ORDER AND 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 convictions for various sex offenses committed against one of his daughters, which were entered in the Superior Court of Sacramento County. Petitioner is serving a total sentence of 62-years-to-life imprisonment. Resp't's May 5, 2008 Lodged Doc. #1 at 2; CT 138-141.
Before proceeding to the merits of petitioner's claims, the court address three preliminary matters. First, petitioner requests that the court hold an evidentiary hearing. Petitioner does not automatically have the right to a hearing; rather the court may grant a request upon a showing of good cause. Because the court finds there is not good cause for a hearing, this request will be denied. Rule 8, Rules Governing Section 2254 Cases in the United States District Courts.
Second, on April 28, 2008 and May 9, 2008, petitioner requested that the court consider additional arguments in support of his habeas petition. Respondent submitted no opposition to these requests. Good cause appearing, petitioner's requests will be granted and the court will consider the information provided on April 28, 2008 and May 9, 2008 in addressing the arguments identified herein.
Finally, respondent has asked permission for maintaining the redaction of the names of jurors and potential jurors from a document respondent filed on May 2, 2008. Good cause appearing, respondent's request will be granted.
I. Standard For Habeas Corpus 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); Casey v. Moore, 386 F.3d 896, 907 (9th Cir. 2004) ("lower federal court and state court precedent may be relevant when that precedent illuminates the application of clearly established federal law"); 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).
Petitioner was convicted in a retrial after the jury in his first trial was unable to reach a verdict. See Clerk's Transcript of First Trial (CT I) 133.*fn2 Following conviction and sentencing, petitioner filed a direct appeal in the California Court of Appeal, Third Appellate District (Court of Appeal). The Court of Appeal summarized the facts surrounding petitioner's conviction as follows:
There is no purpose in an extensive account of the lurid facts supporting the convictions. It is sufficient to note that the trial was a credibility contest between the victim (who was born in 1988 and was nearly 13 at the time of the trial) and the testifying defendant. She described a pattern of "over a thousand" molestations beginning just before kindergarten in 1993 and continuing until New Year's Eve in 1999, with the various counts being specific--and often graphic--illustrations of the types of conduct (essentially fellatio and touchings with his hands and penis without any penetration). She concealed this activity because the defendant told her something bad would happen to him if she told anyone. She finally told a social worker on January 19, 2000, about the molestations. The social worker summoned a police officer, who took the victim's statement.
There was evidence of possible bias on the part of both the victim and her mother. During her interview with the social worker, the victim expressed a desire to live under her mother's care because she thought her father was too restrictive. When she found out that rather than her mother coming to live with her, it meant living with her mother under more meager economic circumstances than she had enjoyed at home, she cried. During another pretrial interview, the victim expressed her dislike of the possibility that the defendant might marry a younger woman from Peru who was a co-worker's cousin with whom he had been corresponding; her report of the molestations occurred shortly after the defendant returned from visiting the potential bride.
The victim's mother was the defendant's first wife, from whom he separated in 1990 because of her adultery. Their divorce was acrimonious, with defendant obtaining custody of the children and living with his former parents-in-law for a time. She resented what she saw as the defendant's second wife usurping her role as mother to their children, and admittedly tried to make the life of defendant and his wife miserable (which led to in part the break up of his second marriage). She became livid when her children told her their father went to Peru to meet a potential bride, cursing at the defendant during a heated phone call on his return.
There was evidence that the victim had access to a book for adolescents on human sexuality. There was no corroborating physical evidence on molestation, which is common when there is no penetration. The victim's younger sister recalled an incident when the victim came running from the defendant's bedroom (the door to which had been shut) to the bathroom; she was crying and her pants and underwear were pulled down to her knees.[Fn1] However, while the victim claimed that her sister had witnessed the defendant in an act of interfemoral intercourse with the victim, her sister denied ever seeing the defendant molest the victim. The victim's cousin (born in 1983) testified that the victim had complained to her around 1995 about the defendant's molestations. When the cousin told their grandmother, she refused to believe it. The cousin asked the victim a couple of years later whether the molestations were still happening; the victim said no.[Fn2] She first gave a statement about this in August 2000 when the prosecution contacted her.
There were inconsistencies in the victim's account over the course of these proceedings, which the defendant highlights on appeal.[Fn3]
In the previous trial, the victim had described a face-to-face incident of interfemoral intercourse in which she refused to say words of encouragement at the direction of the defendant. In her pretrial interview and on retrial (which was the basis for count thirteen), she testified the defendant was behind her and she had acceded to his demand for words of encouragement.
In the previous trial, the victim testified that the defendant's erection pointed downward. On retrial, she testified it pointed upward (which the defendant's second wife confirmed was its normal state when erect).
Finally, her testimony regarding some of the circumstances of the molestations on New Year's Eve 1999 deviated significantly from any previous testimony, as even the prosecutor conceded in his closing. The prosecutor attributed this to her being tired and getting confused.
The defendant generally denied committing any of the acts to which the victim testified, and attempted to contradict specifics of the victim's testimony. He pointed out that as an airline employee, he could have flown almost anywhere in the world at little cost after the accusation.
He also called other witnesses to contradict certain of the victim's facts. She had described uncharged acts (occurring out of state) on a sofa bed at her paternal grandparents' home, but they denied ever owning a sofa bed. In connection with one of the counts on which the jury failed to reach a verdict (count eleven), she described an act of fondling that occurred in the front seat of a Camry on the way to the Oakbrook school during the three months in the fall of 1998 that she attended it. The defendant's brother testified that defendant did not purchase the Camry until April 1999; he was sure of the date because defendant later sold the car to his brother and he had the sales documents. In connection with another count on which the jury could not reach a verdict (count twelve), she described the defendant picking her up at the Oakbrook school on that same day. Her sister had gone home earlier. He drove with the victim to his brother's house nearby, where the defendant took her into a trailer in the driveway and molested her. The defendant's brother testified that the defendant did not have a key to the trailer.
During the fall of 1998, he was remodeling it before selling it to his father. The interior was torn up and nearly impassable.
Various witnesses testified to the defendant's good character and the absence of any indication that molestations were occurring. These included co-workers, his brother, his parents (who lived with him in the mid-1990's), and his second wife (who also testified that the defendant had a normal sexual relationship with her on his two days off each week).
[Fn1] The sister had not mentioned this in her initial interview with the social worker after leaving the defendant's home, but remembered it during a pretrial interview.
[Fn2] The victim recalled telling her cousin when she was in kindergarten, the year after the molestations began (i.e., about 1994). She believed someone told the defendant, because the next day he was really angry and instructed her never to tell anyone again what they did. About four years later, when her cousin asked her if it was still occurring, she denied it because she was afraid what might happen.
[Fn3] As we do not agree that there is a significant difference between her account to the social worker and later accounts of the degree to which the defendant may have penetrated her vagina with any part of his body, we will not relate the claim.
Resp't's September 21, 2005 Lodged Doc. #3 (Op.) at 2-7.
With respect to most of petitioner's claims, the Court of Appeal was the only or last court to issue a reasoned opinion on direct review.
III. Arguments And Analysis
A. Prosecutorial Misconduct In Closing Argument ("Ground 1")
In his first claim, petitioner alleges that certain arguments made by the prosecutor, that petitioner's decision to contact an attorney demonstrated consciousness of guilt, violated his Constitutional rights, and in particular his Fifth, Sixth and Fourteenth Amendment rights, and the error affected the jury's decision. Mem. P.&A. in Supp. Pet. (Pet.) at. 4-10. Respondent contends that the state courts properly concluded that any error was harmless. Answer at 8-11.
The prosecutor's challenged comments began during his closing argument, when he invited the jury to infer guilt from a number of actions taken by petitioner upon learning of his daughter's accusations, including calling an attorney:
And then Mr. Savidge finds out that [his daughter] is accusing him of child molest and he cries. Is that the proper emotion a man would have if he raised his daughter and there was nothing but a loving, caring relationship and no molest going on? And you hear there's an accusation [of] molest you think you're going to start crying?
I tell you what, my daughter, your daughter, any daughter of a parent that just makes up these accusations out of the blue, you don't cry. You're mad. You're saying what in the hell is going on here. I need to talk to her. Or if I can't talk to her I need someone else to say hey, what's up with this. What is going on. And it will all be cleared up because, you know, she's my daughter and she loves me and this hasn't been going on and it will all be cleared up.
Did he do that? No. He basically threw in the towel. He threw in the towel. He dutifully does what [the] social worker tells him to do and he calls his attorney. Does that sound like an innocent man to you? He gives over all the documentation. No, if that's me, anyone accused, no way. I'm not giving you anything, I'm getting to the bottom of this.
The thing about oh, isn't that a responsible thing for him to do, just hand over the documentation for the kids to Mom because she's now the person providing custody and support? Yeah. In a vacuum maybe. But you know what, when you're accused of this crime, you don't just do that. You fight. You fight it with everything you have. [His ex-wife] races to Sacramento and she talks to the defendant and says well, you don't have anything to worry about, right? And he says nothing because he knew that it was true. He says nothing. You may consider that in determining this man's guilt. Is that the reaction of an innocent man?
RT 1393:17-1394:23. Defense counsel did not object, but addressed the argument to an extent in his own closing, arguing that the prosecutor's suggestion "that there is a . . . proper way to respond [to the allegations], a not guilty way of responding, is utter nonsense." RT 1448:18-20. Defense counsel specifically addressed the prosecutor's implication that an innocent man would not remain silent and would not cry, but did not expressly counter the implication that an innocent man would not contact an attorney. RT 1449-1450. He urged a competing inference of innocence because petitioner had chosen to stand trial, when, as an airline employee, he could easily have fled the country. Id.
The prosecutor again highlighted, repeatedly -- five more times in rapid succession -- petitioner's decision to retain counsel in his rebuttal to defense counsel's closing argument:
[His ex-wife] says you don't have anything to hide, do you -- or anything to worry about, do you. And he walks away. No answer. Instead he calls his lawyer. That's one of the first things he does is call his lawyer. Because he knows he's going down and he needs help. It's been disclosed. He knows it now. He calls his lawyer.
He doesn't say -- I mean, if you're innocent you say I don't need a lawyer, let's just figure this out, my daughter is my loving, caring -- I'm a loving, caring dad, I have a wonderful relationship with my daughter, he'd have you believe, so let's just figure this out. I don't need a lawyer. If I can't talk to her, [ex-wife], you go talk to her, figure it out. This is just a mistake. This is silly. If you're truly innocent that's the way you're going to react. You're not going to start bawling. Give me a break.
So he calls his lawyer and he packs a bunch of clothes for the girls because he knows he's not getting them back. He knows what he did. And he's acting like he knows what he did.
On appeal, petitioner argued that the prosecutor's closing arguments were improper. The Court of Appeal concluded that the prosecutor's statements regarding petitioner's demeanor and submission to lawful authority were not improper. Op. at 26. The appellate panel was divided regarding the argument based on petitioner's decision to call a lawyer. It found unanimously that the comments were improper but held in a split decision that the error was harmless. Id., majority op. at 26-28; Id., dissenting op. at 1-7. The majority reasoned:
The assertions that the innocent do not need to consult an attorney cause us greater concern. If this was simply an errant inference, we would treat it no differently than the [other claims of improper prosecutorial argument]. The prosecutor's argument, however, amounted to urging the jury to draw an adverse inference from the defendant's desire to speak to an attorney. This is prohibited as a penalty on the exercise of a constitutional right. (People v. Schindler (1980) 114 Cal.App.3d 178, 187-89, and cases cited therein; cf. People v. Guzman (1988) 45 Cal.3d 915, 947 [adverse comment on invocation of right to testify would be impermissible]). [footnote omitted]
Although defense counsel may have believed it was better to rely on his own argument about the stupidity of the prosecutor's beliefs in "normal" responses to accusations of molestation, which might be a rational tactical basis for failing to object and thus waives the issue on appeal, we will address the issue on the merits because we believe that the error was harmless beyond a reasonable doubt. As we have quoted above, defense counsel strongly refuted the claim that the defendant's conduct evinced a consciousness of guilt. We also do not think a reasonable juror would believe that calling a lawyer when accused of molestation is a sign of guilt. Most importantly, the jury did not convict the defendant on all charges.
There was not any significant difference between the evidence refuting counts eleven or twelve compared with the other counts on which the jury reached verdicts. As for count nine, it described rubbing conduct (similar to what happened in count twelve in the trailer) that interrupted the victim's teeth-brushing. As with most of the counts the jury sustained, the sole contrary evidence was the defendant's general denial. If the jury indeed was biased against the defendant as a result of the prosecutor's misconduct, it would have reached verdicts on these counts as well. While we strongly admonish the prosecutor never to rely on this improper argument again, we cannot find any prejudice to the defendant in the present case.
Id., majority op. at 26-28. The dissenting justice disagreed, noting the closeness of the case against petitioner, evidenced in part by the hung jury in the first trial, and the prosecutor's consequent need to try "to convince jurors in the second trial to believe the daughter's accusations and to disbelieve ...