FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, brings this application for writ of habeas corpus pursuant to 28 U.S.C. §2254. Petitioner is serving a sentence of 37 years to life, plus a life sentence with eligibility for parole after 60 years, pursuant to a judgment of the California Superior Court, Sacramento County, Case Number 97F01537. Petitioner was convicted of two counts of unlawful sexual intercourse with a person incapable of consenting because of a mental disorder, four counts of committing a lewd act with force upon a child under the age of fourteen, and of committing the offenses against two or more victims. The sentence included an enhancement for one prior conviction of a violent or serious felony. After this court's January 3, 2008 order granting respondent's motion to dismiss, petitioner's sole surviving claim is ineffective assistance of counsel at trial. After careful review of the record, it is recommended that the claim be denied.
The following factual summary is taken from the unpublished opinion of the California Court of Appeal, Third Appellate District, Case No. C041230*fn1
Apparently to the women in his life, defendant is an intoxicant. He beats them, betrays them, and molests their daughters. Yet, they return to him time and time again. The story begins with Celestine. Defendant began dating Celestine in 1978. At the time they began their relationship, Celestine had a baby daughter, A.B. Over the years, defendant and Celestine separated and reconciled several times. In 1980 they had a daughter together.
A.B. testified that defendant began molesting her when she was eight years old. The molestations increased in frequency and force for about a year. Defendant forced her to kiss his penis and ultimately attempted to insert his penis into her vagina. He ejaculated on her and instructed her to clean up in the adjacent bathroom. When she was nine, she told her mother, who reported the molestations to the police. Defendant was arrested and jailed for six months. The prosecution introduced evidence of the police reports and the medical examinations that corroborated A.B.'s testimony.
During the time defendant was involved with Celestine, he also began a relationship with Albertina. In 1987 Albertina had a daughter, F.R. Within a year of F.R.'s birth, Albertina and defendant began living together sporadically. They, too, had a daughter together.
In 1990 or 1991 Celestine and her three children moved back in with defendant. The pattern repeated itself. Defendant again molested A.B., who was then 12 or 13 years old. A.B. reported the molestation to her mother.
Albertina married defendant in 1990, shortly after he was convicted of abusing her. In 1991 she called the police and reported that defendant had molested F.R., who was then four years old. In 1995 she called the police to report that defendant was smoking rock cocaine. The prosecution introduced evidence of many other reports of domestic violence and drug use. In 1997, for example, Albertina told police in a 911 call that defendant had kicked in the door, looking for jewelry to pawn to buy drugs, and had punched and kicked her in the head and body.
Defendant worked for MV Transportation (MVT) from July 1993 to November 1996. MVT provided transportation for developmentally disabled students to the Elk Grove Adult Community Training program. Patty R. is developmentally disabled. Cognitively, she functions much like a six- to eight-year-old child. In 1993 defendant drove Patty on the bus to the program. The following year, he became a dispatcher and spent some of his time in Stockton. Nevertheless, dispatchers would sometimes drive the buses.
In the fall of 1996 Patty began to have nightmares two or three times a week for a couple of months. In January 1997 Patty became defiant, yelling and using profane language. She accused her mother of failing to "save" her. She shouted, "Willie raped me. My bus driver raped me."
Patty testified that defendant raped her in the back of the bus. She recounted that she was the first student to be picked up. Defendant ordered her to lie down in the back of the bus, where he pulled down her pants, put on a condom, and then inserted his penis into her vagina after she unsuccessfully tried to push him off. He put the used condom in a paper towel and discarded it by the railroad tracks. Patty testified that the rape occurred on May 10, 1995, the day one of her Shetland ponies was born. Another pony was born in May 1996.
Route sheets for May 1995 indicate there were several days when Patty was the first client picked up. An MVT division manager testified the morning route sheet for May 19, 1995, is missing from MVT's records. The regular driver that day, Irene Campa, was out; appellant was the dispatcher that day and would have driven the route if he had been unable to find a substitute. The route sheet for June 14, 1995, also is missing. MVT had no route sheets at all for the period from July 1995 through May 1996. On June 12, 1996, Patty had been the first passenger picked up, and appellant had been the driver; but he did not document the starting mileage on the route sheet, a violation of company policy.
On December 31, 1998, 11-year-old F.R. called 911 to report that defendant had raped her. She told the investigating officer defendant molested her on December 1, 4, 16, and 30. She provided few details about the first three incidents but was very specific ...