determined that the victim actually made two trips to Pennsylvania-one with her biological mom and one after her biological mom returned to Guatemala.

         During defense counsel's extensive cross-examination of the victim regarding her trips to Pennsylvania, the State objected to defense counsel's “endless fishing expedition on a trip to Pennsylvania and coming back.” The trial court denied the objection, finding the victim was on cross and defense counsel was not badgering the witness. Defense counsel resumed questioning the victim regarding her trips to Pennsylvania and then began questioning the victim as to the details of her life at home after her mom went back to Guatemala. During this line of questioning, the State asked to approach the bench and asserted an objection: “I want to object. We're going over a million details about what time she comes home from school, who picks her up - - ” The trial court denied the objection, stating the following:

Listen, the jury is as uncomfortable as you are. That's [defense counsel]'s deal. Okay? I know what you're saying. And I can see the face of the jury. They don't like it, either. But that's what he's doing, so he's doing it. Okay?

         Defense counsel resumed questioning the victim about the details of her home life and then launched into the following colloquy:

Q. Okay. All right. Now, let's get to the hard questions, at this point. All right? Now, you've made - - You remember the little video you did over at Hearts of Hope?
A. (No response).
Q. The little video you did with the young lady questioning you about some things that Mr. Ramirez allegedly done to you?
A. Yes, sir.
Q. All right. Now, what I want to ask you is this: When did this touching thing first start?
A. When I was about seven years old.
Q. Seven years old?
A. Yes, sir.
Q. That would have been in 2013?
A. Yes, sir.
Q. Okay. Now, I know this is a hard question, but do you remember the time of the year it started? Was it in - - like, around Easter or Christmas? Thanksgiving?
A. No, sir.
Q. When did it first ...

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