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