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. The petition before the court challenges petitioner's judgment of conviction entered in the San Joaquin County Superior Court in 2004 for seven felony counts of lewd acts on a child in violation of California Penal Code § 288(a) and one count of misdemeanor child endangerment in violation of California Penal Code § 273a(b)). Petitioner seeks federal habeas relief on the grounds that: (1) evidence of Child Sexual Abuse Accommodation Syndrome was improperly admitted at his trial; (2) his trial counsel rendered ineffective assistance; (3) his appellate counsel rendered ineffective assistance; and (4) the trial judge's decision to impose consecutive sentences violated federal law.
Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
On October 7, 2004, a San Joaquin County Superior Court jury found petitioner guilty of seven felony counts of lewd acts on a child and one count of misdemeanor child endangerment. (Notice of Lodging Documents on December 16, 2008 (Doc. No. 17), Clerk's Transcript on Appeal (CT) at 211-21.) Following his conviction, petitioner was sentenced on November 8, 2004, to a aggregate state prison term of eighteen-years. (Id. at 297.)
Petitioner appealed his judgment of conviction to the California Court of Appeal for the Third Appellate District. On October 20, 2006, the judgment of conviction was affirmed in a reasoned opinion. (Resp't's Lod. Doc. 7.) Petitioner then filed a petition for review with the California Supreme Court. (Resp't's Lod. Doc. 8.) On January 3, 2007, the California Supreme Court summarily denied that petition. (Pet. at 30.)*fn1
Petitioner thereafter filed a petition for writ of habeas corpus in the San Joaquin County Superior Court. (Resp't's Lod. Doc. 9.) That petition was denied in a reasoned opinion on July 25, 2007. (Resp't's Lod. Doc. 10.) Following that decision, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. (Id.) On August 30, 2007, that petition was summarily denied. (Resp't's Lod. Doc. 11.) Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court which was summarily denied on February 27, 2008. (Pet. at 39.)
On August 4, 2008, petitioner filed the federal habeas petition now pending before the court. (Doc. No. 1.) Respondent filed an answer on December 9, 2008. (Doc. No. 16.) Petitioner has not filed a traverse.
On April 6, 2004, the San Joaquin County District Attorney's Office filed an information charging petitioner with seven felony counts of lewd acts on a child, one felony count of the continuous sexual abuse of a minor and one count of child endangerment. (CT at 67-73.) The alleged victim was identified as "Connie A." (Id.)*fn2 Prior to trial, petitioner's trial counsel objected to the introduction of expert testimony on Child Sexual Abuse Accommodation Syndrome ("CSAAS"). In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following background with respect to this issue:
On July 2, 2004, the prosecution filed a motion in limine requesting they be permitted to present the testimony of David Love as an expert on CSAAS. CSAAS attempts to explain how a child generally copes with or adjusts to sexual abuse, including the exhibition of certain seemingly paradoxical behaviors. Defendant filed an objection to the presentation of such evidence based on discovery rule violations and requested an Evidence Code section 402 hearing. Defendant also requested the court order that the CSAAS evidence be limited to dispelling myths regarding how child sexual abuse victims act and that the court strictly prohibit any "profile" evidence of child molesters or victims of molest. Judge Terrence Van Oss denied defendant's request for a continuance and held an Evidence Code section 402 hearing on July 7, 2004. At the hearing, defense counsel argued, inter alia, that society's attitudes may have changed and perhaps there were no longer misconceptions requiring the introduction of CSAAS evidence. Judge Van Oss ruled that CSAAS evidence was admissible but that the prosecution was limited to presenting evidence of the syndrome generally and could not have Love talk about the facts of this specific case.
On August 20, 2004, at the beginning of trial, defendant made another motion in limine-this time in front of the trial judge, William J. Murray. Defendant requested another Evidence Code section 402 hearing and objected to some of the CSAAS evidence as failing the Kelly-Frye test for the admission of scientific evidence. (Frye v. United States (D.C. Cir. 1923) 293 Fed. 1013; People v. Kelly (1976) 17 Cal.3d 24, 39.) Counsel also raised concerns about the hypothetical questions used by the prosecutor in the previous hearing and objected, again, to the general admissibility of the CSAAS evidence. Judge Murray agreed to a supplemental Evidence Code section 402 hearing for counsel to explore the testimony regarding a child victim's inability to recall details of the molestations. At the conclusion of the hearing, Judge Murray ruled that the CSAAS evidence was admissible but that the prosecutor could use only more "generic" hypothetical questions than she had at the hearing in front of Judge Van Oss and must refrain from using case specific hypothetical questions.
(Resp't's Lod. Doc. 7 (hereinafter Opinion) at 2-3.)
On October 7, 2004, a jury found petitioner guilty of seven felony counts of lewd acts on a child and one count of misdemeanor child endangerment. (CT at 211-21.) Petitioner was found not guilty on one felony count of the continual sexual abuse of a minor. (Id. at 219.)
I. Standards of Review Applicable to Habeas Corpus Claims
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See 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)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Title 28 U.S.C. § 2254(d) sets forth the following standards for granting habeas corpus relief:
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 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.
See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). 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 § 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of a ...