The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner, Michael Lujan, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of thirty-years to life plus fifty-three years following his conviction by a jury of five counts of lewd and lascivious acts upon a child under the age of fourteen years and one count of aggravated sexual assault. Petitioner raises several claims in his federal habeas petition; specifically: (1) ineffective assistance of trial counsel ("Claim I"); (2) ineffective assistance of counsel who represented Petitioner during the motion for a new trial proceedings ("Claim II"); and (3) the trial court erred in sentencing Petitioner to the upper-term ("Claim III"). For the following reasons, the habeas petition should be denied.
II. FACTUAL AND PROCEDURAL BACKGROUND*fn1 Defendant had two children with Sherri, the victim and "little Michael." Defendant and Sherri were never married, and were not living together during the events at issue.
On January 17, 1999, defendant agreed to take Sherri to visit her youngest child's father at Folsom State Prison, and to baby-sit the victim and her brother while Sherri was visiting. Defendant picked up Sherri around 7:00 or 8:00 a.m. They stopped to get gas, then went to the prison. [FN 3] When defendant left Sherri at the prison, it was with the understanding that she would call him at his sister's house at 3:00 p.m, or he would automatically return at 3:00 p.m. to take her home. When Sherri exited the prison at 3:00 p.m. defendant was not there. She called both defendant's sisters, but was unable to reach him at either place. She ultimately located defendant and he arrived at the prison around 4:00 or 5:00 p.m. Sherri noticed her daughter, who was five years old, was unusually quiet on the way home and that she was dressed in different clothes than she had been wearing that morning. [FN 3] The parties agreed it took approximately 30 minutes to get from Sacramento to the prison.
After Sherri and her daughter arrived home around 5:30 p.m., the daughter went into the bathroom where Sherri's niece, Angela, was styling her hair. Sherri overheard her daughter tell Angela that her stomach hurt. Angela asked the victim why her stomach hurt, and the victim told Angela to shut the door. A few minutes later, Angela came storming out of the bathroom, yelling at Sherri that she was "sick" for letting her daughter go with defendant. Angela told Sherri what the victim had told her.
Sherri spoke to her daughter, who refused to say anything at first for fear she would get in trouble. Eventually, the victim told Sherri that while her brother was asleep on the couch, defendant put her on the bed, lay on top of her, and kissed her neck. He rubbed pink lotion on her, then lay on top of her and "tried to hump her." The victim said after it was over defendant made her take a bath and change her clothes.
Sherri called the police, who took a statement from the victim. The victim described sexual intercourse with her father, and described her father's ejaculation. She said her father wanted her to orally copulate him, but she refused. She also described defendant rubbing lotion on her, including her "private part" and said defendant licked her "private part." Defendant also tried to stick his tongue in her mouth. Defendant told his daughter not to tell anyone what had happened or he would hurt her, and he made her take a bath.
A nurse practitioner conducted a sexual assault exam on the victim. The victim consistently recounted the event to the nurse. The nurse found a small laceration above the victim's urethra, and generalized redness inside the labia. Petechia is common where a child has been fondled, however the victim also had a skin condition called lichen sclerosis, which makes skin friable. Because of the lichen sclerosis, the nurse could not conclude that the abrasion and the petechia were consistent with sexual assault. Several days later, a social worker interviewed the victim at the Multi-Disciplinary Interview Center (MDIC). The victim's story remained consistent. The victim told the social worker her father said he would "knock the hell out of [her]" if she told anyone what happened.
The victim was nine years old at the time of trial. Although her memory of the molestation was not as good, she testified she remembered her dad touching his privates to her privates and moving back and forth, licking her, and asking her to lick him. She testified she had told the truth at the MDIC.
The victim's underwear and a rape kit containing vulvar swabs and [sic] were sent to the laboratory for analysis. Sperm heads were detected on one of the vulvar swabs. Spermatozoa were also found on the crotch area of the victim's underwear, but no sperm were found on a control slide from another area of the underwear. A DNA analysis was performed on the sperm from the victim's underwear. The sperm was consistent with defendant's DNA.
The defense theory was that defendant had not had time on the day in question to molest his daughter, and that the sperm had transferred to the victim's underwear in the wash.
Gina, defendant's sister, testified defendant came by her house on the day in question around 10:00 or 10:30 a.m. He left after receiving a page around 11:00 a.m. He left the victim and her brother with Gina. When defendant returned to pick up the children, he had Sherri with him. Gina also testified she remembered the day because it was a school day and her daughter stayed home from school that day. In fact, January 17, 1999, was a Sunday.
Two other witnesses gave an accounting of defendant's and the victim's whereabouts that was inconsistent with Gina's testimony. Bonnie Kirby, defendant's ex-girlfriend, testified that on the date in question, she was living with Griselda Monroy. Kirby left for work around 9:30 in the morning and left her mother, Anita Chinn, to baby-sit her daughter. Kirby called home shortly after 12:00 p.m. While she was speaking to her mother, Kirby could hear defendant, the victim, and Monroy in the background. She called back again around 3:10 and again around 5:00 p.m. She did not hear defendant in the background either of those times.
Monroy testified that she was at home with Chinn and Kirby's daughter on January 17, 1999. At about 10:30 or 11:00 a.m, she paged defendant to ask him to take her to run some errands. He arrived at her apartment about 40 minutes later with the victim and her brother. Defendant and Monroy left the children with Chinn while they ran errands and purchased marijuana. They returned back to the apartment around 1:30 or 2:00 p.m. Defendant left with the children around 3:00 p.m.
Defendant's sister, Marjorie, testified the victim recanted and said she had lied about her father. Sherri testified the victim would tell defendant's family he had not molested her, and tell Sherri's family he had molested her. The victim also asked Sherri if she and defendant would get back together if the allegations were not true, and Sherri told her yes just to "shut her up."
Defendant presented evidence at trial of a study showing a small number of sperm can be transferred from garment to garment in the wash. The People's expert opined that the number of sperm head on the victim's underwear in this case was much greater than the number observed in the study, leading him to conclude that the sperm on the victim's underwear had not been transferred by washing.
Defendant stipulated to a 1986 conviction for rape.
Defendant was charged with five violations of section 288, subdivision (b), lewd and lascivious acts upon a child under the age of 14. He was also charged with violating section 269, aggravated sexual assault committed by force against a child under the age of 14 and more than 10 years younger than defendant. Counts one through five were non-specific as to the acts committed. The trial court gave a unanimity instruction. The prosecution argued agreement that any of the following touchings occurred would be sufficient to convict defendant of violating section 288, subdivision (b): (1) taking off the victim's clothes; (2) kissing her on the neck or mouth; (3) putting lotion on her; (4) orally copulating her; or (5) putting his penis in her genitalia.
After the jury returned its verdict of guilty on all six counts, defendant made a motion for new trial on the ground his trial counsel provided inadequate representation. Defendant argued, inter alia, that his trial counsel had failed to hire an investigator for a period of 29 months, during which time Anita Chinn died, having never been interviewed.
The trial court denied the motion for a new trial, and on the issue of the Anita Chinn testimony stated that there was no evidence anyone knew Chinn, who was in her fifties, was about to die. The trial court stated there was no certainty Chinn's testimony would have materially benefitted defendant because the fact that Chinn was baby-sitting the victim was already in evidence through the testimony of Monroy and Kirby. (Slip Op. at p. 2-7 (footnote omitted).)
Petitioner filed an appeal to the California Court of Appeal, Third
Appellate District raising the claims he raises in his amended federal
habeas petition amongst others. That court denied Petitioner's claims
that he raises in this amended federal habeas petition.*fn2
Petitioner then filed a petition for review in the California
Supreme Court. The California Supreme Court denied the petition for
review on May 11, 2005 and stated the following: "Petition for review
denied without prejudice to any relief to which defendant might be
entitled after this court determines in People v. Black, S126182, and
People v. Towne, S125667, the effect of Blakely v. Washington, (2004)
-- U.S. --, 124 S.Ct. 2531, on California law." (Resp't's Lodged Doc.
Petitioner filed a federal habeas petition on April 14, 2006. Respondent subsequently filed a motion to dismiss since Petitioner's federal habeas petition was "mixed" as it included both exhausted and unexhausted claims. On March 20, 2007, Magistrate Judge Brennan recommended that Respondent's motion to dismiss for lack of exhaustion be granted.
On April 24, 2007, Petitioner filed an amended habeas petition. On May 8, 2007, District Judge Karlton adopted Magistrate Judge Brennan's findings and recommendations dismissing Petitioner's originally-filed federal habeas petition. On June 18, 2008, District Judge Karlton vacated the May 8, 2007 entry of judgment and referred the matter back to Magistrate Judge Brennan for further proceedings on Petitioner's April 24, 2007 amended federal habeas petition.
Subsequently, Respondent filed a motion to dismiss Petitioner's amended habeas petition as untimely. The motion to dismiss was ultimately denied by District Judge Karlton. (Dkt. No. 43.) Respondent answered the amended habeas petition on February 11, 2010. Petitioner filed a traverse on March 22, 2010. The matter was reassigned to the ...