The opinion of the court was delivered by: John L. Weinberg United States Magistrate Judge
REPORT AND RECOMMENDATION
Petitioner Herman Sandoval is currently incarcerated at the Mule Creek State Prison, in Ione, California. He was convicted by a jury in the Sacramento County Superior Court on March 4, 2005, of committing sexual offenses against two boys under the age of fourteen, M.M. and J.S., in October 2003 and April 1998, respectively. Specifically, petitioner was convicted of one count of committing a lewd and lascivious act on a child, four counts of forcefully committing lewd and lascivious acts on a child, and having committed the charged offenses against two or more victims. He is currently serving a sentence of thirty-years-to-life, and has filed a second amended petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2005 conviction and sentence. (See Docket 38.)
Respondent has filed an answer to the second amended petition in which he concedes that petitioner has exhausted his state court remedies, but contends that petitioner's claims are without merit. (See Dkt. 41 at 2-3.) Petitioner filed a traverse in opposition to the answer. (See Dkt. 47.) Accordingly, the briefing is now complete and this matter is ripe for review. See Rule 5(e), Rules Governing Section 2254 Cases. The Court, having thoroughly considered the record, recommends the Court deny the second amended petition and dismiss this action with prejudice.
II. FACTUAL AND PROCEDURAL HISTORY
Petitioner is challenging his 2005 conviction for four counts of forcefully committing lewd and lascivious acts on a child, J.S., and having committed the charged offenses against two or more victims. While he was also convicted of one count of forcefully committing a lewd and lascivious act on a child under age fourteen, M.M., that count is not at issue in this petition. Petitioner received an indeterminate sentence of thirty-years-to-life in prison.
The California Court of Appeal summarized the facts of the offense against J.S., noting, as in this case, that the facts of the M.M. molestation were not at issue in the state court petition and therefore it did not need to address them:
J.S. was 19 years old when he testified and 13 years old at the time of the offenses. When he was 13, he lived with his father and worked at the father's produce stand at a flea market. While at the market, J.S. met defendant who was a friend of his father.
On April 19, 1998, after obtaining the father's permission, defendant hired J.S. to mow his lawn and help him clean up his residence. J.S. left the flea market and went with defendant in his truck. As he drove, defendant asked J.S. if he wanted to drink beer, smoke cigarettes, and watch dirty movies. Even though he wasn't really interested, J.S. said yes because defendant was bigger than him and he did not want to make defendant mad.
No one was at defendant's residence when they arrived. They went inside and started talking and watching television. At defendant's request, J.S. stood up. Defendant pulled down J.S.'s pants and underwear and started to play with J.S.'s penis. Defendant pulled down his own pants, pushed or tossed J.S. onto the couch, and began rubbing his penis against J.S.'s penis and stomach. Defendant was on top of J.S., making a humping motion, sucking on J.S.'s lip, trying to kiss him, and not saying anything. Defendant tried to put his tongue in J.S.'s mouth, but J.S. kept it tightly closed. J.S. was unable to get up off the couch because defendant was too heavy.
After about five minutes on the couch, defendant took J.S. to the bedroom. Defendant told J.S. to lie down and got on top of him. Defendant rubbed his penis on J.S.'s penis and stomach and tried to kiss him. J.S. did not have any bruises or marks, and he testified that defendant was not trying to hurt him.
J.S. told defendant that he had to return to the flea market because his father would be worried. Defendant said okay and got off of him. They went to the living room where defendant gave J.S. a root beer. Defendant acted as if everything were fine.
On the way back to the flea market, defendant asked J.S. whether the acts felt good, whether he had liked them, and whether he would tell anyone about it. J.S. told him no, because he was scared and did not want defendant to hurt him. Defendant asked J.S. if he wanted anything, and J.S. sarcastically said, "five hundred dollars." J.S. denied that this request was a threat to "accuse him of something that he didn't do" if the money were not paid. Defendant gave J.S. $1.50 or $2.00 and told him that he could drive defendant's truck any time he wanted.
When defendant dropped off J.S. at his father's stand, he again asked if J.S. was going to tell anyone. J.S. said no and defendant left. J.S. then told his father that defendant had rubbed and touched him. At first, the father did not believe him.
The father testified that when J.S. returned to the flea market, he was highly upset and very close to tears. The father had never seen J.S. so mad. The father tried to find out what was wrong but J.S. did not want to tell him. J.S. went to the back of the fruit stand to calm down. Defendant hastily arrived and tried to push some money into J.S.'s pocket. J.S. again became irate. Eventually, defendant left.
Later that afternoon, J.S. revealed to his friend, Patty, that defendant had pulled down J.S.'s pants, tried to grab J.S.'s penis, and tried to rub J.S.'s penis on him. J.S. and Patty reported the incident to a sheriff's officer. J.S. did not see defendant after that day.
In February 1999, when J.S. was 14 years old, he suffered juvenile adjudications for residential burglary and attempted residential burglary. When he was 16 years old, he left California for Texas because he was getting in trouble here.
At trial, Deputy Sheriff Robert Wilson testified to what J.S. had told him when he took the report. J.S. had not mentioned a specific number of times that defendant had rubbed his penis on J.S.'s body. J.S. had described the initial activity as a "continuous humping motion." He had related a total of "two separate incidences," both of which had occurred on the couch. J.S. had not mentioned going into the bedroom. J.S. explained at trial that he had left that part out so that the police would not think he wanted to participate.
Deputy Wilson testified for the defense that J.S. had not reported that defendant touched J.S. before pushing him onto the couch. Rather, the only reported contact occurred when J.S. was lying on the couch.
The security manager for defendant's cable television company testified that defendant did not subscribe to an adult entertainment channel. (Dkt. 38, Exh. A at 2-5.)
A jury found petitioner guilty of committing a lewd and lascivious act on a child under age 14 (Count I), and forcefully committing lewd and lascivious acts on a child under age 14 (Counts II-V). (See Dkt. 41 at 5.) Pursuant to an amended information, the jury also found true the special allegations that petitioner committed the charged offenses against more than one victim. (See id.) He was sentenced to an indeterminate sentence of thirty-years-to-life on Counts I and II (two consecutive terms of fifteen-years-to-life), and concurrent terms of six years each on Counts III - V. (See id.)
Petitioner timely appealed his conviction and sentence to the California Court of Appeal, raising one of the issues presented in this federal habeas petition. (See Dkt. 38, Exh. A.) The Court of Appeal affirmed the trial court's judgment in an unpublished decision on August 24, 2006. (See id.) Petitioner filed a petition for review in the California Supreme Court which was summarily denied. (See id., Exh. B.)
On January 3, 2007, petitioner filed a petition for habeas corpus in this Court, although he admitted that he had not yet exhausted all of his claims. (See Dkt. 1.) He therefore requested that the Court stay his case and hold his petition in abeyance until he exhausted his state court remedies. (See id.) Petitioner's request for a stay was granted by the Honorable Kimberly J. Mueller on October 9, 2007. (See Docket 15.)
Petitioner then filed a habeas corpus petition in the Sacramento County Superior Court, which was denied on May 4, 2007, pursuant to a reasoned decision. (See Dkt. 38, Exh. E.) Petitioner subsequently filed a petition with the California Supreme Court. (See id., Exh. Q.) The California Supreme Court later granted petitioner's request to withdraw that petition. (See id., Exh. D.) Petitioner filed a new habeas corpus petition in the state's highest court on March 28, 2008. That case was summarily denied on September 10, 2008. (See id.)
Because petitioner represented that he had exhausted his state court remedies, the stay in this Court was lifted and petitioner was permitted to file an amended petition incorporating his newly exhausted claims. (See Dkts. 20 and 22.) Less than a month later this case was transferred to the Honorable Robert S. Lasnik. (See Dkt. 21.) The case was subsequently reassigned to the Honorable Ricardo S. Martinez, and on October 1, 2009, this case was referred to the undersigned. (See Dkts. 23 and 30.)
Meanwhile, petitioner filed another habeas petition in the California Supreme Court on June 25, 2009. (See Dkt. 43, Lodged Document 10.) While that petition was pending, petitioner filed multiple requests for a second stay and abeyance to pursue his additional claims for relief. (See Dkts. 26-28 and 31.) On October 22, 2009, this Court struck three of petitioner's four pending motions for a stay and abeyance and directed respondent to file a response to petitioner's fourth request for a stay. (See Dkt. 32.) The California Supreme Court summarily denied his petition on November 10, 2009. On December 8, petitioner filed objections to respondent's response, informing the Court that he had exhausted all of his state court remedies as to all of his federal claims for relief. (See Dkt. 34.) He also renewed his request for a stay on the ground that he required additional time to file a second amended petition, incorporating the additional recently exhausted claims for relief. (See id.)
By Order of December 14, the Court struck petitioner's fourth request for a stay and abeyance as moot and gave petitioner 90 days to file a second amended petition incorporating all of his exhausted federal habeas claims for relief. (See Dkt. 35.) A subsequent thirty-day extension of time was granted and petitioner filed his second amended petition on March 29, 2010, presenting four claims for relief. (See Dkts. 37 and 38.)
III. FEDERAL CLAIMS FOR RELIEF*fn1
Petitioner presents the following claims in his second amended petition:
1. The admission of other crimes evidence was erroneous under Evidence Code Sec. 1101, sub. (b) an abuse of Evidence Code Sec. 352 Discretion, and a violation of due process applied;
2. The revival of a time barred charge violated the Ex Post Facto Clause of the United States Constitution;
3. The judgment must be reversed because the corroboration requirement of Sec. (g) has not been met;
4. The denial of jury trial on aggravating and mitigating factors affecting the sentence violated the Fifth, Sixth, and Fourteenth Amendments;
5. Petitioner was denied due process of law; and
6. Ineffective assistance of trial counsel. (Dkt. 38 at i.)
Respondent appears to concede that petitioner has exhausted all of his claims for relief, but contends that petitioner fails to demonstrate that the state courts either made an unreasonable factual determination or failed to comply with clearly established U.S. ...