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Jones v. Lakeport Probation Dep't

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


September 20, 2005

MICHAEL RAY JONES, PETITIONER,
v.
LAKEPORT PROBATION DEPARTMENT, RESPONDENT.

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the writ should not be granted, and filed an answer supported by a memorandum of law, the State trial record and the unpublished opinion of the California Court of Appeal.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.

BACKGROUND

The following facts are taken from the unpublished opinion, including the footnotes, of the Sixth Appellate District of the California Court of Appeal in People v. Jones, A086286 (Dec. 11, 2000), affirming the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.

Defense Case

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."

Rebuttal

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 errors identified in his State court appeal. The second and third focus on one specific error:

his attorney's failure to challenge the victim's recovered memory testimony. In response to the Court's March 19, 2003, order to file an amendment clearly identifying the claims he intended to assert in his petition, Petitioner identified all of the issues involving alleged ineffective assistance of counsel raised in his direct appeal: (1) trial counsel's failure to move to exclude or challenge Stephanie's testimony based upon "recovered memories"; (2) trial counsel's failure to move for individual voir dire; (3) trial counsel's failure to move to dismiss a misdemeanor count of furnishing alcohol to a minor before the jury heard evidence on it; (4) trial counsel's failure to use allegations of uncharged conduct in Idaho for impeachment purposes; (5) trial counsel's failure to cross-examine Karen Priest; (6) trial counsel's failure to introduce evidence to explain Stephanie's allegations; (7) trial counsel's failure to object to prosecution evidence of CSAAS; and (8) trial counsel's choice of the defense theory that Stephanie was molested by someone other than Petitioner, and later abandonment of that theory.

The Court found that these issues were exhausted for purposes of federal review. August 31, 2004 Order Denying Motion to Dismiss and Directing Respondent to File an Answer to the Petition. Respondent filed an answer on October 25, 2004. Petitioner was ordered to file any Traverse with the Court within thirty days of receipt of the Answer. Petitioner did not do so. More than six months later, the Court on its own initiative granted Petitioner thirty additional days from its June 15, 2005 order in which to file a traverse. On July 12, 2005, Petitioner moved for an extension of time in which to file a traverse, but provided no reason in support of his request. The request was denied on the grounds that a traverse was not likely to add legal argument or authority not already before the Court. July 20, 2005 Order Denying Petitioner's Request for an Extension of Time to File a Traverse.

LEGAL STANDARD

I. AEDPA

A federal court may entertain a habeas petition from a State prisoner "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).

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a district court may not grant a petition challenging a State conviction or sentence on the basis of a claim that was reviewed 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). A decision is contrary to clearly established federal law if it fails to apply the correct controlling authority, or if it applies the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result. Clark v. Murphy, 331 F.3d 1062, 1067 (9th. Cir. 2003).

An unreasonable application of federal law occurs when the State court identifies the correct governing legal principle, but unreasonably applies that principle to the facts. Id. An unreasonable application of federal law is different from an incorrect application of federal law. Id. Relief is not proper where the State court decision is "merely erroneous." Early v. Packer, 537 U.S. 3, 10 (2002).

The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is the holdings of the Supreme Court as of the time of the relevant State court decision. Williams v. Taylor, 529 U.S. 362, 412 (2000). Circuit law may be persuasive authority for purposes of determining whether a State court decision is an unreasonable application of Supreme Court law. Clark, 331 F.3d at 1070-1071.

To determine whether the State court's decision is contrary to, or involved an unreasonable application of, clearly established law, a federal court looks to the decision of the highest State court that addressed the merits of a petitioner's claim in a reasoned decision. LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000).

Under 28 U.S.C. § 2254, a federal court gives deference to a State court's factual determinations. Lambert v. Blodgett, 393 F.3d 943, 968 (9th Cir. 2004). A State court need not conduct an in-court evidentiary hearing on all issues for its fact-finding process to be reasonable within the meaning of 28 U.S.C. § 2254(d)(2). Buckley v. Terhune, 397 F.3d 1149, 1157-58 (9th Cir. 2005). Title 28 U.S.C. § 2254(e)(1) provides that "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."

II. Ineffective Assistance of Trial Counsel

A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Id. The right to effective assistance counsel applies to the performance of both retained and appointed counsel without distinction. See Cuyler v. Sullivan, 446 U.S. 335, 344-45 (1980).

In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, a petitioner must establish both that counsel's performance was deficient and that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687-88, 694. The Strickland framework for analyzing ineffective assistance of counsel claims is considered to be "clearly established Federal law, as determined by the Supreme Court of the United States" for the purposes of 28 U.S.C. § 2254(d) analysis. See Williams, 529 U.S. at 404-08.

In order to show deficient performance, a petitioner must show that defense counsel made errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. See Strickland, 466 U.S. at 687.*fn8 The petitioner must show that counsel's representation fell below an objective standard of reasonableness. See id. at 688. The relevant inquiry is not what defense counsel could have done, but rather whether the choices made by defense counsel were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). Judicial scrutiny of counsel's performance must be highly deferential, and a court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689; Wildman v. Johnson, 261 F.3d 832, 838 (9th Cir. 2001) (finding no deficient performance by counsel who did not retain a ballistics expert on a menacing charge where the same expert had been used in the successful defense of the same defendant on a felon-in-possession charge); Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). The reasonableness of counsel's decisions must be measured against the prevailing legal norms at the time counsel represented the petitioner. See Wiggins v. Smith, 539 U.S. 510, 522-23 (2003) (citing American Bar Association professional standards and standard practice in capital defense at pertinent time).

It is unnecessary for a federal court considering a habeas ineffective assistance claim to address the prejudice prong of the Strickland test if the petitioner cannot establish incompetence under the first prong. See Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998).

If the petitioner does establish incompetence, he must also show that counsel's errors were so serious as to deprive him of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 688. The test for prejudice is not outcome-determinative, i.e., the petitioner need not show that the deficient conduct more likely than not altered the outcome of the case; however, a simple showing that the defense was impaired is also not sufficient. Id. at 693. The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694.

Where the petitioner is challenging his conviction, the appropriate question is "'whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.'" Luna v. Cambra, 306 F.3d 954, 961 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 695). See, e.g. Jennings v. Woodford, 290 F.3d 1006, 1019 (9th Cir. 2002) (finding prejudice where counsel solely relied upon a fallible alibi defense and failed to investigate and present compelling mental health and drug abuse evidence); Jones v. Wood, 207 F.3d 557, 562-63 (9th Cir. 2000) (finding prejudice where counsel failed to investigate and present "other suspect" evidence); Hart v. Gomez, 174 F.3d 1067, 1073 (9th Cir. 1999) (failure to introduce evidence that corroborated testimony of a key defense witness whom the jury might otherwise not believe necessarily undermined confidence in the outcome).

The Strickland prejudice analysis is complete in itself. Therefore, there is no need for additional harmless error review pursuant to Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). See Avila v. Galaza, 297 F.3d 911, 918 n.7 (9th Cir. 2002).

DISCUSSION

I. Failure to Challenge Victim's Testimony Based on Unreliability of "Recovered Memories"

A. Background

Petitioner claims that trial counsel was ineffective for failing to investigate, move to exclude or otherwise challenge Stephanie's testimony based on the inherent unreliability of her "recovered memories."

Petitioner sets forth at length case law and academic literature regarding the reliability of "recovered" or "repressed" memories. Petitioner argues that trial counsel should have moved to exclude Stephanie's testimony under People v. Kelly, 17 Cal. 3d 24, 31 (1976), which sets forth criteria for allowing evidence based on novel scientific techniques, or, alternatively, under California Evidence Code §§ 350 and 352. Petitioner also argues that trial counsel should have introduced expert testimony to attack the reliability of Stephanie's memories.

The Court of Appeal concluded that counsel was not ineffective in failing to move to exclude Stephanie's testimony because such a motion would not have been meritorious. It concluded that the Kelly test was inapplicable because there was no "factual basis for concluding that Stephanie's memories were induced by hypnosis, drugs, psychotherapy or other scientific technique, or that the prosecution intended to offer an expert on recovered memories to testify that they are reliable." Jones at 15. It reasoned that those California cases applying Kelly where a witness' memory retrieval had been induced by hypnotism or drugs, e.g. People v. Shirley, 31 Cal. 3d 18, 40 (1982), did not suggest to reasonably competent counsel that the test is met in situations such as this where the witness spontaneously recalls events. The Court of Appeal relied on Wilson v. Phillips, which distinguished a plaintiff's spontaneous recollection of prior sexual abuse from induced-memory cases such as Shirley, finding that a psychologist's expert testimony regarding the reliability of spontaneous recollection was merely medical opinion which jurors may evaluate based on "their own common sense and good judgment." Wilson, 73 Cal. App. 4th 250, 254 (1999) (quoting People v. Venegas, 18 Cal. 4th 47, 80 (1988)).

The Court of Appeal also found that trial counsel was not ineffective for failing to move to exclude Stephanie's testimony based on the combined potential unreliability of repressed memory, inconsistencies in Stephanie's characterization of the penetration, and her initial failure to inform her mother about acts in California. See Cal. Evid. Code § 352(b) (allowing trial court in its discretion to exclude evidence if its probative value is substantially outweighed by risk of "misleading the jury"). It concluded that a motion to exclude Stephanie's testimony would have had little or no success on the merits because her testimony was the only direct evidence of the charged offenses, and as such "'must be received over a section 352 objection absent highly unusual circumstances.'" Jones at 18 (quoting Kelly v. New West Fed. Sav., 49 Cal. App. 4th 659, 674 (1996)).

Finally, the Court of Appeal found that trial counsel's decision not to challenge the reliability of Stephanie's memories otherwise was not ineffective assistance because Petitioner's attorney "made an informed strategic decision not to attack Stephanie's credibility, except with respect to her identification of [Petitioner] as her abuser, because she believed that the defense would be stronger if she focuse[d] the jury's attention on this single issue." Jones at 19. The Court of Appeal characterized this as a "classic example of a decision relating to trial tactics or strategy which is entitled to deference, and must not be second-guessed with hindsight." Id. It found that there was no evidence that trial counsel tacitly or expressly conceded Petitioner's guilt, and that her consultation with a licensed social worker experienced with child sexual abuse and review of the preliminary hearing transcript allowed her to make an informed decision that the jury was likely to believe that Stephanie had been molested, and that it would be better to contest only the issue of whether Petitioner was the perpetrator. Id. at 13. The court also noted that one aspect of Petitioner's argument, that trial counsel should have challenged Stephanie's memory as deliberate fabrication in response to learning that acts committed in Idaho could not be prosecuted locally, would have been inconsistent with Petitioner's overall proposed alternative strategy of attacking "false memory syndrome," in which even the holder of a memory cannot determine whether it is true. See id. at 16, n.9.

B. Applicable Federal Law

A difference of opinion as to trial tactics does not constitute denial of effective assistance, see United States v. Mayo, 646 F.2d 369, 375 (9th Cir.), cert. denied, 454 U.S. 1127 (1981), and tactical decisions are not ineffective assistance simply because in retrospect better tactics are known to have been available. See Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir.), cert. denied, 469 U.S. 838 (1984).

Tactical decisions of trial counsel deserve deference when:

(1) counsel in fact bases trial conduct on strategic considerations;

(2) counsel makes an informed decision based upon investigation; and

(3) the decision appears reasonable under the circumstances. See Sanders, 21 F.3d at 1456. The investigation itself must be reasonable for an attorney's tactical decision based on that investigation to be reasonable. Wiggins v. Smith, 539 U.S. 510, 523-24 (2003). A court must consider not only the quantum of evidence known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further. Id. at 526-27. Evidence that the challenged trial conduct resulted from inattention rather than from strategic considerations may also be relevant to the inquiry. Id. at 524-25. See, e.g., McDowell v. Calderon, 107 F.3d 1351, 1358 (9th Cir.) (no ineffective assistance where counsel's decision to concede guilt of felony murder but contest defendant's intent to kill "best choice from a poor lot"), amended, 116 F.3d 364 (9th Cir. 1997), vacated in part by 130 F.3d 833, 835 (9th Cir. 1997) (en banc).

A lawyer need not file a motion that he knows to be meritless on the facts and the law. Put simply, trial counsel cannot have been ineffective for failing to raise a meritless motion. Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996). See also Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999) (to show prejudice under Strickland from failure to file a motion, petitioner must show that (1) had his counsel filed the motion, it is reasonable that the trial court would have granted it as meritorious, and (2) had the motion been granted, it is reasonable that there would have been an outcome more favorable to him).

Nevertheless, the label of "trial strategy" does not automatically immunize an attorney's performance from Sixth Amendment challenges. See United States v. Span, 75 F.3d 1383, 1389-1390 (9th Cir. 1996). For example, an attorney's misunderstanding of the law resulting in the omission of his client's only defense is not a strategic decision and amounts to ineffective assistance of counsel. See id. at 1389-1390. But cf. Williams, 384 F.3d at 611-612 (where counsel reasonably selected an alibi defense as the primary defense theory, counsel no longer had a duty to investigate a "conflicting" mental-state defense).

C. Analysis

The Court of Appeal found that trial counsel's decision not to move to exclude Stephanie's testimony, or otherwise challenge the reliability of her memories, did not constitute ineffective assistance of counsel because it was not deficient, i.e. it did not fall "below an objective standard of reasonableness under prevailing professional norms." Jones at 7 (quoting People v. Haskett, 52 Cal. 3d 210, 248 (1990)). Although the Court of Appeal relied primarily on California law, its decision cited Strickland and accorded with federal law governing ineffective assistance of trial counsel.

The Court of Appeal's conclusion that trial counsel's choice of strategy deserved deference is consistent with Strickland's "highly deferential" standard of review, 466 U.S. at 689, because it was based on trial counsel's consultation with an expert in child sexual abuse, her review of the preliminary hearing testimony and her judgment that the jury would believe Stephanie's account of molestation. Petitioner argues that his attorney should have been more familiar with the literature and case law on false memory syndrome; however, Stephanie's memories were spontaneously recalled, not induced by hypnosis or therapy.*fn9 In contrast, the New Hampshire Supreme Court in Hungerford made a decision to uphold a trial court's exclusion of a witness' memories based on the process by which those memories were recovered, in that case formal psychological therapy. Petitioner's counsel investigated the reliability of recovered memories and was aware of at least one case involving a challenge to "false memories" and related expert testimony. Her decision not to pursue that avenue further was not unreasonable in light of Stephanie's generally consistent testimony and the inapplicability of most of the case law and academic literature scrutinizing "false" memories. The Court of Appeal's conclusion that her performance on this issue was not deficient is therefore neither contrary to, nor an unreasonable application of, federal law.

Similarly, the State court's conclusion that trial counsel was not ineffective for failing to move to exclude Stephanie's testimony under Kelly or Evidence Code § 352(b) was neither contrary to, nor an unreasonable application of, federal law. In his brief on direct appeal, Petitioner recognized that Wilson, the only California case at that time to address the issue of spontaneously recovered memory, held that Kelly was inapplicable in cases such as this one. Ex. B, Appellant's Opening Brief at 33. He urged the Court of Appeal to disregard Wilson. As explained above, there is no evidence that Stephanie's testimony was based on or derived from a "novel scientific technique," as with hyponosis, and the Wilson court confirmed that Kelly did not apply to testimony such as Stephanie's. Petitioner has not established that a Kelly motion to exclude would have had a reasonable likelihood of success. As the Court of Appeal reasoned, a § 352(b) challenge would also have lacked merit because Stephanie's testimony was the only direct evidence of the charged offenses and therefore had to be received absent "highly unusual circumstances." Kelly, 49 Cal. App. 4th at 674. Petitioner does not identify any highly unusual circumstances. Because Petitioner has not shown that it was reasonably likely that the trial court would have granted a motion to exclude, he has not shown ineffective assistance under Strickland. Wilson, 185 F.3d at 990.

For these reasons, the Court finds that the State court's decision regarding Petitioner's attorney's failure to challenge the reliability of Stephanie's memories of molestation was not contrary to, or an unreasonable application of, clearly established federal law.

II. Failure to Move for Individual Voir Dire

Petitioner claims that trial counsel was ineffective for failing to move for individual voir dire, or to dismiss the jury panel.

During voir dire, one prospective juror stated that she knew defense witness Lance Worcester, that he had "a reputation," and that she would probably be biased by it. Reporter's Transcript on Appeal (RTA) 32:2-13. Another prospective juror stated that she worked with Karen Priest, that she believed Priest to be an "honest person," and that, because of that knowledge, she could not be unbiased. RTA 63:26-64:14. The prospective jurors revealed no other information or opinion about Mr. Worcester or Ms. Priest. These prospective jurors were excused.

Petitioner argues that trial counsel's failure, upon hearing that prospective jurors were acquainted with Mr. Worcester and Ms. Priest, to move for individual voir dire or dismissal of the jury panel fell below an objective standard of reasonably competent assistance because it undermined the credibility of an important defense witness, and burnished the reputation of an important prosecution witness. However, he does not actually claim that the jury as empaneled was not fair and impartial.

The Court of Appeal concluded that the responses of the prospective jurors were not of a nature likely to influence other jurors' assessment of these witnesses, and that a motion for mistrial would likely have been denied. In addition, it found that in the unlikely event that these comments did influence jurors, the effect would not be prejudicial because of the more significant evidence introduced at trial discrediting Mr. Worcester, as well as rebuttal testimony in support of Ms. Priest's honesty.

Jurors were not likely influenced by these terse comments, and moreover Petitioner can show no resulting prejudice in light of the more detailed testimony introduced at trial about both Mr. Worcester and Ms. Priest. For these reasons, the appellate court did not apply Strickland unreasonably in finding that a failure to move for individual voir dire or dismissal of the jury did not deny Petitioner effective assistance of trial counsel.

III. Failure to Move to Dismiss Third Charge

Petitioner claims that trial counsel was ineffective for failing to move to dismiss the third charge against him, the misdemeanor of furnishing alcohol to a minor, until after the jury had heard the evidence in support of it.

Early in the trial, Stephanie testified that Petitioner gave her root beer-flavored Schnapps when she was in fourth or fifth grade, causing her to "black out." RTA 42-43, 46. She did not testify that Petitioner took advantage of her intoxicated state.

Petitioner's attorney later orally moved to dismiss the charge on the grounds that it was barred by the applicable statute of limitations, explaining that the issue "sort of slipped my mind." RTA 80. The trial court informed the jury that the charge had been dismissed, because it was clear from the evidence that that event allegedly took place more than a year prior to the filing of the information. There is a one-year statute of limitations on misdemeanor conduct so you are to disregard any testimony that relates to the misdemeanor.

Id. at 82. Prior to deliberations, the trial court instructed the jury in accordance with CALJIC 17.46:

The issue of guilt of the Defendant as to Count III is no longer before you. Do not consider this fact for any purpose. It is not relevant to whether the Defendant is guilty or not guilty of Counts I or II.

RTA 451. Petitioner's theory is that despite the trial court's admonishments, the jury might have been prejudiced against him upon learning that the misdemeanor charge was dropped due to a perceived technicality.

The Court of Appeal found that trial counsel's omission did not constitute ineffective assistance of counsel because it was not reasonably probable that moving to dismiss the charge earlier would have changed the result. It reasoned that Stephanie's testimony regarding the misdemeanor count was not particularly inflammatory, and the final jury instruction was sufficient to cure any potential prejudice. The finding that trial counsel's failure to move to dismiss the misdemeanor count earlier did not deny Petitioner effective assistance of counsel was not contrary to or an unreasonable application of Strickland.

IV. Failure to Use Allegations of Uncharged Conduct for Impeachment Purposes

Petitioner claims that trial counsel was ineffective for failing, once allegations of uncharged conduct in Idaho had been introduced, to use those allegations to impeach the testimony of Stephanie and other prosecution witnesses.

Both Stephanie and Karen Priest repeatedly referred to uncharged Idaho conduct. For instance, when Stephanie was asked, "did the Defendant touch your crotch more than the one time you've described to us?", she replied, "Yeah, but I don't think I'm supposed to go back to Idaho." RTA 49. As the Court of Appeal noted,

[Petitioner's attorney] took immediate and appropriate remedial action each time Karen and Stephanie made reference to conduct in Idaho, by successfully moving the court to strike the reference, and admonish the jury to disregard it. She also moved for a mistrial, but the court denied the motion, stating its opinion that any prejudice to appellant could be cured by admonishing the jury to disregard the evidence.

Jones, A086286 at 20. Petitioner did not challenge on direct appeal the trial court's denial of the motion for a mistrial.

In addition, Kerri O'Neill and Mari Yoneda both testified that Stephanie told them that Petitioner had been molesting her since she was six or seven. Trial Tr. 99, 137. The jury heard that Stephanie had written about the molestation in her diary, but was not allowed to view the diary because it referred to conduct in Idaho. Petitioner argues that the admission of this testimony falsely gave the impression that Stephanie had told Ms. O'Neill and Ms. Yoneda about conduct that occurred in California, when in fact she told them about uncharged conduct in Idaho. As the State court explained, however, their testimony was general in nature and did not specifically refer to incidents in either California or Idaho. Instead, it involved Stephanie's complaint "of a continuing course of conduct without reference to specific acts, or places where they occurred." Jones, A086286 at 20 n.12.

Petitioner claims that, once the motion for a mistrial was denied, trial counsel's decision not to revise her trial strategy to use the uncharged Idaho conduct for impeachment purposes constituted ineffective assistance. Petitioner argues that his attorney was wrong to believe that she could not use the Idaho allegations to her benefit, and that her rationale to avoid reinforcing the Idaho evidence in the minds of the jurors was futile, because this evidence "permeated" the trial. A better course, Petitioner opines, would have been to use the Idaho allegations to show that Stephanie had a motive to claim, falsely, that conduct occurred in California as well.

These issues were raised in Petitioner's subsequent, unsuccessful motion for a new trial due to ineffective assistance of counsel.

The State court found that Petitioner's attorney's strategic decisions not to try to "unring the bell" and not to impeach Stephanie on this basis were "entirely reasonable in light of the substantial risk that, if she pursued the course appellant now advocates, the jury could have concluded that he molested her in Idaho, and in California." Jones, A086286 at 21 (emphasis in the original). The State court's decision was not contrary to, or an unreasonable application of, established federal law.

V. Failure to Cross-Examine Karen Priest

Petitioner claims that trial counsel was ineffective for failing to conduct a full cross-examination of Karen Priest.

Petitioner's counsel did not cross-examine Ms. Priest during the prosecution's case in chief. She did cross examine her briefly on rebuttal. As the Court of Appeal found, the record "fully supports [Petitioner's counsel's] description of Priest as a 'loose cannon.'" Jones, A086286 at 21. At the hearing on the motion for a new trial, counsel explained that she limited cross-examination because Ms. Priest could not follow the prosecutor's instructions and the court's orders that she limit her answers to the questions asked and avoid reference to the Idaho allegations. Petitioner's attorney concluded, "The best thing that could be done was to get that woman off the stand as quickly as possible." RTA 38-39.

Based on the preliminary hearing testimony, Petitioner argues that trial counsel could have elicited from Ms. Priest testimony (1) that hostility had developed between Stephanie and Petitioner, thus providing an alternative motive for Stephanie to fabricate her allegations of molestation; (2) that Ms. Priest never noticed anything about Stephanie's behavior that would have caused her concern; and (3) that she and Petitioner had problems in their marriage, which could have provided an alternative explanation for Petitioner's comments to Detective Layfield. Petitioner acknowledges that Ms. Priest was an uncontrolled witness, but argues that his attorney should have moved the trial court to hold her in contempt, or to strike all of her testimony if she continued to disobey orders. This issue was raised in Petitioner's subsequent, unsuccessful motion for a new trial due to ineffective assistance of counsel.

The Court of Appeal reasoned, It is pure speculation that any of these measures would have transformed Priest into a more compliant witness, and the fact remains that even if she were limited to responsive answers, and forced to comply with the order excluding references to Idaho, she was a hostile witness, who, upon cross-examination, could easily have supplied information more damaging than beneficial to appellant.

Jones, A086286 at 21. Petitioner's attorney's decision to limit cross-examination was based on strategic considerations and Ms. Priest's conduct during the rest of the trial, and appears reasonable under the circumstances. Cf. Sanders, 21 F.3d at 1456. The State court decision is not contrary to, or an unreasonable application of, federal law.

VI. Failure to Introduce Evidence Explaining Stephanie's Allegations

Petitioner claims that trial counsel was ineffective for failing to introduce evidence that would have explained Stephanie's ability to describe her allegations of molestation.

At trial, Stephanie testified in detail about her alleged molestation. Petitioner argues that reasonably competent counsel would have elicited the testimony Stephanie delivered during the preliminary hearing, which could have explained her knowledge of sex. At the preliminary hearing, she testified that she realized there was "something wrong" with Petitioner's touching, After -- since I usually watch Nickelodeon on T.V. and I saw a bunch of commercials where is [sic] says it's not right and stuff, and they talked about it and then I read some books and then people were talking about it [at the Boys and Girls Club], you know, and I was just sitting there crying the whole time.

Prelim. Hr'g Tr. 101-02. Petitioner argues that this evidence would have provided the jury with an alternative explanation for Stephanie's ability to describe incidents of molestation, i.e. that Stephanie had learned sexual details from television, books and other people. Petitioner acknowledges that other evidence presented at trial, e.g. that Stephanie watched television unsupervised, also would have supported this alternative explanation. Petitioner further argues that trial counsel should have marshaled this evidence in her closing argument in order to persuade the jury that Stephanie had not been molested.

The Court of Appeal described this as "simply another line of possible impeachment of Stephanie's assertion that she had been sexually molested," and concluded that counsel's decision not to challenge her credibility on that point was an informed strategic decision. Jones, A086286 at 22. As explained above, this conclusion is not contrary to, or an unreasonable application of, federal law.

VII. Failure to Object to CSAAS Argument

Petitioner claims that trial counsel was ineffective for failing to object to the prosecutor's arguments regarding child sexual abuse accommodation syndrome (CSAAS) evidence.

During the trial, prosecution expert witness Dr. Anthony Urquiza testified about CSAAS. According to Dr. Urquiza, CSAAS explains common elements or experiences of children who have been sexually abused, including secrecy, helplessness, sexually inappropriate behavior and delayed disclosure. RTA 202-225.

Such expert testimony is admissible for the limited purpose of disabusing a jury of misconceptions it might have about how a child reacts to a molestation, such as the inference that a delay in reporting is necessarily inconsistent with having been molested. People v. Patino, 26 Cal. App. 4th 1737, 1743-44 (1994). However, it is "beyond dispute that CSAAS testimony is inadmissible to prove that a molestation actually occurred." Id. at 1744. In accordance with this law, the trial court instructed the jury with CALJIC No. 10.64.*fn10 RTA 447-48.

During her closing argument, the prosecutor argued, Dr. Urquiza also told you that children who are molested often display a behavior of what he called entrapment and accommodation, and he described that often what will happen with children who are molested is that they will display behaviors of inappropriate sexual conduct . . . .

And the evidence in this case shows that Stephanie did talk about sexualized things, did act in sexualized ways and that evidence is consistent with the behavior of other molested children.

RTA 394-95. In her rebuttal argument, the prosecutor emphasized that the "behavior [in Stephanie] that people found extraordinary is the very behavior that is consistent with her being molested." Id. at 425. She further argued, "The only reason that this child exhibits sexual conduct is because she was molested." Id.

Petitioner argues that the prosecutor's arguments improperly suggested that Dr. Urquiza's testimony was evidence of molestation, and that trial counsel's failure to object fell below an objective standard of reasonably competent assistance. However, all of the prosecutor's direct references to Dr. Urquiza's testimony were properly limited to whether Stephanie's alleged behavior was "consistent" with CSAAS. The Court of Appeal rejected Petitioner's position on the grounds that the prosecutor's arguments were not objectionable, and moreover any prejudice would have been cured by the CSAAS instruction. Jones, A086286 at 22-23. This decision is not contrary to, or an unreasonable application of, clearly established federal law.

VIII. Choice of Defense Theory

Finally, Petitioner claims that trial counsel was ineffective for adopting a theory that Stephanie was molested by her father, and then abandoning that strategy and failing to present any rational defense theory.

Lance Worcester and Virginia Scott were defense witnesses who suggested that Stephanie's father had inappropriate sexual contact with her. During the closing argument, Petitioner's attorney suggested that improprieties had occurred, but did not expressly claim that the father molested Stephanie. Instead, defense counsel focused on the argument that Stephanie and her mother were vengeful, untrustworthy and controlling. RTA 408-418. Petitioner characterizes the suggestion that Stephanie had been molested by her father, yet wished to live with her father in Santa Cruz, as "repugnant." He accuses his attorney of offering the jury no alternative but that Stephanie had been molested as she claimed.

Petitioner's argument rests on the assumption that challenging the reliability of Stephanie's memory was a superior alternative that a reasonably competent attorney objectively should have chosen. However, as explained above in Section I, the Court of Appeal concluded that Petitioner's attorney's decisions were informed, strategic choices which should be granted deference, and the Court found that this conclusion was not an unreasonable application of federal law. Although another lawyer might have made a different, and perhaps better, decision, the choice of defense strategy was not comparable, as Petitioner claims, to an outright concession of guilt, abdicating responsibility to present a defense, or sleeping through the trial. Cf. Young v. Zant, 677 F.2d 792, 798 (11th Cir. 1982) (finding trial counsel ineffective where strategy was to pursue insanity defense despite prosecution's weak case-in-chief); Groseclose v. Bell, 130 F.3d 1161, 1169-70 (6th Cir. 1997) (finding trial counsel ineffective where lawyer failed to have any defense theory and abdicated control to counsel for co-defendant with antagonistic interests); Gaines v. Hopper, 575 F.2d 1150 (5th Cir. 1997) (finding trial counsel ineffective where he failed to conduct any independent investigation); Javor v. United States, 724 F.2d 831, 833 (9th Cir. 1982) (holding that conduct of defense counsel who slept through substantial portion of trial was inherently prejudicial).

In his petition to the California Supreme Court for review, Petitioner notes that his attorney presented evidence by Kirby Wood that Stephanie had identified him as her molester. RTA 251. He argues that this error shows trial counsel could not, contrary to the Court of Appeal's finding, have made an informed strategic decision to attack Stephanie's credibility only with respect to her identification of Petitioner. While Ms. Wood's appearance as a defense witness is inexplicable, it was very brief and does nothing, in light of Stephanie's identification of Petitioner as her abuser to numerous other witnesses, to undermine the Court of Appeal's decision that Petitioner's attorney made an informed, strategic choice of defense theory. The Court concludes that the State court's decision was not contrary to, or an unreasonable application of, clearly established federal law.

IX. Cronic Error

Petitioner asserts that the foregoing instances of ineffective assistance amounted to conduct so egregiously prejudicial that prejudice and ineffective assistance are presumed. See United States v. Cronic, 466 U.S. 648, 658-62 (1984). Prejudice is presumed in those rare cases where counsel "entirely fail[ed] to subject the prosecution's case to meaningful adversarial testing." Id. at 659. See, e.g., United States v. Swanson, 943 F.2d 1070 (9th Cir. 1991) (prejudice presumed where counsel conceded in argument to jury that there was no reasonable doubt regarding factual issue in dispute); Javor, 724 F.2d at 833; cf., e.g., Florida v. Nixon, 125 S.Ct. 551, 562 (2004) (defense counsel's strategic decision to concede, at the guilt phase of trial, the defendant's commission of murder, and to concentrate the defense on establishing, at the penalty phase, cause for sparing the defendant's life, did not rank as a failure to function in any meaningful sense as the government's adversary). For Cronic's presumption of prejudice to apply, the attorney's failure must be "complete." Bell v. Cone, 535 U.S. 685, 695 (2002). The court must consider the proceeding as a whole; that counsel failed to subject the prosecution's case to meaningful adversarial testing at specific points does not trigger Cronic's presumption of prejudice. Id.; Gerlaugh v. Stewart, 129 F.3d 1027, 1036-42 (9th Cir. 1997) (rejecting claim that failure to beg for leniency is prejudicial per se after considering totality of counsel's efforts).

For the reasons already detailed, the State court found that trial counsel was not ineffective, and for the most part did so without reaching the issue of prejudice. The Court has found that this conclusion is not inconsistent with, or contrary to, federal law. For the same reasons, the Court also denies Petitioner's claim that his trial counsel's failure was so complete that prejudice should be presumed.

CONCLUSION

Petitioner has failed to establish a Sixth Amendment claim for the ineffective assistance of trial counsel. Accordingly, his claims for habeas corpus relief are DENIED. The Clerk shall enter judgment and close the file.

IT IS SO ORDERED.


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