The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER ADOPTING REPORT AND *fn1 RECOMMENDATION AND DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Robert Michael Fuson, a state prisoner, filed a petition for a writ of habeas corpus challenging his conviction and sentence pursuant to 28 U.S.C. § 2254 on February 23, 2006. (Doc. Nos. 1, 2.) Respondent filed an answer to the petition on April 25, 2006. (Doc. No. 5.) Petitioner filed a traverse in support of his petition on May 26, 2006. (Doc. No. 9.) On October 18, 2006, the magistrate judge issued a report and recommendation denying the petition. (Doc. No. 10.) Petitioner filed objections to the report and recommendation on November 20, 2006. (Doc. No. 11.) Respondent has not filed a reply to the objections.
For the reasons stated below, the Court ADOPTS the report and recommendation and DENIES Petitioner's petition for a writ of habeas corpus.
March 1, 2002, the government filed a twenty count information against Petitioner in San Diego Superior Court (Superior Court Case No. SCD 163400), charging Petitioner with twenty counts of committing lewd acts upon a child under California Penal Code § 288(a). (Lodgment 1, Clerk's Transcript ("CT") at 1-10.) The government filed an amended indictment bringing the same charges on April 25, 2002. (Id. at 13-22.) All of the counts alleged that Petitioner committed offenses against multiple victims pursuant to California Penal Code § 667.61(b), (c), (e). (Id.) Further, fifteen of the counts alleged that Petitioner had substantial sexual contact with a victim under fourteen years of age during commission of the offenses pursuant to California Penal Code § 1203.066(a)(8). (Id.)
A jury found Petitioner guilty on all counts. (Id. at 292-311.) The jury also found true the allegations that Petitioner committed the charged counts against multiple victims. (Id.) Further, as to counts 1 through 4, 7 through 12, and 15 through 18, the jury found that Petitioner had substantial sexual contact with a victim under fourteen during the commission of those offenses. (Id.)
On August 29, 2002, the trial court sentenced Petitioner to a total prison term of 90 years to life, consisting of six consecutive 15 years to life terms and upper terms of eight years for the remaining counts to be served concurrently with each other and concurrently with the indeterminate terms.*fn2 (Lodgment 1, Reporter's Transcript ("RT"), Volume 9 at 52.)
On September 5, 2002, Petitioner filed a notice of appeal with the California appellate court. (CT at 261.) On November 30, 2004, the state appellate court affirmed the judgment, modifying it to strike the restitution order of $1,918.98 to the Chula Vista Police Department and remanding for the trial court to correct the abstract of judgment to reflect the correct total sentence of 90 years to life. (Lodgment 2 at 3, 61.)
Petitioner filed a petition for review before the California Supreme Court on December 29, 2004. (Lodgment 3.) The California Supreme Court denied Petitioner's petition for review on March 16, 2005. (Lodgment 4.)
Under 28 U.S.C. § 2254(e)(1), "a determination of a factual issue made by a State court shall be presumed to be correct." A petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The following facts are taken from the California Court of Appeal's opinion affirming Petitioner's conviction in People v. Fuson, Case No. D040824 (Cal. Ct. App. Nov. 30, 2004).
Fuson has four daughters from two marriages. His first daughter, A., was 12 years old at the time his first marriage ended in 1981. Fuson and his second wife had three daughters: R.M., R., and R.L., each born between 1986 and 1990. Afterwards, Fuson's wife worked, and he remained home to care for their daughters. In 2002, Fuson was charged with sexually molesting his three youngest daughters.
At trial, R.M. testified that when she was about 12 years old, Fuson began fondling her breasts and genitals, generally on Thursday evenings while her mother was out of the house and her sisters had gone to bed. Most of the incidents took place in her bedroom. She could not recall the number of incidents or distinguish each event, but she believed there were "quite a few," more than five. Fuson would usually sit on her bed, rub her breasts, and then put her in various positions where he would insert his penis into her vagina. Fuson had also rubbed R.M.'s genitals with a vibrator and had inserted it more than twice. One night, Fuson even licked and rubbed her genitals with his mouth. He had also touched her anus once or twice. On one occasion, in which R.M. believed Fuson fully inserted himself into her vagina, she told him he was hurting her, but he did not stop right away. R.M. considered Fuson aggressive that time, but said he otherwise moved calmly and slowly, and was fairly gentle during the incidents. After another incident where he penetrated her with his penis, R.M. recalled Fuson explaining that he was "teaching" her.
R.M. further testified that some other incidents occurred in the living room, where Fuson would have her lay down on the couch with him and he would alternately rub her breasts and genitals with one hand. On one occasion in the living room, Fuson asked her to touch his penis and guided her hand to manipulate it. On another occasion, Fuson, who was wearing a nightgown, called R.M. into his bedroom and had her lean over the bed while he removed her underwear and began massaging her genitals. He also rubbed his penis against her back and buttocks. When they heard R.M.'s mother's van pull up, Fuson stopped and told R.M. to go back to bed.
Fuson generally told R.M. he would go to jail and she would never see him again if she ever told anyone about what had happened during the encounters. R.M. was concerned that what had happened to her had also happened to R. R.M. eventually told several of her teachers about the incidents and her concerns.
Fuson similarly began touching R. when she was 12 or 13 years old. She testified at trial that the incidents occurred "somewhere around" once a month over the course of about a year and half while her mother and R.M. were not at home and R.L. was watching television. R. explained it happened more than five times but she could not remember whether it happened more than 10 times. Although she could not recall each individual instance, in general Fuson would call her into his bedroom and rub her breasts and thighs. Fuson told R. he was teaching her. At times he would remove her lower clothing and touch her on the outside of her vagina with his penis and also slowly insert his penis inside her vagina, telling her that it was "supposed to feel good." When she felt pain, she asked him to stop and he would "back off a little" and pull out. On one occasion, Fuson asked her to touch his erect penis.
According to R., Fuson had also assisted her in inserting a tampon one time and then again helped her on another occasion to find her tampon and remove it. These incidents had nothing to do with the incidents that occurred in Fuson's bedroom.
One morning, possibly in May 2001, R. woke up and found her younger sister R.L. and Fuson on the floor of the living room, with R.L. crying and lying on her stomach with her nightshirt around her neck and Fuson kneeling between R.L.'s slightly spread legs. Although Fuson was facing R.L., he did not say anything to her. He just got up, walked into the kitchen and then back to his bedroom. R.L. got up on the couch and watched television. R. never talked to R.L. about what had happened that morning.
R.L. next testified that starting when she was in the 6th grade, Fuson began touching her while they were in his bedroom and also in the back bathroom. Fuson would remove both of their clothing and touch her chest and the inside and outside of her "lower front private part." He was gentle when he touched her on the inside. According to R.L., Fuson told her he was touching her to educate her. More than once, Fuson also touched the inside and outside of her vagina with his penis. When his penis was inside her, she could feel it moving and it hurt her.
Fuson also used a vibrator on R.L. more than once, showing her how to use it and inserting it in her vagina. He also touched her "back private part" with his penis while in the bathroom and bedroom. R.L. thought Fuson had also inserted his penis in her anus.
R.L. remembered that the same things that had happened in the bedroom and bathroom had also occurred at least once in the living room. There Fuson had touched her on her lower front private part with his hands and penis while she was unclothed on the floor. She could not recall R. entering the room during that incident.
In October 2001, after R.M. had reported the matter to several of her teachers, they contacted school authorities, who referred the matter to Child Protective Services (CPS). The next Monday, after detectives had interviewed R. and R.L., the police called Fuson at home and, as a ruse to get him out of the house so detectives could speak with R.M. who was home from school after foot surgery that day, told him that R.L. had gotten into some trouble at school and he needed to pick her up at the police station. When Fuson left the house to drive to the police station, detectives went to the home and interviewed R.M. about her reports of molestation.
After arriving at the station, Fuson was interviewed by detectives. An audiotape of the interview was played at trial. Fuson told detectives he had raised his daughters as a "Mister Mom" who openly and completely taught them about sex, touching them only in an effort to educate them about sexuality. Fuson indicated that his "attitude about human sexuality [w]as different from the law;" that he "crossed the line" and "went beyond the law" when he physically taught each of his daughters how to masturbate, explaining he "would take her hand and physically teach her how to find that wonderful little spot...." In doing so, he often touched their vagina area with their hand and his own. He also taught his daughters about their body parts and their functions and how to use a dildo. Although Fuson denied engaging in intercourse with them, he conceded he may have placed his penis between R.'s legs while showing her what a condom was and how it was used. According to Fuson, he only inserted his finger into R.'s vagina in order to remove a tampon after she lost the string. Fuson denied any of the touching was done for his or his daughters sexual gratification. Fuson was arrested at the conclusion of the interview.
A pediatrician who had reviewed each girls' medical history and had performed genital examinations on them in October 2001 testified that each had normal examinations, which were consistent with their history of post-puberty intercourse. The pediatrician stated that the absence of injury on each girl's genitals could be explained in part by an estrogen effect which causes elasticity, and also by slow and gentle intercourse.
Fuson's daughter from his first marriage testified about earlier sexual incidents involving Fuson. A. said Fuson had touched her genital area and had digitally penetrated her vagina on several occasions in her bedroom when she was between 11 and 12 years old. Fuson had also made her perform oral sex on him. Fuson had told her that the touching was an educational experience.
Then when A. was 18 years old and visited Fuson's home for a week after R.'s birth to help Fuson's second wife with the care of the other girls, Fuson came into her room one night and tried to touch her. She told him to stop or she would tell his second wife. A. left the next morning without saying why she was leaving because she did not think she would be believed.
Fuson testified in his own defense. He explained that he and his second wife had discussed the sexual education of their children and that he believed, along with certain experts in the field of sex education, that a parent should take an active role in the teaching of sexual matters versus his wife's attitude of leaving the matters to the schools. Fuson then admitted involving himself in his daughters' sexual education even when they were young, including A., but denied he ever physically touched them with his hand or any other object, engaged in intercourse or oral copulation, or exposed himself to them. He also instructed the girls on the use of feminine hygiene products and had helped R. retrieve a tampon she had inserted incorrectly one time.
Regarding the living room incident with R.L. that R. testified she witnessed, Fuson claimed he had been putting a hot compress on R .L. after she complained of a sore shoulder. He explained that the vibrator exhibited in court was found in R.M.'s underwear drawer, that he merely discussed its functioning with her, and that he never touched any of his daughters with it. Fuson conceded he had discussed the topic of "rubbers" with R.L., but only after she asked questions about what they were.
Fuson stated he had been stunned when the police asked him about the sexual allegations. He explained that in his interview with them, he actually had meant to say he taught his daughters about masturbation, not how to masturbate; and that he had only touched his daughters' genitals when he had bathed them as young children. He claimed his statements regarding going beyond the law were made "under duress" in an attempt to mislead the investigation, and to deflect attention away from his daughters and toward him.
Fuson's brother and several friends also testified in the defense case. His brother testified about two incidents when R.M. had allegedly threatened to accuse him of misconduct toward her. The friends testified Fuson was a very honest person who had a reputation for honesty in the community. (Lodgment 2 at 3-9 (footnote omitted).)
Additionally, the appellate court provided the following factual background with regard to Petitioner's statements to police:
In response to Fuson's in limine motion to suppress his statements made to Chula Vista police sergeant John McAvenia and detective Ruth Hinzman, the trial court conducted an evidentiary hearing.
McAvenia testified that on October 23, 2001, he received a telephone call from CPS regarding allegations that Fuson had been molesting two of his daughters. The two daughters were brought into the police station to be separately interviewed by Hinzman. Afterwards, Hinzman discussed with him some of the allegations of sexual molest made by those daughters, her tendency to believe the girls, and how to get Fuson out of the home so other detectives could talk with a third daughter who was home after foot surgery to determine whether she was also being victimized. When the other detectives were sent to the residence, McAvenia made a "pretextual call to Mr. Fuson, saying there'd been an altercation at school with one of his daughters and that she specifically asked for him to come to the police station and talk about it."
McAvenia was notified by radio by other detectives sent to observe when Fuson had "in fact" left the home to come the four and a half blocks to the police station. Those detectives, in civilian clothing and unmarked cars, were sent to the area of the home to make sure the interviewing detectives could have access to the other daughter and to see if Fuson were nervous or "made a run for it." McAvenia said the matter was "still in the investigative stage and we didn't know exactly what we had...." The detectives reported back to McAvenia when Fuson actually was coming in the front door of the lobby area of the police station.
Because the other interview rooms were being used, McAvenia determined he would talk to Fuson in his "little" office outside the family protection unit and secreted "a micro cassette recorder in [a] box of reports" and started it before going to the front counter and introducing himself to Fuson, who had been told to ask for "Mr. Mac." After shaking Fuson's hand, McAvenia told him that they "needed to talk about something involving his daughter." When Fuson expressed concern about her welfare, McAvenia said, "She's ...