FINDINGS AND RECOMMENDATIONS
Petitioner is a state prison inmate proceeding pro se with a petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his Sacramento County convictions for violations of California Penal Code §§ 288(a) and 269(a)(1), and a multiple victim enhancement, Penal Code § 667.61(e)(5). Petitioner claims he was denied due process by the reading to the jury of CALJIC 2.03 and CALJIC 10.60 because these instructions, he says, shift the burden of proof away from the prosecution. Petitioner further claims he was denied due process by respondent's failure to provide discovery of exculpatory evidence.
After a review of the record, this court accepts the Court of Appeal's factual recitation of the material presented to petitioner's jury:
. . . The defendant began living with his girlfriend, who was the mother of the two victims, in the fall of 2000. The older victim, born in 1989, testified that defendant twice forcibly raped her when she was in the sixth grade. She told her aunt about the incidents a while after they happened, after her younger sister was examined for physical signs of molestation in May 2001. However, she did not tell anyone else until she spoke with police a year later, when her grandmother reported the incident after the aunt finally told her.
The younger victim, born in 1992, only testified to one incident in which the defendant attempted intercourse with her and then had her orally copulate him. A family friend testified that the younger victim had told her during a 2001 visit that she did not want to go home because the defendant "sticks his peepee in [her] mouth" and "in her private," and had ejaculated a white liquid that looked "kind of like spit." The family friend reported this to the victim's family, and they decided to call the police. The younger victim told a police officer that the defendant had intercourse with her five times and put his penis in her mouth one time; when he asked why she had just finished telling an interviewer that nothing happened, she said she was afraid. She testified, however, that she never told the police officer that it had happened five times, or told an earlier interviewer that it had happened four times.
A nurse practitioner examined both victims. The condition of the younger victim's vagina was consistent with past sexual abuse. An examination of the older victim did not reveal any indication of molestation.
II. Standards Under the AEDPA
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). Federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings unless the state court's 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 presented in the State court proceeding.
28 U.S.C. § 2254(d) (referenced herein in as "§ 2254(d)" or "AEDPA"). See Ramirez v. Castro, 365 F.3d 755, 773-75 (9th Cir. 2004) (Ninth Circuit affirmed lower court's grant of habeas relief under 28 U.S.C. § 2254 after determining that petitioner was in custody in violation of his Eighth Amendment rights and that § 2254(d) does not preclude relief); see also Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003) (Supreme Court found relief precluded under § 2254(d) and therefore did not address the merits of petitioner's Eighth Amendment claim).*fn1 Courts are not required to address the merits of a particular claim, but may simply deny a habeas application on the ground that relief is precluded by 28 U.S.C. § 2254(d). Lockyer, 538 U.S. at 71 (overruling Van Tran v. Lindsey, 212 F.3d 1143, 1154-55 (9th Cir. 2000) in which the Ninth Circuit required district courts to review state court decisions for error before determining whether relief is precluded by § 2254(d)). It is the habeas petitioner's burden to show he is not precluded from obtaining relief by § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) are different. As the Supreme Court has explained:
A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is ...