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October 5, 2005.

HOWARD WEBB, Petitioner,
GEORGE M. GALAZA, Respondent.

The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge


This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the writ should not be granted. Respondent has filed an answer and a memorandum of points and authorities in support of it, and has lodged exhibits with the court. Petitioner has filed a traverse. The petition is now before the court for ruling.


  A Monterey County jury convicted petitioner of two counts of committing lewd acts upon a child under the age of fourteen. See Cal. Penal Code § 288(a). With enhancements, he was sentenced to prison for sixty years to life. His conviction and sentence were affirmed by the California Court of Appeal*fn1 and he did not seek review. However, he did file state habeas petitions with the Monterey County Superior Court, the California Court of Appeal and the California Supreme Court, all of which denied the petitions.

  As grounds for habeas relief, he asserts that: (1) His trial counsel was ineffective in that he failed to perform an adequate investigation; (2) his trial counsel was ineffective in failing to prepare a defense; and (3) the evidence was insufficient to prove his convictions beyond a reasonable doubt.

  Petitioner was charged with molesting a child, Candace Boyd. Petitioner was the live-in boyfriend of Linda Hill, who is the mother of Candace. Ex. 3 (Reporter's Transcript) at 26-30, 98. All three lived in the same home with Candace's two brothers. Id. at 26-28, 98. Candace was nine-years old at the time of the offenses. Id. at 25, 27.

  In the first incident, petitioner was accused of molesting Candace when she was sleeping on the bottom bunk of her bed with her three cousins. See id. at 31-34. A brother was sleeping in the upper bunk. Id. at 31. Candace awoke to find petitioner on his knees beside her bed. Id. at 33. She fell back asleep, awoke again, but did not open her eyes. Id. at 33. She felt petitioner's penis rubbing against her leg, making skin-to-skin contact. Id. at 34. After a short while petitioner stopped and went away. Id. at 34-35. Candace lay there for a while, too scared to move, then got into the upper bunk with her brother for a while. Id. at 35. The next day Candace told her mother about the incident, but her mother could not believe what happened and said to Candace, "Probably you're dreaming." Id. at 36-37, 101. Candace testified that she replied, "Probably." Id. at 37. Her mother, on the other hand, testified that Candace said "no" to her suggestion that she must have been dreaming. Id. at 101. Her cousin April, who was present at the time said, "Maybe you were." Id. at 102. When asked at trial if she thought she had dreamed the incident, Candace replied, "It really happened." Id. at 37.

  The second incident occurred when Candace came back from church and went to her bedroom and turned on her television, with the volume off. Id. at 39-41. Candace watched television for a while and then fell asleep. Id. at 41. Petitioner was accused of molesting her when he went to turn off the television. See id. at 42, 44-46, 67-68.

  After the second incident, Candace's mother brought her to a hospital for examination. Id. at 122-123. Dr. Fitzgerald used a rape kit on Candace and performed a direct visual examination. Id. at 135. Dr. Fitzgerald did not use a speculum or a colposcope. Id. at 135, 140. She testified that there were no bruises or abrasions. Id. at 139. Although there were no physical findings in her report, her observations could still be consistent with what Candace had told her about the molestation. Id. at 137.

  The following day, Dr. Barnes, a pediatrician, examined Candace. Id. at 77. Dr. Barnes used a colposcope for examination. Id. at 78. Dr. Barnes testified that there was redness of the labia minora. Id. at 78-79. The redness suggested a friction injury, which was consistent with penetration by a finger and a penis. Id. at 81-82, 84. Further, Dr. Barnes found internal injuries consistent with both digital and penile penetration. Id. at 91-92. There was marked redness and increased vascularity below and around the hymen and in the vagina and the cervix. Id. at 79. She also observed redness on the vaginal walls and the posterior fossa. Id. at 80. The color of the tissues was described as "beefy red" when they should have been bright pink. Id. at 80. The positioning of the redness of the labia minora was consistent with digital penetration because the majority of the injury occurs to the upper portion of the genital structures due to the fact that a finger enters at a different angle than a penis. Id. at 91-92.

  Further facts will be set out in the discussion below.

  DISCUSSION A. Standard of review

  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). The first prong applies both to questions of law and to mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2001), while the second prong applies to decisions based on factual determinations, Miller-El v. Cockrell, 123 S.Ct. 1029, 1041 (2003).

  A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), only if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams (Terry), 529 U.S. at 412-13. A state court decision is an "unreasonable application of" Supreme Court authority, falls under the second clause of § 2254(d)(1), if it correctly identifies the governing legal principle from the Supreme Court's decisions but "unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The federal court on habeas review may not issue the writ "simply because that court concludes in its independent judgment that the ...

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