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 an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2001 conviction on charges of aggravated sexual assault of a minor under the age of fourteen, forcible oral copulation, false imprisonment, and corporal injury to a cohabitant. Petitioner was sentenced to an aggregate term of 21 years to life in state prison. Petitioner raises four claims in his petition, filed August 11, 2005, asserting that his prison sentence violates the Constitution.
Petitioner appealed his conviction. On August 27, 2002, the Court of Appeal for the State of California, Third Appellate District, affirmed petitioner's conviction. (Lodged/Filed Paper Documents ("LD") 2.) Petitioner filed a petition for review in the California Supreme Court. (LD 3.) Review was denied on November 13, 2002. (LD 4.)
Petitioner filed a petition for writ of habeas corpus in the San Joaquin County Superior Court on November 19, 2003. (LD 7.) The petition was denied on December 17, 2003. (LD 8.) Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District on February 3, 2004. (LD 9.) That petition was denied on March 4, 2004. (LD 10.)
On March 17, 2004, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (LD 11.) The California Supreme Court denied the petition on February 2, 2005. (LD 12.) The instant petition was filed on August 11, 2005. (Dkt. No. 1.)
On the evening of June 11, 2000, [petitioner] came home drunk and found his 13-year-old step-daughter, C., on the telephone. He became angry and slapped C. in the face when he took the telephone from C. and the caller would not identify himself. He did not approve of C. talking to boys on the telephone. The telephone rang again and [petitioner] said it was someone named Carlos and assumed Carlos was C.'s boyfriend.
When his wife, Anna, said she did not know who the caller was, [petitioner] hit her in the face. He hit her about three times, pulled her hair, and then dragged both Anna and C. into his bedroom. [Petitioner] then forced Anna to orally copulate him in front of C.
C. went to the bathroom, but when she came out, [petitioner] grabbed her by the arm and told her to sit next to Anna. [Petitioner] started slapping C. while Anna orally copulated him. [Petitioner] threatened C. that she would see her mother buried if she did not do as she was told.
Then, over Anna's protests, [petitioner] forced C. to orally copulate him by grabbing her head while he pinned Anna to the bed. After five to ten minutes, [petitioner] was done and C. ran to the bathroom and locked the door. She washed out her mouth and threw up in the sink before escaping through the bathroom window.
That evening, a neighbor called 911 after a very scared teenage girl, whom she did not recognize, started pounding on her door and window. C. then ran to her friend's house, called Ms. Perez (a trusted friend) and asked her to drive over. C. was still crying when Perez arrived. C. told Perez that [petitioner] had forced her mother, and then her, to "suck" his penis.
When Deputy Walters and Officer Flores arrived at C.'s friend's house, C. appeared upset and scared and complained of pains from being hit and having her hair pulled. She told the officers what had occurred.
Anna also spoke with Deputy Walters and Officer Flores that evening, outside the presence of C. and [petitioner]. Her eyes and cheeks were red and her nose was swollen. She appeared scared and ashamed. Anna also told the officers what had occurred.
Deputy Walters and Deputy Laird took [petitioner] into custody. After [petitioner] agreed to make a statement, he provided four different versions of the events. Initially, he denied any domestic or sexual abuse. In the fourth version, he admitted to hitting Anna and forcing both Anna and C. to orally copulate him.
C. testified to the events at the preliminary hearing. At trial, however, both Anna and C. recanted. [Petitioner] testified on his own behalf. He claimed his confession was coerced and taken when he was still drunk and sleepy. Although he admitted hitting both Anna and C., he denied any forcible oral copulation took place. (People v. Alcaraz, slip op. at 2-4.)
IV. Standards for a Writ of Habeas Corpus
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. 1994); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citation omitted). 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 used 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.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citation omitted).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. 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 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")
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). 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); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) ("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."); accord 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); Pirtle, 313 F.3d at 1167.
V. Petitioner's Claims A. Admission of Expert Witness Testimony
Petitioner contends his due process rights were violated by the trial court's admission of expert witness testimony concerning child sexual abuse accommodation syndrome ("CSAAS"). Respondent contends this claim is procedurally barred based on defense counsel's failure to object at trial.
The last reasoned rejection of this claim is the decision of the California Court of Appeal for the Third Appellate District on petitioner's direct appeal. The state court addressed this claim as follows:
[Petitioner] contends the trial court admitted CSAAS evidence in violation of his Sixth and Fourteenth Amendment rights. His failure in the trial court to object to the admission of the evidence on the ground of due process, however, waives any challenge on that basis. (People v. Rowland (1992) 4 Cal.4th 238, 265, fn.4, 14 Cal.Rptr.2d 377, 841 P.2d 897; People v. Raley (1992) 2 Cal.4th 870, 892, 8 Cal.Rptr.2d 678, 830 P.2d 712.) Moreover, because we conclude that the evidence was admissible, with one exception discussed below (see II, post), [petitioner's] constitutional claims fail. [Footnote omitted.] (See People v. Hawkins (1995) 10 Cal.4th 920, 952, 42 Cal.Rptr.2d 636, 897 P.2d 574, disapproved on another ground in People v. Lasko (2000) 23 Cal.4th 101, 110, 96 Cal.Rptr.2d 441, 999 P.2d 666 & People v. Blakeley (2000) 23 Cal.4th 82, 89, 96 Cal.Rptr.2d 451, 999 P.2d 675.) Ordinary rules of evidence do not infringe on a [petitioner's] right to a fair trial. (People v. Hall (1986) 41 Cal.3d 826, 834, 226 Cal.Rptr. 112, 718 P.2d 99.)
Expert testimony is admissible to disabuse jurors of commonly held misconceptions about child sexual abuse. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301, 283 Cal.Rptr. 382, 812 P.2d 563.) CSAAS evidence, while not admissible to prove the abuse occurred, may be used to help explain the victim's behavior in recanting testimony. As explained in People v. Bowker (1988) 203 Cal.App.3d 385, 393, 249 Cal.Rptr. 886, "It is one thing to say that child abuse victims often exhibit a certain characteristic or that a particular behavior is not inconsistent with a child having been molested. It is quite another to conclude that where a child meets certain criteria, we can predict with a reasonable degree of certainty that he or she has been abused. The former may be appropriate in some circumstances; the latter--given the current state of scientific knowledge--clearly is not."
Defense counsel objected in limine and again during trial to the admission of the CSAAS evidence on the grounds of relevance and that the probative value was outweighed under Evidence Code section 352. On appeal, he argues that the trial court should have barred the CSAAS evidence because the prosecutor failed to identify an applicable misconception.
The prosecution's written motion in limine in support of the admission of the CSAAS evidence noted five syndrome categories: "Secrecy, helplessness, entrapment and accommodation, delayed, conflicted and unconvincing disclosure, and retraction." During oral argument, the trial court first specifically suggested that the recantation misconception was an appropriate basis for the admission of the CSAAS expert testimony. [Petitioner] now objects it was the trial court, rather than the prosecutor, that first identified the appropriate misconception upon which to admit the CSAAS evidence in this case. Regardless of who first identified recantation, an appropriate misconception was in fact identified and the requested evidence was properly admitted to dispel that misconception. Thus, we find no error.
[Petitioner] next contends the CSAAS evidence admitted was overbroad, misleading, unduly prejudicial and should have been excluded under Evidence Code section 352. None of these contentions has merit.
Evidence Code section 352 permits the exclusion of relevant evidence where "its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." The scope of appellate review of a decision to admit evidence under Evidence Code section 352 is exceedingly narrow. The trial court's decision cannot be disturbed on appeal absent a showing that the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125, 36 Cal.Rptr.2d 235, 885 P.2d 1.) The record before us discloses no such abuse.
[Petitioner] complains the expert mentioned that 10 percent of abuse is committed by strangers and that such information was "overbroad." We fail to see the prejudice in the admission of such evidence because it was merely a brief statement made during the expert's explanation about former misconceptions about child sexual abuse and programs focusing on "stranger danger." The evidence provided no information about the likelihood of a defendant, or any other nonstranger, being a molester.
[Petitioner] also complains the expert testified molestation is usually a pattern that increases over time. Once again, we fail to see any prejudice in the admission of such evidence. There was no allegation or even suggestion [petitioner] had molested C. or any other victim in the past. This information, like the percentage of abuse by strangers, had no impact on [petitioner's] case.
Finally, [petitioner] complains the expert testimony that CSAAS evidence helps evaluate the validity of a child's statements was misleading. The testimony, however, was not misleading as CSAAS evidence may properly be used to aid the jury's assessment of the victim's seemingly self-impeaching behavior. (People v. McAlpin, supra, 53 Cal.3d at pp. 1300-1301, 283 Cal.Rptr. 382, 812 P.2d 563; see People v. Housley (1992) 6 ...