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May 27, 2003


The opinion of the court was delivered by: Charles R. Breyer, United States District Judge



Petitioner, a state prisoner incarcerated at California State Prison, Sacramento, seeks a writ of habeas corpus under 28 U.S.C. § 2254. In its order filed April 15, 2002, the court found that when liberally construed, the petition stated colorable claims for relief under § 2254, and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause.


After a jury found petitioner guilty of five counts of lewd and lascivious acts on a child under the age of 14 (Cal. Pen. Code § 288(a)), petitioner admitted allegations that he previously had been convicted of four prior sex offenses and incurred four prior strike convictions. He was sentenced to state prison for a term of 375 years to life. On March 4, 1999, the California Court of Appeal issued an unpublished opinion affirming the judgment of conviction and, on June 16, 1999, the California Supreme Court summarily denied review.

Petitioner then filed a petition for writ of habeas corpus in the Superior Court of California, County of Santa Cruz, alleging ineffective assistance of counsel for failing to include in a petition for review an issue concerning the alleged unlawfulness of his arrest.*fn1 In its order filed August 11, 2000, the Superior Court found that petitioner's claim did not merit relief and denied the petition. The California Court of Appeal issued a written opinion on June 21, 2001, denying the petition for writ of habeas corpus and, on December 19, 2001, the California Supreme Court summarily denied the petition. The instant petition for writ of federal habeas corpus followed.


The California Court of Appeal summarized the facts of the case as follows:

During 1994, defendant repaired computers at a Santa Cruz store named Computer Pics. Angie B., who owned a used computer often in need of repair, would bring it to defendant, who would fix it. Angie frequently brought along her 10-year-old son Jared. Defendant told Angie he taught children about computers, and he often invited Angie to bring Jared to his home so he could teach Jared and babysit while Angie ran errands.
In the fall of 1995, defendant left the store and began to work out of his home. Angie continued to go to defendant for the needed repairs, and he befriended her and gave her free computer accessories. In response to defendant's repeated offers, Angie twice left Jared for a couple of hours while defendant worked on her computer and she ran errands. While Angie was gone, defendant gave Jared candy and allowed him to play computer games.
Shortly before defendant moved to Oregon in the summer of 1996, he took Jared and Angie to the movies; Angie noticed defendant holding Jared's hand in the theater but attributed the conduct to `male bonding.'
The evening of August 27, 1996, defendant appeared unannounced at Angie's house, asking if he could take Jared to the Santa Cruz Boardwalk the next day. Jared asked if Angie would go with him, but she had a bad sunburn and declined.
The next morning, defendant came for Jared in his pickup truck. En route to the Boardwalk, defendant said he needed to stop at his motel room at the Hitching Post, where he had rented a room the previous day for one night. In his room, defendant produced a camera capable of taking digital pictures that could be stored on a computer and transmitted over the Internet. He told Jared it was a special camera, that only he could develop the pictures on his computer, and that they were `for [his] eyes only.'
Defendant had Jared lie on the bed and say `cheese' while he took some photographs. Defendant then told Jared to remove his clothes. Afraid because defendant was older and stronger, Jared complied. Defendant photographed Jared in his underwear as Jared undressed. He then forced Jared to pose naked for more photographs. After making Jared lie on his stomach, defendant placed his hand on Jared's ankles and spread Jared's legs apart, so he could photograph Jared's genitals. He then made Jared hold his own penis and masturbate for the camera.
Defendant next undressed, orally copulated Jared, and took Jared's hand and forced him to rub defendant's penis until it `stuck straight out.' Defendant made Jared lie face down; he climbed on top of Jared, placed his penis between Jared's legs near Jared's buttocks, moved his penis up and down, and said, `This feels really good.' Jared heard defendant breathe heavily and sigh and then felt something wet. Defendant got up and photographed Jared, still naked, with defendant's semen on his back. After wiping up his semen with a towel, defendant said this was their `little secret' and that Jared would get in `big trouble' if he told anyone.
Defendant had placed four $5 bills on a dresser; when he finished violating and photographing Jared, he gave Jared the $20, saying `You earned it. You did deserve it.'
Defendant next took Jared to the West Wind Motel near the Boardwalk; he told Jared to say defendant was his uncle if asked. When defendant arrived with Jared around noon and asked for a room for the night, manager Pamela Clark recognized defendant because he had been a long-term tenant at the motel in 1993. Clark was concerned for Jared's safety because, during defendant's tenancy, she had been told by a coworker that defendant was a child molester. Defendant said b he just had driven from Oregon and wanted a room to take a nap; he said Jared was his nephew and asked for a room with one bed. When Clark offered two beds for $10 more, defendant declined. Clark rented defendant a room but claimed it was unavailable until after 2 p.m. Telling him to return then, Clark took down defendant's driver's license and asked for a description of his truck. Defendant then took Jared to the Boardwalk, where he bought Jared a ride pass and played carnival games with him. When defendant left, Clark called the police, expressed concern for Jared's safety given defendant had checked in with the 10-year-old boy, and provided a description of defendant's truck.
After receiving this information, Detective McPhillips and three other officers staked out defendant's truck. At 2:40 p.m., McPhillips saw defendant and Jared leave the Boardwalk and enter the truck. After defendant drove a few blocks, he was pulled over by the surveillance team. Defendant's truck had Oregon license plates, and defendant gave McPhillips an Oregon driver's license before producing California identification upon request. Defendant told McPhillips Jared was a friend of his. Defendant then was arrested `on an unrelated matter' [violation of section 290].
When McPhillips searched defendant's truck, he found the registration receipts for the Hitching Post and the West Wind and a bag containing high storage computer disks. He then obtained a search warrant for the truck and for defendant's room at the Hitching Post. From that motel room, officers seized a digital camera and a laptop computer with extra storage capacity.
When police downloaded images stored in the camera, they found the photographs of Jared. In a file labelled `Office AM, Steve' in the laptop, they found pictures of another young naked boy in various poses. Officers learned those photographs were taken in defendant's Oregon home, and FBI agents located similar photographs of `Steve' on defendant's Oregon computer. Defendant's Oregon apartment manager testified he moved there in July 1996 and that she occasionally had seen him with the boy depicted in the `Steve' photographs.
When pediatric physician Loretta Rao examined Jared on September 5, 1996, she saw two tears in his anus in what she described as the `12' and `6 o'clock' positions and bruising on Jared's scrotal area. Rao testified the injuries were consistent with Jared's description of defendant thrusting his penis between Jared's legs below the anus. Rao also testified the boy whose photographs were in the `Steve' file was between 12 and 14 years old. The prosecution presented the following evidence of defendant's prior acts involving molestations of young boys in Wenatchee, Washington.
Michael C. testified he was 14 or 15 years old when he met defendant in 1984 or 1985. Defendant, who was working in a bowling alley, invited Michael to his home to play video games. On one occasion, defendant fondled Michael s penis through his pants, ordered Michael to lie on a bed, removed Michael's clothes, and orally copulated him. After making Michael cross his legs, defendant ejaculate by moving his penis between Michael's legs. Defendant tried to take Polaroid pictures of Michael, but Michael refused.
Charles Fabian worked at the bowling alley. He testified defendant told him he would tape $10 bills to a wall and, if a boy performed sexual favors, the boy could keep the money. In a room vacated by his former roommate, Fabian found a photograph of a naked boy named Willie J.
Willie J. testified he was 13, 14, or 15 years old when he met defendant between 1983 and 1985. Defendant invited Willie to his home to play video games. There, defendant undressed Willie and orally copulated and sodomized him. Defendant took the photograph of Willie found by Fabian. Money was taped to a wall and, after the molestation, defendant gave Willie $10 or $20 and said `thanks for the work.' He told Willie not to tell anyone.
Timothy C. testified he was 10 or 11 years old when he met defendant at the bowling alley. Defendant invited Tim to his home to play video games. After telling Timothy to lie on the bed, defendant would place his penis between Timothy's legs and move it up and down. Defendant orally copulated Timothy and took photographs of him naked. Defendant would take money off the wall and `reward' Timothy for these acts.
Called to testify on behalf of the defense, Sergeant Lee Sepulveda testified that, when he initially spoke to Jared about the molestations and asked what Jared and defendant had done the day defendant was arrested, Jared only mentioned going to the Boardwalk. However, when Sepulveda said he had seen defendant's photographs, Jared said `yes, it happened' and described the molestation in detail. Sepulveda testified Jared said defendant had told him the money on the dresser was for him `when it would be over.'
People v. Neal, No. H017164, slip op. at 2-8 (Cal. Ct. App. Mar. 4, 1999) (footnotes omitted) (Resp't Ex. 6).*fn2


I. Standard of Review

A federal writ of habeas corpus may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claims: "(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).

"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.

"[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, that application must be "objectively unreasonable." Id. at 409.

The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the relevant state-court decision. Id. at 412; Clark v. Murphy, 317 F.3d 1038, 1044 (9th Cir. 2003), overruled in part on other grounds, Lockyer v. Andrade, 123 S.Ct. 1166, 1172 (2003). "While circuit law may be persuasive authority for purposes of determining whether a state court decision is an unreasonable application of Supreme Court law, only the Supreme Court's holdings are binding on the state courts and only those holdings need be reasonably applied." Clark, 317 F.3d at 1044 (citations and internal quotations omitted).

II. Claims

Petitioner raises four claims for relief under 28 U.S.C. ยง 2254. Three of his claims allege ineffective assistance of counsel: (1) failure to raise the issue of unlawful arrest before the California Supreme Court; (2) failure to introduce the Santa Cruz police department's vehicle inventory and search policy at trial and on appeal; and (3) failure to investigate and introduce testimony of a witness at his suppression hearing. Petitioner also ...

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