The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER ADOPTING REPORT AND RECOMMENDATION; OVERRULING OBJECTIONS; DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Robert Jeffry Feiger, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Respondent filed an answer and a supporting memorandum of points and authorities to which petitioner filed a traverse. The case was referred to United States Magistrate Judge Peter C. Lewis for a report and recommendation ("Report") pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.3. The magistrate judge's Report recommended the petition be denied. Petitioner filed a timely Objection to the Report.
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 determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). Section 636(b)(1) does not require some lesser review by the district court when no objections are filed. Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The "statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in the original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to habeas review).
Petitioner was convicted of six counts of lewd acts upon a child. The jury made true findings on allegations that petitioner was a habitual sex offender under Penal Code § 667.71(a), and that petitioner's prior lewd-act convictions in 1984 and 1986 constituted strikes under Penal Code § 667(b)-(i). As a result of his conviction, petitioner was sentenced to prison for indeterminate terms of 25 years to life each on Counts one through four and seven, tripled the sentences under Penal Code § 667(e)(2)(A)(1), and ordered the terms served consecutively. The court also imposed a determinate sentence of eight years on Count five and two years, being one-third the middle term on Count six, and order those sentences served consecutively. Thus, petitioner's total sentence is 375 years to life plus ten years.
The parties do not dispute the factual findings of the California Court of Appeals that follows:
In 1983, Kirk H., then about 13 years old, started working for Feiger in a surf shop in Palos Verdes. Kirk spent the night at Feiger's house. Feiger massaged Kirk's back, told him to roll over, rubbed his chest and stomach and then his penis under his underwear. When Kirk asked Feiger to stop, Feiger kept saying, "Just a little longer." Feiger touched kirk several additional times during the night. This incident was admitted pursuant to Evidence Code section 1108.
In the 1980's Feiger was convicted of child molest, sentenced to prison for five years and was on parole for an additional three years. The terms of his parole prohibited him from being around minors without an adult guardian or parent being present. His parole ended January 1994.
While Feiger was on parole, he started Luna Bay, a company that designed, manufactured and sold boy's beachwear, sportswear, and swimsuits. Feiger hired boys to model his clothing. In exchange for their modeling, Feiger gave the boys clothing, invited them to parties at his house, and took them to the beach, movies and theme parks and to Las Vegas. Often, the boys would spend the night at Feiger's house. Over the course of the years, about 50 boys spent the night at his home, Feiger testified between 1993 and 2000 he spent "many" nights alone with the boy models.
When the boys spent the night at Feiger's house, he would give them "fancy pants" and "nighties" to wear. At trial, the boys described the fancy pants as being silky, like "speedos," and having a bow in the middle. The nightshirts were described as being flannel and looking like a girl's nightgown. Feiger testified they were Luna Bay nightshirts intended for young boys.
Matthew modeled for Luna Bay about one year when he was 12 or 13 years old during the year 2000. At one point, Matthew spend one or two nights per week at Feiger's residence, sometimes when other boys were also present. Feiger would give the boys fancy pants and nighties to wear. While the boys watched movies, Feiger massaged their backs and shoulders. When Feiger was alone with Matthew, he rubbed Matthew's feet and legs. Feiger pulled up Matthew's nightshirt, touched his lower back, and on "the sides and stuff." One time when he was along with Matthew, Feiger asked if Matthew wanted his thighs rubbed. On one occasion Feiger put his hands on the sides of Matthew's underwear and pulled them up for Matthew.
Stephen met Feiger when he was about four years old while Stephen's stepbrother was modeling for Luna Bay. When Stephen was about six years old, he began modeling for Luna Bay. Between the time of six and 12 years old, Stephen spent at least a hundred nights at Feiger's house. About 75 percent of the time Stephen spent the night at Feiger's house, Feiger gave him a back rub.
Sometimes when Stephen was alone in the house with Feiger, Feiger would rub his lower back or his "butt" under the fancy pants and sometimes Feiger would become angry if Stephen said no. (Count 2.) Sometimes, Feiger, rubbed Stephen from his shoulder to the small of his back and from his upper thighs to his ankles. (Count 3.) As Stephen got older, he sometimes felt uncomfortable about the backrubs.
On one occasion when Stephen was 11 years old, Feiger promised to buy a new shirt for Stephen if he could buy Stephen a pair of fancy pants. They were in a department store. Feiger picked out a pair of girl's underwear and said he was going to buy them for Stephen. When Feiger paid for the underwear, he lied to the sales clerk, telling her he had a daughter.
Toward the end of the spring or the end of the summer of 2000, as Stephen came out of the shower at Feiger's home, Feiger, wearing only boxers, entered the bathroom, grabbed a towel and asked if could dry Stephen. When Feiger dropped the towel and Stephen bent to pick it up, Feiger put his penis "in" Stephen. It was painful. When Stephen tried to get away, Feiger grabbed him, held his arms behind his back, angrily told Stephen to hold still and called him a "little Fu---er." Stephen escaped from Feiger, grabbed his clothes and walked three hours from Feiger's home in Oceanside to his own home in Vista. (Count 7.)
When Feiger called Stephen's home the next day, Stephen told his mother he did not want to go anywhere then. For the next three days, Stephen felt "really bad" burning pain whenever he sat down or "went to the restroom." He did not immediately tell anyone about the sodomy incident because he was upset and afraid that people would call him "gay." He finally told his mother in November 2001, after he was expelled from school for getting into fights. Stephen was always angry, wanting to prove that he could still be a man.
Jordan A. modeled for Luna Bay about a year when he was ten years old. He spent the night at Feiger's house every weekend. Other boys were there. He wore nightshirts and underwear with bows. Feiger rubbed Jordan's back while Jordan was wearing fancy pants, touching Jordan's upper and lower back. Jordan felt uncomfortable.
Count 2, 3, and 7 - Stephen C.
Count 5 and 6 - Donovan M.
Donovan first met Feiger when he was about 12 years old in approximately 1993, modeled for him and spent the night at Feiger's house. Feiger had Donovan wear a nightshirt and panties. They watched television in Feiger's bedroom while Feiger rubbed Donovan's back. Feiger then rubbed Donovan's penis. (Count 5.) A month later, Donovan again spent the night and Feiger again fondled Donovan's penis. (Count 6.)
Donovan testified that bout two months later, he spent the night at the house of Luna Bay's photographer. They watched pornography in the living room after which the photographer touched Donovan's penis.
Feiger denied touching any of the boys in a sexual way. He massaged only their upper backs, shoulders and lower legs. He could only recall giving backrubs to six or seven boys. Feiger testified that after he had been convicted and released from prison, he was well aware of how much trouble he would be in if he sexually touched a child. He denied having a sexual interest with boys. He claimed he never felt tempted to touch his models improperly.
Feiger testified the "fancy pants" described by the witnesses were not all girl's underwear; they also included silky boy's underwear. He gave the boys Luna Bay nightshirts to sleep in and whatever underwear was available and clean. The girl's underwear were samples from Luna Bay's project to develop a line of girl's underwear (which never occurred) and he gave them to the boys to wear if they were the only clean available underwear. He testified Stephen was with him when he went to a department store and bought a pair of girl's underwear but, denied telling the sales clerk that he had a daughter or niece; he was buying the underwear "for samples."
The parties do not dispute that the petition is timely and the claims raised have been exhausted. The full procedural history ...