The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER: (1) ADOPTING IN FULL THE REPORT AND RECOMMENDATION, AND (2) DENYING THE PETITION FOR WRIT OF HABEAS CORPUS (Doc. No. 30.)
Presently before the Court is Anthony Ramona Medina's (Petitioner) petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1 ("Petition")*fn1 .) The petition challenges the constitutionality of Petitioner's conviction on eleven grounds. Also before this Court is Magistrate Judge William McCurine, Jr.'s Report and Recommendation (R&R) advising this Court to deny this petition, (Doc. No. 30 ("R&R")) and Petitioner's objections to the R&R. (Doc. No. 32 ("Objections").) For the following reasons, the Court ADOPTS the report and recommendation and DISMISSES the petition.
Magistrate Judge McCurine's R&R contains a thorough and accurate recitation of the facts underlying Petitioner's conviction and state court trial. (R&R, at 2--3.) Since Petitioner does not challenge the R&R's discussion of the underlying facts, this Order incorporates them by reference.
Petitioner filed the instant petition on May 23, 2006, claiming that (1) the trial court inappropriately admitted evidence of a prior uncharged sexual offense,*fn2 (Petition, at 8--48, & 78--84) (2) he received ineffective assistance of counsel, (Id., at 49--77) (3) the trial court's instructions to the jury were constitutionally deficient,*fn3 (Id., at 85--94, & 95--99) (4) California Evidence Code section 1108 is unconstitutional, (Id., at 94) and (5) the trial court committed various errors during sentencing.*fn4 (Id., at 99--106.) On September 7, 2006, Respondent filed his answer to the petition. (Doc. No. 13 ("Answer").) Petitioner filed his traverse on January 22, 2007. (Doc. No. 22 ("Traverse").) Magistrate Judge McCurine issued his R&R recommending that the Court deny the petition on March 3, 2009. (Doc. No. 30.) Petitioner lodged his objections on April 8, 2009. (Doc. No. 32.)
I. REVIEW OF THE REPORT AND RECOMMENDATION
Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth the duties of the district court in connection with a magistrate judge's report and recommendation. "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. Remsing, 874 F.2d 614, 617 (9th Cir. 1989); United States v. Raddatz, 447 U.S. 667, 676 (1980).
II. REVIEW OF HABEAS CORPUS PETITIONS UNDER 28U.S.C.§2254
Magistrate Judge McCurine correctly stated the governing legal standard in his R&R. (R&R, at 5--6.) Pursuant to 28 U.S.C. § 2254(a), this Court may only review claims within an application for a writ of habeas corpus based "on the ground that [the Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." Where the Petitioner is "in custody pursuant to the judgment of a State court," this Court may only grant the petition if the adjudication of the claim [either] (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.
Under § 2254(d)(1), federal law must be "clearly established" in order to support a habeas claim. Williams v. Taylor, 529 U.S. 362, 412 (2000). The phrase "clearly established" "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Id. A state court decision may be "contrary to" clearly established precedent in two circumstances: (1) "if the state court applies a rule that contradicts the governing law set forth in" decisions of the Supreme Court, or (2) where "the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent." Id., at 405--06.
There are two general instances where a state court decision involves an "unreasonable application" of clearly established federal law. First, a state court unreasonably applies federal law where it "identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id., at 407. Alternatively, where the state court "either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply," it has unreasonably applied clearly established law. Id. However, in determining whether either of these cases exists, "[i]t is not enough that a federal habeas court, in its 'independent review of the legal question,' is left with a 'firm conviction' that the state court was 'erroneous.'" Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (citations omitted). Instead, the application must be "objectively unreasonable." Id., at 76. That is, "'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.'" Id., at 75--76 (citations omitted).
Finally, § 2254 authorizes habeas relief where the state court's adjudication of a claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court." 28 U.S.C.A. § 2254(d)(2). This provision requires the petitioner to demonstrate by clear and convincing evidence that the factual findings upon which the state court's adjudication of his claims rest are objectively unreasonable. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Where the state's highest court did not provide a reasoned decision, the Court "looks through" to the last reasoned state-court decision. Ylst v. Nunnemaker, 501 U.S. 797, 803--04 (1991). Where "the state court supplies no reasoned decision," the Court must "perform an 'independent review of the record' to ascertain whether the state court decision was objectively unreasonable. 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).
Magistrate Judge McCurine found that none of Petitioner's constitutional claims were meritorious. (See R&R, at 36.) Petitioner objects to the R&R, arguing, inter alia, that it does not properly consider his claims, does not address the proper authority, and does not consider Petitioner's traverse. The Court has reviewed the R&R de novo, considering all pertinent materials, and finds that the petition must be DENIED. Because the Court agrees with R&R's reasoning and conclusions, it ADOPTS the R&R IN FULL. Each of Petitioner's objections is addressed in turn.
I. THE R&R'S ANALYSIS OF CLAIMS I AND III
Magistrate Judge McCurine found that claims one and three were "identical," and thus addressed them together. (R&R, at 10.) Since Petitioner does not dispute this characterization, they will be addressed together here. In claim one, Petitioner argues that the trial Court erred by admitting evidence of a prior uncharged sexual offense under California Evidence Code § 1108.*fn5 (Petition, at 8.) Claim three complains that the trial court should have, but failed to, determine whether the prior uncharged sexual offense was one of the offenses specifically enumerated by § 1108. (Petition, at 53.)
Petitioner argues that this statute was "misappli[ed] and misinterpret[ed]" by the trial court, prosecution, and defense. (Objections, at 2.) According to Petitioner, their view was that § 1108 "'allows any and all,' sexual offenses," not just those enumerated by the statute. (Id.) He claims that his prior behavior constituted lewd conduct rather than indecent exposure, and therefore should not have been admitted. (Id.) In Petitioner's view, this amounts to a violation of his Sixth Amendment rights. (Petition, at 24.) The R&R concluded that these claims were barred by procedural default under the contemporaneous evidence rule. (R&R, at 11--15.)
According to the United States Supreme Court, a state court's rejection of a federal claim based upon a procedural "state law ground that is independent of the federal question and adequate to support the judgment," bars a habeas petitioner's assertion of that claim in federal court. Coleman v. Thompson, 501 U.S. 722, 729 (1991). Even if a claim is procedurally defaulted, a federal court may still consider that claim if "the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Id., at 750.
A. Procedural Default Under the Contemporaneous Objection Rule
Petitioner's objections challenge the R&R's finding that the "contemporaneous objection rule is an adequate bar to federal habeas relief."*fn6 (Objections, at 2--3; R&R, at 12.) He argues that the contemporaneous evidence rule is not "consistently applied," and therefore he should not be prejudiced by having failed to comply with it. (Id., at 3.) In support of this proposition, Petitioner cites Melendez v. Pliler, 288 F.3d 1120 (9th Cir. 2002). In that case, petitioner's trial counsel "asserted her objections in a sufficiently complete and timely fashion" but "the trial court in its discretion declines to consider it on the merits." Id., at 1125--26. The Ninth Circuit held that "California law applicable to [that particular] circumstance . . . is [not] so 'clear, consistently applied, and well-established' as to erect a procedural bar to consideration of a federal constitutional claim." Id., at 1126. Specifically,
Petitioner likens this case to Melendez. He argues that "trial counsel 'strenuously objected to the admission of Petitioner's Arizona offense,' including (sic) the ground that '[t]here's no similarity [between the charged and uncharged offense] except for they are catagorized (sic) as sexual offenses.'" (Objections, at 3 (citing R&R, at 13; Petition, at 18; Traverse, at 13).) He claims that the trial court and the prosecutor concluded that § 1108 permits the admission of evidence of any sexual offense. (Id.) Therefore, according to Petitioner, his lawyer "had no choice but to accept [this interpretation] and move on," and his counsel's failure to object should be excused as "futile." (Id.)
This is incorrect for several reasons. First, the contemporaneous objection rule is "clear, consistently applied, and well-established" in cases such as this one, where the objection was not actually raised at trial. The Ninth Circuit has explicitly so held on multiple occasions. See, e.g., Melendez, 288 F.3d at 1125 (citing Garrison v. McCarthy, 6 ...