United States District Court, N.D. California
October 5, 2005.
HOWARD WEBB, Petitioner,
GEORGE M. GALAZA, Respondent.
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 relevant
state-court decision applied clearly established federal law
erroneously or incorrectly." Id. at 411. Rather, the
application must be "objectively unreasonable" to support
granting the writ. See id. at 409.
"Factual determinations by state courts are presumed correct
absent clear and convincing evidence to the contrary."
Miller-El, 123 S.Ct. at 1041. This presumption is not altered by the fact that the finding was made by a state
court of appeals, rather than by a state trial court. Sumner v.
Mata, 449 U.S. 539, 546-47 (1981). A petitioner must present
clear and convincing evidence to overcome § 2254(e)(1)'s
presumption of correctness; conclusory assertions will not do.
Under 28 U.S.C. § 2254(d)(2), a state court decision "based on
a factual determination will not be overturned on factual grounds
unless objectively unreasonable in light of the evidence
presented in the state-court proceeding." Miller-El,
123 S.Ct. at 1041.
When there is no reasoned opinion from the highest state court
to consider the petitioner's claims, the court looks to the last
reasoned opinion, which in this case is the superior court's
ruling on petitioner's state petition for habeas corpus. Ylst v.
Nunnemaker, 501 U.S. 797, 801-06 (1991).
B. Issues Presented
Petitioner asserts that he was denied effective assistance of
counsel when his trial counsel failed to (1) investigate the case
and interview witnesses, and (2) "present a defense." Although
his arguments in the petition are grouped under these headings,
in fact they consist of a number of separate arguments or claims,
not all of which necessarily go where he has placed them for
instance, he complains of counsel's cross-examination of a
doctor, among other things, under the "failure to investigate"
heading. Nevertheless, the court discusses each contention below
under the heading petitioner has used.
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.
In order to prevail on a Sixth Amendment ineffective assistance
of counsel claim, petitioner must establish two things. First, he
must establish that counsel's performance was deficient, i.e.,
that it fell below an "objective standard of reasonableness"
under prevailing professional norms. Id. at 687-88. Second, he
must establish 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." Id. at 694. A reasonable
probability is a probability sufficient to undermine confidence
in the outcome. Id. A court need not determine whether
counsel's performance was deficient before examining the
prejudice suffered by the defendant as the result of the alleged
deficiencies. Id. at 697; Williams v. Calderon, 52 F.3d 1465,
1470 & n. 3 (9th Cir. 1995) (applauding district court's refusal
to consider whether counsel's conduct was deficient after
determining that petitioner could not establish prejudice),
cert. denied, 516 U.S. 1124 (1996).
2. Failure to investigate
A defense attorney has a general duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary. Strickland,
466 U.S. at 691. The duty to investigate and prepare a defense does not
require that every conceivable witness be interviewed. Hendricks
v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995). A claim of
failure to interview a witness cannot establish ineffective
assistance when the person's account is otherwise fairly known to
defense counsel. Eggleston v. United States, 798 F.2d 374, 376
(9th Cir. 1986). A defendant's mere speculation that a witness
might have given helpful information if interviewed is not enough
to establish ineffective assistance. Bragg v. Galaza,
242 F.3d 1082, 1087 (9th Cir.), amended, 253 F.3d 1150 (9th Cir. 2001). Here, petitioner provides no more than speculation as to what
an investigation might have revealed. For instance, he contends
that interviews with "family members" might have revealed
evidence of the witness' "vindictiveness, " but gives no hint
that such evidence exists, nor does he specify what sort of
evidence it might be. Pet. (typewritten attachment to form
petition) at 4.
The only specific assertion he provides is his claim that his
counsel failed to interview and call the victim's cousin, April,
to testify that the first incident never occurred. He claims that
"nothing presented a more true version of the event than the
actual witness, April." However, the only evidence in the record
suggests that April and the other relatives were asleep when the
first molestation occurred. Ex. 3 at 33, 36. April's comment,
"Maybe you were" regarding the possibility that Candace had
dreamed of the incident, and Candace's agreement with April's
speculation, a strong defense point, were in evidence. If
anything, calling April might have damaged the defense case,
because it would have given her an opportunity to explain her
comment; there would have been a risk, for instance, that she
would say that her comment had been, as it appears on its face,
Petitioner has not provided any evidence that April had
anything further to add. Thus, petitioner's counsel's performance
was not deficient in failing to interview and call April to
Petitioner also contends that his counsel failed to investigate
the reports of the two doctors who testified at trial "to check
their [sic] veracity." He does not explain what he means by this
contention nor, even in general terms, what such an investigation
would have turned up. This is not sufficient to establish
Petitioner also contends that it was ineffective for his
counsel to hint that the red bruised area observed by Dr. Barnes
might have been caused by Dr. Fitzgerald's use of a speculum,
without prior knowledge of what instruments Dr. Fitzgerald used
in her exam. Counsel asked Dr. Barnes if the redness could have been
caused by use of a speculum, and Barnes said it was not clear
whether Dr. Fitzgerald had used a speculum, and that if one were
mishandled, it could have caused the bruising. Ex. 3 at 87-88.
When Dr. Fitzgerald subsequently testified she said she had not
used a speculum. Id. at 135. Nothing was made of this, however;
neither side used it in closing. See id. at 223-56. Given
that Dr. Fitzgerald's testimony that she had not used a speculum
came after Dr. Barnes' testimony, and with the victim's mother's
rather dramatic testimony in between, and that counsel did not
link up the two points in argument, it is not reasonably probable
that counsel's asking that question affected the outcome.
3. Failure to present a defense
Petitioner also contends that he was denied effective
assistance of counsel because his attorney "prepared no defense."
Again, there simply is no evidence of this, and in fact counsel
did put on a defense. He effectively established in
cross-examination that the victim disliked petitioner, ex. 3 at
161-63; 177-78; he put petitioner on the stand to deny the abuse,
id. at 191, 203; got Dr. Barnes, a very uncooperative witness,
to say that "one often thinks children are not telling the truth"
and that the physical signs could have been caused by something
other than abuse, id. at 89, 92; and argued in closing that
there was no conclusive physical evidence of abuse, that the
victim had a motive to lie, and that there were inconsistencies
in the testimony. Id. at 230-49.
Among other things, petitioner asserts that counsel failed to
explore a defense involving the victim's history and her
vindictiveness. However, counsel vigorously cross-examined the
victim regarding whether she hated petitioner and wanted to get
him out of the house, id. at 161-63; established the same point
with the victim's mother on cross ("None of [the children] really
cared for him"), id. at 151-52, and reinforced it with the victim's statements to an investigating officer that she disliked
petitioner. Id. at 177-78. Petitioner also claims that his
counsel failed to present a defense that the incident never
occurred because there was no physical or scientific evidence
pointing to his guilt. This is not strictly correct, as Dr.
Barnes testified to physical signs of abuse. Id. at 78-82, 84.
However, on cross-examination of Barnes counsel established that
her observations were consistent with no abuse having occurred.
Id. at 92.
Petitioner also asserts that a "Dr. Avila" should have been
called as an expert witness to testify about his forensic
findings and the improbability of the act ever having occurred.
Pet. at 8-9. Dr. Avila apparently was on the prosecution's
witness list to be called if there was usable evidence from the
hospital sheet on which the victim was undressed. Ex. 3 at 7-10.
Expert testimony is necessary when lay persons are unable to make
an informed judgment without the benefit of such testimony. Caro
v. Calderon, 165 F.3d 1223, 1227 (9th Cir. 1999). Where the
evidence does not warrant it, the failure to call an expert does
not amount to ineffective assistance of counsel. Wilson v.
Henry, 185 F.3d 986, 990 (9th Cir. 1999) (a decision not to
pursue testimony by a psychiatric expert is not unreasonable when
the evidence does not raise the possibility of a strong mental
state defense). Here it was not necessary to call an expert to
explain the negative results of the rape kit, because the meaning
would have been clear to a lay person that the rape kit, unlike
the doctor's examination, did not provide physical evidence of
abuse, thus tending to show that the abuse did not occur. Dr.
Barnes testified that the absence of physical evidence of abuse,
such as semen or pubic hairs, did not change her opinion that
abuse had occurred. Id. at 97. Petitioner fails to show that
Dr. Avila's testimony would have been any different, in which
case counsel's best strategy was to minimize the amount of expert
testimony which tended to explain away the absence of evidence
from the rape kit, then argue the common-sense approach in
closing that if there was no physical evidence, the abuse did not
occur. Failure to call the prosecution's witness when the rape kit proved negative was
not ineffective assistance.
Petitioner also asserts that counsel should have declined to
stipulate to the negative results of the rape kit. However,
counsel made effective use of this in closing; although it might
have been more effective to present this evidence by way of a
testifying witness, that, as always, would also introduce
uncertainties and risks. In this context, at least, the decision
to stipulate was not ineffective.
Petitioner has failed to show that his counsel was ineffective.
Therefore, the state appellate courts' rejection of this claim
was not contrary to, or an unreasonable application of, clearly
established United States Supreme Court authority.
3. Sufficiency of the evidence
Petitioner contends that there was insufficient evidence to
support the conviction.
A state prisoner who alleges that the evidence in support of
his state conviction cannot be fairly characterized as sufficient
to have led a rational trier of fact to find guilt beyond a
reasonable doubt states a constitutional claim, Jackson v.
Virginia, 443 U.S. 307, 321 (1979), which, if proven, entitles
him to federal habeas relief. Id. at 324. A federal court
reviewing collaterally a state court conviction does not
determine whether it is satisfied that the evidence established
guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335,
338 (9th Cir. 1992), cert. denied, 510 U.S. 843 (1993). The
federal court "determines only whether, `after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.'" Id. (quoting Jackson,
443 U.S. at 319).
Petitioner contends that the evidence was insufficient because
there was no scientific evidence semen, pubic hairs to
support it. As the previous paragraph reflects, that is not the
standard. Here, the verdict was supported by the testimony of the victim and physical evidence testified to by Dr. Barnes.
Petitioner admitted that the victim was an honest child and he
could think of no reason why she would make such allegations
against him. Ex. 3 at 204, 206. Although he alleged that the
victim's mother was behind her making these allegations, he could
not offer credible proof that she was. Id. at 205-206. Rather,
the evidence showed that the victim's mother did not want to
believe that petitioner molested her daughter and did not
immediately report him to police. See id. at 101. In addition
to petitioner's acknowledgment that the victim was an honest
child, the victim's credibility is sustained by her account of
the second incident, which is consistent with the physical
The victim testified that with regard to the second incident,
petitioner molested and sexually assaulted her when she came back
from church and went to her bedroom. Id. at 39-46. The victim's
story is consistent with the findings of Dr. Barnes, a
pediatrician for seventeen years who specialized in examining
child victims of sexual assault, having examined approximately
1200 of them. Id. at 75. Barnes, who examined the victim with a
colposcope, found an external injury. Id. at 76, 78-79. She
observed the victim had a redness of the labia minora which she
felt was caused by friction from the penetration of a finger or
penis. Id. at 80-84. Further, Barnes found internal injuries
consistent with both digital and penile penetration. Id. at
91-92. Specifically, 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 was 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.
In addition to Barnes' testimony, the victim's mother testified
that petitioner was not in bed beside her when she woke up. Id. at 109. At that
point, she hollered his name and looked down the hall. Id. She
saw him coming out of the victim's bedroom, trying to shut his
robe. Id. at 111. She called his name four times before she saw
him come out of her daughter's bedroom. Id. She asked him what
he was doing in her daughter's room. Id. at 112. She testified
that he did not look at her and replied that he was seeing what
the victim was doing. Id.
Petitioner's lack of credibility was displayed when Officer
Gray testified that petitioner claimed he did not know why he was
being arrested, when in fact the victim's mother had confronted
him with allegations of his molestation. Id. at 121, 128.
A rational trier of fact could find that there was sufficient
and credible evidence to prove petitioner's conviction beyond a
reasonable doubt, even in the absence of scientific evidence.
Accordingly, the decision of the state court was neither contrary
to nor involved an unreasonable application of clearly
established federal law as determined by the Supreme Court.
For the foregoing reasons, the petition for a writ of habeas
corpus is DENIED. The clerk shall close the file.
IT IS SO ORDERED.
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