                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           AUG 19 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
CURTIS DUHART,                                   No. 13-55813

              Petitioner - Appellant,            D.C. No. 5:12-cv-00922-GHK-E

 v.
                                                 MEMORANDUM*
P.L. VASQUEZ, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                  George H. King, Chief District Judge, Presiding

                            Submitted August 7, 2015**
                               Pasadena, California

Before: SILVERMAN, SACK***, and WARDLAW, Circuit Judges.

      Curtis Duhart appeals the district court’s denial of his 28 U.S.C. § 2254




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Robert D. Sack, Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.
petition. We have jurisdiction pursuant to 28 U.S.C. § 1291. Because the denial of

Duhart’s habeas petition was neither contrary to, nor an unreasonable application

of, clearly established Supreme Court precedent, we affirm. See 28 U.S.C. §

2254(d)(1)-(2); Harrington v. Richter, 562 U.S. 86 (2011).

      The state court did not unreasonably determine that, viewing the evidence in

the light most favorable to the prosecution, a rational trier of fact could have

concluded Duhart knew or reasonably should have known that Jane Doe had a

developmental disability rendering her incapable of consenting to sexual

intercourse with him. See Cal. Penal Code § 261(a)(1); Jackson v. Virginia, 443

U.S. 307, 319 (1979). Dr. Edward Frey testified that Doe had a low IQ and mild

mental retardation, making it difficult for Doe to verbalize her thoughts. Officers

Douglas Loreman and Brian Wilson, and nurse Ann Rowney each testified that

they quickly noticed Doe’s “flat,” emotionless expression on the evening of the

incident. See, e.g., People v. Hillhouse, 109 Cal. App. 4th 1612, 1623 (2003).

Officers Loreman and Wilson, and nurse Rowney also testified that Doe had

extreme difficulty answering basic questions and understanding common words.

      Additionally, Doe’s teacher, Craig Goldsberry, testified that Doe would

often come to school with an odor. Officer Sherry Vasilis, who spoke with Doe

after the incident, confirmed that Doe had very poor hygiene and an overwhelming


                                           2
odor. Vicki Smith, the consumer service coordinator for the Inland Regional

Center, testified that Doe needed regular assistance completing basic daily tasks.

      Finally, Doe herself testified, giving the jury a firsthand opportunity to

observe the extent and obviousness of her disability and to determine from its

impression of her that it should have been obvious to Duhart, even though his

encounter with Doe was brief, that she had a developmental disability that rendered

her incapable of consent.

      AFFIRMED.




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