The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Petitioner is a former state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This case is before the undersigned pursuant to both parties consent. Docs. 4, 8. Petitioner challenges his 2005 conviction for incest, oral copulation of a person under the age of 16 and ten counts of lewd and lascivious conduct. The trial court sentenced petitioner to nine years and eight months. This action is proceeding on the original petition filed September 28, 2009, raising the following claims: 1) sufficiency of the evidence; 2) application of the Sandoval*fn1 harmless error analysis on aggravating circumstances violated due process; 3) double jeopardy violation; 4) Ex Post Facto violation.
After carefully considering the record, the court orders that the petition be denied.
II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)
The Anti-Terrorism and Effective Death Penalty Act (AEDPA) "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).
In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.
"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Williams (Terry), 529 U.S. at 407-08, 120 S.Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[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." Williams (Terry), 529 U.S. at 410-11, 120 S.Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S.Ct. 357 (2002).
"Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 746 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76, 127 S.Ct. 649, 653-54 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S.Ct. at 366.
However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "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." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
The opinion of the California Court of Appeal contains a factual summary that the court adopts below.
The victim, F., was born in November 1989. She and her two brothers lived in a trailer with [petitioner], their father. F. testified that "a little while after Christmas"-approximately "three or four months" after her 14th birthday-[petitioner] placed his hand on her breast, under her shirt and bra, while she was lying in bed. He left his hand there for a "long time."
Later that same day, while the family was at [petitioner's] mother's house, [petitioner] apologized to F. and said it would "never happen again." Within five minutes, however, [petitioner] closed the bathroom door, had F. remove her panties, and licked F.'s vagina as she sat on the toilet. After a minute or two, [petitioner] removed his pants and had sexual intercourse with F. Afterward, he again told her he was sorry and it would never happen again. [Petitioner], however, continued to have sex with F. just about every week. Nearly every time, [petitioner] would apologize and promise it would never happen again. The incidents occurred when F.'s brothers were gone or asleep. Sometimes [petitioner] gave her brothers money to go to the store and would then have sex with F. while they were gone. [Petitioner] would tell the brothers to slow down if they returned too quickly. On one occasion, F.'s brothers awoke while [petitioner] was having sex with F. and saw [petitioner] "going up and down." When F.'s brothers told [petitioner] they thought he and F. were having sex, [petitioner] got upset, raised his voice, and said he and F. had just been playing around.
On November 11, 2004, a couple of weeks after the final incident, F. told an adult friend that [petitioner] was having sex with her and she could no longer stay with him. F. was interviewed by police. Being scared and nervous, she failed to mention that defendant had also had sex with her on that first occasion when he licked her vagina. [Petitioner] was interviewed by police on November 17, 2004. In that interview, he denied any sexual contact with F. On November 19, 2004, however, during a consultation with Billy Lee Wilson, Jr., a marriage and family therapist intern at Shasta Treatment Associates, [petitioner] admitted he had a sexual relationship with F. [Petitioner] told Wilson that he had sexual intercourse with F. between four to six times, "[o]ne to two years before" the date of the consultation. Also, on December 1, 2004, in another interview with police, [petitioner] admitted he had sexual intercourse with F. several times.
At trial, [petitioner] testified he did not remember having sex with F., although he did not deny it. [Petitioner] did not remember speaking with Wilson and said he admitted having sex with F. to the police because the police made him fear F. would commit suicide or turn to drugs or prostitution if he said she was lying. [Petitioner] said he had problems with his memory due to a head injury he sustained a few years earlier.
Lodged Document (Lod. Doc.) 6 at 2-4.
On direct appeal, the Court of Appeal held that petitioner had forfeited his claim regarding the imposition of upper term consecutive sentences by the trial court using factors not found by the jury (Cunningham violation).*fn2 The California Supreme Court reversed and remanded, holding that the right to a jury trial on aggravating circumstances may not be forfeited absent an express waiver by petitioner. On remand the Court of Appeal finding no express waiver, addressed the claim on the merits. The Court of Appeal on remand held that while petitioner's rights were violated by the trial court's imposition of an upper term sentence, the error was harmless beyond a reasonable doubt.
Such an error is harmless if we can conclude "beyond a reasonable doubt, that [a] jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury." (People v. Sandoval (2007) 41 Cal.4th 825, 839, 62 Cal.Rptr.3d 588, 161 P.3d 1146.) We find that to be the case here. One of the aggravating factors cited by the trial court in imposing the upper term was that "[petitioner] took advantage of a position of trust or confidence to commit the offense." We have no doubt the jury unquestionably would have found this factor to be true. [Petitioner] was the single parent of his victim daughter. When he initially fondled his daughter, he promised not to do it again, but then within five minutes, orally copulated her and had sexual intercourse with her. Again, he said he was sorry and that it would never happen again. [Petitioner], however, continued to have sexual intercourse with his daughter almost every week, and during most of these instances apologized and (erroneously) said it would not happen again. He made sure his sons (the victim's brothers) were either out of the house or asleep when he had sexual intercourse with his daughter and during the one incident that he was caught by his sons, he denied committing the acts. On this record, a jury would have unquestionably found that [petitioner] took advantage of a position of trust or confidence to commit the incest and oral copulation.