FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2000 conviction on charges of unlawful sexual intercourse with a minor in violation of California Penal Code § 261.5, assault with the intent to commit oral copulation in violation of California Penal Code § 220, and sexual penetration with a foreign object with a person under eighteen years old, in violation of California Penal Code § 289(a)(1), and the sentence of twelve years and eight months imposed thereon.
In October 1998, the victim, Jessica, who was 15 years old, was placed in the Hope for You group home because she violated juvenile probation. [Petitioner], who turned 30 in January 1999, was a counselor at the group home, beginning in December 1998.
The events of December 22, 1998, formed the basis for counts one and two of the information. [Petitioner] was found not guilty of counts one and two; however, the testimony concerning what happened that day is presented for context in discussing the issues on appeal.
Jessica testified she went with [petitioner] and Linda, also a group home resident, to a shopping center. On the way home, they stopped at an apartment complex where Linda's boyfriend lived so Linda could drop off a gift. While she went in, [petitioner] and Jessica waited in the car in the dark parking lot. [Petitioner] began kissing Jessica, then put his hand up her skirt and digitally penetrated her vagina. Linda came out of the apartment building and asked if she could stay a little longer. [Petitioner] told her she could and, after she went back in, he moved the car to a different location in the parking lot. He reclined the passenger seat, again digitally penetrated Jessica's vagina, took her panties off, put on a condom, and engaged in sexual intercourse with Jessica.
The events of January 2, 1999, formed the basis for counts three through five of the information. [Petitioner] was found not guilty of those counts.
[Petitioner], Jessica, and Linda again went to the apartment complex where Linda's boyfriend lived on January 2, 1999, after the girls spent the afternoon at Scandia, an amusement complex. While Linda went in to take some pictures to her boyfriend, [petitioner] kissed Jessica and digitally penetrated her vagina. He reclined the seat, put on a condom, turned Jessica around on his knees, and engaged in sexual intercourse, entering the vagina from behind.
The events forming the basis for counts six through eight, of which [petitioner] was convicted, and count nine, of which [petitioner] was found not guilty, occurred at the group home after Jessica's sixteenth birthday, which was January 23, 1999. After ten o'clock one evening, after the other girls had gone to bed, Jessica was in the staff office sitting on a couch with [petitioner]. The lights were off. [Petitioner] stood Jessica up and turned her back towards him, then digitally penetrated her vagina. He asked her to go get a condom, which she did, retrieving a condom from her purse. After some difficulty obtaining an erection and the interruption of a knock at the door, [petitioner] had Jessica go get another condom. When she returned, he put the condom on and they engaged in sexual intercourse.
On February 16, 1999, the girls, except Jessica, were in their rooms at 10:00 p.m. Jessica was in the kitchen getting a drink of water. [Petitioner] came into the kitchen, turned Jessica around with her back against the refrigerator, and digitally penetrated her vagina. He picked her up and walked her over to a wall by the living room, inserting and withdrawing his fingers into and from her vagina until it began to hurt her. [Petitioner] picked up Jessica and took her into the den. He sat her on the end of a chair, and again inserted and withdrew his fingers into and from her vagina. This time he pushed harder, causing her so much pain that she cried. Despite her pleas for him to stop, he continued. After several minutes, [petitioner] pulled his penis out of his clothing and pushed her head down. Jessica closed her mouth, tried to pull her head up, and moved her head from side to side to avoid orally copulating him. [Petitioner], laughing, pushed his penis up toward her mouth, but Jessica, who was still crying, turned her head so that it hit her cheek. After several more minutes of this, [petitioner] allowed Jessica to leave.
The next day, Jessica continued to experience pain in her vagina and told one of the counselors she needed to go to the doctor. When taken there, she told the physician she was experiencing vaginal pain but said the pain was from leaving a tampon in too long instead of telling the doctor the pain was caused by [petitioner]'s assault. On February 18, 1999, Jessica told another counselor and the program administrator about the sexual incidents with [petitioner]. She showed the administrator a bruise on her knee she received when, during the second incident in the car, she knelt on a seatbelt. She also showed him a condom wrapper from the encounter in the staff office.
On February 24, 1999, Jessica was still feeling pain in her vagina. A nurse practitioner did a pelvic examination and found an abrasion about two centimeters long on Jessica's labia minora. The injury was consistent with digital penetration.
[Petitioner] testified, denying any sexual contact with Jessica. He presented other witnesses to show inconsistencies in Jessica's statements. When Officer Terrence Brass interviewed Jessica, she told him all of the sexual contact was against her will. She also told James Ross, an investigator from the district attorney's office that [petitioner] forced her to engage in sexual intercourse with him during the two incidents in the car. The family practice doctor who examined Jessica on February 17, 1999, the day after the last incident, did not observe an abrasion or any other source of Jessica's pain.
People v. Mitchell, slip op. at 2-6.
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, 75 (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).
Petitioner raises thirteen claims for relief in his petition, including three claims of ineffective assistance of counsel, four claims of prosecutorial misconduct, one claim of trial court error, two claims of instructional error, and three challenges to his sentence.*fn2 Petitioner's claims of ineffective assistance of counsel are the first three claims in the petition. However, because some of petitioner's claims of ineffective assistance of counsel arise from the events underlying his claims of prosecutorial misconduct, the court will address the claims of prosecutorial misconduct first.
A. Prosecutorial Misconduct
Petitioner raises four claims of prosecutorial misconduct. In Claim IV, he alleges that the prosecution unlawfully suppressed exculpatory material in violation of Brady v. Maryland, 373 U.S. 83 (1963). In Claim V, he alleges that the prosecution improperly introduced false testimony and allowed perjured testimony to stand uncorrected. In Claim VI, he alleges that the prosecution knowingly allowed "government agents to tamper with evidence and give false testimony." Petition at 5(C). Finally, in Claim VII he alleges that the prosecution allowed the state's expert witness to give false testimony during both direct and cross-examination. These claims were raised in a petition for writ of habeas corpus to the California Supreme Court which was denied in an order that contained no statement of reasons for the decision. See Exs. G and H to Answer.
1. Suppression of Exculpatory Material
Petitioner's first claim of prosecutorial misconduct is that the prosecution suppressed exculpatory evidence in violation of Brady, supra. Specifically, during the trial testimony of Detective Flaa the detective read from a transcript of a videotape of an interview with the victim. Petitioner claims that defense counsel had no knowledge the transcript would be admitted at trial and had no copy of either the videotape or the transcript. Petitioner further alleges that the prosecutor stated on the record that she had told defense counsel prior to trial that the tape was inaudible and would not be offered in evidence and also stated, falsely, that the videotape and transcripts had been turned over to defense counsel. Petitioner also claims that the prosecutor committed misconduct by offering evidence of a transcript of an interview with petitioner that occurred before ...