FINDINGS AND RECOMMENDATIONS
Petitioner is a California prisoner proceeding pro se with an application for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his 2006 Yolo County convictions and sentences for several sex offenses.
I. Standards For Habeas Relief
An application for a writ of habeas corpus by a person in custody under a 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). Also, 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) (referenced herein in as "§ 2254(d)" or "AEDPA").*fn1 It is the habeas petitioner's burden to show he is not precluded from obtaining relief by § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) are different. As the Supreme Court has explained:
A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362 (2000)] that an unreasonable application is different from an incorrect one.
Bell v. Cone, 535 U.S. 685, 694 (2002). A state court does not apply a rule different from the law set forth in Supreme Court cases, or unreasonably apply such law, if the state court simply fails to cite or fails to indicate an awareness of federal law. Early v. Packer, 537 U.S. 3, 8 (2002).
The court will look to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003). Where the state court fails to give any reasoning whatsoever in support of the denial of a claim arising under Constitutional or federal law, the Ninth Circuit has held that this court must perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). In other words, the court assumes the state court applied the correct law, and analyzes whether the decision of the state court was based on an objectively unreasonable application of that law.
"Clearly established" federal law is that determined by the Supreme Court. Arredondo v. Ortiz, 365 F.3d 778, 782-83 (9th Cir. 2004). At the same time, it is appropriate to look to lower federal court decisions as persuasive authority in determining what law has been "clearly established" and the reasonableness of a particular application of that law. Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 1999); Clark v. Murphy, 331 F.3d 1062 (9th Cir. 2003), overruled on other grounds, Lockyer v. Andrade, 538 U.S. 63 (2003); cf. Arredondo, 365 F.3d at 782-83 (noting that reliance on Ninth Circuit or other authority outside bounds of Supreme Court precedent is misplaced).
On direct appeal, the California Court of Appeal summarized the facts presented at petitioner's trial as follows:
Between July 2001 and November 2003, defendant lived with D.B. in Knights Landing with their infant daughter A. and D.B.'s three young children from a prior marriage, E.G., K.G., and H.G. Defendant and D.B. were married on March 16, 2002, after A. was born. During the time they lived together, defendant took care of the children while D.B. was at work.
E.G. was born in September 1994. One time when she was about seven and one-half or eight years old, she was playing with H.G. when defendant entered the room. H.G. left but when E.G. tried to leave too, defendant barred her exit and put his hands down her underpants and touched her "private part" on her skin. Defendant touched her the same way on another occasion when she was approximately eight years old, although this time he touched her over her clothing.
K.G. was born in May 1996 and was between the ages of five and six when he lived with his mother and defendant. On two occasions in the daytime during that time, defendant played a "tent" game with K.G. and his sisters on the bed in D.B.'s bedroom. The children were clothed and defendant was naked except for a blanket that was draped over him while he bent over on his hands and knees. K.G. lay beside defendant partially covered by the blanket with his arm touching defendant's arm, while his two sisters crawled on their stomachs between defendant's arms and legs, trying not to touch defendant's penis. The girls went through the tent twice on one day and two or three times on the other day.
On another occasion when H.G. was three years old, K.G., H.G. and E.G. took a bath with defendant. They were all in the bathtub together and H.G. saw defendant's penis and defendant's feet touched K.G. E.G. told her mother that she and her two siblings took a bath with defendant. Sometime in the summer of 2003, K.G. told D.B. that he and his sisters took a bath with defendant and the following day, she told defendant to leave the residence.
H.G., who was born in March 1998, lived primarily with her biological father and stepmother, and her brothers K.G. and J., but she visited her mother and defendant occasionally. One day when she was about three years-old and was visiting her mother and defendant, defendant touched her vagina with his hand and put his finger "two inches" inside her "peepee" and moved his hand, which felt "bad." This first incident took place before A. was born in February 2001.
Defendant touched her that way "a lot," meaning more than three times and K.G. and E.G. were in the room during at least one of the incidents. The last time defendant touched her was when she was in kindergarten.
On June 14, 2002, after one of her visits with her mother and defendant, H.G.'s stepmother was bathing her when she complained of a rash on her vaginal area. Her stepmother noticed she was having a lot of rashes and asked whether anyone had touched her private parts. H.G. became quiet and looked confused and uncomfortable, but upon further questioning, told her stepmother defendant rubbed her vaginal area with his fingers.
M. was born in June 1997 and is the daughter of T.D. and defendant. Prior to the birth of her ...