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September 15, 2005.

MICHAEL KNOWLES, Warden, Respondent.

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge



Javier Diego Uribe, a California prisoner incarcerated at Mule Creek State Prison, has filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is now before the court for consideration of the merits of the habeas petition. For the reasons discussed below, the petition will be denied.


  A. The Crimes

  Uribe was convicted of sex offenses against four minors: committing lewd acts on Jane Doe 1 (14 counts), Jane Doe 3 (1 count) and Jane Doe 4 (1 count), as well as one count of committing a forcible lewd act on Jane Doe 2. At the trial, evidence also was presented of his sex offense against an 11-year old (Katherine M.) that led to a sexual battery conviction several years earlier. The evidence at trial included the following, which is largely taken from the California Court of Appeal's opinion and the parties' briefs. Uribe knew Jane Doe 1 through his friendship with Jane Doe 1's mother and grandmother. Jane Doe 1 was eight years old and in third grade at the time of the first touching incident. The touchings stopped after the December 17, 1999 incident, when Jane Doe 1 was in fifth grade. The touchings occurred at a variety of times and places and the behavior included touching Jane Doe 1's vagina over and under her clothing, touching her buttocks, putting his fingers inside her vagina, and putting his mouth on her vagina and licking it.

  Following the last molestation on December 17, 1999, Jane Doe 1 told several friends "that there was a guy touching on [her]" and she told them Uribe's first name. Jane Doe 1 also told her younger brother, who then told his friend Andrew, and Andrew told his grandmother. The grandmother was a friend of Jane Doe 1's family and on December 20, 1999 asked Jane Doe 1 if Uribe had been touching her. Jane Doe 1 admitted Uribe had "messed with her" and pointed to her vagina. The grandmother then called Jane Doe 1's mother, and Jane Doe 1 told her mother some details about the molestations.

  Jane Doe 1's mother took Jane Doe 1 to the hospital. While there, Jane Doe 1 met with a police officer. On December 22, 1999, Jane Doe 1 spoke with a social worker in the presence of a different police officer, Officer Judy Stradan. On December 23, 1999 at the request of Officer Stradan, Jane Doe 1 called Uribe on the telephone. The phone call was tape recorded. Uribe made numerous incriminating statements. Uribe essentially admitted touching Jane Doe 1's vagina and putting his mouth on her vagina when, in response to Jane Doe 1's query about those acts, Uribe asserted, "We were playing." When Jane Doe 1 asked why he "put his fingers up [her] vagina," Uribe made a similar admission: "Because I like it." Following this pretext phone call, police arrested Uribe.

  Based on information provided by Jane Doe 1, an investigator from the district attorney's office went to an apartment complex at which Uribe had resided. The investigator discovered that a number of complaints had been filed with the complex's security office in 1997, alleging Uribe had molested or bothered other young girls. The investigation into these incidents led to the charges involving Jane Doe 2, Jane Doe 3, and Jane Doe 4. Uribe molested Jane Doe 2, then 11 years old, in July 1996 when he was at her apartment. Uribe entered her room, closed the door and put a chair under the knob to prevent it from being opened. He then got on top of Jane Doe 2 on the bed. He rubbed her breast with one hand and covered her mouth with another hand. He tried to take off her jacket and he tried to kiss her.

  Uribe's's encounters with Jane Doe 3, fourteen years old at the time of trial, included one incident where he grabbed and pulled her onto his lap, another incident where he removed his shirt and pants and stood in front of her in his underwear, and another incident where he got on top of her in his bedroom.

  Uribe's encounters with Jane Doe 4, fourteen years old at the time of trial, included incidents where he rubbed her buttocks and tried to pull her into his apartment.

  B. Case History

  Following a jury trial in Monterey County Superior Court, Uribe was convicted of sixteen counts of engaging in a lewd act upon a child and one count of engaging in a forcible lewd act upon a child. As to each count, the jury found true the One Strike law allegation that Uribe committed qualifying offenses against multiple victims. Uribe was sentenced on December 14, 2001 to a total term of 100 years to life in prison.

  Uribe unsuccessfully appealed. The California Court of Appeal affirmed the judgment of conviction with a sentence modification and denied Uribe's petition for writ of habeas corpus. The California Supreme Court denied the petition for review.

  Uribe then filed this action. His federal habeas petition raises seven claims: (1) his rights to due process and a fair trial were violated when the court denied his motion to exclude his coerced statement to the police, (2) his rights to due process, a fair trial and equal protection were denied when the trial court admitted evidence of his prior misconduct under California Evidence Code section 1108, (3) his rights to due process and a fair trial were violated by the use of the CALJIC 2.50.01 jury instruction, (4) his rights to due process, a fair trial and a jury determination on all issues were violated by the court's failure to correctly instruct on probation eligibility, (5) his right to counsel was violated when the trial court failed to conduct an adequate inquiry about his complaints against his attorney, (6) his rights to due process and to be free from double jeopardy were violated by the sentence imposed for multiple victims, and (7) the cumulative effect of the foregoing errors deprived him of his rights to due process and a fair trial. The court ordered respondent to show cause why the petition should not be granted. Respondent filed an answer and petitioner filed a traverse. The matter is now ready for a decision on the merits.


  This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in Monterey County, California, within this judicial district. 28 U.S.C. §§ 84, 2241(d).


  Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first 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). The parties do not dispute that state court remedies were exhausted for the claims asserted in the petition.


  This court may entertain a petition for 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). The petition 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 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).

  "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] Court has on a set of materially indistinguishable facts." Williams (Terry) 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] 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. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.


  A. Admission of Uribe's Confession ...

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