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COCHRAN v. ADAMS

United States District Court, S.D. California


September 28, 2005.

MAC DAVID COCHRAN, Petitioner,
v.
DERRAL G. ADAMS, Respondent.

The opinion of the court was delivered by: LARRY BURNS, Magistrate Judge

ORDER ADOPTING REPORT AND RECOMMENDATION, GRANTING IN PART AND DENYING IN PART RESPONDENT'S MOTION TO DISMISS HABEAS PETITION
[Dkt No. 6]
Petitioner Mac David Cochran ("Cochran"), a state prisoner proceeding pro se with a 28 U.S.C. § 2254 habeas petition, presents ten grounds in support of his Petition. Respondent moves to dismiss the Petition in its entirety. Respondent argues Cochran has included unexhausted claims (asserted to be Claims One, Five, and Eight), and federal habeas review is not available for Claims One, Two, Seven, and Nine because the state court resolved those claims on independent and adequate state law grounds, procedurally barring them from federal habeas review. Respondent contends the Court must require that Cochran amend his Petition to delete his unexhausted claims, or the Court must dismiss the Petition in its entirety without prejudice. Respondent seeks to stay the proceedings pending exhaustion and elimination of the procedurally defaulted claims. Magistrate Judge William McCurine, Jr. prepared a Report and Recommendation ("R&R") that Respondent's Motion be granted in part and denied in part. Dkt No. 19. The noticed deadline for filing Objections to the R&R passed on August 8, 2005, with none filed. On August 23, 2005, the Court received, accepted for filing, and granted Cochran's Motion For Enlargement Of Time In Which To File Objections To Report And Recommendation, requesting an extension of the deadline to August 28, 2005 (a Sunday), because it bore a timely signature date of August 3, 2005, and Cochran provided a proof of service by mail of the extension request also dated August 3, 2005. Cochran timely filed lengthy Objections on August 29, 2005. See FED.R.CIV.P. ("Rule") 6(a). The deputy attorney general assigned to this case informed the Court the government elected not to file a Reply to the Objections.

For the reasons discussed below, the Court ADOPTS the R&R granting in part and denying in part Respondent's Motion To Dismiss.

  I. BACKGROUND

  An Amended Indictment charged Cochran with 39 criminal counts arising from discrete acts committed in the sexual abuse of his nine-year old daughter, 38 of which involved one or the other of the same two Penal Code provisions. See R&R pp. 2-3; Lodg. 1 at 178-85. The primary evidence introduced at trial was a twenty-minute videotape Cochran made of himself engaged with his daughter in the various charged acts and still photographs taken from the videotape which Cochran posted on the Internet. The FBI had seized the videotape in Cochran's home after receiving information child pornography posted on the Internet originated from his e-mail address. Cochran admitted having a sexual relationship with his daughter for the prior four month period and admitted posting the photographs on the Internet one time. R&R pp. 2-3, 18-25; Lodg. 4, People v. Cochran, No. D034916, slip. op. at 2-3, published at 107 Cal.Rptr.2d 119 (2001), rev'd on other grounds in People v. Cochran, 25 Cal.4th 396 (2002), Lodg. 5.

  The victim's name, "Jennifer C.," appears in several but not all of the Amended Information counts. All the counts except one reference the time code on the videotape and a description of the sex act memorialized at that point supporting the specific criminal count. There is no dispute only Cochran and Jennifer appear on the videotape. Each count also cites the particular section of the California Penal Code under which each crime was charged. Lodg. 1 at 178-85. Cochran did not and does not dispute he performed the acts.*fn1 Instead, his defense, and his habeas challenges consist largely of contentions there is an absence of proof the acts were performed by "force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim," a required element of the crimes.*fn2 Lodg. 1 at 205-08. After a bench trial, the judge convicted Cochran of all but one of the charged crimes: twenty-eight counts of aggravated assault on a child, and ten counts of forcible lewd act upon a child. Lodg. 1 at 205-08, 261. Cochran was sentenced in January 2000 to 143 years to life in state prison. The Court incorporates by reference the undisputed subsequent state procedural history recited in the R&R, Section II.

  Cochran's federal habeas Petition seeks relief from the conviction and sentence on grounds of: (1) ineffective assistance of trial and appellate counsel; (2) lack of sufficient notice in the charging document; (3) violation of his right to confrontation because the prosecution did not call the victim as a witness; (4) insufficient evidence of force, violence, or duress to support his convictions on counts 1 through 38; (5) entitlement to acquittal on counts 1 through 38 because no person accused him of committing a crime; (6) denial of a fair trial and due process because of the prosecution's purported misconduct in not calling the victim to testify; (7) his sentence violates his Sixth and Fourteenth Amendment rights because the judge considered elements not alleged in the information; (8) cumulative error through his trial and appellate counsel's failure to act as reasonable advocates; (9) denial of protection against unreasonable government seizure; and (10) denial of due process and a fair trial because the prosecutor solicited perjured testimony and used a copy of the videotape, violating the best evidence rule. Pet. pp. 13-107. Respondent moves to dismiss the Petition as "mixed," contending Claims One, Five, and Eight have not been exhausted. Respondent also moves to dismiss Claims One, Two, Seven, and Nine as procedurally defaulted under the doctrine of adequate and independent state law grounds for denial of relief. Cochran opposed the motion. In a thorough, well-reasoned R&R, Judge McCurine recommends Respondent's Motion be granted in part and denied in part. The R&R demonstrates all Cochran's habeas claims are technically exhausted. The R&R concludes the procedural bars imposed by the state courts were "adequate and independent" so as to support a procedural default of his Claims One, Two, Seven, Eight, and Nine, with no showing of cause and prejudice or of a fundamental miscarriage of justice adequate to excuse the default. Unless a procedural default is excused on one of those grounds, a federal habeas court cannot reach the merits of the claim. Park v. California, 202 F.3d 1146, 1150 (9th Cir. 2000). The R&R accordingly recommends those five claims be dismissed from the Petition.

  Cochran "accepts the statements [in the R&R] as to Federal Proceedings, State Proceedings, and part of the Discussion. . . ." Objections ("Obj.") p. 2. He also takes no exception to the analytical framework of the R&R or to Judge McCurine's reliance on Lodgement 10, the California Court of Appeal's denial of four of the claims found in the R&R to be procedurally defaulted, under the "look through" doctrine of Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991).

  However, Cochran objects to R&R Part III.B, analyzing the unexcused procedural default of Claims One, Two, Seven, Eight and Nine. Obj. p. 2. Judge McCurine recommends the Court find federal habeas review of those claims is foreclosed because the state court applied an adequate and independent state procedural bar to consideration of their merits. The state court's discussion cited In re Harris, 5 Cal.4th 813, 834 (1993)*fn3 (a case intended to clarify the exceptions to the Dixon rule)*fn4 and In re Clark, 5 Cal.4th 750, 759 (1993) (intended to clarify the exceptions to both the Dixon rule and the untimeliness bar) to find Cochran had not demonstrated a miscarriage of justice in the review of his legal claims, "both constitutional and otherwise." Lodg. 10, slip op. at 1-2. Judge McCurine sua sponte considered "whether claim eight and those portions of claim one which were not presented to the state supreme court but which are now subject to the same procedural bar are also procedurally defaulted," and concluded they are. R&R 10:8-13.

  Cochran opposed the Motion To Dismiss, contending: the rule of In re Dixon, 41 Cal. 2d 756 (1953) is not independent of federal law;*fn5 he did everything in his power to properly present these claims in the state courts; his ineffective counsel caused any default; and a fundamental miscarriage of justice would result if this Court were to refuse to reach the merits of those claims.*fn6 Opp. pp. 5-9. He reprises those arguments in his Objections to the R&R.

  II. DISCUSSION

  A. Legal Standards

  A district judge "may accept, reject, or modify the recommended decision" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. FED. R. CIV. P. 72(b); see 28 U.S.C. § 636(b)(1). "The court shall make a de novo determination of those portions of the [R&R] to which objection is made." 28 U.S.C. § 636(b)(1); see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en banc), cert. denied, 540 U.S. 900 (2003).

  B. Exhaustion

  No Objections have been filed to the recommendation that this Court find the Petition is not a "mixed petition." See R&R III.A. For the reasons set forth in the R&R, the Court finds Claims One, Five, and Eight meet the technical requirements for exhaustion, and the Petition is not "mixed." C. Cochran's Claims One, Two, Seven, Eight, And Nine Are Procedurally Defaulted

  "A district court properly refuses to reach the merits of a habeas petition if the petitioner has defaulted on the particular state's procedural requirements and is unable to demonstrate cause and prejudice or a fundamental miscarriage of justice." Park, 202 F.3d at 1150 (emphasis added), citing O'Sullivan v. Boerckel, 526 U.S. 838 (1999); see Coleman v. Thompson, 501 U.S. 722, 729, 750 (1991) (same).

  The state Court of Appeal, in denying Cochran habeas relief cited Harris, 5 Cal.4th at 824 and Clark, 5 Cal.4th at 759.

 

When a state court's rejection of a federal claim involves a violation of a state procedural rule which is (1) adequate to support the judgment and (2) independent of federal law, a habeas petitioner has procedurally defaulted his claim. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). A state procedural rule is "independent" if it is not interwoven with federal law. LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). A state procedural rule is "adequate" if it is "clear, consistently applied, and well-established at the time of the default." Calderon v. U.S. District Court, 96 F.3d 1126, 1129 (9th Cir. 1996).
R&R 10:18-24 (emphasis added).

  On the issue of "independent" state law grounds, Cochran argued in opposition to the Motion all the claims in his Petition were previously raised in state court and "no California court denied relief based on Robbins,"*fn7 so "this Court must presume that the state denial was based at least in part upon federal grounds." Opp. pp. 9, 7. A claim denied in part on federal grounds is not procedurally defaulted for purposes of federal habeas review. In Robbins, the California Supreme Court explained its orders which dismiss a ground as "untimely" signify "the petitioner failed to establish the absence of substantial delay or good cause for delay, and that none of the four [procedural default] exceptions set out in Clark apply." Robbins, 959 P.2d at 340 n. 34 (citations omitted). The Clark court enumerated the manner in which a miscarriage of justice can be demonstrated to overcome a bar of untimeliness or the Dixon*fn8 rule. Clark, 5 Cal.4th 750. "A miscarriage of justice is established by showing `(1) that error of constitutional magnitude led to a trial that was so fundamentally unfair that absent the error no reasonable judge or jury would have convicted the petitioner; (2) that the petitioner is actually innocent of the crime or crimes of which he was convicted; (3) [applicable to death penalty cases only]; or (4) that the petitioner was convicted under an invalid statute.'" Lodg. 10, p. 2, quoting Clark, 5 Cal.4th at 759. The court characterized the Harris rule as providing that "an opportunity for a third chance at judicial review (trial, appeal, postappeal habeas corpus)" and as justified only where the petitioner has established a fundamental miscarriage of justice as that term is defined by Clark.

  Only the first and second Clark exceptions are potentially implicated in this case. The Robbins court held: "[W]henever we apply the first three Clark exceptions, we do so exclusively by reference to state law." Robbins at 812, n. 32 (emphasis added). The application of the Robbins construction was to be prospective only, and its purpose "was to establish the adequacy and independence of the State Supreme Court's future Dixon/Robbins rulings and to indicate that a prisoner seeking collateral relief with respect to new federal claims no longer had any recourse to exhaust in the state courts." Park, 202 F.3d at 1153 n. 4. Cochran's case was filed and decided after Robbins. Accordingly, this Court finds the citations to Clark and Harris in the Court of Appeal's March 14, 2003 denial of Cochran's habeas petition indicates the case was decided on independent state law grounds, and the absence of a citation to Robbins is immaterial. See Bennett v. Mueller, 322 F.3d 573, 579-80 (9th Cir.), cert. denied, 540 U.S. 938 (2003)*fn9 (a state court opinion decided after Robbins and which involves the Clark "fundamental miscarriage of justice" exception to the state procedural bar need not cite to Robbins in order to be viewed as applying the post-Robbins construction, i.e., the untimeliness bar is an independent state ground sufficient to support a procedural default). From that authority, this Court finds the state court's denial of Cochran's petition was based on state procedural grounds independent of federal law, and his objections to the R&R recommendation on that point are overruled. With respect to whether the state court decision rests on grounds independent of federal law that are also "adequate" to bar federal review, the petitioner has the burden to assert "specific factual allegations that demonstrate inadequacy." Bennett, 322 F.3d at 586. "A state procedural rule constitutes an adequate bar to federal habeas review if it was `firmly established and regularly followed' at the time it was applied by the state court." Poland v. Stewart, 169 F.3d 573, 585 (9th Cir. 1999), quoting Ford v. Georgia, 498 U.S. 411, 424 (1991). The Bennett court counsels: "Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner." Bennett, 322 F.3d at 586. To shift the burden back to the state, the petitioner needs to make specific factual allegations "that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule."*fn10 Id. Cochran argued only that "he was unable to present his claims to the state courts in a manner which would have avoided the Harris bar," not that the Harris rule has been inconsistently applied or the state procedure is inadequate. R&R 13:17-21; Opp. at pp. 6-9.

  The R&R recommends finding Respondent demonstrated that at the time of the procedural default at issue here — i.e., in or about June 2000, when the claims should have been presented to the appellate court on direct appeal — the Dixon rule was firmly established, having been decided in 1953 and reaffirmed in 1993 in Harris, 5 Cal. 4th 813. R&R 13:1-8; see Calderon v. U.S. District Court, 103 F.3d 72, 74 (9th Cir. 1996) (observing that the Harris court "reaffirmed [Dixon's] continued vitality and narrowed the available exceptions to the rule"). Cochran's Objections do not undermine the soundness of that analysis. His reliance on Park and Field v. Calderon, 125 F.3d 757, 765 (9th Cir. 1997), deciding petitions filed before Robbins, for the proposition that under Harris and Clark, the Dixon rule does not bar federal review of the petitioner's default claims is misplaced.

  In consideration of Cochran's Objections and after de novo review of the pertinent record and applicable authority, this Court adopts the R&R findings that the state procedural rules applied to bar his claims are independent of federal law and adequate to support the judgment. Claims Two, Seven, and Nine,*fn11 and those aspects of One identified in the R&R are therefore procedurally defaulted in this Court. In addition, the Court adopts the R&R finding that Claim Eight (alleging cumulative effect of instances of ineffective assistance of trial and appellate counsel) and those aspects of Claim One which were not presented to the state supreme court (alleging instances of ineffective assistance of trial and appellate counsel) and for which Cochran no longer has state remedies available are also procedurally defaulted in this Court. R&R pp. 13-14; see Cassett v. Stewart, 406 F.3d 614, 621 n. 5 (9th Cir. 2005).

  D. Insufficient Demonstration Of Cause And Prejudice Or Miscarriage Of Justice To Excuse Procedural Default

  1. Attempted Showing Of Cause And Prejudice Inadequate

  To overcome an adequate and independent state procedural bar foreclosing federal habeas review of claims defaulted on that basis, a petitioner must "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. The "cause" prong is satisfied if the petitioner demonstrates some "objective factor" precluded him from raising the claims in state court, such as interference by state officials or constitutionally ineffective counsel.*fn12 McCleskey v. Zant, 499 U.S. 467, 493-94 (1991); Wood v. Hall, 130 F.3d 373, 378 (9th Cir. 1997). "Prejudice is actual harm resulting from the alleged error." Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998); United States v. Frady, 456 U.S. 152, 170 (1982) (the petitioner must show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions"). Both prejudice and cause must be shown before relief from a default will be granted.

  The R&R approached the analysis by first demonstrating Cochran failed to establish the essential element of prejudice, then concluded it need not reach a causation analysis, because both must be shown before this Court can reach the merits of a procedurally defaulted claim.*fn13 See Park, 202 F.3d at 1150; Coleman, 501 U.S. at 729. The R&R concludes Cochran's showing is inadequate to overcome the procedural default of Claims One, Two, Seven, Eight, and Nine.

  Cochran's challenges to his conviction and sentence may be broadly categorized as alleging "charging errors, overcharging, inadequate notice, and ineffective assistance of counsel" in failing to raise those errors and in conducting his trial in a manner that purportedly deprived him of a fair trial. See Lodg. 10. Cochran's Claim One asserts his trial counsel: should have objected to deficiencies in the Amended Information; should have objected to the trial court's decision to defer a ruling on a defense motion for acquittal until after the victim testified (trial counsel actually requested that delay to put on a defense witness); should have rested the defense case immediately after the prosecution rested and should not have called the victim to testify; and should have understood Cochran purportedly could not be convicted without testimonial evidence from his accusers. Pet. at 13-22. In support of his claim of ineffective assistance of appellate counsel, he asserts his attorney should have raised on direct appeal or in contemporaneous state habeas proceedings his allegations regarding ineffective assistance of trial counsel and, in addition, should have added his trial counsel was also ineffective for: failure "to object to the use of copies of the videotape rather than the originals;" failure to have an expert witness examine the audio portions of the videotapes; and failure to call two doctors as witnesses who purportedly "could have provided information" that Cochran could be given probation rather than his 143 years-to-life sentence. Pet. pp. 22-24. Cochran ranks his complaints: "The most egregious violations committed by trial counsel, and overlooked by appellate counsel, were the `notice' violations, and the `confrontation' violations." Pet. p. 24.

  An ineffective assistance of counsel claim can itself be an independent constitutional claim and "cause" adequate to excuse procedural default in some circumstances. Edwards v. Carpenter, 529 U.S. 446 (2000). "In other words, ineffective assistance of counsel adequate to establish cause for the default of some other constitutional claim is itself an independent constitutional claim." Id. at 451-52, citing Murray v. Carrier, 477 U.S. 478, 488-89 (1986). To qualify as deficient performance, counsel's errors must have been "so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984) (counsel's errors must have deprived the petitioner of a fair trial, that is, "a trial whose result is reliable," so that there is a reasonable probability the result of the proceeding would have been different absent the error); see also Smith v. Robbins, 528 U.S. 259, 283, 285 (2000) (the Strickland standard applies to claims of ineffective assistance of appellate counsel as well as trial counsel). The R&R demonstrates the insufficiency of Cochran's ineffective assistance of counsel contentions to avoid procedural default.

  Cochran argues his counsel would not raise some of the issues he presents in his habeas petition. However, there is "no constitutional obligation [that counsel] raise every nonfrivolous issue requested by the defendant." Miller v. Keeney, 882 F.2d 1428, 1434 n. 10 (9th Cir. 1989). After de novo review of the record, and for the reasons discussed in the R&R and incorporated herein, this Court finds none of the errors Cochran alleges in Count One raises any reasonable concern the result of the criminal proceedings would have been different absent counsel's alleged errors.

  Cochran's Claim Two and Claim Seven "charging errors" identify two purported deficiencies in the Amended Information: failure to identify the victim by name in each and every count and failure to allege in each and every count the required element of duress or force in commission of the acts. The Court adopts the R&R analysis and recommended result on these issues. Charging documents are to be read as a whole and as including facts necessarily implied, construed according to common sense. United States v. Buckley, 689 F.2d 893, 899 (9th Cir. 1982). Cochran's contention his Fifth, Sixth, and Fourteenth Amendment rights were violated because the Amended Information did not inform him of the victim's identity when her name does not appear in each and every one of the 39 counts, all relying on the same videotape which depicts Cochran performing sex acts with a single victim, is patently without merit. Accordingly, it cannot form the basis for a finding of either constitutionally deficient performance of his counsel for failure to raise the issue or a finding it deprived him of constitutionally protected "notice." This Court adopts the conclusion and rationale in the R&R after de novo review of the record. See R&R pp. 18-20. Cochran actually acknowledges there was no question about the sole victim: "Jennifer's identity was not disputed. Jennifer's presence in the photographs and videotape was not disputed." Pet. pp. 20, 24. This Court finds no error on the notice issue that could support the requisite prejudice finding to overcome procedural default.

  Reading the Amended Information as a whole, the Court finds Cochran was also on adequate notice of all the elements of the aggravated assault offenses under CAL. PENAL CODE § 269, including the commission of the crimes by force or duress, and under the forcible lewd acts on a child offenses under CAL. PENAL CODE § 288(b)(1), including the element under CAL. PENAL CODE § 288(a) that the acts were willfully and lewdly committed for the purpose of arousing, appealing to, or gratifying his sexual desires. See Lodg. 1 at 178-85 (Amended Information). Some of the individual counts do not reiterate the force or duress language in express terms. However, most of the counts do contain that language, and each count identifies the Penal Code section under which the crime is charged, setting forth the elements of the crimes. The Court finds the Amended Information adequately placed Cochran on notice of all the elements of the crimes he needed to defend.*fn14 See Hamling v. United States, 418 U.S. 87, 117 (1974) (an indictment provides a defendant with adequate notice if "it contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and . . . enables him to plead acquittal or conviction in bar of future prosecutions for the same offense"); see also Buckley, 689 F.2d at 899.

  Cochran relies on Taylor v. United States, 495 U.S. 575, 602 (1990) to support his objection that the charging paper is constitutionally infirm in his case. The Taylor Court held as an alternative showing adequate to defeat an allegation of constitutional infirmity the offense constitutes the crime charged if "the charging paper and jury instructions actually required the jury to find all the elements of [the crime] in order to convict the defendant." Taylor, 495 U.S. at 602 (emphasis added). Cochran's was a bench trial. Also, unlike in Taylor, the statutory bases for the crimes, setting forth all elements required to be proved, clearly informed the factfinder of the required elements to convict of the charged crimes. Cochran's representation accordingly was not constitutionally deficient for failure of his counsel to pursue the charging instrument's purported deficiencies.

  Similarly, Cochran's Objection that "no jury or judge sitting without a jury could possibly find that [these charges] were committed for the specific purpose of sexual arousal, gratification or abuse, or that they were committed by use of force, violence, duress, menace or fear of immediate and unlawful bodily injury, because these elements were not charged in the charging paper" is without merit and ignores that the trial actually proceeded on the primary defense theory that evidence of force or duress was lacking.*fn15 Obj. p. 8 (emphasis added). The trial transcript reveals the duress element was the pivotal issue in the case and was thoroughly tried. Lodg. 2, passim. The videotape evidence and Cochran's admission he performed the charged acts dispose of the sexual gratification issue. The crimes tried were the same crimes charged. Cochran's objections with respect to the effect of the wording of the Amended Information on the fairness of his trial and conviction are overruled. With respect to the "confrontation" challenge, Cochran contends he was not permitted to "confront his accuser" in violation of his Sixth Amendment rights, even though Jennifer testified, albeit as a witness for the defense. Lodg. 2, pp. 117-135. Cochran objects: the prosecution rested without calling the victim or any percipient witness to testify the charged conduct was pursued by force, duress, menace or fear; although Jennifer testified for the defense that she was not afraid of her father and did not say force, duress, violence, menace, or fear of bodily injury was used to make her perform the sex acts, his counsel should not have put on a case to "negate" that essential element when the prosecution purportedly failed to carry its burden and "adduced no evidence on that element" (Pet. p. 21); and, although his trial counsel brought a motion to acquit after the prosecution rested, she should not have asked the court to delay ruling until after Jennifer testified.

  Cochran relies on Bains v. Cambra, 204 F.3d 964, 973 (9th Cir. 2000) for the proposition that the Sixth Amendment right to confront the witnesses against him was violated when the prosecutor did not call Jennifer to testify, but rather purportedly "gave his subjective opinion of what the videotape showed without calling the complaining victim." Obj. p. 16. The Bains case is wholly distinguishable. That case, in pertinent part, was tried to a jury and stands for the proposition that in order to introduce hearsay statements of unavailable witnesses, prosecutors must show the statements bear indicia of reliability. The issue of Jennifer's testimony does not arise in that context.

  Cochran also "asserts that his trial attorney was under a duty and obligation to rest any defense following the prosecutor's resting of its case-in-chief." Pet. p. 20. He characterizes defense counsel's decision to call Jennifer to testify on his behalf as another example of ineffective assistance of counsel: "Petitioner was forced, by incompetent counsel, to prove his innocence before his guilt had been established by his accusers beyond a reasonable doubt." Pet. p. 21. Although Jennifer did not testify that Cochran used force, violence, duress, or fear to induce her to perform the acts memorialized in the videotape, conduct Cochran does not deny, his counsel purportedly used her "to fill-in the gaps of the prosecution[']s case" to his detriment. Pet. p. 21. The videotape actually filled all the "gaps."

 

The objection to the admissibility of the tape and its contents, verbal and visible, is overruled. It occurs to this court that the videotape in this case is especially suited for a determination of the ultimate issues, particularly, as to whether the defendant used excessive force and/or duress, express or implied. There's no better piece of evidence than the videotape to reveal the words that were used, the positions that were exercised, and the tone used by the defendant in directing his daughter to perform various sex acts.
Lodg. 229:5-14.

  Defense counsel's argument in her unsuccessful motion in limine to exclude the videotape evidence as irrelevant reveals a reasonable defense strategy to challenge the required element of force or duress through Jennifer's own testimony, given that denial the conduct occurred was not an option and in consideration of the prosecution's strong case:

But since [the factor of the parental relationship in a duress analysis] is a factor and it is the issue — factual issue in the case, that the court is going to have to make a finding of fact in order for its ruling, the tape is extremely misleading, doesn't give the whole picture. How can the court make a determination of what was going on in the mind of the little girl before. Well, did she say no? Was she threatened? Was she induced? We don't know, other than the act, and we're not putting the act at issue. And with that, it becomes irrelevant as to any determination for the trier of fact.
Lodg. 2, 27:16-25 (emphasis added).

  During trial, defense counsel alerted the trial court of her intention to file a written motion to dismiss on the basis the element of force or duress was not established by the videotape, but asked the trial court to defer ruling until after the victim testified, because she anticipated the motion would be based in part on facts elicited during the victim's testimony. Lodg. 2 pp. 116-117. The prosecutor had no objection to the timing of that motion. Defense counsel called Jennifer to attempt to reinforce the theory Cochran did not induce her participation by violence, duress, or fear. The child testified as anticipated, as summarized by the appellate court:

The daughter testified the sexual relationship with her father began in the summer before the search, when she started the fourth grade. He filmed her with the video camera only one time. She was not afraid of him. Sometimes he would hurt her "(j)ust a little bit, but not that much," and when she told him it hurt, he would stop. Afterwards, Cochran would give her money, things for school or candy. He told her not to tell anybody because he would get into trouble and would go to jail. She was sometimes sad and sometimes mad about the things Cochran was doing to her.
Lodge. 4, pp. 2-3.

  The defense rested immediately after the victim testified. Lodg. 2 p. 135. The rebuttal case consisted of a recalled FBI agent.*fn16 The parties argued the defense motion to dismiss along with their closing arguments. Defense counsel focused on the prosecution's purported failure to prove the required element of duress, force, or fear, relying on the victim's testimony that she was never afraid and was never forced to do anything she did not want to do. Lodg. 2, pp. 170-85. Appellate counsel raised the same unsuccessful argument.

  The prosecutor argued psychological duress based on Cochran's relationship to Jennifer. As the prosecutor summarized, in part:

So as the court reviews the facts in this case, I think that the evidence became clear that the relationship, the age, the size, the secret, the gifts, the continual sexual attacks, the videotape which shows the coaxing, coaching, taken together with the verbal commands that he issues throughout the 20 minutes can only come to one conclusion, that this is a case of aggravated sexual assault that is properly punished under 269.
Lodg. 2, 166:3-10.

  Both the trial court and the court of appeal found the videotape alone supported a finding of duress irrespective of the victim's testimony, based on the images and the verbal exchanges between Cochran and his minor daughter during the videotaped sexual assaults, and even without the FBI Agent's rebuttal testimony. Lodg. 2 pp. 190-93; Lodge. 4 pp. 3-4. The trial court enumerated seven reasonable factual bases in support of the convictions relying on the totality of the circumstances. Lodg. 2, pp. 190-192. The court reviewed an apparent conflict in California authority with respect to the elements of force when a child is involved, to conclude:

In this case, by any reasonable view of the contents of People's 1 and 6, force was used to perpetrate the lewd acts. The victim herself testified that she did not want to do them, and this is confirmed by the gagging and crying manifested in the videotape, People's 1, and in the audio, People's 6.
. . .
In sum, when an adult male causes a nine-year-old girl victim to cry out in pain, to gag, and ask to stop for a variety of reasons, that manifests force sufficient to support beyond a reasonable doubt a finding of force.
Lodg. 2, 192:24-193:12. The R&R reviews the claims Cochran contends should have been but were not raised by his appellate counsel and concludes each is without merit, recommending rejection not only of his claims of ineffective assistance of counsel but also a finding that Cochran could not establish the prejudice element he must satisfy in order to overcome a procedural default, and reasoned on that basis the court need not reach the causation element. R&R 16:1-7.

  For all the foregoing reasons, the Court adopts the R&R recommendation finding Cochran has not carried his burden to demonstrate the procedural default of his Claim One (ineffective assistance of trial and appellate counsel) should be excused based on cause and prejudice. Similarly, he demonstrates no cause and prejudice with respect to his Claim Two (charging document notice deficiencies), with respect to his Claim Seven (trial court's sentence considered elements purportedly not alleged in the Amended Information), or with respect to his Claim Eight (cumulative errors by counsel). Cochran raised no objections to the dismissal of Claim Nine (his Fourth Amendment challenge to the seizure of the videotape), a claim also procedurally defaulted.

  2. Attempted Showing Of Fundamental Miscarriage Of Justice Inadequate

  Cochran objects to the R&R, as he did in opposing the Motion, on grounds he is "actually innocent of having committed the crimes by use of force or duress," constituting an error of "constitutional magnitude." Obj. pp. 12, 13, 17-19. He argues that the miscarriage of justice exception must apply to excuse his procedural defaults so this Court can reach the merits of his claims.

  "[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." Wood, 130 F.3d at 378, quoting Schlup v. Delo, 513 U.S. 298, 327 (1995). A showing of fundamental miscarriage of justice based on "actual innocence" means factual innocence, not legal insufficiency. Merely creating reasonable doubt is not enough. The petitioner must establish "that no reasonable juror with knowledge of [the evidence] would have convicted [the petitioner]." See Wood, 130 F.3d at 379

  Cochran concedes the acts depicted on the videotape occurred. He relies on purely legal insufficiency arguments, whereas his burden is to demonstrate his factual innocence of the crimes. His Objections raise such technical arguments as the fact his daughter never stated he "raped" her, a purportedly fatal deficiency to his conviction for Counts 26, 27, 35, and 36 of the Amended Information.*fn17 Obj. p. 9 ("Petitioner claimed violations of his Sixth and Fourteenth Amendment rights in that no victim witness testified she was raped" and the allegations purportedly did not allege the conduct underlying the charges were committed by use of force, violence, duress, menace, or fear of bodily injury, a contention disposed of above). He characterizes the conduct depicted in the videotape as "acts of sexual misbehavior but no more." Obj. p. 9. "Petitioner may have committed lewd and lascivious acts or may have committed acts of incest but these acts can be committed without using force or duress."*fn18 Obj. p. 10. "Petitioner submits that the magistrate judge also viewed the acts as something deplorable, and Petitioner agrees. However, deplorable acts can be committed without using force or duress." Obj. pp. 11, 12 ("Deplorable and repulsive behavior cannot take the place of force and or duress in the charged crimes"). His argument that he was purportedly required to "prove his actual innocence to elements not charged in the charging document" (Obj. p. 9) was discussed and rejected above.

  The gravamen of Cochran's argument appears to be that "force" and "duress" are so narrowly defined that a parent seeking sexual gratification through exploitation of his child but who is not captured on tape verbally threatening the child or physically restraining cannot be convicted of lewd and lascivious conduct or aggravated sexual assault for lack of evidence of "force or duress." Obj. p. 13. He urges rejection of the prosecutor's theory that "duress" can be implied:

Also, the prosecutor used the term force to mean psychological force. He stated that: "So I think the basic answer — Were you afraid of your father? `No' — is not as far as we have to go in this case, because the case law says that duress can be implied, can be more of a form of psychological coercion, and that's what's present in this case. That's why the testimony and the videotapes show forced sex crimes. It is granted, there is no physical force used, but it is not necessary, because the statutes, both 288(b) and 269, specifically include duress as a different form of force on a child. [¶] The psychological force was Mac vers[u]s his daughter, and in eight specific ways those were shown in this . . . case."
Obj. p. 18, quoting from Reporter's Transcript at p. 158.

  Cochran's assertion that the trial judge ruled based on grounds of moral revulsion is belied by the transcript of the trial and that court's acknowledgment: "the determination here is strictly a legal question, not a moral one, based on the totality of the evidence."*fn19 Lodg. 2, 190:2-3. As noted in the R&R, the trial judge graphically described on the record the events on the videotape in support of his conclusion the victim acted under duress, force, and fear. Lodge. 2 pp. 191-92. The Court of Appeal concurred the videotape evidence alone supported the duress element of the crimes.*fn20 Lodg. 4 pp. 7-8. Cochran's own technical account of the particular acts of which he was convicted (Obj. 10-11) prevent any reasonable inference of "actual innocence."

  The record does not support Cochran's technical "actual innocence" argument. Every court that reviewed the "force or duress" or "sexual gratification" elements in this case similarly concluded the crimes as codified were committed. The Court of Appeal decided Cochran's challenge to the sufficiency of the evidence on the element of force or duress by defining duress in reliance on case law principles applied to the record and facts of this case to find the acts were committed with duress, so that it "need not discuss whether force was also present," affirming the convictions. Lodg. 4, pp. 5-9. "The fact that the [child] victim testifies the defendant did not use force or threats does not require a finding of no duress; the victim's testimony must be considered in light of her age and her relationship to the defendant. Lodg. 5, p. 5, citing, inter alia, People v. Pitmon, 170 Cal.App.3d 38, 47-48, 51 (1985) (where the court found sufficient evidence of duress despite the victim's testimony the defendant did not use force or violence and never threatened to hurt her, in a case involving an eight-year-old girl and an adult defendant), People v. Superior Court (Kneip), 219 Cal.App.3d 235, 2239 (1990) ("Where the defendant is a family member and the victim is young, . . . the position of dominance and authority of the defendant and his continuous exploitation of the victim" is relevant to determining duress). Cochran's appellate court found the "very nature of duress is psychological coercion," and concluded:

Our overview of the videotape supports a finding of duress. The victim was only nine years old. Cochran is her father with whom she resided. She was 4'3" tall. He was 5'9" tall and outweighed her by about 100 pounds. The sexual acts occurred in the family home she shared with Cochran and her mother.? Throughout the videotape, Cochran directs and coaches the victim what to do. It is clear the daughter is reluctant to engage in the activities and, at most, acquiesces in the conduct. The victim engages in the conduct only because she is directed to do so and stops as soon as Cochran stops directing her to do a particular act . . . and only continues reluctantly and as a matter of compliance with parental authority.
Lodg. 4 pp. 7-8.

  The court of appeal also relied on the victim's trial testimony.

 

Additionally, there was the victim's trial testimony. Although she testified she was not afraid of Cochran, that he did not beat or punish her and never grabbed or forced her, she also testified she was mad or sad about what he was doing to her, that he gave her money or gifts when they were alone together, and that he told her not to tell anyone because he would get in trouble and could go to jail.*fn21
Lodg. 4 p. 8 & n. 4 (noting the videotape contradicted Jennifer's testimony that Cochran would stop when she told him it hurt).

  Cochran finally contends that "if convicted of having misbehaved with his minor daughter, [he] should have been convicted under section 288.5 of the California Penal Code, or under section 288, subdivision (a) . . .", both of which carry lighter penalties than the crimes of which he was convicted. However, the record supports the state courts' reasoning and result that Cochran's conduct satisfied all the elements of the greater crimes. His Objections to the R&R recommendation the record be found sufficient to excuse procedural default are overruled. Cochran's procedural default of Claims One, Two, Seven, and Eight cannot be excused on an "actual innocence" miscarriage of justice theory. In summary, the Petition Claim One is procedurally defaulted, and Cochran has failed to establish prejudice and cause or a miscarriage of justice/actual innocence to permit him nonetheless to pursue his ineffective assistance of counsel theories. Claim Two, denial of notice of the charges against him and therefore denial of a fair trial, is procedurally defaulted and without merit. Claim Seven, unconstitutional sentencing on grounds the judge considered elements not alleged in the Amended Information, is procedurally defaulted and without merit, as Cochran identifies no sentencing factor improperly considered and no element of the crimes which was not tried and found established beyond a reasonable doubt. Claim Eight, cumulative error, fails because Cochran's Claim One ineffective assistance of trial and appellate counsel contentions fail. Cochran articulates no objection to adoption of the R&R with respect to dismissal of Claim Nine, a claim also procedurally defaulted.

  III. CONCLUSION AND ORDER

  For the foregoing reasons, IT IS HEREBY ORDERED:

1. Petitioner's Objections to the R&R are OVERRULED.
  2. The R&R granting in part and denying in part Respondent's Motion to Dismiss is APPROVED AND ADOPTED.

  3. Respondent's Motion To Dismiss is DENIED IN PART: all the Petition claims are exhausted, and dismissal as a "mixed petition" is denied.

  4. Respondent's Motion To Dismiss is GRANTED IN PART: Claims One, Two, Seven, Eight, and Nine are procedurally defaulted, Cochran has not met his burden to establish cause and prejudice or fundamental miscarriage of justice to excuse the default, and those claims are DISMISSED.

  5. On or before October 11, 2005, Respondent shall file a Return to the Petition addressing Cochran's remaining claims.

  6. On or before November 7, 2005, Cochran may file a Traverse addressing only issues presented in the Return.

  IT IS SO ORDERED.

20050928

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