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January 29, 2003


The opinion of the court was delivered by: Martin J. Jenkins, United States District Judge.

Petitioner, a California prisoner, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254. After a review of the petition, the court ordered respondent to show cause why the petition should not be granted on the basis of petitioner's claim of ineffective assistance of counsel. Respondent filed an answer accompanied by a memorandum and exhibits contending that the petition should be denied. Petitioner filed a traverse.


In 1996, petitioner was charged in Santa Clara County Superior Court with rape and fifteen counts of forcible lewd and lascivious conduct with a minor under age 14. The victim was 16 years old when she testified at petitioner's trial. She testified regarding several instances of sexual abuse by petitioner, who is her uncle, when she was between the ages of 6 and 14. On cross-examination, it was revealed that the victim did not remember many of the details surrounding these incidents and that there were numerous inconsistencies among the accounts she had given to the investigating officers, at the preliminary hearing, and at trial. Petitioner testified in his defense, denying any sexual contact with the victim except for one consensual incident when she was 14. The jury convicted petitioner of rape and 11 counts of forcible lewd and lascivious conduct. The trial court sentenced petitioner to 72 years in state prison. The California Court of Appeal denied petitioner's direct appeal, and the Supreme Court of California summarily denied relief.


A. Standard of Review

This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975).

A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). In evaluating whether there has been a violation of § 2254(d)(1), the court should first review the state court decision for error de novo and then determine whether the decision was contrary to or an unreasonable application of controlling law. See Van Tran v. Lindsey, 212 F.3d 1143, 1155, 1159 (9th Cir. 2000). Habeas relief is warranted, however, only if the constitutional error at issue had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Penry v. Johnson, 121 S.Ct. 1910, 1920 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)).

B. Legal Claims

Petitioner claims that he received ineffective assistance of counsel because his attorney failed to object to the prosecutor's argument concerning Childhood Sexual Abuse Accommodation Syndrome ("CSAAS"). A violation of the Sixth Amendment right to counsel based on trial counsel's ineffectiveness requires a showing that counsel's performance was both deficient and prejudicial. Strickland v. Washington, 466 U.S. 668, 686-93 (1984). In assessing counsel's performance, the relevant inquiry is not what defense counsel could have done, but rather whether the choices made by defense counsel were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). Prejudice exists if there is a reasonable probability, in other words a probability sufficient to undermine confidence in the trial's outcome, that but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694.

Police Detective Carl Lewis testified at trial as a prosecution expert witness on the subject of CSAAS. Lewis testified that CSAAS is an aid to help ascertain a child's report of sexual abuse. He explained that CSAAS involves five behavior categories in child victims of sexual abuse: secrecy (children are susceptible to the concept of secrets and can be influenced to keep them); helplessness (children feel subordinate due to size, strength, and lack of sophistication); entrapment and accommodation (children may cope with abuse by disassociating via substance abuse, acting out, or incorrigible behavior); delayed or conflicting disclosures (children will reveal abuse in bits and pieces that lack details); and retraction (children may retract disclosure after experiencing the loss of normalcy in their lives). Lewis conceded on cross-examination that CSAAS is merely an aid and not an indicator that abuse occurred, and that these behavior categories are as consistent with a child who has not been abused as they are with an abuse history.

Under California law, CSAAS evidence is admissible "solely for the purpose of showing that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested." People v. Bowker, 203 Cal.App.3d 385, 394 (1988). Bowker explained the limits on admitting CSAAS evidence as follows:

It is one thing to say that child abuse victims often exhibit a certain characteristic or that a particular behavior is not inconsistent with a child having been molested. It is quite another to conclude that where a child meets certain criteria, we can predict with a reasonable degree of certainty that he or she has been abused. The former may be appropriate in some circumstances; the latter clearly is not.
Id. at 393. Accordingly, when CSAAS evidence is admitted, the jury must be instructed, as it was in this case on two occasions, that: (1) the evidence should not be used to determine whether the victim's sexual abuse claim is true; (2) CSAAS approaches the issue for a perspective opposite to that of the jury; and (3) CSAAS assumes abuse has occurred and seeks to describe and explain common reactions of children to the experience. Id. at 394.

In closing argument, the prosecutor made the following remarks:

"Now, I told you at the outset that [the victim] would have difficulty with dates. She would have difficulty with exact details on a lot of things. You heard during the course of this trial why. You heard because this was not a pleasant experience — this wasn't like a wedding that you would want to remember so every detail you tried to keep in your memory, hoping to never forget it. This is some in so horrible that as it was going on, she even at that moment was attempting to remove herself from it and to forget. She said she didn't want to look at him; she knew what he was doing was wrong.
"You heard Detective Carl Lewis tell you that is very common. It's very common that the children will repress these things and not to remember them. It's very common that they will delay in their reporting of these events. And that is exactly what happened with [the victim]. But it doesn't change the fact that from the time that she was 6 years old until she was 14, that the defendant sexually abused her. And this case comes down to, I'm sure you all know, who am I going to believe. Am I going to believe [the victim], who sat up here for a day, day and a half, undergoing examination by me, cross-examination, further examination, more cross-examination. Doing the best she could to look at us as she testified, look at you, trying to remember the details and answer the questions. She didn't run from the questions, she didn't hide from it; she did her best to answer them for you, giving you as much detail as she could." (Underline added.)
Petitioner contends that it was unreasonable for defense counsel not to object to the underlined remarks above. According to petitioner, the remarks urged the jury, in violation of Bowker, to infer from the victim's trouble remembering details of the abuse and the inconsistencies in her testimony that the abuse had in fact occurred. In the context of the entire prosecution argument, however, defense could reasonably understand the prosecutor to have simply been explaining to the jury why the victim, despite the problems in her testimony, was still credible. While Bowker does prohibit arguing that CSAAS demonstrates the existence of abuse, California law does not prohibit the use of CSAAS evidence to rehabilitate a victim who might otherwise lack credibility. As explained by the California Court of Appeal, the necessity for CSAAS evidence arises when the victim's credibility is attacked by a defendant's suggestion that the victim's conduct after the incident, e.g. a delay in reporting, is inconsistent with his or her testimony claiming molestation. People v. Gilbert, 5 Cal.App.4th 1372, 1383 (1992). The victim's credibility was the crux of the case against petitioner, and the central issue was who the jury would believe. The defense focused on the inconsistencies, lack of detail and delays in the victim's testimony, ...

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