The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge Sitting by Designation
Pending before the Court are Flavio Camero's ("Petitioner") "Petition for Writ of Habeas Corpus," filed pursuant to 28 U.S.C. §2254(a) on January 10, 2005; Respondent's "Answer to Petition for Writ of Habeas Corpus," filed on December 3, 2007; Petitioner's Traverse, filed on January 11, 2008; Respondent's "Supplemental Answer to Petition for Writ of Habeas Corpus," filed on February 28, 2008; and, Petitioner's "Notice of New Authority," filed April 24, 2008. For the reasons discussed below, Petitioner's application for a writ of habeas corpus pursuant to §2254(a) is denied.
Petitioner was found guilty on May 7, 2001 by a jury in the Fresno County Superior Court of four counts of committing a lewd act upon a child under the age of fourteen pursuant to California Penal Code §288(a). He admitted the allegations in the accusatory pleading that he had served a prior prison term.
On July 10, 2001, the trial court sentenced Petitioner to an indeterminate prison term of fifteen years to life on count one pursuant to California's one-strike provision set forth in California Penal Code §667.71(b). He was also sentenced to serve fifteen years to life imprisonment on count two to be served concurrently with the sentence imposed on count one. The same sentence was imposed on counts three and four; however, the trial court's sentencing decision on these counts was stayed pursuant to California Penal Code §654.
Petitioner filed a district appeal from the trial court's judgment and sentence before the California Court of Appeal for the Fifth District. That court affirmed the trial court's judgment and sentence on February 18, 2003 in an unpublished opinion. On March 13, 2003, it denied Petitioner's petition for a rehearing.
Petitioner filed a petition for review of the California Court of Appeal's decision on April 1, 2003, before the California Supreme Court. That court denied the petition on May 14, 2003.
Petitioner filed a petition for a writ of habeas corpus before the California Supreme Court on April 1, 2003. The Courtsummarilydenied the petition on December 15, 2004.
Petitioner timely filed the pending application for a writ of habeas corpus before this Court on January 10, 2005. (Doc. 1). On April 11, 2006, Respondent filed a motion to dismiss the application for failure to exhaust each of his claims (Doc. 10). On January 31, 2007, this Court granted Petitioner leave to withdraw his unexhausted claims. (Doc. 12). Petitioner filed a motion to withdraw his unexhausted claims (Doc. 13). This Court granted Petitioner's motion to withdraw his unexhausted claims, and denied Respondent's motion to dismiss Petitioner's application as moot. (Doc. 15). In its initial answer filed n December 3, 2007, Respondent admitted that Petitioner has exhausted the remaining claims in the pending application before the California's highest court (identified by Petitioner as claims one, three and seven).
The California Court of Appeal summarized the facts presented at trial as follows in its unpublished decision in which it affirmed the judgment and sentence.
Twelve-year-old Mercedes testified that she and Tiffany, appellant's daughter, were best friends. Tiffany, who was 11 years old, lived with appellant, her sister, Monique, and her aunt, Irene. Tiffany's grandmother, Rosalie Sifuentez, operated a day care that Mercedes attended. Sifuentez was the foster mother to Raquel who also attended the day care and was friends with Tiffany and Mercedes.
On June 8, 2000, Mercedes spent the night with Tiffany at appellant's home. Monique was not home that night. Although the girls' room had two beds, Mercedes slept with Tiffany in Monique's bed because she felt uncomfortable sleeping alone at appellant's home. Appellant had hugged Mercedes and whistled at her in the past, which had made her uncomfortable. Due to the way she was feeling, she made sure to lock one of the bedroom's doors and close the other one before she went to bed. In addition, she slept next to the wall and had Tiffany sleep closer to the door. In the bedroom, over the bed, there was a hanging plant holder which was adorned with Christmas lights and shells. According to Mercedes, the lights were not very close to the bed; they were about an arm's length away.
During the night, Mercedes awoke to the feeling of someone rubbing her chest over her clothing. The rubbing went back and forth over her chest two to three times. The person then tried to reach under her shirt, but Mercedes rolled over knocking down a clock and the person stopped. The touching lasted about five seconds. Then the person adjusted the Christmas lights over the bed. When Mercedes looked up, she saw appellant leave the room. After appellant left, Mercedes began to cry and awoke Tiffany. She told Tiffany what had happened and asked if she could call her mother. Tiffany said she could not. Mercedes had an upset stomach from dinner and went into the bathroom and vomited. When she returned, Tiffany suggested that they sleep in Irene's room on the floor because appellant would not "do anything in there." The two children then moved to Irene's bedroom and went to sleep.
In the morning, appellant woke up Mercedes by pulling on her leg. He took the children to Sifuentez's day care in his truck. Mercedes insisted that Tiffany sit next to appellant on the drive over because she did not want to sit next to him. During the drive, appellant said that he had heard someone coughing in the night, and went in the bedroom to check on the girls. Upon entering the room he noticed that Mercedes was tangled in the Christmas lights and was turning purple. However, Mercedes testified that there were no Christmas lights on her when she awoke that night.
While at Sifuentez's, Mercedes called her mother and told her she had something to tell her, but Tiffany hung up the telephone. Tiffany became angry at her because she did not want Mercedes to tell anyone about what had happened. Then Tiffany told Sifuentez about the allegation Mercedes had made against appellant. Sifuentez became angry, called Mercedes names and told her that she and Raquel were both "bitches." Sifuentez sent all of the girls into a room. At that point, Raquel approached Mercedes and said she heard about what happened and stated that appellant had also touched her in the past.
Tiffany confirmed much of Mercedes's testimony. She stated that Mercedes had spent the night and slept in her bed next to the wall. She confirmed that there had been Christmas lights hanging approximately two feet above the bed. Mercedes woke Tiffany up in the middle of the night, scared and crying, and told Tiffany that appellant had touched her on her chest. Mercedes was not feeling well and went into the bathroom and vomited. Then the children spent the rest of the night in Irene's room. The next morning, appellant took them to Sifuentez's house. Tiffany saw Mercedes and Raquel talking and overheard Mercedes tell Raquel about the previous night's events. This angered Tiffany who then told Sifuentez about the allegation.
Mercedes's father, Richard G., testified that he picked Mercedes up from day care on the day in question. When he arrived, Sifuentez came out of the house yelling that Mercedes was a troublemaker and a liar. Mercedes was crying. Richard gathered up Mercedes and drove away. When he calmed Mercedes down, she told him that appellant had touched her on her chest the night before. Richard notified the police of the allegation.
Officer Jerry Smith interviewed Mercedes the day after the incident. Mercedes stated that she had spent the night at Tiffany's house and slept with Tiffany in the bed next to the wall. She explained how she had shut both doors, locking one, and slept next to the wall because appellant had made her feel uncomfortable in the past. During the night, appellant entered and rubbed her chest over her clothing. This lasted for approximately one minute. She rolled over and he attempted to grab her breast area. When she rolled over, she knocked down a clock and appellant stopped, adjusted the chimes above the bed and left the room.
Mercedes also recounted how she had awakened Tiffany and then slept in Irene's room. In the morning, on the way to Sifuentez's house, Mercedes had Tiffany sit next to appellant. At the day care, Mercedes stated she told Raquel about the touching. Raquel stated the same thing had happened to her.
After speaking with Mercedes, Officer Smith interviewed appellant at his home. When he arrived, appellant stated he knew why Smith was there because Sifuentez had called him and told him about the allegation. Appellant stated that he had gotten home at 9:00 p.m. on the night in question, saw the girls briefly, and went to bed. He denied going into the girls' bedroom at all that night. Appellant then stated he did recall going into the room once because he could hear that someone was having a nightmare. According to appellant, he went into the room and unplugged the Christmas lights over the bed because he was concerned Mercedes would get tangled in the cords. He denied ever touching Mercedes that night.
Mercedes's mother, Marbella R., testified that she had received a call from Mercedes on the day in question. Mercedes told her she had to tell her something, and then said she would tell her later. Counts Two through Four - Raquel Raquel, who was 13 at the time of trial, testified that she was a friend of Tiffany and was the foster daughter of Sifuentez. She met appellant when she was nine years old. She recalled a time in 1997, when she was nine, where appellant touched her while they were in his apartment. Raquel had gone swimming with Tiffany and Monique at the pool at appellant's apartment complex. When they were finished, they went into appellant's apartment. Tiffany and Monique went into the bathroom and appellant had Raquel sit on his lap. While she was on his lap, appellant placed his hand on her vagina over her swimsuit, but did not move his hand. He kept his hand in place for approximately five minutes. She felt uncomfortable during the episode.
Officer Romo determined from official records that appellant lived in an apartment from September of 1997 until the following year. The apartment complex had a pool near appellant's unit.
After appellant moved into his house, Raquel often spent the night on the weekends. She estimated that she would spend about three weekends per month at appellant's home. When she visited, she slept on the floor in Tiffany and Monique's bedroom. Every night Raquel slept at the house appellant would enter the room and either rub his hands over her breasts or touch her vagina over her clothing. The touching made her feel uncomfortable. Raquel recalled that appellant had also hugged her in a manner she did not like. When she was nine years old, appellant told her not to tell Sifuentez about the touching.
The last time appellant had touched Raquel was when she was in the sixth grade. He touched her in her private areas over her clothing. When Raquel found out that appellant had also been touching Mercedes, she told Mercedes about the times appellant touched her. When Sifuentez was told about the allegations, she did not believe the girls. Raquel told Sifuentez that she was just "messing around" because she knew Sifuentez would not believe them.
Raquel told her sister Rebecca about the touchings some time before Mercedes made her allegation. Sifuentez found out about this allegation and became very upset. Sifuentez stated that appellant "would never do such a thing."
Officer John Romo interviewed Raquel about her allegations. Initially, Raquel denied ever being touched by appellant. The officer felt she was withholding information and continued questioning her. He told Raquel that he knew she had told Mercedes that she had been touched and asked her what she had told Mercedes. She said that she told Mercedes that appellant had touched her "all over." These touchings occurred while she was sleeping in the bedroom when she was visiting Tiffany and Monique. She recalled the first time she was touched by appellant occurred when she was nine years old. Appellant touched her vagina and breasts while she was sitting on his lap. Appellant told her not to tell Sifuentez about what had happened. The last time she was touched was when she was 11 years old and occurred at appellant's house. She had been spending the night, and appellant touched her over her clothing while she slept. Raquel also stated that appellant would touch her every time she spent the night at his house. The touchings always occurred over her clothing. Defense case Tiffany, appellant's daughter, testified that Raquel never went swimming at appellant's apartment complex and could not recall there being a swimming pool in the complex. Tiffany also testified that on the night Mercedes claimed appellant touched her, she was sleeping in an upright position because she had an upset stomach. In that position she was within reach of the Christmas lights. Sifuentez testified that she had known appellant, her ex-son-in-law, for 15 to 20 years. Raquel and Rebecca were her foster children for three years. She stated that during the summer months she would take Tiffany, Monique, Raquel, Rebecca and Mercedes swimming at a public pool. She said she never took the girls to appellant's house after swimming; instead, they would go home with her.
In May 2000, Monique and Rebecca told her that Raquel was making allegations against appellant. Raquel told her she was just "messing around." Two weeks later, Mercedes made an allegation against appellant. She did not reveal the information until she was leaving and her father was honking his horn outside. She followed Mercedes outside and tried to talk to her father, but he said he would call the police and drove away. Sifuentez denied ever telling the girls that she did not believe their allegations against appellant and denied calling ...