The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2005 conviction for 16 felony counts and one misdemeanor count of sexual offenses against R.S. (counts 1-7), B.L. (count 9), R.F. (counts 10-14), and R.G. (counts 15-18) as follows: aggravated sexual assault of a child under 14 years of age (Cal. Penal Code § 269(a)(1)(count 1)), committing lewd or lascivious act upon a child under the age of 14 by force or fear (Cal. Penal Code § 288(b)(1)(counts 2-7)), misdemeanor count of annoying or molesting a child under the age of 18 (Cal. Penal Code § 647.6(a)(count 9), committing a lewd or lascivious act upon a child under the age of 14 (Cal. Penal Code § 288(a)(counts 10-18).
Petitioner is serving a sentence of 135 years to life.
Petitioner raises three claims: 1) his life sentences pursuant to former Cal. Penal Code § 667.61(g)*fn1 violate Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004); 2) his consecutive life sentences pursuant to Cal. Penal Code § 667.61(d) violate Blakely, supra; 3) his sentence violates the Eighth Amendment.
After carefully reviewing the record, the court orders that the petition is denied.
II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)
The AEDPA "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).
In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.
"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Williams (Terry), 529 U.S. at 407-08, 120 S.Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams (Terry), 529 U.S. at 410-11, 120 S.Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S.Ct. 357 (2002).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S.Ct. at 366.
However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "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." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
The California Court of Appeal was the last state court to issue a reasoned opinion addressing the claims raised in this action. See Respondent's September 5, 2008, lodged document (petition for review, order denying review). Accordingly, the court considers whether the denial of these claims by the California Court of Appeal was an unreasonable application of clearly established Supreme Court authority.
The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the court finds this summary to be accurate and adopts it below.
At the time of trial, defendant was 40 years old.
R.F. was born in March 1989. R.F.'s cousin, R.G., was born in July 1988. R.F.'s father, Michael F., had been friends with defendant since 1986. From March through November of 1997, Michael F. lived with defendant in a house in Rancho Cordova. Defendant owned the house, and Michael F. paid him rent.
R.F. lived with her mother in Stockton. She visited her father on weekends during the school year and took longer visits during the summer. R.G. would occasionally sleep over with R.F. during these visits. Defendant would watch R.F., her two brothers and R.G. when R.F.'s father was away.
Defendant jointly molested R.F. and R.G. several times. According to the testimony of R.G., this happened once when R.F. and R.G. were sleeping over at the Rancho Cordova residence. The two girls were asleep on the couch when defendant started to touch them. He forced them to touch and kiss each other. Defendant placed a finger in R.G.'s vagina.
Another time, at R.G.'s grandmother's house,*fn2 defendant made the girls shower together while he watched them. He then took the girls "in the room and scooted us together while we didn't have our clothes on."
On the following day, defendant watched R.F. and R.G. shower together. After the shower, defendant had the girls touch each other's vaginas. The girls then got dressed.
Later that day, the two girls were in a room with defendant and R.F.'s two brothers. The boys were watching television while defendant and the girls were lying on a bed. Defendant touched the girls, including putting his finger inside R.G.'s vagina. He made the girls touch each other and kiss each other while they were under a blanket. Defendant then took a Polaroid photograph of R.F. with her pants off.
Other molestations took place on a trip to Reno. R.F., her two brothers, Michael F., R.G. and defendant stayed in a hotel during a three-day trip to Reno. While Michael F. was away from the room and the two boys were asleep, defendant made the girls take their clothes off and kiss each other. Defendant had intercourse with R.F. while R.G. was kissing her. The girls were molested all three days they were in Reno.
R.G. testified defendant molested her three times in Reno, twice at her grandmother's house, and once at his house. She was around seven or eight when defendant molested her. The incidents took place on different days, but happened in the same year. Defendant told R.G. if she said anything about this he would " 'kill the person that [she] love[d] the most.' " R.G. took this to mean her grandmother.
R.F. also testified that she and her cousin R.G. were made to kiss each other. Defendant would touch both of them on their breasts and vagina. Defendant had intercourse with R.F. while R.G. was lying next to her. This happened more than once. She was around nine at the time, and R.G. was around 10. R.F. saw defendant molest her two-year-old cousin around this same time.
R.F. was also molested when she was alone with defendant. The molestations started when she was five or six and continued until she was about nine. Defendant started having intercourse with her when she was around eight or nine. He had intercourse with R.F. at least five times, including one or two times in Reno. The molestations took place at defendant's house in Rancho Cordova when her ...