The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER GRANTING PETITION FOR A WRIT OF HABEAS CORPUS
Pursuant to the Ninth Circuit's recent decision in Bockting v. Bayer, 399 F.3d 1010, 1011 (9th Cir.), amended on denial of petition for reh'g, 408 F.3d 1127 (9th Cir.), petition for reh'g en banc denied, 2005 WL 1906932 (9th Cir. Aug. 11, 2005), applying Crawford v. Washington, 124 S.Ct. 1354 (2004) retroactively, the Court GRANTS Petitioner Thomas Allen Darby's petition for a writ of habeas corpus under 28 U.S.C. § 2254.*fn1
Petitioner, a State prisoner formerly incarcerated at the California Medical Facility in Vacaville, California,*fn2 filed a pro se petition for a writ of habeas corpus challenging the validity of his State conviction and sentence. Respondent Ana M. Ramirez-Palmer, Warden of the California Medical Facility, opposes the petition. Venue is proper because Petitioner is challenging a conviction and sentence imposed by the Humboldt County Superior Court, which is located in this judicial district. See 28 U.S.C. § 2241(d).
Petitioner was charged in State court in Humboldt County with one count of felony lewd and lascivious conduct with a child under the age of fourteen (Cal. Pen. Code § 288(a)) and two counts of misdemeanor possession of child pornography (id. § 311.11(a)). On October 29, 1997, a jury found Petitioner guilty of all charges. On February 26, 1998, Petitioner was sentenced to eight years imprisonment for the felony count and two 365-day concurrent terms on the misdemeanor counts with 466 days credit for time served.
On appeal to the California Court of Appeal, Petitioner argued ten grounds for reversing the judgment against him, including:
(1) the introduction of evidence of prior uncharged incidents to prove Petitioner's disposition to commit sex crimes was improper under California Evidence Code §§ 352, 1101, and 1108, as well as the Fourteenth Amendment right to a fair trial; (2) the application of California Evidence Code § 1108 to admit prior uncharged incidents violated Petitioner's due process and equal protection rights under the Fourteenth Amendment; (3) the admission of the child victim's audio- and video-taped out-of-court statements violated Petitioner's Confrontation Clause rights under the Sixth and Fourteenth Amendments; and (4) the court's finding and order concerning Petitioner's ability to pay costs of incarceration should be stricken.
On December 16, 1999, the California Court of Appeal struck the trial court's requirement that Petitioner pay the costs of incarceration and rejected all other claims. Petitioner then filed a petition for review in the California Supreme Court raising three claims, including: (1) the admission of prior uncharged acts violated his Fourteenth Amendment rights to due process, equal protection and a fair trial; and (2) the admission of the child victim's audio- and video-taped out-of-court statements deprived Petitioner of his Sixth Amendment right to confront the witnesses against him. On February 23, 2000, the California Supreme Court denied Petitioner's petition for review without citation or comment.
Petitioner filed a State petition for a writ of habeas corpus in superior court. The petition was denied in May 2000, and Petitioner appealed the denial. Later the same month the appeal was denied without written opinion. Petitioner filed a second habeas petition in superior court, which was pending when he filed his first federal petition for a writ of habeas corpus on December 7, 2000. See Darby v. Ramirez-Palmer, C 00-4607 CW. On July 23, 2001, his federal petition was dismissed without prejudice for failure to allege full exhaustion and because his second State habeas petition was still pending. In November 2001, Petitioner's second State habeas petition was denied by the Humboldt Superior Court. On February 13, 2002, the First District Court of Appeal denied Petitioner's appeal of the superior court decision.
On March 7, 2002, Petitioner filed a second federal petition for a writ of habeas corpus. On June 12, 2002, the Court issued an Order to Show Cause on two claims: (1) the violation of Petitioner's federal due process and equal protection rights by the admission of evidence of prior uncharged acts; and (2) the violation of Petitioner's Confrontation Clause rights by the admission of the child victim's out-of-court statements through third-party testimony without an opportunity for cross-examination. On October 2, 2002, Respondent filed her answer to the petition for a writ of habeas corpus and a memorandum of points and authorities in support thereof. On November 1, 2002, Petitioner filed his traverse. On August 30, 2004, the Court ordered supplemental briefing on Petitioner's Confrontation Clause claim in light of the United States Supreme Court's ruling in Crawford v. Washington, 124 S.Ct. 1354 (2004). Both parties filed supplemental memoranda. On March 18, 2005, the Court ordered additional supplemental briefing on Petitioner's Confrontation Clause claim in light of the Ninth Circuit's ruling in Bockting. Both parties filed supplemental memoranda. Since then, the Ninth Circuit issued an amended opinion in Bockting upon denial of rehearing, see 408 F.3d 1127, and denied the petition for rehearing en banc, see 2005 WL 1906932.
The following statement of facts is taken verbatim from the unpublished opinion of the California Court of Appeal:*fn3
Ashley E., age 9 at the time of trial, was a friend of defendant's stepdaughter Brianna. Ashley E. testified that one day a couple of years before trial, defendant offered her a dollar to pull down her pants. This scared her; she told her mother and talked to the police about the incident. She stopped playing with Brianna after this.Lynzi J., age 11 at the time of trial, was also a former friend of Brianna. Defendant once told Lynzi that he had gotten caught in a janitor's closet with another girl, which scared Lynzi. Defendant told Lynzi he "peed" in a cup out on his back porch; she testified she had seen him do that. Once Brianna offered to let Lynzi read a sex book. Defendant told Lynzi he liked to lick girls' privates and to look at sex books. That same day they were playing hide-and-seek with Brianna's little sister Clarissa (Claire). When Lynzi came out of hiding she ran into the bedroom where she saw that defendant, Brianna, and Claire were all naked. Defendant was "just standing there." He told Lynzi to take off all her clothes, but she ran downstairs. She heard defendant say, "Wait," and Brianna followed her, saying, "My dad said wait." Brianna shut the door on Lynzi's arm, but Lynzi pushed her away and ran home, reporting the incident to her parents and the police.
Sharon S., age 10 at the time of trial, a friend of Lynzi, also used to play with Brianna. Defendant once asked Sharon if she wanted to see him naked. He also asked her if she wanted to see a movie, and Brianna explained it was a sex movie. Defendant asked Sharon if she would "pee" in a cup for a dollar, and he asked if she would pull down her pants for a dollar. Sharon reported these incidents to the police.*fn4
On November 22, 1996, Officer William Dobberstein of the Fortuna Police Department took a report from Lynzi J. and Sharon S. about defendant's inappropriate conduct. As a follow up to these reports, on December 30, 1996, Officers Dobberstein and Porter searched defendant's mini-storage unit pursuant to a search warrant, looking for evidence of child pornography. They seized a number of computer disks and a computer-generated story about Smurfs engaging in sexual acts. The computer disks contained child pornography - pictures of very young girls engaged in sexual acts.
Chris Andrews, a criminal investigator for the Humboldt County District Attorney's office, viewed the pictures on the disks. They showed children clearly under the age of 14 engaged in lewd or lascivious acts with other children or with adults. The children ranged in age from around 5 to 16 or 17. The majority were prepubescent. They were engaged in a variety of acts including simply posing in a lewd manner, masturbating, vaginal intercourse, oral copulation, and bestiality. Defendant had given the pictures code names indicating their content.*fn5 One of the images labeled "Deep Sea.JPG," depicted the Walt Disney character Little Mermaid, which had been altered to expose large breasts and a vaginal opening. Andrews knew from his training that a child molester would use such an image to show to a young victim and help break down the child's inhibitions or fear of sex. The police initiated an investigation of defendant concerning the unlawful possession of child pornography.
Nancy Y. is the grandmother of Ashley Y., whose fourth birthday was December 25, 1996.*fn6 (Ashley is the child of Nancy Y.'s son and Christie Y., who are divorced.) On Friday, January 17, 1997, Nancy was planning to pick up Ashley after work and take her home for the weekend. The mother, Christie, had recently moved, along with Ashley, her siblings Jamie and Virginia ("JenJen" or "Ginny"), a two-year-old sister, and Christie's boyfriend, Christopher (Chris) Darby (defendant's son). Because Nancy was not sure where the new house was she drove by on her lunch hour. When she got to the house she stopped to check the address. There was a large front window, and she saw Chris Darby inside. He was shirtless and leaning forward in the picture window. Ashley was leaning against his back. Nancy pulled in the driveway to turn around and decided to stop and knock on the door. She made eye contact with Chris, who quickly left the window. No one answered right away. Then defendant, whom Nancy had never met, answered the door. She introduced herself as Ashley's grandmother, entered, sat on the couch and talked with Ashley and JenJen. Nancy tried to make eye contact with defendant, but he did not make eye contact; he sat on a couch across the room. It was an uncomfortable situation. Chris went somewhere in the back of the house until right before Nancy left.
As Nancy spoke with Ashley she noticed the child squirming and pulling at her clothing in the crotch area. Nancy asked what was wrong, and Ashley said she hurt.
She said she had an "owie on her pee-pee." Nancy said, "Oh, I'm sorry. I'm sorry you hurt." and that was the end of the conversation. Nancy stayed about five minutes, because she had to go back to work. Chris came back into the room and introduced defendant as his dad. Nancy told Chris she would come back later to pick up Ashley. Sometime after 3 p.m. Nancy returned to the house. She had to knock more than once again. This time Christie, Ashley's mother, answered the door and admitted Nancy. After Ashley showed Nancy her new bed, and other things, they picked up her backpack, left and got into Nancy's car. As they backed out of the driveway, Chris drove up in his van. Nancy told Ashley to wave goodbye to Chris. She then looked down and noticed that Ashley was still pulling on her underwear, and Nancy asked if she was still hurting, to which Ashley replied, "Yes." Nancy asked, "Well, why are you hurting?" And Ashley "told [her] that Chris's papa had touched her pee-pee and made it hurt." The car was still in front of the house when Ashley made this statement.
Nancy drove directly to the police station. She told Ashley she needed to go there to talk to the police about what had happened. Ashley said she was afraid she would get arrested, but Nancy explained that the police did not arrest children, that the police were there to help, and that it would be okay. It took less than five minutes to drive to the Fortuna Police Department. They went inside right away. Nancy was trying to be calm; she told the officer at the front desk she thought her granddaughter had been molested. Nancy was then referred to Officer Kevin Stonebarger. He immediately contacted District Attorney Investigator Chris Andrews, because he was aware Andrews had previous contacts with defendant. Officer Stonebarger then interviewed Ashley for about five minutes, and he tape recorded the interview. Nancy said he talked to Ashley quietly and did not frighten her. During the interview Nancy tried "real hard to be normal" and not to influence or upset Ashley. Ashley told Officer Stonebarger that "grandpoppy touched her pee-pee and made it hurt." Ashley referred to defendant as her "grandpoppy" and to Christopher as her "daddy," although in the car she had told Nancy that "Chris's papa" had touched her. The audiotape was played to the jury over defense objection on hearsay grounds.*fn7
After the interview Nancy followed Officer Stonebarger to the hospital where Dr. Emily Miraie spoke with Nancy and examined Ashley. Dr. Miraie, a pediatrician, found no injuries. This was consistent with molestation, which does not always cause trauma, like tearing or bleeding. In fact, Dr. Miraie testified, "Most cases that just involve fondling or inappropriate sexual touching don't leave physical scars." Therefore, her examination findings were consistent with Ashley's story. Fortuna police arrested defendant that same day, January 17, 1997.
On Tuesday, January 21, 1997, Nancy took Ashley to the Child Abuse Services Team (CAST) Center in Eureka for an interview, where she was interviewed by Karen Lofts-Jarboe. The interview was taped by Investigator Andrews. Ms. Lofts-Jarboe was examined in detail about the one-hour interview, and the videotape was played for the jury over defense objection.*fn8 In the interview Ashley referred to Chris Darby as "daddy" and to defendant as "poppy" or "grandpoppy." At one point during the interview Ashley spontaneously said, "grandpa touched me on my pee-pee." Ashley demonstrated on a toy by "jabb[ing] the area between the legs of the stuffed bear." In another part of the interview, Ashley asked Ms. Lofts-Jarboe where her daddy touched her. Ms. Lofts-Jarboe pointed on the drawing to head, hair, shoulder, and hand, at which point Ashley asked whether Lofts-Jarboe's daddy touched her pee-pee. At another point Ms. Lofts-Jarboe asked Ashley whether her daddy did the same kind of things grandpoppy did, and the child said yes, but declined to elaborate.
On January 31, 1997, Officer Stonebarger executed a search warrant on defendant's residence at 2676 Campton Heights Drive in Fortuna. He retrieved from a garbage can 68 computer disks and a box. He also seized some videotape which depicted adults engaging in sexual activity. The computer disks were labeled in what appeared to be defendant's handwriting and used a numbering system consistent with that on disks previously seized from his storage locker. Officer Stonebarger found the contents of five of the disks to be pictures of young, naked children, and children engaged in sexual activity with adults.
Defendant's wife, ADreanen Darby, separated from defendant in November 1996. She testified that defendant owned computer equipment which included a scanner.
The defense presented no witnesses. People v. Darby, A082278, 1-6 (Dec. 16, 1999).
Prisoners in State custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are first required to exhaust State judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest State court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982); Duckworth v. Serrano, 454 U.S. 1, 3 (1981); McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir. 1988). The State's highest court must be given an opportunity to rule on the claims even if review is discretionary. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (petitioner must invoke "one complete round of the State's established appellate review process").
For purposes of exhaustion, pro se petitions in State court may, and sometimes should, be read differently from counseled petitions. Peterson v. Lampert, 319 F.3d 1153, 1159 (9th Cir. 2003); see, e.g., Sanders v. Ryder, 342 F.3d 991, 999 (9th Cir. 2003) (petitioner's pro se status in State court was a factor in favor of finding exhaustion where prisoner claimed ineffective assistance of counsel but failed to cite federal constitution or federal case law in support of his claim); see also Brown v. Roe, 279 F.3d 742, 745 (9th Cir. 2002) (holding that "[p]ro se habeas petitioners occupy a unique position in the law" and "are to be afforded the benefit of any doubt") (citing cases) (internal quotation marks omitted); Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts have a duty to construe pro se petitions for writs of habeas corpus liberally).
To determine whether habeas relief is warranted, a federal court looks to the decision of the highest State court to address the merits of a petitioner's claim in a reasoned decision. LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000). 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 ...