The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER: 1) ADOPTS-IN-PART AND MODIFIES-IN-PART THE REPORT AND RECOMMENDATION (Doc. No. 12.) 2) DENIES PETITION FOR WRIT OF HABEAS CORPUS (Doc. No. 1.)
On February 22, 2007, Petitioner Willie Cantrell ("Petitioner"), a state prisoner proceeding pro se, filed this habeas petition seeking relief under 28 U.S.C. § 2254. On July 7, 2008, Magistrate Judge Louisa Porter filed a Report and Recommendation ("Report"), recommending that the Court grant the pending motion to dismiss. On October 21, 2008, Petitioner filed his objections. The Court decides the matter on the papers submitted and without oral argument. See Civil Local Rule 7.1(d.1). For the reasons outlined below, the Court ADOPTS-IN-PART and MODIFIES-IN-PART the Report and DENIES the petition.
On April 28, 2004, following a jury trial, Petitioner was found guilty in San Diego Superior Court of four counts of committing a lewd act upon a child in violation of California Penal Code section 288(a). (Lodgment 1at 214-217).
The jury had not heard the proposed expert testimony of Dr. Thomas Lee regarding how a child's testimony can be influenced by adults. The jury had, however, heard evidence that Petitioner had sexually abused another child with whom he had previously lived. (Lodgment 7 at 260-269).
At sentencing, Petitioner admitted to five prior serious felony convictions. The trial court struck four of the Petitioner's prior convictions. (Lodgment 7 vol. 2 at 401). Accordingly, only one prior conviction remained for consideration in Petitioner's sentencing pursuant to California's recidivist sentencing statute. To justify striking the priors, the trial court cited the "washout period" during which Petitioner remained a law abiding citizen. Id. Moreover, the trial court emphasized that the priors were too attenuated in time for consideration because they all occurred more than twenty years before Petitioner perpetrated the present offense. Id. In sum, the trial court reasoned that treatment under the Three Strikes law would be disproportionate to the nature of the case and that he had "adequate sentencing parameters within which to punish" a one-strike defendant. Id. At the time of sentencing, Petitioner was 52 years old. Id.
Petitioner was then sentenced to 43 years in prison. (Lodgment 7 Vol. 2 at 371--411). The sentence included the upper-term sentence of eight years for count one, justified by the finding of two aggravating factors, and one-third the middle term sentence of six years on counts two, three, and four, all which doubled as a result of the one remaining strike. Id. Additionally, the trial court had found that counts two, three and four were separate incidents between which Petitioner had time to reflect upon his actions, and as such, imposed consecutive sentences. (Lodgment 7 vol. 2 at 408). The trial court then, under California law, imposed an additional fifteen years to account for the serious felony priors. Id.
The two aggravating factors used to justify the imposition of the upper-term sentence for count one were both factually based. Specifically, the trial court first found that Petitioner "violated the trust and love of a minor child" and that his acts were "egregious" and "calculated." (Lodgment 7 vol. 2 at407). And second, the trial court stated that while Petitioner "has not been previously convicted of any other sexual offenses, there was evidence before the Court of prior contacts with another family member at the same age." (Lodgment 7 vol. 2 at407). No other factors were cited to aggravate Petitioner's sentence.
On February 22, 2007, Petitioner filed a habeas corpus petition seeking relief under 28 U.S.C. § 2254. On July 7, 2008, Magistrate Judge Porter issued a Report and Recommendation ("Report") recommending that Petitioner's habeas petition be dismissed. (Doc. No. 12). The Report also ordered that any objections were to be filed by August 8, 2008, and that replies to the objections were due ten days after being served. On August 11, 2008, Petitioner requested a time extension to file objections. (Doc. No. 13). On August 14, 2008, the Court granted Petitioner's motion, and gave the parties until October 6, 2008. (Doc. No. 14). On October 21, 2008, Petitioner filed objections. (Doc. No. 16). Despite their lack of timeliness, the Court accepted and considered Petitioner's objections in making its determination. To date, no reply to the objections has been filed.
The duties of a district court in connection with a magistrate judge's report and recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "must make a de novo determination of those portions of the report ... to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C); see also United States v. Raddatz, 447 U.S. 667, 676 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).
When a reasoned state court decision addresses a petitioner's Constitutional claims, Federal courts conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court Law. See Delgado v. Lewis, 223 F. 3d 976, 982 (9th Cir. 2000). A state court decision is contrary to clearly established Supreme Court law if it (1) applies a rule that contradicts the governing law set forth in Supreme Court cases; or (2) confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at the opposite result. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision is an unreasonable application of the law to the facts "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
Petitioner seeks relief on grounds that: (1) Petitioner's federal right to due process was violated when the trial court did not allow him to present expert opinion testimony of the unreliability of children's testimony; (2) Petitioner was convicted in violation of his federal right to due process when propensity evidence was presented to the jury; and (3) Petitioner's Sixth Amendment right to a jury trial was violated at sentencing when the trial court relied upon facts not found by a jury. (See Doc. No. 1).
Having read and considered the underlying Petition, and the Report and Petitioner's objections thereto, the Court ADOPTS-IN-PART and MODIFIES-IN-PART the Report, and for the reasons below, DENIES Petitioner's writ of habeas corpus.
A. The Trial Court's Exclusion of Petitioner's Proposed Expert
In Ground One of the habeas petition, Petitioner claims that the trial court abused its discretion when it refused to let Petitioner present the expert testimony of Dr. Thomas Lee regarding how a child's testimony can be influenced by adults. Petitioner alleges that this refusal was a violation of his federal right to due process. (Doc. No. 1 at 6.) The Report ...