The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 1999 convictions for ten counts of lewd conduct and other sexual offenses. Petitioner is serving a sentence of 80 years in prison.
This action is proceeding on the amended petition filed November 17, 2005. (Dkt. No. 34.) Petitioner raises the following claims: 1) jury instruction error; 2) prosecutorial misconduct; 3) no valid waiver of right to a jury trial as to his prior conviction; 4) trial court improperly denied petitioner's request to admit evidence.
After carefully reviewing the record, the undersigned recommends that the petition be denied.
II. Anti-Terrorism and Effective Death Penalty Act ("AEDPA")
In Williams (Terry) v. Taylor, 529 U.S. 362 (2000), the Supreme Court defined the operative review standard in a habeas corpus action brought pursuant to 28 U.S.C. § 2254. Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 405. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law; or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.
"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Id. at 407-08. It is this prong of the AEDPA standard of review which directs deference be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[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 410-11 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19 (2002).
"Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority, in arriving at their decision. Early v. Packer, 537 U.S. 3 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9.
However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
When reviewing a state court's summary denial of a claim, the court "looks through" the summary disposition to the last reasoned decision. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000).
The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the undersigned finds this summary to be accurate and adopts it herein.
In January 1999, when she was 15, Daniele R. took the bus from Truckee to Sacramento and then the train to San Francisco. Defendant was the bus driver. When the bus stopped in Roseville, Danielle got off to buy her train ticket. While she stood in line and got her ticket, defendant made a phone call. Afterwards he told Danielle his boss said she had been seen concealing a weapon on her person in Truckee. He said it would be sorted out in Sacramento. Daniele told him she did not have a weapon.
When the bus arrived in Sacramento, defendant told Daniele she had to wait for the police to search her. She responded that she had to catch her train and patted her clothes and lifted her sweater to show she had no weapon. Defendant told her he had to do a further search, a cavity search. He asked her if she would let him do that and she said yes. He told her to get back on the bus and sit in the back.
He had her lay down on the seat and told her to pull down what she was wearing under her skirt. He poked her vagina with his finger (counts one and two). She pulled away. Then he put his finger in her butt area; it went a little bit inside her anus and she sat up (counts three and four). She put on her clothes and defendant let her leave the bus. Daniele was confused and embarrassed; she was not sure what defendant had done was wrong until she spoke to a friend's mother and her mother.
Two days later 17-year-old Jessica H. Took the bus from Sacramento to Reno with her 2-year-old daughter. She talked with the driver, defendant, about her daughter and his children. Although she did not hear the phone ring, defendant took a phone call before the bus got to Truckee. He told Jessica he had spoken with his boss and someone reported a blonde getting on the bus with a concealed weapon. She was the only blond on the bus.
Jessica told him she did not have a gun, she did not like guns, and he could search her luggage. Defendant responded he was not allowed to search her luggage. Defendant said his boss wanted him to pull over and have the highway patrol do a cavity search. Jessica was scared. Defendant told her he believed she did not have a weapon, but that he had to do something or he would lose his job. He asked her if she knew what a cavity search was. She said no and he told her she would have to pull down her pants and they would stick their fingers in her vagina and anus to make sure she did not have anything. He told her Mexican girls hide knives in their vaginas.
Defendant continued to tell her he had to do something. He said it was cold outside and if he pulled over for the search everyone would have to get out and see it. Jessica lied and told him she was pregnant. He told her she could go to jail. She told him she would go to Juvenile Hall as she was only 17. Defendant told her that instead of having the highway patrol do the search, she could pull down her pants and give herself a search in front of him. Jessica was terrified and did not say anything. There was a long silence, then defendant calmly said something had to be done (counts five and six).
Defendant missed Jessica's stop in Reno and went to Sparks, where the only other passenger disembarked. Defendant said he did not know how he missed Reno. Jessica said she would take a taxi. Defendant told her that would cost $30 and he would give her a ride because he had to stop there. On the way back to Reno, defendant said he was tired and was going to pull over and take a nap. He did not stop until Reno, where Jessica got off. She called her mother and the next day talked to the Sacramento police.
Renita H. is defendant's ex-wife. She and defendant had two children, Marqueisha, 12, and Robert, 7. She was shocked when she learned what defendant had been arrested for and asked the children if defendant had ever touched them. At first they denied any touching, but eventually Marqueisha disclosed that defendant had touched her.
At trial Marqueisha testified she called her private parts vagina and booty. Defendant had touched them with his finger and his pee-pee (penis). He touched her vagina with his pee-pee once or twice; he touched her vagina with his finger five times and touched her booty with his fingers twice (counts seven through ten). He told her he was examining her and told her not to tell.
The first time defendant touched her vagina was when she was seven or eight and going to bed. Her brother was asleep in the room. Defendant pulled down the covers, lifted her nightgown, and touched her with his fingers (count seven). The last time was when she was 10 or 11. He came into her room and got her out of bed and took her into the living room. He told her to take off her clothes and lay down. He got on top of her and put his penis inside her vagina; he was moving. She tried to get up but there was too much weight (count eight). Afterwards she went to the bathroom and wiped herself with a towel; she saw blood. Marqueisha also recalled a time defendant came into her room, pulled down her pants and put his finger in her "booty." It hurt (count nine).
Marqueisha became very upset while testifying and the court had to take breaks to allow her to regain her composure. She testified it made her angry and sad ...