The opinion of the court was delivered by: Vaughn R Walker United States District Chief Judge
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner Seum Sisavath, a state prisoner incarcerated at the California Substance Abuse Facility in Corcoran, CA, seeks a writ of habeas corpus under 28 USC § 2254. For the reasons set forth below, a writ is DENIED.
On October 2, 2002, after a jury trial in Fresno County Superior Court, petitioner was found guilty of five counts of lewd and lascivious acts with a child, two counts of aggravated sexual assault of a child, one count of possession of a controlled substance, one count of possession of marijuana, and one count of simple assault. The jury also found true allegations that there was more than one victim, requiring the imposition of terms of fifteen years to life. Petitioner was sentenced to thirty-two years to life on November 7, 2002, and subsequently appealed.
On May 27, 2004, in a partially published opinion, the California Court of Appeal affirmed the judgment in part, reversed it in part and remanded the case to the trial court for resentencing. Petitioner was resentenced to thirty-two years to life on November 10, 2004. The judgment was affirmed by the California Court of Appeal on September 8, 2006; petitioner's petition for review with the California Supreme Court was summarily denied on December 14, 2005.
Petitioner filed his initial federal court petition October 13, 2006; on March 12, 2007, he filed his First Amended Petition. After respondent moved to dismiss the First Amended Petition for failure to exhaust, petitioner filed a Second Amended Petition on March 25, 2008. Per order filed on April 30, 2008, the court ordered respondent to respond to the Second Amended Petition. Respondent has filed an answer addressing the merits of the petition and petitioner has filed a traverse.
The California Court of Appeal summarized the factual background of this case as follows:
Defendant was an acquaintance of Ly N, the mother of an 8 year old (Victim 1) and a 4 year old (Victim 2). He was introduced to Ly by Ly's ex-husband, who sometimes had defendant care for Victim 1 and Victim 2. Over a period of about five months, from September 2001 to January 2002, defendant visited on several occasions with Victim 1 and Victim 2 at Ly's apartment. He sometimes spent the night in the living room or in the children's bedroom. Occasionally, he took the children away with him.
On January 29, 2002, Victim 2 told her mother that defendant had touched her private parts the night before. When questioned by her mother, Victim 1 made similar statements. Ly called the police. The responding officers took statements from Ly, Victim 1, and Victim 2. When defendant came to the house later that evening, Ly called the officers and they returned and arrested defendant. He had cocaine and marijuana in his pants pockets when he was arrested.
The police investigation revealed evidence of numerous instances of sexual abuse of Victim 1 and Victim 2. Defendant was charged by information with 10 counts of sexual abuse and two counts of narcotics possession.
Trial evidence included testimony by Victim 1, a videotaped statement by Victim 2, and a police officer's testimony describing statements by Victim 1 and Victim 2. DNA test results were also introduced, showing that defendant's semen was found on a pair of panties on which cells from Victim 1 were also found. Other DNA test results showed that defendant's semen was on a blanket found in the children's bedroom. An expert of Child Sexual Abuse Accommodation Syndrome gave testimony bearing mainly on why a sexually abused child might not immediately report the abuse.
People v Sisavath, 118 Cal App 4th 1396, 1398-1400 (2004) (Opinion at 2-4).*fn1
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified under 28 USC section 2254, provides "the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the [p]petitioner is not challenging his underlying state court conviction." White v Lambert, 370 F3d 1002, 1009-10 (9th Cir 2004). Under AEDPA, this court may entertain a petition for habeas relief on behalf of a California state inmate "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 USC section 2254(a).
The writ may not be granted unless the state court's adjudication of any claim on the merits: "(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 presented in the State court proceeding." 28 USC § 2254(d). Under this deferential standard, federal habeas relief will not be granted "simply because [this] 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 v Taylor, 529 US 362, 411 (2000).
While circuit law may provide persuasive authority in determining whether the state court made an unreasonable application of Supreme Court precedent, the only definitive source of clearly established federal law under 28 USC section 2254(d) rests in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Id at 412; Clark v Murphy, 331 F3d 1062, 1069 (9th Cir 2003).
Petitioner seeks federal habeas relief based on two claims: (1) petitioner's trial counsel was constitutionally ineffective for failing to object to the filing of different and additional charges in an amended information; (2) admission of certain statements at trial violated petitioner's right under the Sixth Amendment to confront the witnesses against him.
In his first claim for relief, petitioner claims ineffective assistance of counsel based on his trial counsel's failure to object to the filing of different and additional charges in an amended information.
In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner must establish two things. First, he must establish that counsel's performance was deficient, i e, that it fell below an "objective standard of reasonableness" under prevailing professional norms. Strickland v Washington, 466 US 668, 687-88 (1984). Second, he must establish that he was prejudiced by counsel's deficient performance, i e, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id at 694.
Petitioner has the burden of showing that counsel's performance was deficient. Toomey v Bunnell, 898 F2d 741, 743 (9th Cir 1990). Similarly, he must "affirmatively prove prejudice." Strickland, 466 US at 693. Conclusory allegations that counsel was ineffective do not warrant relief. Jones v Gomez, 66 F3d 199, 205 (9th Cir 1995).
The California Court of Appeal, after concluding that petitioner had waived any objection to the amended information, addressed petitioner's ineffective assistance of counsel ...