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Kershaw v. Evans

August 12, 2009


The opinion of the court was delivered by: Mary M. Schroeder, United States Circuit Judge


Before the court is Michael Upton Kershaw's petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. A jury found Kershaw guilty of three counts of nonforcible child molestation. The jury also sustained a recidivist allegation based on Kershaw's 1996 conviction for forcible child molestation. The state court sentenced Kershaw to state prison for an aggregate term of 105 years to life.


This court presumes state court findings of fact to be correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The following facts are taken from the unpublished opinion of the California Court of Appeal, Third Appellate District:

In May 1999, the victim [Holly Swett] (born July 1985) and her friend [Kerrie Vigrass] (born August 1985) made plans by phone to rendezvous with the latter's boyfriend [Blake Robinson] (the 15 year old cousin of the defendant) at the defendant's apartment. The victim had previously dated the cousin as well. The victim spoke with the defendant in the course of the conversation; he happened to mention that he had served a jail term and was 24. The victim lied to her mother about her destination; the friend's mother knew where she was going. The two girls met the defendant and his cousin at the mall, then the group walked to his apartment.

As the defendant and the teenagers sat in the living room, his mother and her companion emerged from one of the bedrooms and asked if the girls were there with their mothers' permission. The victim answered affirmatively. The older couple returned to their bedroom. Wanting a better "buzz" than the beer in the apartment provided, the quartet left to obtain stronger libations, which the defendant purchased for them with money they provided. Back at the apartment, the victim had five shots of vodka; she testified she was not "big-time" inebriated as a result. While they drank, the victim told the defendant she was either 13 (her testimony) or 14 (her friend's testimony).

The foursome retired to the defendant's bedroom, where they briefly played "Truth or Dare." As the cousin and the victim's friend wanted to be alone, the defendant and the victim went into the living room, closing the door to the bedroom behind them. At least an hour passed before the couple in the bedroom rejoined the others.

After the victim and the defendant exchanged several kisses, they lay on the sofa watching television. The defendant's mother and her companion emerged from their bedroom and left the apartment. After a while, the defendant asked if the victim was interested in sexual activity with him. She declined. Some time later, he repeated the question, and she again declined. This time, he nonetheless slid off her bikini bottom, spread her legs, and began to copulate her vagina orally [which served as the basis for Count 1], followed by digital penetrations [which served as the basis for Count 2]. She did not protest; "[i]t was kind of like a mutual thing." He stopped. She pulled up her bathing suit. He asked if she would engage in further sexual activity with him. She declined. After a few minutes, they rejoined the couple in the bedroom (according to the victim; her friend did not testify to this interruption). The defendant and the victim then returned to the living room. While he touted the advantages of a 24-year-old sexual partner, the defendant removed her bikini bottom again. Stripping off his pants, he began to have intercourse with the victim. [The intercourse served as the basis for Count 3]. After a moment or two, she decided she could not participate any longer. She pushed the defendant away and pulled on her clothes.

The other couple now emerged from the bedroom. The three teenagers were getting tired. According to the victim, the girls walked to the store with the defendant for some cigarettes and snacks. After they got back to the apartment, the defendant's mother and her companion returned. The girls shared a cigarette outside, then the teens all went to sleep in the defendant's bedroom while he slept on the couch. According to her friend, before smoking outside, the victim mentioned to her while they were in the kitchen that she had engaged in sexual activity with the defendant. She did not appear upset. The defendant's mother and her boyfriend [left] the apartment when the girls came back inside, and did not return before the victim fell asleep.

The next morning, the defendant drove the girls back to their neighborhood. The victim reported the incident to her aunt. About two weeks later, the victim gave a statement to the authorities after her mother notified them. About a week after the defendant's arrest, his cousin threatened the victim, telling her a group of girls would be assaulting her. This never happened, and the cousin later apologized to the victim's mother for the threat.

The defendant testified, admitting two prior convictions for sexual offenses with young girls. He was familiar with the victim's friend but had never seen the victim before the two girls appeared at the apartment uninvited to see his cousin. The girls were visibly inebriated. He saw a liquor bottle in one of their backpacks. After 5-10 minutes, the defendant left. He was upset because the girls' presence was a violation of his parole conditions. He came home after an hour. Everyone was watching a movie on television. The defendant thought he detected a peculiar smell in the rear of the apartment, which may have been marijuana. After the movie ended, his cousin disappeared into the bedroom with his girlfriend for about a half-hour. The defendant's mother remained with him and the victim in the living room. When the couple returned from the bedroom, the victim asked to talk to the cousin in the bedroom. They, too, were gone about a half-hour before returning. After the teens retired to his bedroom to go to sleep, the defendant remained awake in the living room until the early hours of the morning. His mother and her companion intermittently checked in on him.

According to the defendant's cousin, the girls phoned him that day to tell him they were coming over uninvited. The cousin, the defendant's mother, and the mother's companion all essentially corroborated the defendant's account. All denied supplying any liquor or marijuana that night. The defendant's mother noted she removed a liquor bottle from one of the girls' backpacks to replace the contents with water.

The defendant's female cousin (sister to the other cousin) had met the victim previously through a mutual friend. She testified she was riding in a car with the victim, the victim's mother and sister, and another passenger in September 1999. Someone asked the victim if anything had happened between the victim and the defendant. The victim said to "tell the lawyer nothing happened." The female cousin admitted she was no longer friendly with the victim, but had simply stayed in contact with her to find out more information for the case.

People v. Kershaw, No. C036297, 2002 WL 27168, at *1-2 (Cal. Ct. App. January 10, 2002).


Kershaw was convicted by a jury on February 15, 2000 of three counts of lewd and lascivious acts on a child under fourteen, in violation of California Penal Code § 288(a). The jury also found that the allegation of a prior conviction for forcible child molestation, see Cal. Penal Code § 288(b), was true. The state court sentenced Kershaw to an aggregate state prison term of 105 years to life. It imposed a sentence of 50 years to life for each count (25 years to life for each count, Cal. Penal Code § 667.71, doubled to 50 years to life under California's Three Strikes Law, California Penal Code § 667(e)). The court stayed the execution of count two because the court found that counts one (oral copulation) and two (digital penetration) constituted only one incident. It also imposed a consecutive five-year enhancement pursuant to California Penal Code § 667(a) for the jury's finding that Kershaw was a habitual sex offender.

On August 14, 2000, Kershaw filed a timely notice of appeal with the California Court of Appeal. The state appellate court affirmed the judgment. Kershaw, 2002 WL 27168, at *7. On February 19, 2002, Kershaw filed a petition for review with the California Supreme Court. The California Supreme Court denied this petition on March 27, 2002.

On March 19, 2003, Kershaw filed a habeas corpus petition in state court. The state court dismissed all of Kershaw's claims. It first held an evidentiary hearing on the issue of whether Kershaw was aware of his maximum sentence exposure during the plea bargaining process. At the conclusion of the hearing, the court denied the claim, and dismissed the petition. A petition for habeas corpus was later filed in the California Supreme Court. This petition was also denied.

After exhausting his state court remedies, Kershaw filed the current federal habeas petition. He alleges the following: (1) ineffective assistance of counsel; (2) that admission of certain evidence violated his due process rights; and (3) that the trial court failed in its duty to explain legal issues in response to a specific jury inquiry.

The writ of habeas corpus is available to "a person in custody pursuant to a judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). As dictated by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a district court's standard of review is as follows:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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 ...

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