The opinion of the court was delivered by: Barbara Jacobs Rothstein U.S. District Court Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner William Moore is a California state prisoner who filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Having considered the petition, respondent's answer, the traverse, and the balance of the record, the court hereby finds and rules as follows.
On May 23, 2002, Petitioner was found guilty by a jury for violations of California Penal Code §§ 288.5, 288a (b)(2), 288(c)(1), and 261.5(d).*fn1 On July 19, 2002, Petitioner's motion for a new trial was denied and he was sentenced to a term of 18 years in California state prison. On July 17, 2002, Petitioner filed his Notice of Appeal in the Court of Appeal of the State of California, Third Appellate District. Oral argument was held on December 16, 2003, and on January 20, 2004, the Appellate Court issued an opinion affirming the judgment in all respects. Petitioner filed a petition for review with the California Supreme Court, which was denied on April 14, 2004.
On December 13, 2003, Petitioner filed a writ for habeas corpus with the Third District Court of Appeal, which was denied on January 29, 2004, with citations directing that the petition be filed in Superior Court. Petitioner re-filed the habeas petition in the Superior Court of California, Nevada County, on February 3, 2004, pursuant to the January 29, 2004 order. The Superior Court issued an order to show cause, and a response and traverse were filed. On May 12, 2004, the Superior Court issued an order for an evidentiary hearing which was held on July 28, 2004.*fn2 The habeas petition was denied in all respects at the conclusion of the hearing.
Thereafter, the Petitioner filed a habeas petition with the California Court of Appeal, Third Appellate District, on January 19, 2005. After requesting additional records from counsel, the Appellate Court denied the petition on May 12, 2005. Petitioner filed a petition for review with the California Supreme Court on June 24, 2005, which was denied on May 10, 2006.
On March 17, 2008, Petitioner filed a second habeas petition in California Superior Court, Nevada County, which was denied on January 4, 2008. Petitioner appealed and the California Court of Appeal, Third Appellate District denied the petition without comment on February 14, 2009. The California Supreme Court denied the petition without comment on August 27, 2008.
Petitioner filed the present petition for writ of habeas corpus in the United States District Court for the Eastern District of California on March 5, 2007. The case was reassigned to this court on March 2, 2010. It is now ripe for review.
The facts of this case are set forth in the unpublished opinion of the Third District Court of Appeal for the State of California, People v. Moore, 2004 WL 79099 (January 20, 2004), the relevant portion of which is stated as follows:*fn3
Victim A.H. was 16 years old when she testified at Petitioner's criminal trial. Her mother married Petitioner when she was five or six years old and she lived with him up until the date of her accusation at age fifteen. In the fall of 1994, when A.H. was seven or eight years old, she began experiencing nightly leg cramps and Petitioner would enter her room and massage her legs. Shortly thereafter, Petitioner started lying down on her bed where he would tell her a story, kiss her and fondle her chest. After a few months, the molestations escalated to two-to-three-times-per-week. Eventually, Petitioner began to have oral sex with A.H. The incidents usually happened late at night, when the others in the house were asleep.
When A.H. was 11 years old, Petitioner had intercourse with her. The intercourse and other sexual activities continued regularly, several times a week. When A.H. was 13, the sexual activity stopped for a while. She thought Petitioner had become more afraid of getting caught, and her mother was having some health problems. But then, around A.H.'s 14th birthday, the activity resumed and continued as before, but on a more regular basis. The sexual activity continued unabated until shortly before the matter was reported to police in June 2001.
Victim A.H. was the prosecution's only witness at trial. Petitioner presented two witnesses, his stepmother and his stepsister, both of whom testified to his general poor health and to the fact that they had never observed inappropriate behaviour between the victim and Petitioner.
Petitioner raises the following as grounds for relief:
1. His repeated requests for a continuance of the trial date were erroneously denied;
2. The exclusion of Dr. Lee Coleman's testimony denied him due process;
3. The trial court's instruction on the concealment of two defense witnesses was prejudicial;
4. The evidence on Counts 2 through 9 was insufficient;
5. Counts 2, 3, 4, 7, 8 and 9 must be reversed for lack of a unanimity instruction;
6. He was denied effective assistance of counsel at trial;
7. The imposition of upper terms on his sentence denied him a Sixth Amendment right under Blakely v. Washington, 542 U.S. 296 (2004);
8. He was denied fundamental fairness because the judge who presided over his trial also presided over his first state court habeas proceedings;
9. He was denied effective assistance of counsel during his first state court habeas proceeding; and
10. He was denied the right to conflict-free counsel.
This case has a long and convoluted procedural history. Prior to filing the present petition for habeas relief, Petitioner twice sought relief through the California state habeas process, in addition to seeking relief through direct appeal of his conviction. Each of the claims raised in the present petition (save one that is addressed below) were raised in one of the prior proceedings; however, no single proceeding addressed all of the claims. Accordingly, in order to address the currently pending claims, it was necessary for this court to review the decisions of several California state courts. For the sake of clarity, this court will organized Petitioner's claims as they were addressed by the various California state courts. The following claims were raised in Petitioner's direct appeal and rejected by the California Court of Appeal, Third District:
(1) The trial court erred by denying the defense request for a continuance of the trial date; (2) Petitioner was denied due process by the exclusion of Dr. Lee Coleman's testimony; (3) Petitioner was prejudiced by the trial court's instruction to the jury regarding failure to timely disclose defense witnesses; (4) The evidence concerning Counts 2 through 9 was insufficient to convict; and (5) Counts 2, 3, 6, 7, 8, and 9 must be reversed for lack of unanimity instruct.
The following claims were raised in Petitioner's first state habeas petition and rejected by the Superior Court of California, Nevada ...