The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner, Jon Gary Schnabel, a state prisoner proceeding through counsel, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Schnabel is currently in custody of the California Department of Corrections, incarcerated at the Salinas Valley State Prison in Soledad, California. Respondent has filed an Answer, and Schnabel has filed a Traverse.
A. Molestation Of C.J. (Counts One-Five)
C.J. met [Schnabel] when she was 12 years old, and he was her parents' realtor. She started working for him doing "chores" to earn money. On 8 to 10 different occasions during the summer of 1995, [Schnabel] had C.J. rub his penis until ejaculation and then had C.J. apply wart medication. During one of these episodes, [Schnabel] made C.J. press her lips against his penis. During another episode, [Schnabel] made her "tickle [his] balls." B. Molestation Of T.B. (counts six-ten)
T.B. was a 20 year-old college student at the time of trial. Before she moved away to college, T.B. and her family lived a few houses away from [Schnabel] in Citrus Heights. [Schnabel] was "good friends" with her family, and he was like an uncle to her. [Schnabel] molested her for the first time when she was approximately seven years old. [Schnabel] unzipped his pants, pulled out his penis, and "suggested that [T.B.] touch it." She complied.
During other incidents at [Schnabel's] house, he would ask her to put wart medication on his penis, and again she complied. These incidents occurred from the time T.B. was 7 years old to the time she was 12.
There were incidents when T.B. was 9 or 10 years old when [Schnabel] made her put her mouth on his penis, and he put his hand up her skirt or shorts and stroked her vagina. At some point, [Schnabel] moved to Granite Bay. T.B. recalled one incident there when she was 11 years old and [Schnabel] touched her thigh, unzipped his pants, and directed her to apply medication to his penis.
C. Molestation Of S.J. (Counts Eleven-Fifteen)
S.J. was 16 years old at the time of trial. She met [Schnabel] when she was seven or eight years old, and he was her parents' realtor. She frequently visited [Schnabel's] house with her family. On 5 to 10 occasions, [Schnabel] had her move her hand up and down his penis so it would become "big" so he could apply wart medication.
[Schnabel] made S.J. "watch a video on how to give oral sex" and look at Playboy magazines. He later made her put her mouth on his penis.
D. Prior Acts Of Molestation
N.J. was 49 years old at the time of trial. She met [Schnabel] when she was seven years old, and he was living in her neighborhood with a family friend of N.J.'s. Once, while N.J. was at her friend's house, [Schnabel] exposed his penis, testicles, and legs, told her that he had hurt his leg, and said that he wanted her to "rub it for him." When N.J. started rubbing his leg, [Schnabel] took N.J.'s hand, put it on his penis, and with his hand on top of hers, starting massaging his penis. He also had her rub his inner thigh and put her lips on his penis. As a result of these acts, [Schnabel] pled guilty in 1963 to committing a lewd act on N.J.*fn1
Schnabel was convicted by a jury of fifteen counts of lewd and lascivious acts upon a child under fourteen (Cal. Penal Code § 288(a)) involving three different girls. The jury also found true a prior conviction for child molestation (Cal. Penal Code §§ 288, 667.71), and that the offenses charged were committed against two or more victims (Cal. Penal Code §§ 667.61(b), (e)(5)). Schnabel was sentenced to an aggregate term of 375 years to life in state prison. Schnabel timely appealed his conviction and sentence to the California Court of Appeal,
Third Appellate District, which affirmed both his conviction and sentence in a reasoned, published decision.*fn2
Schnabel timely petitioned the California Supreme Court for review. Initially, on July 25, 2007, the California Supreme Court granted the petition, however, it subsequently dismissed the matter in light of People v. Black, 41 Cal.4th 799 (2007).
On August 16, 2006, Schnabel filed a petition for writ of habeas corpus with the California Court of Appeal, Third Appellate District. The petition was denied with citation to In re Harris, 5 Cal.4th 813, 826-27 (1993), France v. Superior Court, 201 Cal. 122 (1927); In re Baker, 206 Cal.App.3d 493, 499 (1988); and In re Hillery, 202 Cal.App.2d 293 (1962).
On May 21, 2007, Schnabel filed a petition for writ of habeas corpus with the California Supreme Court. The California Supreme Court denied the petition on July 25, 2007.
On July 1, 2008, Schnabel filed a petition for writ of habeas corpus with this Court raising seven grounds for relief:
1. The jury instruction contained a structural defect;
2. Insufficient evidence that Schnabel caused harm to Sabrina;
3. Court improperly admitted evidence of Schnabel's prior conviction;
4. The sentencing scheme under which Schnabel was sentenced was ...