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Robert Tarr v. Michael Evans

February 22, 2011

ROBERT TARR, PETITIONER,
v.
MICHAEL EVANS,
RESPONDENT.



The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DIRECTING CLERK OF COURT TO ENTER JUDGMENT; AND DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY

I. INTRODUCTION

Petitioner Robert Tarr is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge. See Pet'r's Consent 1, ECF No. 4;*fn1 Resp't's Consent 1, ECF No. 11. For the following reasons, the habeas petition is denied.

II. PROCEDURAL HISTORY

On June 19, 2006, a Yuba County jury found Petitioner guilty of (1) continuous sexual abuse of a child under the age of fourteen, CAL. PENAL CODE § 288.5(a) (count one); (2) substantial sexual conduct with a victim under the age of fourteen; id. § 1203.066(a)(8) (count one); and (3) committing great bodily injury, id. § 12022.7(a) (count one). Lodged Doc. 10, Clerk's Tr. vol. 1, 201-03

On September 5, 2006, "[t]he trial court sentenced [Petitioner] to 19 years in state prison (the upper term of 16 years under section 288.5, subd. (a)), plus three years consecutive for the great-bodily-injury enhancement)." Lodged Doc. 3, at 1; see Lodged Doc. 10, Clerk's Tr. vol. 2, 351-52.

Petitioner directly appealed to the California Court of Appeal, Third Appellate District. See Lodged Doc. 1. On March 21, 2008, the California Court of Appeal issued a reasoned decision affirming the judgment. See Lodged Doc. 3.

On April 22, 2008, Petitioner filed a petition for review with the California Supreme Court. See Lodged Doc. 4. On June 18, 2008, the California Supreme Court denied the petition without comment or citation. See Lodged Doc. 5.

On December 7, 2007, Petitioner filed a petition for writ of habeas corpus with the California Court of Appeal, Third Appellate District. See Lodged Doc. 6. On January 17, 2008, the California Court of Appeal denied the petition without comment or citation. See Lodged Doc. 7.

On April 30, 2008, Petitioner filed a petition for writ of habeas corpus with the California Supreme Court. See Lodged Doc. 8. On October 28, 2008, the California Supreme Court denied the habeas petition without comment or citation. See Lodged Doc. 9.

On December 3, 2008, Petitioner filed the instant federal habeas petition. See Pet'r's Pet., ECF No. 1. On December 15, 2008, Petitioner consented to the jurisdiction of a United States Magistrate Judge. See Pet'r's Consent 1. On April 9, 2009, Respondent consented to the jurisdiction of a United States Magistrate Judge. See Resp't's Consent 1. On July 29, 2009, Respondent filed an answer, see Resp't's Answer, ECF No. 17, to which Petitioner filed a traverse on August 24, 2009, see Pet'r's Traverse, ECF No. 19.

III. FACTUAL BACKGROUND*fn2

The victim, J.M., is [Petitioner's] daughter. At the age of 11, she was placed in [Petitioner's] home after being removed from her mother's custody pursuant to Welfare and Institutions Code section 300. Up until then, he had been unaware of her existence. [Petitioner] lived with his longtime girlfriend, J.J., her daughter, T.M., and T.M.'s two sons. When J.M. came to stay with [Petitioner], they were renting a house on Marysville Road in Dobbins and building another on Manzanita Lane in Oregon House (both in Yuba County, California).

About a year and half after J.M. moved in, according to her testimony, [Petitioner] fondled her breasts, reaching over her shoulder and inside her shirt as she sat at the computer in the Manzanita Lane house, then rubbing her breasts in a circular motion. He also touched her vagina under her clothing, rubbing it in a circular motion and inserting his finger. Then he developed the habit of entering her room and fondling her under her clothing almost every night, whether in the Marysville Road house or the Manzanita Lane house, even though others were often in the house. He would call her "pretty baby" and "special" and make grunting noises as he touched her.

About three times, [Petitioner] tried to penetrate J.M.'s vagina with his penis, though she squirmed and resisted; he succeeded once, causing her discomfort. Afterward he said: "This will be our little secret. You don't need to tell anybody." He also rubbed his penis on J.M.'s vagina until he ejaculated. Another time, he tried to put her hand on his penis inside his pants, but she pulled away.

After J.M. had gone two months without a period, she told [Petitioner]. In July 2004, he asked if she had been sexually active and provided her a home pregnancy test, which purported to show that she was not pregnant.

Later in July 2004, J.M. told a friend that [Petitioner] had been touching her inappropriately. That afternoon, Yuba County Sheriff's Sergeant Melford Duncan interviewed her. Seeming very upset, J.M. told a story similar to the one she told at trial; however, she did not say that [Petitioner] penetrated her, she said that no one else was home when the molestations occurred, and she did not mention any occurrences at the Marysville Road house.*fn3 Interviewed the next morning by Sergeant Duncan, [Petitioner] claimed innocence.

In an MDIC interview the following day, J.M. said that [Petitioner] had molested her nearly every day.

Interviewed again about a week later, [Petitioner] still denied inserting his penis into J.M. or impregnating her. He admitted that he might have touched her breasts accidentally, that she might have come into contact with his penis, that he called her "pretty baby," and that he had bought her a home pregnancy test.

J.M. gave birth to a daughter in February 2005. Criminalists at the California Department of Justice (DOJ) obtained and tested DNA from [Petitioner], J.M., and the infant. According to criminalist Deanna Kacer, the DNA results showed an overwhelming likelihood that [Petitioner] was the infant's father.

Kacer analyzed the DNA samples using nine loci and applying the short tandem repeats (STR) and polymerase chain reaction (PCR) methods, the most sophisticated DNA testing methods in current use.*fn4 Then, using the FBI's population databases for the three major ethnic groups in the United States as a benchmark, she calculated [Petitioner's] "paternity indices" (the probability that [Petitioner] was the father, divided by the probability that a random man was the father).*fn5 Any number over 10,000 is strong evidence of paternity. [Petitioner's] paternity indices were 760,000 compared to a random Caucasian man, 1.3 million compared to a random Hispanic man, and 2.5 million compared to a random African-American man. Furthermore, his DNA "contain[ed] all of the paternal types required in order to create this particular child." [Petitioner's] daughter, K.T., and J.J.'s daughter, P.B., testified to his good character.

J.J. testified that she had been with [Petitioner] for 20 years.*fn6 She and [Petitioner] were always together, and she had never seen anything inappropriate between [Petitioner] and J.M. He would go into her room for a couple of seconds at most, always with the door open. Contrary to J.M.'s testimony, there was no computer at the Manzanita Lane house.*fn7 J.M. had consistently misbehaved in [Petitioner's] home; she had also told J.J.'s grandsons that if they did not like conditions at home they could call Child Protective Services. During 2003 and 2004, the period of the alleged molestations, [Petitioner] had a knee injury which required surgery and resulted in a stiff leg.

T.M., who also lived with [Petitioner] and J.J. in 2003 and 2004, corroborated her mother's testimony. [Petitioner] presented no expert testimony with respect to the DNA testing.

IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359, 362 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings unless the state court's 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.

28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).

In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable--a substantially higher threshold." Schriro v. ...


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