The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are petitioner's petition for a writ of habeas corpus (Doc. 1), petitioner's memorandum in support thereof (Doc. 12), respondent's answer (Doc. 27), and petitioner's reply (Docs. 31, 32, and 33).
The state court recited the following facts, and petitioner has not offered any clear and convincing evidence to rebut the presumption that these facts are correct:
A. Counts 1 through 5 (Victim # 1)
Counts 1 through 5 alleged that between November 6, 1994, and November 5, 1996, Inman violated section 288, subdivision (a) by committing lewd and lascivious acts on Victim # 1, a child under 14 years of age. Each count also alleged Inman had more than one victim, making him eligible for a sentence enhancement pursuant to section 667.61, subdivision (b).
Victim # 1 first met Inman when his older brother was on the soccer team that Inman coached. The following year, Victim # 1 joined the team. He spent several nights at Inman's house, although he was uncertain of the circumstances. Inman's sister, Peggy Inman, lived with Inman when Victim # 1 slept at Inman's house.
The first time Victim # 1 was touched by Inman was when he was taking a bath at Inman's house. Victim # 1 was 11 or 12 at the time. He got an erection and he called Inman in to ask if it was normal to get an erection. Inman said it was and that he could relax it for him. Inman began rubbing Victim # 1's penis. Victim # 1 became uncomfortable and rolled over. Inman left the bathroom.
On another occasion, Victim # 1 was sleeping in Peggy Inman's bedroom when Inman came into the bedroom and climbed into bed with him. Inman began rubbing Victim # 1's penis. Victim # 1 said he had to go to the bathroom and got out of bed. Inman left the room.
Victim # 1 also remembered watching pornographic movies on cable channels while he was at Inman's house. He also watched a pornographic video with Inman in Inman's bedroom. During the movie, Inman tried to grab Victim # 1's penis through his clothes, even though Victim # 1 told him to stop. Inman then pulled down his pants and asked Victim # 1 to fondle him. Victim # 1 grabbed Inman's penis hard so that Inman would stop asking him.
Victim # 1 remembered another event that may have occurred that same evening, or it could have been another occasion. Victim # 1 was naked and Inman was trying to have anal intercourse with him. Victim # 1 ran out of the room.
On another occasion, Victim # 1 fell asleep on the living room floor while watching television. When he awoke, Inman was lying next to him. Victim # 1's penis and groin were wet. Inman said that Victim # 1 had ejaculated.
On another occasion, Inman told Victim # 1 they were going to play a game, and the object of the game was for Victim # 1 to stay still and not say anything while Inman touched him. Inman would then run his fingers up one of Victim # 1's thighs, across the pubic area, and down the other thigh. Inman did this several times before he stopped.
On another occasion, Victim # 1, his older brother, and an older male went camping with Inman and they played strip poker. Everyone but Inman ended up naked. Inman asked Victim # 1 to share his sleeping bag. Victim # 1 refused. When Victim # 1 awoke, Inman was sleeping in Victim # 1's sleeping bag.
When Victim # 1 asked Inman what would occur if Victim # 1 were to tell the police what had happened, Inman said he would tell the police that he committed the various acts because Victim # 1 wanted him to do so. Victim # 1 was afraid because he did not want anyone to think he was homosexual. All of theses incidents occurred when Victim # 1 was 11 or 12.
Victim # 1 did not tell anyone what occurred until he saw on the news that Inman had been arrested.
B. Counts 6 and 7 (Victim # 2)
Counts 6 and 7 alleged that between January 1, 1996, and January 22, 1999, Inman violated section 288, subdivision (a) by committing lewd and lascivious acts with Victim # 2, a child under 14 years of age. Each count also alleged Inman had more than one victim, making him eligible for a sentence enhancement pursuant to section 667.61, subdivision (b).
Victim # 2 lived with Inman for a long time. He was 11 at the time of trial. Victim # 2's brother also lived with Inman and him. Inman touched Victim # 2 in an improper manner on more than one occasion. Victim # 2 described multiple episodes of sodomy. Inman told Victim # 2 not to tell anyone. Victim # 2 also described being forced to copulate Inman orally.
In January 1999, Sergeant Mike Borges was assigned to investigate allegations that Inman had abused Victim # 2. Borges learned that Victim # 2 began living with Inman as a foster child in July 1996. Borges also learned Victim # 2 may have been confused about whether he had been molested by Inman or his biological father. Borges was satisfied that Victim # 2 was referring to Inman. Borges learned that the times when the alleged abuse occurred were times when Victim # 2 was in trouble. Victim # 2 was referred to a physician and a psychologist for evaluation. After completing the investigation, Borges closed the case. When the new allegations involving Inman were made, Borges turned his investigation over to the assigned detective.
C. Counts 9 and 10 (Victim # 3)
Counts 9 and 10 alleged that on or about September 19, 1998, Inman violated section 288, subdivision (a) by committing lewd and lascivious acts with Victim # 3, a child under 14 years of age. Each count also alleged Inman had more than one victim, making him eligible for a sentence enhancement pursuant to section 667.61, subdivision (b).
Victim # 3 testified he was on Inman's soccer team for four years. Victim # 3 attended several parties hosted by Inman, including New Year's Eve parties and parties at a local lake. Victim # 3 also attended two Raiders football games with Inman. The first football game was against the Broncos on September 20, 1998. Victim # 3 was 12 at the time. His parents dropped him off at Inman's house the evening before the game. Victim # 3 and Inman both went into the hot tub and then went inside to watch television. Inman would not allow Victim # 3 to go into the house with wet shorts, so Victim # 3 took off his shorts and wrapped a towel around his body before he went inside and lay down on the floor to watch television. Inman came into the living room with a towel wrapped around his body. Inman asked Victim # 3 if he wanted a back massage. Victim # 3 said yes. After a few minutes, Inman took off his towel and Victim # 3's towel and attempted to sodomize Victim # 3. Victim # 3 resisted and there was no penetration. Inman then rolled Victim # 3 over onto his back and began orally copulating Victim # 3's penis. When Victim # 3 asked Inman why he was doing these things, Inman stated that it was just like sucking on your thumb. Inman began caressing Victim # 3's penis and asked Victim # 3 to do the same to him. Victim # 3 refused, left the living room, got dressed, and went to bed.
On another occasion, Inman showed Victim # 3 a binder that contained trading cards of race car drivers and also pictures of partially clothed women that were in the back of the binder.
Victim # 3 did not report these incidents to anyone until he learned that Inman was arrested for molesting a child. Victim # 3's father told Victim # 3 about the arrest and asked if there was anything Victim # 3 wanted to tell the detective. Victim # 3 said there was and his father took him to talk to the investigating detective.
D. Counts 11 through 15 (Victim # 4)
Counts 11 through 15 alleged that between September 1998 and February 1999 Inman violated section 288, subdivision (a) by committing lewd and lascivious acts with Victim # 4, a child under 14 years of age. Each count also alleged Inman had more than one victim, making him eligible for a sentence enhancement pursuant to section 667.61, subdivision (b).
Victim # 4 tried out for Inman's soccer team when he was about 12. He made the team his first year, but the next year he was unable to play. Inman put Victim # 4 on the roster as a trainer that year.
Inman sometimes would host parties at a local lake or at his home on New Year's Eve or Super Bowl Sunday. Members of the team and their families usually were invited to the lake or the Super Bowl parties. Normally, only team members would attend New Year's Eve parties and they would spend the night at Inman's house.
Victim # 4 went with Inman to Monterey in November 1998 when he was 12 years old. Inman asked Victim # 4 to accompany him so Victim # 4 could help him with Inman's two adopted sons. Inman was going to Monterey to pick up a car and bring it back to his house. When they returned home, Inman told his sons to go to bed. Inman and Victim # 4 then went into the guest room and played video games. While Victim # 4 was playing the video games, Inman came up behind him and put his hands down Victim # 4's pants and touched Victim # 4's penis. Inman stopped when Victim # 4 asked him what he was doing.
A short while later, Victim # 4 was lying on the bed playing video games when Inman pulled up Victim # 4's shirt and started rubbing his stomach. Inman next put his hands down Victim # 4's pants and pulled on Victim # 4's penis. Inman lay down on the bed and asked Victim # 4 to rub his stomach. Inman unzipped his pants but Victim # 4 returned to playing the video game. Inman pulled down Victim # 4's pants and again put his hands on Victim # 4's penis. Inman rolled Victim # 4 over and started to rub his buttocks. Inman then rolled Victim # 4 over again, played with Victim # 4's penis, and put Victim # 4's penis in his mouth. Victim # 4 said he had to go to the bathroom to get away from Inman. When Victim # 4 emerged from the bathroom, Inman took Victim # 4 home. On the way home, Inman told Victim # 4 not to tell anyone what occurred. Victim # 4 did not tell his parents what happened because he was afraid.
About two to three months later, Victim # 4 went on a snow skiing trip with Inman. Although Victim # 4 was afraid of Inman because of the last incident, he agreed to go on the ski trip because another boy, Austin, also was going on the trip. The arrangement was that both boys would spend the night at Inman's house and they would leave early the next morning to go skiing.
After arriving at Inman's house, Victim # 4 and Austin watched a movie and then Victim # 4 went into the back yard to the hot tub while Austin continued watching the movie. Inman joined Victim # 4 in the hot tub. Inman put his hands down Victim # 4's pants and touched Victim # 4's penis. Victim # 4 got out of the hot tub, took off his wet bathing suit, wrapped a towel around his waist, and returned to the living room to watch the movie. When Victim # 4 went into the guest bedroom to change into his nightwear, Inman came in and started touching Victim # 4's penis. After a minute or two, Inman returned to the living room to watch the movie.
After the movie, Victim # 4 and Austin went to bed. Austin slept in the guest bedroom, and Victim # 4 slept on the couch in a sleeping bag. During the night, Inman came into the living room and started fondling Victim # 4's penis again. Inman asked Victim # 4 to come to Inman's room, but Victim # 4 refused. Inman returned to his bedroom. Victim # 4 did not tell Austin what happened because he was afraid.
About two years later, Victim # 4 told his pastor what happened. Victim # 4's pastor took him home and told his parents what had occurred and reported the matter to the police. (footnote omitted).
Victim # 4's mother verified the trip to Monterey occurred in November 1998, and the ski trip occurred on February 7, 1999.
Austin verified the ski trip, watching the movie, and going into the hot tub. Austin got out of the hot tub before Victim # 4 and Inman. Inman gave Austin a back rub while they watched the movie. Inman commented that he could give Austin a back massage good enough to give Austin an erection. Inman also asked Austin to give him a back massage, but Austin refused.
E. Counts 17, 18, and 20 (Victim # 5)
Counts 17 and 18 alleged that on or about October 22, 2000, Inman violated section 288, subdivision (a) by committing lewd and lascivious acts with Victim # 5, a child under 14 years of age. Each count also alleged Inman had more than one victim, making him eligible for a sentence enhancement pursuant to section 667.61, subdivision (b).
Count 20 alleged that on or about January 28, 2001, Inman attempted to violate section 288.2 by attempting to exhibit harmful matter to Victim # 5, a minor, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the minor.
Victim # 5's brother was on Inman's soccer team. Victim # 5 attended parties and trips to the lake with his brother. When Victim # 5 was about 10, Inman took Victim # 5 to a Raiders game against the Seahawks. Inman invited only Victim # 5 because Inman previously had taken Victim # 5's brother to a game without Victim # 5. During the ride to the game, Inman was tickling Victim # 5 on the leg. Sometimes Inman would touch Victim # 5's penis while he was tickling him. The touching gave Victim # 5 an erection. The same thing happened during the game.
The day after one of Inman's Super Bowl parties, Victim # 5 and his brother were at Inman's house. Inman called Victim # 5 into the computer room and had Victim # 5 sit on his lap. Inman was looking up Playboy and Hustler on his computer. Victim # 5 left to play with his brother before Inman was able to pull up any images.
Count 19 alleged that between September and November 2000, Inman violated section 288.2 by exhibiting harmful matter to Victim # 6, a minor, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the minor.
Victim # 6 was not on Inman's soccer team, but he did attend some of his parties and activities as Victim # 4's friend. On one occasion in 1999, Victim # 6 went to Inman's house to do yard work. Instead of doing yard work, Victim # 6 and Inman went on to the computer. Victim # 6 checked his e-mail and then Inman started visiting Web sites, such as "littlelolitas.com" or "littleschoolboys.com." Inman was making comments about the size of the models' penises. Some of the sites showed young children having intercourse. After a while, they watched a football game on television. Inman paid Victim # 6, even though he never did any yard work that day. Inman told Victim # 6 not to tell his parents what they looked at on the computer.
G. Additional Prosecution Testimony
Damian Vuarnet was in the same jail unit as Inman before trial. He became friendly with Inman and discussed some of the incidents with him. Inman told Vuarnet he would orally copulate Victim # 2 and his brother. Inman also said he would masturbate the boys.
Inman said he had favorite boys on his soccer team, including Justin, Steven, Austin, and Victim # 3. Inman said he would leave X-rated movies in the VCR and then go out and work in the garage, hoping the kids would watch the movies. Inman also said that after the games, he would have the kids over and put Valium in their sodas so they would pass out. Inman said that giving the kids backrubs would arouse him. Inman claimed that Victim # 4 was obsessed with Inman, and Inman used that obsession to take advantage of Victim # 4. Inman claimed he gave Victim # 3 Valium on the way home from a Raiders game and fondled him.
Inman stated he preferred younger boys because he could not control the older boys. Inman said that his sister did not interfere with his activities because she was disabled and never came out of her room.
James Kemp Van Ee was the lead investigator on the Inman investigation. Inman's home was searched on the day he was arrested. Items seized included a floppy disk with the notation "Boys Secret Pages Porno Club" and handwritten notes with Internet addresses for Web sites, such as "boysource.net," "Lolitateen.com," "gayextreme.com," "innocentboys.net," and others.
Kemp Van Ee also found various images of a sexual nature on Inman's computer involving young boys, either alone naked, naked with other young boys or girls, or naked with men in various sex acts. Some of the images had been printed out and stored on Inman's desk.
Kemp Van Ee found a binder with race car driver trading cards in it. The last three pages of the binder contained pictures of nude or scantily clad women. A pornographic movie was also found.
Kemp Van Ee determined that the Raiders/Broncos game won by the Broncos 34-17 occurred on September 20, 1998. He also determined that the Raiders/Dolphins game won by the Raiders 34-16 occurred on November 30, 1997. The Raiders/Seahawks game won by the Raiders 31-3 occurred on October 22, 2000. The Super Bowl after the 2000 football season occurred on January 28, 2001.
Charles H. is related to both Victim # 2 and Inman. Charles H. owns a farm. Victim # 2's biological parents were both involved in drugs. Charles H. never saw anything inappropriate occurring between Victim # 2 and Inman.
According to Charles H., Victim # 2 originally lived with his father, mother, and his father's family. Victim # 2 was removed from this home when his grandfather was accused of raping a two-year-old girl. Victim # 2's biological father was never arrested for molestation.
Frank Rust knew Inman through their mutual interest in car racing. Frank Rust had been around Inman a few times when small boys were around, and he never saw any inappropriate conduct. Inman helped other people many times.
Frank Rust checked his records and verified that on September 19, 1998, the night before the Raiders/Broncos football game, there was a stock car race in Stockton and it ended about midnight. Inman was at the race. After the race, Inman accompanied Frank Rust and his wife to a restaurant to eat. Inman became upset because Frank Rust got more food than he did. Inman said he was going to a Raiders game the next day. Frank Rust did not believe Inman missed any races during the Stockton racing season.
Sybil Ann Rust, Frank Rust's wife, through reviewing newspapers and thinking about what had happened, determined that she and her husband were with Inman at the races in Stockton on September 19, 1998. Sybil Rust believed that Inman was at the races that night because she checked to see if there was a race.
Anthony George Major is married to the Rusts' daughter. Major used to work the night shift at a restaurant. He recalled the last time the Rusts came into the restaurant while he was working the night shift. Inman was with the Rusts. Major recalled Inman joking about not getting extra food like Major gave to Frank Rust.
Craig M. (approximately 27 at time of trial) testified he is Inman's friend and part of his pit crew when Inman races. He usually went to eat with the Rusts and Inman after the races. He remembered Inman joking with Major about Frank Rust getting extra food at the restaurant. That was a night that Inman did not race, so Craig M. did not go to the races but met with the group at the restaurant after the race. This occurred in mid-September, but he does not recall which year. He recalled that Inman was going to the Raiders/Broncos game the following day.
Craig M. also recalled an incident when he was at Inman's house playing a game with several other kids. Two of the kids went into a back bedroom after they were out of the game. A short while later he heard Inman reprimanding the kids. He has never seen Inman acting inappropriately with children.
Craig M.'s mother testified that she and her sons lived next door to Inman in the past. She never had any concerns about her children being with Inman.
Inman's sister, Peggy Inman, testified she lost her hearing in 1999. From 1995 to 1997 Peggy Inman lived with Inman, and from 1997 to 1999 she lived in a house behind Inman's house but on the same property. She would have been able to hear a loud scream from Inman's house when she lived behind him. She remembered Inman going to Monterey on November 11, 1998, the day before her birthday, to pick up a vehicle for a friend. Inman returned home around 9:00 p.m. Inman took Victim # 4, Victim # 2 and Victim # 2's brother with him. When they returned, Victim # 4 waited outside while Inman put Victim # 2 and his brother to bed. Inman then took Victim # 4 home.
Peggy Inman remembered Inman taking Victim # 3 to a football game, but she is certain that Victim # 3 did not spend the night with Inman because he was racing. She didn't recall if Victim # 3 went to more than one game with Inman. She remembered Victim # 3 using the hot tub on one occasion after he had gone to a football game with Inman.
Peggy Inman also knew Victim # 4 and Austin. She heard Victim # 4 and Austin in the hot tub and heard someone go into the swimming pool. She also saw Victim # 4, Austin and Inman in the hot tub.
Ann D. testified that she met Inman through a mutual friend. Inman spent time with her son, Matthew, starting when her son was about 11 or 12, because they both had an interest in cars. Her son always liked spending time with Inman.
Matthew testified that he has known Inman since he was about 11 years old. He enjoyed working on cars with Inman and was on Inman's race car pit crew for a while. He recalls playing strip poker when he went camping with Inman, Victim # 1 and Victim # 1's brother. Only the three boys played strip poker. Inman said that during the night Victim # 1 crawled into his sleeping bag with him. Inman never touched Matthew inappropriately, showed him pornography, or made any suggestions of a sexual nature to him.
Carol K. testified that her son played soccer on Inman's team for two years. She also was the team mom and would talk with Inman about two or three times a week during the season. She also was aware that Victim # 2 had accused Inman of molesting him. Inman said that Victim # 2 was actually talking about his biological father. As a result of the accusations, she watched Inman closely and did not observe any inappropriate behavior.
Zachary S. testified that he played soccer on Inman's team for two years. He never saw Inman do or say anything inappropriate. He did hear Inman say that Victim # 3 couldn't squirt yet. They were discussing penises at the time.
Kimberly C. was one of the team moms, and her son played soccer on Inman's team. She did not notice any inappropriate behavior between Inman and the team players.
Brandon is Kimberly C.'s son. He played on Inman's soccer team for three years. He never noticed Inman act inappropriately.
Victim # 1's brother testified that he played on Inman's soccer team for two years, 1995 and 1996. He recalled going camping with Inman, Victim # 1 and Matthew. It was Victim # 1's idea to play strip poker. Inman also played the game. Inman told Victim # 1's mother that Victim # 1 had tried to get into Inman's sleeping bag. He never saw Inman act inappropriately. He did see a pornographic movie while at Inman's house. Inman watched the video with him and Victim # 1.
Ronald Meister is a licensed psychologist. He testified at length about the best method for conducting an unbiased interview of children to obtain the most reliable testimony.
Jonathan was on Inman's soccer team in 1999 and 2000, and considered Inman to be a friend. A detective interviewed Jonathan and tried to force him to say he had sex with Inman. Jonathan never had any inappropriate contact with Inman.
Victim # 5's mother testified that Victim # 5's brother played on Inman's soccer team. She learned that Inman was arrested and became frantic. She asked her sons whether Inman had done anything to them that they thought was inappropriate. Victim # 5 said there was some inappropriate tickling.
Martha T. met Inman through Big Brothers Big Sisters. Inman was her son's "big brother." After Inman was arrested, she asked her son if anything inappropriate had occurred with Inman. Her son said nothing happened. Her son testified that nothing inappropriate happened.
Megan's brother was on Inman's soccer team with Victim # 1. Megan went to the lake with her brother, Inman, Victim # 1 and others. While Megan was riding an inner tube behind the boat, Victim # 1 pulled down his pants and displayed his buttocks. He also grabbed his groin area.
Donald V. Hutchins is the chief of police with the City of Gustine. He also was a referee for the local youth soccer league. He was the referee at many games involving Inman's soccer teams. His department did not have any reports of inappropriate behavior involving Inman.
Craig S. lived next door to Inman years ago. He played soccer on Inman's team and went camping with Inman on several occasions, usually with several other kids. Just before he got married, he and his future wife moved into the second house on Inman's property. He frequently saw a group of boys hanging around Inman's house. One time when Victim # 1 and Victim # 1's brother were at Inman's house, Craig S. let them look at a pornographic movie. Inman took them out of the house as soon as he discovered what the boys were seeing. Craig S. has never seen Inman act inappropriately around young boys.
Craig S.'s mother testified Inman moved next door to them when her son was about 11 years old. Her family had a lot of interaction with Inman. She did not think that Inman would molest young boys.
Lidia Parman met Inman through the soccer league. She was the secretary for the league when Inman was a coach. She never received any complaints about Inman. She never saw any inappropriate behavior by Inman.
Jerry F. Goodeyon met Inman at the racetrack. His son would help Inman work on his race car. He never saw Inman act inappropriately.
Dawn Gay Inman is another of Inman's sisters. She remembered Inman returning home from Monterey with the car. Inman put his two kids to bed and then immediately took Victim # 4 home. She was on the boat when the incident with Megan and Victim # 1 occurred. Victim # 1 was always doing disgusting things. She also spent a lot of time with Victim # 2. Victim # 2 told her that his natural father, not Inman, had touched his penis. Dawn Inman also heard several phone messages from Victim # 4 shortly before Inman was arrested.
Petitioner was charged with 17 counts of lewd and lascivious acts on a child under the age of fourteen (counts 1-7 and 9-18); two counts of exhibiting harmful material to a minor for the purpose of seducing the minor (counts 9 and 19); one count of attempting to exhibit harmful material to a minor (count 20); and one count of possessing computer images of a minor engaging in or simulating sexual conduct (count 21). Counts 8 and 16 were subsequently dismissed. Following a jury trial, petitioner was convicted on all remaining counts as charged, except as to counts 17 and 18 the jury found petitioner guilty of the lesser-included offense of misdemeanor simple assault. The jury found true the special allegation that petitioner had committed lewd and lascivious acts on more than one victim.
Petitioner was sentenced to an aggregate term of 61 years to life in prison.
Petitioner's conviction and sentence were affirmed on direct appeal and the California Supreme Court declined review.*fn2 Petitioner filed a number of state court post-conviction actions. The Stanislaus County Superior Court recited the following procedural history pertaining to petitioner's post-conviction actions:
Petitioner filed a series of similar Habeas writs before both the Superior Court and Appellate Court, all challenging his jury trial conviction . . . . Initially, the writ was denied since the conviction was not final on appeal. After the conviction was affirmed, the Appellate Court first requested a declaration from Petitioner's trial counsel, Mr. Ernie Spokes, and then later remanded the matter for an evidentiary hearing on the grounds in the writ. The grounds stated are essentially the same in all writs, with only the order varying.
After conducting an evidentiary hearing, the Stanislaus County Superior Court issued a 22-page decision on June 7, 2007, denying habeas relief. The California Court of Appeal and California Supreme Court likewise denied habeas relief.
Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are presumptively applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998). The AEDPA does not, however, apply in all circumstances. When it is clear that a state court has not reached the merits of a petitioner's claim, because it was not raised in state court or because the court denied it on procedural grounds, the AEDPA deference scheme does not apply and a federal habeas court must review the claim de novo. See Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) (holding that the AEDPA did not apply where Washington Supreme Court refused to reach petitioner's claim under its "re-litigation rule"); see also Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (holding that, where state court denied petitioner an evidentiary hearing on perjury claim, AEDPA did not apply because evidence of the perjury was adduced only at the evidentiary hearing in federal court); Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001) (reviewing petition de novo where state court had issued a ruling on the merits of a related claim, but not the claim alleged by petitioner). When the state court does not reach the merits of a claim, "concerns about comity and federalism . . . do not exist." Pirtle, 313 F. 3d at 1167.
Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) 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 § 2254(d)(1), federal habeas relief is available only where the state court's decision is "contrary to" or represents an "unreasonable application of" clearly established law. Under both standards, "clearly established law" means those holdings of the United States Supreme Court as of the time of the relevant state court decision. See Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams, 529 U.S. at 412) . "What matters are the holdings of the Supreme Court, not the holdings of lower federal courts." Plumlee v. Masto, 512 F.3d 1204 (9th Cir. 2008) (en banc). Supreme Court precedent is not clearly established law, and therefore federal habeas relief is unavailable, unless it "squarely addresses" an issue. See Moses v. Payne, 555 F.3d 742, 753-54 (9th Cir. 2009) (citing Wright v. Van Patten, 552 U.S. 120, 28 S.Ct. 743, 746 (2008)).
For federal law to be clearly established, the Supreme Court must provide a "categorical answer" to the question before the state court. See id.; see also Carey, 549 U.S. at 76-77 (holding that a state court's decision that a defendant was not prejudiced by spectators' conduct at trial was not contrary to, or an unreasonable application of, the Supreme Court's test for determining prejudice created by state conduct at trial because the Court had never applied the test to spectators' conduct). Circuit court precedent may not be used to fill open questions in the Supreme Court's holdings. See Carey, 549 U.S. at 74.
In Williams v. Taylor, 529 U.S. 362 (2000) (O'Connor, J., concurring, garnering a majority of the Court), the United States Supreme Court explained these different standards. A state court decision is "contrary to" Supreme Court precedent if it is opposite to that reached by the Supreme Court on the same question of law, or if the state court decides the case differently than the Supreme Court has on a set of materially indistinguishable facts. See id. at 405. A state court decision is also "contrary to" established law if it applies a rule which contradicts the governing law set forth in Supreme Court cases. See id. In sum, the petitioner must demonstrate that Supreme Court precedent requires a contrary outcome because the state court applied the wrong legal rules. Thus, a state court decision applying the correct legal rule from Supreme Court cases to the facts of a particular case is not reviewed under the "contrary to" standard. See id. at 406. If a state court decision is "contrary to" clearly established law, it is reviewed to determine first whether it resulted in constitutional error. See Benn v. Lambert, 283 F.3d 1040, 1052 n.6 (9th Cir. 2002). If so, the next question is whether such error was structural, in which case federal habeas relief is warranted. See id. If the error was not structural, the final question is whether the error had a substantial and injurious effect on the verdict, or was harmless. See id.
State court decisions are reviewed under the far more deferential "unreasonable application of" standard where it identifies the correct legal rule from Supreme Court cases, but unreasonably applies the rule to the facts of a particular case. See Wiggins v. Smith, 539 U.S. 510, 520 (2003). While declining to rule on the issue, the Supreme Court in Williams, suggested that federal habeas relief may be available under this standard where the state court either unreasonably extends a legal principle to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply. See Williams, 529 U.S. at 408-09. The Supreme Court has, however, made it clear that a state court decision is not an "unreasonable application of" controlling law simply because it is an erroneous or incorrect application of federal law. See id. at 410; see also Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). An "unreasonable application of" controlling law cannot necessarily be found even where the federal habeas court concludes that the state court decision is clearly erroneous.
See Lockyer, 538 U.S. at 75-76. This is because "[t]he gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness." Id. at 75.
As with state court decisions which are "contrary to" established federal law, where a state court decision is an "unreasonable application of" controlling law, federal habeas relief is nonetheless unavailable if the error was non-structural and harmless. See Benn, 283 F.3d at 1052 n.6.
The "unreasonable application of" standard also applies where the state court denies a claim without providing any reasoning whatsoever. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 233 F.3d 976, 982 (9th Cir. 2000). Such decisions are considered adjudications on the merits and are, therefore, entitled to deference under the AEDPA. See Green v. Lambert, 288 F.3d 1081 1089 (9th Cir. 2002); Delgado, 233 F.3d at 982.
The federal habeas court assumes that state court applied the correct law and analyzes whether the state court's summary denial was based on an objectively unreasonable application of that law. See Himes, 336 F.3d at 853; Delgado, 233 F.3d at 982.
Petitioner raises the eight grounds for relief (some with numerous sub-claims) as follows:
Ground 1 -- The seizure of defense counsel's investigator's computer resulted in violation of his right to private consultation with counsel and constituted prosecutorial misconduct;
Ground 2 -- The Stanislaus County Superior Court failed to properly conduct state habeas corpus proceedings following the California Court of Appeal's remand for an evidentiary hearing;
Ground 3 -- Ineffective assistance of trial counsel;
Ground 4 -- Prosecutorial misconduct;
Ground 5 -- The trial court committed "jurisdictional and prejudicial errors";
Ground 6 -- The trial court erred in imposing consecutive sentences based on facts not found by a jury;
Ground 7 -- Ineffective assistance of appellate counsel; and
Ground 8 -- The Stanislaus County Superior Court erred in denying habeas corpus relief. Respondent concedes that all of petitioner's claims are exhausted.
A. Seizure of Investigator's Computer (Ground 1)
Petitioner argues that the trial court violated state law when it "did not appoint a Special Master when it issued the search warrant for evidence in the control of Petitioner's trial attorney." According to petitioner, the seizure violated his right to confidential assistance of counsel because it violated the attorney-client and/or work product privileges. Regarding this claim, the state court recited the following background facts:
Alan Peacock is a private investigator retained by Inman's attorney at the beginning of the case. (footnote omitted). Peacock was being investigated to determine whether he had committed any crime in relation to the estate of Raymond Aho, for which Peacock was the court-appointed administrator. Pursuant to this investigation, a search warrant was obtained to seize Peacock's home and office computers. The search also resulted in the seizure of numerous computer disks on which Peacock stored information about the cases on which he was working.
The seizure occurred on August 14, 2001. Later that afternoon the trial court issued an order requiring the district attorney's office to turn over the computer and all related information to the court. This was accomplished no later than the afternoon of August 15, 2001.
Peacock testified that he had interviewed Inman in connection with his case and there was information from that interview on the seized computer. The People presented testimony from one of the officers working on the case that an exact image had been made of the hard drive from one of Peacock's office computers and one computer disk was copied. Nothing else was copied because the trial court issued an order preventing any further work on the computer. The copies were turned over to the trial court, along with all the original hardware and computer disks. The officer testified that no files were opened or read during the time the computers were in the possession of the district attorney's office.
The court added: "Inman acknowledges that there is no evidence that the district attorney's office, or anyone connected to the investigation, reviewed any of the investigative material."
Petitioner argued to the state court that some kind of misconduct must be presumed because the district attorney's office had possession of the materials for 24 ...