ORDER AND 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. Petitioner challenges a judgment of conviction entered against him on July 11, 2006 in the Sacramento County Superior Court on charges of committing lewd acts, some aggravated by the use of force or violence, against a child under the age of 14 in violation of California Penal Code §§ 288(a) and (b)(1). He seeks federal habeas relief on the grounds that: (1) incorrect jury instructions, and their cumulative effect, prejudiced him; (2) there was insufficient evidence introduced at trial to show he used a gun in commission of the aggravated offenses; (3) the trial court erroneously failed to instruct on a lesser included offense of misdemeanor child molestation. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus be denied.
On July 11, 2006, a jury found petitioner guilty of committing lewd acts and aggravated lewd acts against a child under the age of 14. (Notice of Lodging Documents on November 20, 2009 (Doc. No. 17), Clerk's Transcript on Appeal (CT) at 256-267.) On August 18, 2006, petitioner was sentenced to 68 years in state prison. (Id. at 328.)
Petitioner appealed his judgment of conviction to the California Court of Appeal for the Third Appellate District. (CT at 331 (Notice of Appeal).) On November 29, 2007, the judgment was affirmed in a reasoned opinion. (Resp't's Lod. Doc. 4 (hereinafter Court of Appeal Opinion).) Petitioner then filed a petition for review with the California Supreme Court (Resp't's Lod. Doc. 5), in which he claimed that three jury instructions given at his trial were erroneous and that cumulative instructional errors deprived him of his right to due process. On February 13, 2008, the California Supreme Court summarily denied that petition. (Resp't's Lod. Doc. 6.)
On September 5, 2008, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court in which he claimed that there was insufficient evidence introduced at trial that he used a gun in the aggravated offenses, and that the trial court erroneously failed to instruct the jury on the lesser included offense of misdemeanor child molestation. (Resp't's Lod. Doc. 7.) On October 3, 2008, the Sacramento County Superior Court denied habeas relief in a reasoned opinion, stating that petitioner should have raised these claims on appeal. (Resp't's Lod. Doc. 8 (hereinafter Superior Court Opinion).) On January 14, 2009, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District, again raising claims of insufficient evidence and failure to instruct on a lesser included offense. (Resp't's Lod. Doc. 9.) On January 22, 2009, the Court of Appeal summarily denied this petition. (Resp't's Lod. Doc. 10.) On February 13, 2009, petitioner sought a writ of habeas corpus on these same grounds in the California Supreme Court. (Resp't's Lod. Doc. 11.) On July 8, 2009, the California Supreme Court denied the petition. (Resp't's Lod. Doc. 12.)
On September 29, 2008, petitioner filed a petition for habeas corpus in this court. (Doc. No. 1.) On August 25, 2009, this court ordered petitioner to either file an amended petition containing all of his exhausted claims or file a declaration explaining the status of any pending habeas proceedings in state court. (Doc. No. 9.) On September 18, 2009, petitioner filed the instant amended petition. (Doc. No. 10 (hereinafter Amended Petition).)
As all the claims set forth in the Amended Petition have been presented to the California Supreme Court either on direct appeal or in a habeas petition, respondent concedes that petitioner has exhausted his five stated grounds for relief "to the extent interpreted by Respondent herein." (Doc. No. 16 (hereinafter Answer) at 2.)
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 factual summary:
Defendant lived with his girlfriend, Erica, her daughter, A.C., and Erica's two sons. While they were living together, defendant and Erica had a son.
When A.C. was seven years old, defendant went into A.C. bedroom one night while she was sleeping. She awakened while defendant was touching her chest and vagina. The next day, defendant took A.C. into his bedroom. He put a gun in A.C.'s mouth and told her that if she ever said anything about what happened, he would kill her, her mother, or one of her brothers. After that, and for several years, defendant went into A.C.'s room almost every night or had her come into his room when Erica was gone. He touched A.C.'s chest and vagina, made her touch and rub his penis, and rubbed his penis between her buttocks. He also threatened her when she hesitated or objected. A.C. did not report the molestations because she was afraid of what defendant would do.
When a police officer and, on another occasion, Child Protective Services workers asked her, A.C. denied that defendant had molested her. Later, A.C. told a family friend.
With instructions from sheriff's deputies, A.C. made two recorded telephone calls to defendant. During those conversations, A.C. asked why defendant had molested her. He apologized and said it was wrong and should never have happened. He said he did it because he was stupid. He was not getting along with Erica during that time. He said that he felt bad and asked her to forgive him.
At trial, defendant admitted that he touched A.C. inappropriately, but only once. He was under the influence of drugs and alcohol at the time.
The jury convicted defendant of two counts of lewd conduct on a child under 14 (Pen. Code, § 288, subd. (a)) and 10 counts of aggravated lewd conduct on a child under 14 (Pen. Code, § 288, subd. (b)(1)).
(California Court of Appeal Opinion at 2-3.)
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). Section 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 section 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 petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
A. Jury Instruction Error
Four of petitioner's five claims allege jury instruction error. After setting forth the applicable legal principles, the court will evaluate these claims below.
A challenge to jury instructions does not generally state a federal constitutional claim. SeeMiddleton, supra, 768 F.2d at 1085 (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). However, a "claim of error based upon a right not specifically guaranteed by the Constitution may nonetheless form a ground for federal habeas corpus relief where its impact so infects the entire trial that the resulting conviction violates the defendant's right to due process." Hines v. Enomoto, 658 F.2d 667, 672 (9th Cir. 1981) (citing Quigg v. Crist, 616 F.2d 1107 (9th Cir. 1980)); seealsoPrantil v. California, 843 F.2d 314, 317 (9th Cir. 1988). The analysis for determining whether a trial is "so infected with unfairness" as to rise to the level of a due process violation is similar to the analysis used in determining, under Brecht v. Abrahamson, 507 U.S. 619, 623 (1993), whether an error had "a ...