The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION, AND DENYING HABEAS PETITION [Dkt Nos. 24, 31, 32]
This matter is before the court on the Report and Recommendation ("R&R") of Magistrate Judge William McCurine, Jr. that petitioner John Scott McClintock's ("McClintock") Second Amended Petition for 28 U.S.C. § 2254 habeas corpus relief and his request for an evidentiary hearing be denied. Only McClintock, a state prisoner proceeding pro se, filed Objections to the R&R. Respondents filed no Reply. For the reasons discussed below, the R&R is ADOPTED, and the Petition is DENIED.
MClintock was a forty-year-old reconstructive surgeon at the time of his trial. He was convicted by a jury in September 2002 of: eight counts of committing a lewd and lascivious act on a child under the age of fourteen in violation of CAL. PEN. CODE § 288(a); three counts of molesting a minor in violation of CAL. PEN. CODE § 647.6(a); one count of petty theft in violation of CAL. PEN. CODE § 484; three counts of committing a lewd and lascivious act on a child aged fourteen or fifteen years in violation of CAL. PEN. CODE § 288(c)(1); and fifteen counts of possessing matter depicting a minor in sexual conduct in violation of CAL. PEN. CODE § 311.11(a). The jury found true more than one victim under the age of fourteen was involved in the eight CAL. PENAL CODE § 288(a) counts of which he was convicted.
McClintock was acquitted of seven other charged counts: five under CAL. PEN. CODE § 288(a); one under CAL. PEN. CODE § 288(a)(1); and one misdemeanor count under CAL. PEN. CODE § 647.6(a). R&R 3:2-12, Lodg. 1 at 572, 574-75, 578-79, 582. McClintock was sentenced on January 9, 2003 to thirty years to life in state prison, consisting of two consecutive terms of fifteen years to life, with all other counts and sentences ordered to run concurrently. R&R 3:12-14, Lodg. 1 at 607-08.
In his Second Amended Petition ("SAP"), McClintock asserts six grounds for habeas relief: (1) denial of a severance motion; (2) admission of expert testimony regarding five specific issues relating to abused children from a prosecution witness, Deborah Davies, after an evidentiary hearing; (3) ineffective assistance of counsel; (4) prosecutorial misconduct; (5) denial of a continuance McClintock requested after he became ill during the trial; and (6) cruel and unusual punishment associated with his 30-years-to-life sentence. Dkt No. 24. He had appealed his conviction to the state appellate court raising, among other things, four of his six SAP claims (one, two, five, and six). His conviction was affirmed. Lodg. 3, 6. The California Supreme Court summarily denied his petition for review. Lodg. 7. He raised the other two claims presented in the SAP in a habeas petition to the state supreme court, which that court summarily denied in June 2006.*fn1 R&R 3:21-24. All the SAP claims are accordingly exhausted and ripe for federal habeas review.
The R&R takes facts from the California Court of Appeal opinion deciding McClintock's direct appeal. "[A] determination of a factual issue made by a State court shall be presumed to be correct" unless the petitioner carries his "burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). McClintock reargues the grounds of his SAP in his Objections to the R&R, but identifies no error in the summary of the factual or procedural background recited in the R&R. The court adopts the R&R summaries of the factual and procedural history of this case.
The R&R summarizes the underlying criminal conduct in categories: the summer 2001 beach and pool molestations of ten-year-old twins (sons of McClintock's female acquaintance) and three of their friends and a 2001 bedroom molestation of one of the twins; the 1999 bedroom molestation of his then-stepson; the July 2001 petty theft charges for shoplifting two shirts and two envelopes of developed film containing photographs of boys; and the September 2001 child pornography charges arising from the results of Chula Vista police officers' executing search warrants at McClintock's medical office, his residence, and his car (including but not limited to his desktop computer containing many thousands of such images). Evidence of prior uncharged acts are summarized as a 1994 incident of molestation of a thirteen-year-old boy and three other incidents that year with a nine-year-old boy. R&R pp. 4-6. McClintock's defense at trial is summarized at R&R pages 6-7, essentially an attempt to characterize the contacts as not sexually intended and the shoplifting as unintentional while he responded to a telephone page from the hospital by stepping outside the store.
McClintock does not attempt to specify why the R&R is erroneous or contrary to law. Rather, his fifteen pages of Objections reargue his explanations for the conduct he admitted, rationalize his touching of the children, recharacterize some of the contact as not sexually intended, and describe others as requested contact. He contends the children themselves took some of the photographic evidence used against him, and reasserts other of his defense theories. He summarily argues the jury could not have reached their results beyond a reasonable doubt, among other broad-brush attacks on his convictions and sentence, and requests an evidentiary hearing to prove his arguments.*fn2 A federal court reviewing a habeas challenge to a state prisoner's conviction or sentence is not empowered to retry the case or to substitute its judgment for that of a jury or the state court. The court attempts to extract from McClintock's SAP and his Objections to the R&R potentially cognizable claims under the applicable federal standards, but rejects his gratuitous rearguing of the evidence and of his defense theories where they are immaterial to any federal constitutional claims he attempts to raise.*fn3
"The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Section 2254 habeas proceedings thus measure state convictions against federal constitutional requirements applicable to the states. Only errors of constitutional magnitude will support federal intervention in state judicial proceedings, and only to correct such errors. See Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir. 1989); Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir. 1990).
A writ petition decided under the 1996 standards enacted through the Antiterrorism And Effective Death Penalty Act ("AEDPA") will not be granted unless the state court decision denying a claim on the merits "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." 28 U.S.C. § 2254(d)(1); see Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996); Carey v. Musladin, -- U.S. --, 127 S.Ct. 649 (Dec. 11, 2006). To satisfy the AEDPA requirement the federal law the petitioner relies on was "clearly established," a reviewing court must look to the law as it existed in United States Supreme Court rulings at the time the challenged state court decision was rendered. Williams v. Taylor, 529 U.S. 362, 390 (2000); see Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
A state court decision is "contrary to" clearly established precedent if the decision "contradicts the governing law set forth in [the Supreme Court's] cases." Williams, 529 U.S. at 405. The "unreasonable application" test is objective unreasonableness of the state court's application of "the correct governing legal rule from this Court's cases" to "the facts of the particular state prisoner's case," irrespective of whether the decision was "erroneous" or "incorrect." Id. at 407, 411; Lockyear v. Andrade, 538 U.S. 63, 75-76 (2003); Nunes v. Ramirez-Palmer, 485 F.3d 432, 438 (9th Cir. 2007) ("In order for a federal court to find a state court's application of [the Supreme Court's] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous"), quoting Wiggins v. Smith, 539 U.S. 510, 520-21 (2003).
When no "reasoned state court judgment rejecting a federal claim" against which the federal court can measure the constitutionality of the state court's adjudication of the claim's merits, a federal court must conduct an independent review of the record to determine whether the result was "objectively reasonable." Delgado, 223 F.3d at 982; see Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003) ("Independent review of the record is not de novo review of the constitutional issue, but rather the only method by which we can determine whether a silent state court decision is objectively unreasonable"). In this case, McClintock's federal claims in Ground Three (ineffective assistance of counsel) and Ground Four (prosecutorial misconduct) were only presented to the California Supreme Court and only on collateral review. Each of those claims was summarily denied. In re McClintock, No. S136618, Cal. LEXIS 7246 (Cal. June 14, 2006). The R&R reflects the independent review of the record associated with those two grounds for habeas relief, as required when there has been no reasoned state court ruling rejecting a federal claim against which the court may apply federal habeas standards. Cf. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991) (when there is no reasoned decision from the state's highest court, the federal court "looks through" to the last reasoned state-court decision).
2. Reports And Recommendations
A district judge "may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. Rule 72(b); see 28 U.S.C. § 636(b)(1). An objecting party may "serve and file specific objections to the proposed findings and recommendations," and "a party may respond to another party's objections." Rule 72(b).
In reviewing an R&R, "the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. §636(b)(1); United States v. Raddatz, 447 U.S. 667, 676 (1980) (when objections are made, the court must make a de novo determination of the factual findings to which there are objections). "If neither party contests the magistrate's proposed findings of fact, the court may assume their correctness and decide the motion on the applicable law." Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The court reviews de novo the magistrate judge's conclusions of law. Gates v. Gomez, 60 F.3d 525, 530 (9th Cir. 1995); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007) ("determinations of law by the magistrate judge are reviewed de novo by both the district court and [the court of appeals]").
B. Ground One: Denial Of Severance Motion And Prior Bad Acts Evidence
McClintock challenges the state court's denial of his motion to sever the beach and pool molestations from the other charged counts and the use of prior bad acts "propensity" evidence. He argues the "innocuous touches" were unrelated to counts "aggravated by prior bad acts," so his due process rights were violated, allegedly resulting in a "fundamentally unfair trial." SAP 13:3-6. He argues the evidence was "never cross-admissible" and was allegedly "modified" to "fit the prosecutor's story." SAP 13:11-13.
An error involving misjoinder affects substantial rights, but requires retrial only if the simultaneous trial of more than one offense resulted in actual prejudice.
Improper joinder [of separate counts] does not, in itself, violate the Constitution. Rather, misjoinder would rise to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial.
United States v. Lane, 474 U.S. 438, 446 n.8 (1986) (holding misjoinder is subject to harmless error analysis).
McClintock argues "all acts were explained as non-sexual in content," an explanation the jury obviously rejected with respect to the guilty verdict counts and one falling far short of the required demonstration to satisfy the standards for Section 2254 habeas relief. He argues "it was not individual acts that convicted the Petitioner of felonious acts, but the 'interference-assumption' over a collection of innocuous acts mitigating into suddenly serous, felonious acts a year later at trial." SAP 24:20-24. He insists, despite his acquittal of several charged counts, the "jury could not reasonably have been expected to 'compartmentalize the evidence of one crime to not taint the jury's consideration of another crime' or innocuous act." SAC 14:17-22, citing Bean v. Calderon, 163 F.3d 1073 (9th Cir. 1998) (holding improper joinder of two indictments deprived that petitioner of a fundamentally fair trial).
However, Bean is distinguishable. The Bean court found the misjoinder for trial of an indictment for a weak murder case with an indictment for a stronger murder case required reversal of the conviction in the weaker case only. In concluding the misjoinder deprived defendant of his Fifth Amendment right to a fair trial, the court emphasized it was "mindful that prejudice generally does not arise from joinder when the evidence of each crime is simple and distinct, even in the absence of cross-admissibility" of evidence. Bean, 163 F.3d at 1085, citing Drew v. United States, 331 F.2d 85, 91 (D.C. Cir. 1964) ("The federal courts, including our own, have . . . found no prejudicial effect from joinder when the evidence of each crime is simple and distinct, even though such evidence might not have been admissible in separate trials"); see also United States v. Johnson, 820 F.2d 1065, 1071 (9th Cir. 1987) ("in light of the relative simplicity of the issues and the straightforward manner of presentation, we conclude that the district court did not abuse its discretion in denying the defendant's motion to sever offenses"). The Bean court reaffirmed the "assumption that, if properly instructed, a jury can compartmentalize the evidence, rather than considering it cumulatively," but found the Bean jury was not properly charged, permitting the prosecution prejudicially to bootstrap the weak murder case to bolster the strong murder case.
In McClintock's case, unlike in Bean, acquittal of some joined charges and conviction on others "establishes the jury successfully compartmentalized the evidence." Bean, 163 F.3d at 1085, citing Featherstone v. Estelle, 948 F.2d 1497, 1503-04 (9th Cir. 1991) (finding joinder of charges caused no fundamental unfairness: "it is apparent from the jury's discerning verdict that it followed the court's instructions to regard each count as separate and distinct"). Moreover, as traced by the Court of Appeal, simple and direct evidence supported the distinct counts against McClintock. This court finds the discrete acts lent themselves to compartmentalization by the jury, and the presentation and evidence of each crime was simple and distinct, even in the absence of cross-admissibility. His jury acquitted him of seven molestation counts, substantiating they gave individualized attention to each count. The state court's decision to affirm denial of his motion to sever was accordingly not objectively unreasonable nor contrary to controlling authority elucidating the applicable constitutional standard. The court accordingly ADOPTS the R&R conclusion that even if some of the evidence would not have been cross-admissible, McClintock fails to demonstrate the requisite prejudice for a finding of fundamental unfairness.
McClintock also argues under his First Ground that he was denied a fair trial because of allegedly prejudicial and improper prior bad acts evidence presented against him. SAP 14:24-25. He contends the prosecution improperly relied on CAL. EVID. CODE § 1108 to introduce evidence of prior instances of uncharged sexual molestations in alleged violation of his due process and equal protection rights.*fn4 He contends "special intent" argument coupled with the inflamatory nature of the child pornography constituted "overkill," whereas a severance would have limited that "prejudicial impact." SAP 15:22-16:12. His argument is unavailing; the half-day of evidence of instances of his prior sexual misconduct, in consideration of the length of his trial, was admissible under CAL. EVID. CODE § 352 and was not a constitutional violation.
McClintock relies in his R&R Objections on Johnson, 820 F.2d 1065 with respect to the use of uncharged crime evidence. That case, however, was not a sexual offense case covered by an evidentiary statute expressly permitting introduction of evidence of commission of other sexual offenses in some circumstances. Moreover, Johnson held evidence of an uncharged third bank robbery was admissible against the defendant in his trial for two counts of bank robbery, and the defendant was not entitled to severance of charges, finding the trial court "implicitly balanced the probative value against he prejudicial effect." Id. at 1069 (distinguishing United States v. Green, 648 F.2d 587 (9th Cir. 1981), admitting evidence under Rule 404(b) on the ground the trial court had found the challenged evidence was relevant to knowledge, plan, and motive whereas the reviewing court fund the evidence admissible to prove opportunity, a ruling the trial ...