The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
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.
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
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
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.
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 ...