FINDINGS AND RECOMMENDATIONS
Petitioner Patrick Michael Knost is a state prisoner proceeding through counsel with a petition for writ of habeas corpus brought pursuant to 28 U.S.C. §2254. Petitioner stands convicted of sexual battery and unlawful sexual penetration in the El Dorado County Superior Court, case P05CR0372, for which he is currently serving a sentence of three years probation plus 141 days (time served) in county jail. The pending petition challenges the constitutionality of petitioner's conviction for unlawful sexual penetration of an unconscious person, a felony violation of Cal. Penal Code 289(d).
II. FACTUAL AND PROCEDURAL BACKGROUND
The facts of petitioner's offense were set forth in the unpublished opinion of the California Court of Appeal, Third District, case C057179:
In September 2004, defendant and Donna were engaged to be married but their almost three-year relationship was faltering. They broke off their engagement early in the month, and Donna asked defendant to move out of her home, where the couple had been living. Defendant continued to stay at Donna's home for the next couple of weeks but they stopped having sex after defendant told her he had been with prostitutes. A medical doctor, defendant had acted as Donna's "treating physician," administering lab tests, Pap smears, and cortisone shots.
On a mid-September evening, while both were at home, Donna asked defendant to help with the intense pain in her elbow. Defendant had given her a cortisone shot for elbow pain a few weeks earlier and he did so again. She went to bed not long after but woke up in the middle of the night from "total pain" in her elbow. Donna asked defendant to give her "something for the pain." Defendant gave her a second shot, this time an injection of the sedative hydroxyzine, which he told her was "quick-acting and short-acting." She quickly fell asleep. The next morning Donna found six Polaroid photographs of defendant's hand spreading open her vagina.
In a September 2005 information the People charged defendant with one count of sexual penetration of an unconscious victim (Pen.Code § 289, subd. (d)*fn1 ) and one count of sexual battery. The People contended the "penetration" occurred when defendant used his hand to spread open Donna's vagina to take pictures of her. Defendant and the People agreed to a June 2007 bench trial. At trial, the People called Donna, two co-workers she had spoken to about the incident, and Sergeant David Baker, the investigating officer, as witnesses. The People also introduced the six Polaroid photographs, a recording of a "pretext" phone call between Donna and defendant under the direction of Sergeant Baker, and a recording of an interview between defendant and Sergeant Baker. At trial, Donna described what happened that night as follows: "Next thing I remember was [defendant] pulling off the covers on me and shoving his hands in my crotch and pulling on my crotch, and I couldn't even move my body. I was completely drugged. I couldn't even lift my head. And I just remember saying what are you doing, knock it off, knock it off. And I-in the distance remembered hearing something that I thought was a Polaroid camera. [¶] ... [¶] I remember him having sex with me. And me just saying-I couldn't move. I couldn't respond. I couldn't lift an arm. I couldn't lift a head. I was just telling him to knock it off, what are you doing. That's all I remember saying. And just being, like, a limp person laying there."
Before trial, however, Donna said she was unconscious when defendant took the photographs. The morning after the incident, she called a co-worker and said she would be late because defendant had drugged her. In a call to the same co-worker later that morning, Donna said defendant had taken pictures of her "without her knowledge" and "had sex with her and she was unconscious." In conversations with another co-worker, Donna described how defendant had taken pictures of her and had sex with her when she could not move, could not speak, and "did not have any control over anything that was happening."
After reporting the incident to the police, Donna made a "pretext" phone call to defendant under the direction of Sergeant Baker. Defendant never contradicted Donna when she talked to him about how she "was all drugged up from that injection" when he took pictures and had sex with her, nor did he contradict her when she said the injection made her "so wasted" and "totally obliviated." Defendant said "Mm-hmm" when Donna explained that she did not "even remember having sex" and only "remember[ed] ... a Polaroid camera going off."
Sergeant Baker's interview with defendant about the incident was introduced in the People's case-in-chief. When Sergeant Baker asked how the medication defendant injected Donna with "help[s]," defendant responded, "It puts them to sleep." When Sergeant Baker confronted him about the allegation that he had intercourse with her, defendant responded, "How'd she [know] if she had intercourse with me? No, she didn't, she was out of it." At one point, Sergeant Baker said, "[s]he was unconscious and you went in you ... saw her there, these frustrations that you've been having with your personal life, your sexual frustrations, pent up energy ... the issues with her, okay." Defendant replied, "That's why I took pictures."
Defendant testified in his own defense. During direct examination, defense counsel asked defendant if Donna was conscious or unconscious when he took the photographs. Defendant said Donna was unconscious. He also testified that he did not take the photographs for his own sexual gratification, but because, he claimed, she was "frustrated" that she had been exposing herself to other men. He claimed his purpose was "to prevent her from revealing herself in the future." He also testified, however, that he later decided he did not want the pictures, and he gave them to Donna the next morning when they woke up.
When cross-examined, defendant acknowledged he had given Donna an injection "that rendered her unconscious." When the People asked if he knew Donna was unconscious when he took the pictures, defendant replied that he knew she was unconscious "[o]r asleep." When asked to explain how he thought the photographs would prevent Donna from revealing herself to other men in the future, defendant responded, "My thinking was if she knew I had these pictures, then she would not-I could tell her that, you know, if you were to expose yourself again, you could use these and give them to guys. Why don't you just do that."
(Lodged document 1 at 2-6.)
The trial court found petitioner guilty of one count of sexual penetration of an unconscious person (a felony), and one count of sexual battery (a misdemeanor). Petitioner was sentenced to 141 days (time served) in county jail and a three year term of probation. The California Court of Appeal, Third District, affirmed the convictions on direct appeal and the California Supreme Court denied review.
In the pending petition, petitioner challenges only his conviction for unlawful sexual penetration, claiming that (A) insufficient evidence supported the conviction; and (B) he received ineffective assistance of counsel at trial.
IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS An application for writ of habeas corpus by a person in custody under 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); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, 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. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, ...