FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is serving a sentence of thirty-five years to life in prison following his 2002 conviction on charges of lewd and lascivious acts with a minor under the age of fourteen in violation of California Penal Code § 288(a) with enhancements for two prior serious felony convictions and two prior strike convictions.
Petitioner raises four claims in his petition. First, he claims that his rights under the Sixth and Fourteenth Amendments were violated by the trial court's denial of a motion brought by petitioner and his trial counsel pursuant to People v. Marsden, 2 Cal.3d 118 (1970) to relieve petitioner's counsel from representing petitioner. Second, petitioner claims that his Sixth Amendment rights were violated by the trial court's denial of petitioner's motion for a new trial made on grounds of ineffective assistance of counsel. Third, petitioner claims that his Sixth and Fourteenth Amendment rights were violated by the admission of irrelevant character evidence and by trial counsel's failure to object to the admission of such evidence. Finally, petitioner claims that his Fourteenth Amendment right to a fair trial was violated when the trial court gave an improper jury instruction on adoptive admissions.
Victim's father molested her about age three, and her mother and stepfather, [petitioner], used methamphetamines, which forced her into the role of caregiver for her half-siblings. The People's theory was that [petitioner], a selfish drug abuser, knew she had been "groomed" by her father as a sex object and availed himself of that training. The defense theory was that once [petitioner] got off drugs and began to assert control over the family, victim lied to get him out of the house; after all, she had been in counseling for years and had never previously disclosed the alleged molestations by [petitioner].
Victim, age 18 at trial, is Vicki's daughter and [petitioner] is her stepfather. He and Vicki have two children, a boy and a girl, 14 and 15 years old at time of trial (hereafter referred to as brother/sister).
Victim was molested about age three by her father, Johnny Lee Webb. He was convicted on her testimony, and we upheld the conviction in an unpublished opinion. (People v. Webb (Jan 11, 1989) 3 Crim. No. C003648.
When victim was about six or seven, [petitioner] touched her breasts and vagina in a bedroom. When she was about seven or eight, he put his penis in her mouth and ejaculated; she cried but he told her loved her. Another time, he tried to sodomize her, and apologized for hurting her. When she was about 13, about a dozen incidents took place during the period charged in the information. Usually he put his penis in her mouth but sometimes he touched her breasts and vagina, or put his mouth on her vagina, or rubbed his penis on her vagina.
In September 1999, sister and victim used LSD at a party and sister got drunk on vodka. When [petitioner] learned what had happened he blamed victim for not taking care of her younger sister, they had a fight and victim stayed at a friend's house overnight. She returned home, planning to tell her mother what [petitioner] had done in the past, but because he was there, she stayed in her room and cried all day. Eventually she told her sister and mother, then her counselor, who told the police.
Under Evidence Code section 1108, a friend testified she was a neighbor and one of victim's friends in the past, and once when she was about eight or nine she stayed over at victim's house. She woke up to find [petitioner] with his fingers in her vagina. About one year later the friend told sister that [petitioner] had touched her, but gave no details. When victim's mother asked [petitioner] about it, he vigorously denied touching the friend inappropriately and asked to speak to the friend's mother; later he explained that he had been confused when drunk. The friend's mother accepted that the incident was a mistake caused by [petitioner]'s drunken belief that her daughter was actually Vicki; because her husband sold drugs to [petitioner] and did not want to lose a customer she thought "it was, you know, no big thing."
[Petitioner] told Vicki that he had "French-kissed" victim and thought about molesting her because she had already been molested. He thought God put victim into his life to molest, but after he kissed her he wanted to protect her. At one point [petitioner] said he wanted to watch Vicki have sex with someone else and wanted to have sex with a virgin. Vicki found pictures [petitioner] drew of a woman having sex with a dog, and he said he had seen this happen and drew the pictures for self-therapy.
[Petitioner] testified that he never touched the friend, never told Vicki he wanted to have sex with a virgin nor did he make comments about wanting to molest victim and he did not molest her. He admitted prior heavy use of drugs and two theft-related felony convictions. He testified he never kissed victim in any way, although he admitted that a father would normally kiss a daughter. He admitted drawing pictures of a woman having sex with a dog. He had seen such an event, it had bothered him, and he had made the drawings to help him get over the incident.
People v. Harris, slip op. at 2-4.
I. Standards for a Writ of Habeas Corpus
Federal habeas corpus relief 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.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. 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." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175 (2003) (it 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.'") The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
A. Denial of Marsden Motion
Petitioner's first claim is that the trial court erred in denying a motion for new counsel pursuant to People v. Marsden, 2 Cal.3d 118 (1970). The last reasoned rejection of this claim is the decision of the California Court of Appeal for the Third Appellate District on petitioner's direct appeal. See Lodged Documents 3 and 4. The state court of appeal set forth the facts relevant to this claim, as follows:
Some procedural detail informs our analysis of [petitioner]'s Marsden complaints.
A complaint charging continuous sexual abuse against victim (Pen. Code, § 288.5) and lewd conduct (id., § 288, subd. (a)) against the friend was filed on September 17, 1999. The kidnapping prior was charged as a strike and as a serious felony. Counsel was appointed that day. [Petitioner] entered a not guilty plea four days later, and the preliminary hearing was set for October 5, 1999.
On that day the prosecutor proposed to file an amended complaint adding a strike and defense counsel withdrew a time waiver. An amended complaint was filed on October 19, 1999, which added the federal bank robbery conviction as a strike and a serious felony. [Petitioner] waived preliminary hearing on this complaint.
An information was filed on October 25, 1999, in conformity with the original complaint, i.e., only charging one strike. On November 2, 1999, [petitioner] pleaded not guilty and trial was set for December 15, 1999. An amendment adding the other strike was permitting on December 14, 1999. Trial was reset for March 8, 2000. (Later the information was again amended, and when defense counsel pressed a demurrer, the People dropped the charges regarding the friend and the final information charged a single count of lewd conduct against the victim, and the priors.)
On February 29, 2000, defense counsel moved for additional pretrial discovery, including more information on the victims and their counselors. Counsel alleged victim had received psychological treatment since age five, but had not disclosed the continuous molestations by [petitioner] to her counselors until the age of 16. The victims knew each other and were involved with the criminality, including drugs and alcohol, and [petitioner] wanted more information.
Trial was reset to May 17, 2000, and [petitioner] waived his speedy trial rights. The discovery motion was repeatedly delayed, sometimes by the People, because of juvenile court hearings, and the trial date was vacated. [Petitioner] continued to waive time.
On June 20, 2000, [petitioner] made a Marsden motion, and the hearing took place two days later.
At the June 22, 2000 Marsden hearing [petitioner] complained about delay, point out "I am farther away today going to trial than I was the very day I was arrested. At least then I was faced with a 90 day period of time, if I went to trial. Now I am facing up to four more months." He also complained about discovery information on a defective computer disk, and that the prior month counsel said he needed to review juvenile files, but had not yet done so. [Petitioner] complained about the investigator's efforts. He had complained to the bar and planned a civil suit seeking "damages I have incurred because of his actions, or inactions."
Trial counsel replied that he, too, was dismayed by the delays, but stated he had discussed each one with [petitioner] and therefore "I was totally surprised . . . when Mr. Harris asked for a Marsden hearing." The information on the bad disk was not vital, in the sense of irretrievable, but it would cause a delay to reconstruct it: It was transcripts of videotapes of interviews with the prosecution witnesses, which the defense expert needed for his review. Another cause for delay was the unusual circumstance of the district attorney having enough doubts about the case to authorize a neutral polygraph examination with the understanding that the results might persuade him to drop the case. Unfortunately, the agreed examiner, a retired Department of Justice expert respected by defense attorneys and law enforcement alike, had to delay the test because of an unexpected family emergency. The defense had contacted most of the witnesses identified by [petitioner], except counselors who could not legally be subpoenaed before trial, and some of the people contacted refused to talk or had not provided the hoped-for information. Another reason for delay was an early trial would result in reassignment of the case to a less sympathetic prosecutor.
[Petitioner] then claimed counsel had destroyed evidence relevant to bail, which counsel denied, and that counsel had given ...