The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Michael Ray Jones was a State prisoner incarcerated at the Lake County Correctional Facility in Lakeport, California at the time he filed this petition pro se seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent was ordered to show cause why the writ should not be granted, and filed an answer supported by a memorandum of law, the State trial record and the unpublished opinion of the California Court of Appeal. Petitioner was granted an opportunity to file a traverse, but did not do so.
Having considered all of the papers filed by the parties and the State court trial record, the Court DENIES the petition for writ of habeas corpus.
The following facts are taken from the unpublished opinion, including the footnotes, of the Sixth Appellate District of the California Court of Appeal in People v. Jones, A086286 (Dec. 11, 2000), affirming the judgment of conviction.
Appellant married Karen Priest in Idaho in 1991. Karen's children, Max and Stephanie, lived with the couple. Stephanie was then six years old. Karen also had an adult daughter, Kerri O'Neill, who lived in Santa Cruz. Stephanie and Max's father also lived in Santa Cruz, and they usually spent every summer, and Christmas, with their father. Karen, and the rest of the family were nudists which, Stephanie explained, meant that they did not always wear clothes when they were alone as a family, and none of them considered this to be "shocking," or sexual. Appellant would also go without clothes.
In December 1993, appellant, Karen, and her two children moved to Kelseyville in Lake County. Stephanie was eight years old and in the third grade. In order to give the children separate bedrooms, appellant and Karen used the living room as their bedroom. Karen testified that they wore clothing most of the time, but they slept in the nude.
Stephanie testified that one night after Christmas in 1993, she went into appellant's bedroom. She and appellant were both nude.*fn1 Appellant touched her vagina with his fingers. He was not mean or threatening. He asked if he could lick her vagina, and if she would lick his penis, which he called his "baby." They were both laughing when she said no. She also recalled another occasion, when she was watching television in her room. She was nude, and appellant, who was also nude, came in and lay next to her on her bed. She could feel his erect penis press and rub against her buttocks for about 30 seconds.
Stephanie did not recall any other specific occasions, but testified that he touched her "in that way" approximately 10 to 15 other times. Near the end of fourth grade, appellant told Stephanie "that it was wrong and that we should stop," and he did.
Stephanie testified that she put these events out of her mind, and did not remember them until April or May of 1996, when she started writing in her diary, just before leaving to visit her father in Santa Cruz. She wrote about it because she felt she could not tell anyone, yet she needed to get it off her chest.*fn2 While in Santa Cruz, Stephanie started to cry when some friends at the Boys and Girls Club began joking about animals molesting each other. The director of the club, Mari Yoneda talked to Stephanie in private, and asked what was wrong. Stephanie said that when people talked about rape, or things like that, she usually could pretend that everything was okay, but this time she could not. She said that it was hard to pretend "it doesn't affect me." She told Yoneda: "I didn't ask for things to be done and I didn't know why they were wrong, and why I shouldn't talk about them then, but now I know why it's wrong for things like that to happen to me."
Shortly thereafter, Stephanie confided in her adult sister Kerri O'Neill. O'Neill testified that they were reading a book about self-esteem and Stephanie was saying negative things about herself. When O'Neill asked why, Stephanie said that appellant had raped her, and that it had been happening since she was six or seven years old. O'Neill called Karen, and reported what Stephanie had said.
Karen immediately telephoned Stephanie, on August 18, and Stephanie told her mother about the molestation. When her mother reassured her that it was not her fault, Stephanie told her where to find the diary, because she was no longer afraid her mother would be angry. After Karen read the diary she took it to the police.*fn3 According to Karen, the marriage to appellant had already ended with a fight on July 5, 1996, and he had moved out of the house by July 30, 1996.*fn4
In October of 1996, Stephanie was examined by a pediatric nurse practitioner, Cathy Boyle, and a medical resident. Stephanie said appellant had touched her vagina with his penis, finger, and foot, and the chart indicated that she described an act of "penile penetration." Stephanie also reported that appellant had touched her anal area with his penis. Boyle testified that her observations in conducting the physical exam were not inconsistent with Stephanie's account, but also did not corroborate it.
Stephanie testified that, in August of 1996, she did not understand the word "penetration." Based upon her understanding of the word at the time, she explained that he did not penetrate her vagina, but had only rubbed it. She also explained that although she had used the word "rape" in August of 1996, she then thought rape meant the same as molestation, which she described as touching someone, but not in a forceful way. She testified that she now understood rape to mean using force to "make you do it."
In September of 1996, when Karen confronted appellant on the telephone regarding what she had read in Stephanie's diary, appellant denied it. In October of 1996, when she confronted him, he said he "got wasted" a lot, but did not admit that he had molested Stephanie.
Lake County Detective Jan Layfield spoke with appellant on October 30, 1996, after he was arrested. After waiving his Miranda rights, appellant said, "the problems with Stephanie was that she was the aggressor." He refused to directly respond to questions about Stephanie's allegations. He acknowledged that he had a "problem," but when Detective Layfield asked him to be more specific he wouldn't answer. Appellant told Layfield that he would not answer his questions more specifically because Layfield, "wanted to send him to prison and that he would rather get counseling or therapy for his problem."
Dr. Anthony Urquiza, a child psychologist, testified as an expert on Child Sexual Abuse Accommodation Syndrome (CSAAS). Dr. Urquiza testified that CSAAS identifies a number of elements present in child sexual abuse cases that help dispel common myths or misconceptions. Dr. Urquiza explained that 90 percent of sexually abused children are acquainted with the perpetrator. The child may not reveal the abuse because the perpetrator is someone the child trusts, and the child may not understand that it is bad or wrong. Therefore, the first element of CSAAS is secrecy. CSAAS also includes, helplessness, accommodation or entrapment, delay in reporting the abuse, and when the child does report the abuse, it is not uncommon for the "disclosure to be sort of conflicting." Finally, one of the common symptoms of child sexual abuse is sexually inappropriate behavior.
In the summer of 1997, Stephanie moved from Kelseyville to Santa Cruz to live with her father. She had wanted to move there for a while, because Kelseyville was boring.
Appellant testified that Stephanie has always wanted to live with her father, and had made that clear to Karen, "all the time that I have known them." Stephanie told appellant that she blamed him for her parents' divorce. Stephanie would not respect appellant and Karen's privacy. She would lie out in the hallway and watch their private sexual activity, and then laugh when she told appellant about it. Karen refused to believe appellant when he told her about it. Stephanie's behavior toward appellant was angry, and suggestive.
Appellant and Karen constantly disagreed over Stephanie's behavior. Karen did not believe she behaved inappropriately, and told appellant he had a "dirty mind." When appellant would attempt to wrestle or play, Stephanie would often try to grab his "private" parts. Appellant and Karen also disagreed about nudity. Appellant did not think it was appropriate to be nude around children, and so he wore clothing.
Appellant denied ever touching Stephanie in an inappropriate manner, and specifically denied touching her vagina. He and Karen frequently discussed family counseling, and appellant believed the entire family had problems which required counseling. These were the problems to which appellant referred, when he was interviewed by Detective Layfield.
Kirby Wood testified that Stephanie, at some unspecified time, told her that appellant had molested her. Once or twice Stephanie talked to Kirby about sexual fantasies, and Kirby told her she would not play with her if she talked that way.
Loretta Heller testified that, once, when babysitting, she had to admonish Stephanie about sitting at a fast-food restaurant with her legs apart, as if she were flashing someone. Heller told Karen that she thought Stephanie needed counseling. She and Karen were no longer on speaking terms, but Heller continued to be good friends with appellant. Karen had complained to the police that members of Heller's family had vandalized her home.
Heller's son, Lance Worcester, went with Stephanie on one of her visits to Santa Cruz in 1996. In the middle of the night he passed the master bedroom to go to the bathroom. He saw Stephanie, nude, in bed with her father. When she saw Lance, Stephanie jumped out of bed, and screamed. Lance was good friends with appellant, but had been in a feud with Karen over her accusation that Lance had stolen her son's bicycle, and vandalized her home. In September of 1996, Lance was hit on the head with a baseball bat, and suffered brain damage, affecting his memory.
Terry Johnson had discussed the case with Karen, and it seemed to her that Karen wanted revenge for something. Edward Quint testified that he was a friend of Karen's and appellant, but had not seen Karen for about a year before the trial. Once when he was discussing his own girlfriend's demand that he not talk to her if they broke up, Karen, she said, "I'[d] destroy the guy if he broke up with me."
Appellant's sister, Virginia Scott, testified that she attended the preliminary hearing and she observed Stephanie while she testified, and during recesses. Stephanie appeared timid and held a stuffed animal while testifying, but on a break she threw the animal down and said she hated appellant's attorney. Then she started laughing and skipping around. When she sat on her father's lap he ran his hands "all over her, . . . her rear end." In another recess Karen said, "we are going to take this son of a b---- down."
Stephanie testified that Lance Worcester did come with her on a visit to her father's home, but she was not nude in bed with her father. Appellant told her he thought she blamed him for their parents' separation, but she did not, because her parents separated two years before appellant and Karen started their relationship. She did wrestle and play with appellant, but he never told her that she was grabbing him in an inappropriate way. Appellant did practice nudity in front of her, but also sometimes told her to put clothes on, although he didn't really care.
Karen testified that appellant had never complained to her about Stephanie behaving in a sexually inappropriate manner. Karen believed that Lance Worcester had vandalized her property and she reported him to the police. Her friendship with Heller, Lance's mother, had ended over the problems with Lance.
Jones, A086286 at 1-7 (footnotes included).
Petitioner was convicted of two counts of lewd and lascivious acts performed on a child under fourteen years of age. He was sentenced on February 26, 1999; the court suspended the sentence and imposed an eight-year probation term, on the condition that Petitioner spend one year in county jail.
After retaining private counsel, Petitioner brought a motion for a new trial based upon numerous alleged omissions by trial counsel, including a failure to challenge Stephanie's testimony on the ground that it was based upon recovery of a repressed memory, the reliability of which is subject to controversy. The following facts are taken from the Court of Appeal's summary, including footnotes, of the evidence presented at the hearing on that motion.
At the hearing on the motion for a new trial, [trial counsel Arleen] Russo testified that she concluded that the best defense was not to attack Stephanie's credibility with respect to her assertion that she had been molested. Instead, the defense strategy was to assert that Stephanie was fabricating when she asserted that appellant was her abuser. Russo's defense theory was that Stephanie was protecting her father, the actual abuser, and/or falsely accusing appellant, in order to achieve her goal of moving to Santa Cruz. Russo explained that she adopted this strategy based upon her review of discovery materials which caused her to conclude that Stephanie's descriptions of the molestations were consistent, and that a jury would probably believe that she had been molested.*fn5
Russo testified that, when she took over the case from Russell Hom, they discussed the possibility of a defense based upon the unreliability of testimony based upon recovery of repressed memory. Russo consulted with a licensed social worker and marriage and family counselor who specialized in child sexual abuse, who provided her with literature on repressed memory, which she reviewed. The counselor advised Russo it was common to repress such memories, and later spontaneously recall them. Russo was aware of the 'Franklin'*fn6 case and other decisions on 'all sides of the issue' of reliability of recovered repressed memories. She explained that she did not conduct further investigation into the issue of Stephanie's credibility with regard to the 'repressed memory issue' because her review of discovery materials persuaded her that Stephanie had been molested, and that the jury would probably believe her. She therefore decided to focus the jury's attention on the question whether Stephanie was falsely accusing appellant in order to protect her father. She also concluded that defending on the theory that Stephanie believed she had been molested, but that these were 'false' memories suggested by a therapist, or her mother, or some other source, was inconsistent with the defense that Stephanie was consciously 'fabricating.' Finally, counsel explained her decision not to rely upon the unreliability of recovered repressed memory, at least as an alternative defense, was also based on her conclusion that the defense would be stronger if it focused on the single contention that appellant was not the abuser.*fn7 She explained that in her judgment the defense would be stronger if she focused the jury, 'on a particular issue, that being that [Petitioner] didn't do it.'
The second major category of alleged omissions concerned defense counsel's decision not to impeach Stephanie's account of offenses that occurred in California, by reference to her initial accounts in her diary, which were limited to similar conduct that occurred when the family lived in Idaho, and introducing evidence that she did not prosecute appellant for acts committed in Idaho. A related contention was that counsel also failed to take appropriate steps to rebut evidence of conduct in Idaho when it came in as a result of a violation of the court order, or to keep the jury from being misled by it.
On the first day of trial, defense counsel prevailed in her effort to have all evidence of non-charged sexual acts that occurred in Idaho, excluded on the ground that the prosecution had failed to comply with the notice provisions of Evidence Code section 1108. When asked at the hearing on the motion for a new trial why she did not try to impeach Stephanie by developing evidence that Stephanie did not recall any events in California until her mother learned appellant could not be prosecuted in California for acts committed in Idaho, Russo responded: 'I did not think that it would do [appellant] any good to get into prior alleged conduct.' When asked why she did not revise her strategy when Stephanie, and Priest, in violation of court order referred to incidents in Idaho, Russo testified: 'It was my decision not to try to unring the bell and further reinforce it on the jury's mind.' Jones, A086286 at 8-12 (footnotes included).
On direct appeal, Petitioner asserted a claim for ineffective assistance of trial counsel based on eight separate errors allegedly committed by Petitioner's appointed attorney. The direct appeal was denied by the California Court of Appeal on January 10, 2001. His petition for review to the California Supreme Court was denied without comment on March 14, 2001.
Petitioner filed the present federal petition on May 7, 2002. On June 6, 2002, the Court granted him leave to file an oversize brief that included as an attachment his ninety-six page brief for the California Court of Appeal. The petition itself raises three claims for ineffective assistance of trial counsel. The first appears to incorporate all of the ...