FINDINGS AND RECOMMENDATIONS
Petitioner Steven Bolton is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner attacks his August 27, 2002 conviction for violation of California Penal Code § 288(a) in the Butte County Superior Court, Case No. CM017082.
Petitioner makes the following claims:
A. The trial court violated petitioner's constitutional rights by granting the prosecution's motion to file an amend information after petitioner waived his right to a preliminary hearing; and
B. The trial court violated petitioner's constitutional rights by instructing the jury that the credibility of a child witness is different than an adult's.
Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's petition for habeas corpus relief be denied.
III. FACTUAL AND PROCEDURAL BACKGROUND
In the summer of 2001, [petitioner] and his wife rented a house in Palermo. In December 2001, Maria A. and her children, including her 8-year-old daughter Penny, moved in with [petitioner] and his wife. When the landlord disapproved of the living arrangement, he asked [petitioner] and his wife to move. On February 6, 2002, [petitioner] and his wife moved from the residence.
One evening after Christmas 2001, [petitioner] entered a bathroom that Penny was using and placed his finger inside her "private spot." The touching scratched her vagina and continued until she stated, "Don't." When they left the bathroom he threatened her, "You tell anybody, I'm going to kill you." He was not assisting her in wiping herself when he touched her.
At some point, Penny showed Maria the scratch in her vagina. Maria placed ointment on the scratch and it healed in about three days.
On March 2, 2002, Penny returned from a shopping trip with her family and a friend. When Penny observed [petitioner], she "crawled" up under the dashboard of the truck in which they were riding. After [petitioner] left the area, Penny stated, "he's the one that g[a]ve me the scratch."
Later in March 2002, Penny was examined by a family nurse practitioner. Penny related that she was touched inappropriately in her "pee pee."
October 25, 2004 opinion of the California Court of Appeal, lodged with this court at Answer, Lodged Document 2 at 2. On August 27, 2002, a jury found petitioner guilty of one count of violating California Penal Code § 288(a), lewd act upon a child. Clerk's Transcript ("CT") at 69. On January 21, 2003 the trial judge sentenced petitioner to six years incarceration. Id. at 118.
B. State Habeas Corpus Proceedings
On December 17, 2003 petitioner appealed his conviction to the California Court of Appeal, Third District. Answer, Lodged Doc. 1. That court affirmed the judgment on October 25, 2004. Answer, Lodged Doc. 2. On November 23, 2004 petitioner petitioned the California Supreme Court. Answer, Lodged Doc. 3. The California Supreme Court denied that petition on January 12, 2005. Id. Petitioner filed the instant federal petition on March 6, 2006.
IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. SeePeltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. SeeEstelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues denovo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). SeeLindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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 ...