The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner, Gary Lee Elrite, is a state prisoner proceeding with a counseled petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of twenty-two years eight months for two counts of continuous sexual abuse of a child under the age of fourteen, two counts of lewd and lascivious acts against a child of fourteen or fifteen years, two counts of oral copulation of a child under the age of sixteen, and one count of producing, distributing or exhibiting obscene matter. The jury also found true special allegations that a delayed reporting provision extended the statutes of limitations for sex crimes against minors. Petitioner presents several claims in his federal habeas petition; specifically: (1) the government failed to plead that counts 2, 3 and 4 had been brought within the applicable statute of limitations ("Claim I"); (2) California Penal Code § 803(f) was not available to revive the expired statute of limitations for counts 1, 5 and 6 ("Claim II"); California Penal Code § 803(f) was unconstitutionally applied to allow Petitioner's prosecution based on a successive report ("Claim III"); and (4) trial counsel was ineffective in not presenting evidence concerning the purchase date of a video camera and failing to make an argument with respect to the sequencing of the video ("Claim IV"). For the following reasons, Petitioner's habeas petition should be denied.
II. FACTUAL BACKGROUND*fn1
Defendant and W.A. married in 1993 and moved into a home in Redding, together with W.A.'s three sons, her nine-year-old daughter, D., [FN 2] and defendant's father. W.A.'s 12-year-old daughter, L., moved into the home shortly thereafter. [FN3] Within months, defendant began sexually abusing his stepdaughter, L., touching her and engaging in oral sex and sexual intercourse with her on a regular basis. The first incident involving L., occurred just after she turned 13. One night, as L. and D. lay on the floor of the bedroom they shared, defendant came into the room and began fondling L.'s breasts and vagina. He then had sexual intercourse with her while D. slept on the floor nearby. When defendant was finished, he instructed L. to douche to avoid getting pregnant. He warned her not to tell anyone and threatened to "take her family away." L. was afraid and did not tell anyone what had happened. [FN 2] D. was born in September 1983. [FN 3] L. was born in December 1980.
The second incident involving L. occurred one night when, after everyone else had gone to sleep, defendant entered L.'s bedroom, woke her up, took her into the hallway, stood her up against a closet door and inserted a dildo into her vagina.
Defendant sexually abused L. regularly, touching her and having oral sex and sexual intercourse with her at least 50 times before she turned 14. The abuse continued "almost nightly" until L. turned 16. As a result of defendant's sexual abuse, L. became pregnant when she was 16. L. began using alcohol and marijuana, some of which she obtained from defendant. She terminated the pregnancy, but because she was under the influence of drugs at the time, she could not recall at trial whether she had done so by throwing herself down a ravine or having an abortion.
Within the first year of moving into the Redding house, defendant was also sexually abusing D. on a regular basis. [FN 4] The abuse escalated, beginning with an incident that occurred when defendant, while driving D. to a friend's house, parked his van on some railroad tracks just miles from their home and had sexual intercourse with D. in the back of the van. Defendant began regularly engaging in sexual intercourse with D. D. did not tell anyone about the abuse because defendant told her not to tell and because she was humiliated and feared her mother would get divorced again if she found out. [FN 4] One night, L. went to the bathroom and saw defendant engaging in oral sex with D., then just 11 years old. On at least one occasion, defendant sexually abused both L. and D. at the same time.
In late 1996, after L. turned 16, she told her mother that both she and D. were being abused by defendant. L. and D. immediately moved out of the house in Redding and lived with their grandparents and with friends. Thereafter, in 1997, L. and D. both reported the abuse to Detectives Carol Birch and Steve Birch. [FN 5] W.A. eventually moved out and divorced defendant. [FN 5] The record contains no details regarding the 1997 report to law enforcement other than that a report was made.
Defendant continued to visit L. and D. after they moved out of the Redding house. Both girls were regularly drinking alcohol and using drugs which were often provided by defendant. When defendant learned the abuse had been reported, he made repeated attempts to keep D. from talking to law enforcement, telling her they were "soul mates" who were meant to be together and warning her that he would go to prison for a long time unless she changed her story. D. recanted "for the drugs" and because she believed defendant. L. eventually recanted as well. As instructed by defendant, both L. and D. told detectives they caught defendant having an affair and threatened that if he did not tell their mother, they would tell her "he was doing stuff to [them]."
Defendant continued to have sex with D., who was then 14 or 15 years old. D. moved back into the Redding house with defendant, where he continued his sexual relationship with her and continued to provide her with drugs and alcohol. D. testified that she continued to have sex with defendant "[f]or the drugs." Defendant continued to engage in oral sex and sexual intercourse with D. until she turned 19, often videotaping their encounters, and using sex toys and showing D. pornography. As a result of the sexual abuse, defendant impregnated D. when she was 13, and again when she was 17. Both pregnancies were terminated.
On March 30, 2004, Shasta County Sheriff's Detective Pamela Depuy received a videotape depicting defendant and D. engaged in sexual intercourse at defendant's house.
On March 31, 2004, Depuy interviewed L. and showed her portions of the videotape. L. reported the abuse by defendant and stated she believed D. was approximately 14 or 15 at the time the tape was made. Depuy also interviewed D. and showed her the tape. D. reported the abuse and confirmed that she was the person in the video with defendant.
Detectives executed a search warrant at defendant's home in Redding on June 8, 2004, and found videotapes (some depicting sex acts between defendant and D.), numerous sex toys, gels, lotions, condoms, sex aids, handcuffs, leather straps, and pornographic magazines and movies.
People v. Elrite, No. C055012, 2008 WL 4152673, at *1-2 (Cal. Ct. App. Sept. 10, 2008).
On October 18, 2004, defendant was charged by felony information with two counts of continuous sexual abuse of a child under the age of 14 (§ 288.5, subd. (a)), one as to L. for conduct occurring between December 4, 1993 and November 30  (count 1), and one as to D., for conduct occurring between September 1, 1994 and August 31, 1997 (count 2); two counts of lewd and lascivious acts against a child of 14 or 15 years (§ 288, subd. (c)(1)), one as to D. for conduct occurring between September 1, 1998 and August 31, 1999 (count 3) and one as to L. for conduct occurring between December 6, 1994 and November 30, 1996 (count 6); two counts of oral copulation of a child under the age of 16 (§ 288a, subd. (b)(2)), one as to D. for conduct occurring between September 1, 1997 and August 31, 1999 (count 4), and one as to L. for conduct occurring between December 6, 1994 and November 30, 1996 (count 5); and one count of producing, distributing, or exhibiting obscene matter (§ 311.2, subd. (a)), for conduct occurring between March 1, 2004, and March 31, 2004 (count 7). The information also alleged defendant committed the offenses described in counts 1 and 2 against more than one victim (§ 667.61); defendant engaged in substantial sexual conduct in committing the offenses in counts 1 and 2 (§ 1203.066, subd. (a)(8); and as to count 2, defendant used obscene matter depicting sexual content (§§ 311, 311.3).
The information was amended on June 6, 2005 to include an additional charge of unlawful sexual intercourse (§ 261.5, subd. (c) - count 8) as to a third victim S.L., for conduct occurring between November 17, 1998 and November 17, 2000.
The information was amended a second time on October 3, 2006, striking count 8 and specially alleging that counts 1, 5 and 6 were subject to the statute of limitations as set forth in section 803(f) [FN 6] based on the report L. and D. made to law enforcement on March 31, 2004. [FN 6] At the time the second amended information was filed in 2006, section 803(f) provided, in relevant part: "(1) Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section 261, 286, 288, 288a, 288.5, 289, or Section 289.5, as enacted by Chapter 293 of the Statutes of 1991 relating to penetration by an unknown object. [¶] (2) This subdivision applies only if all of the following occur: [¶] (A) The limitation period specified in Section 800, 801, or 801.1, whichever is later, has expired. [¶] (B) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual. [¶] (C) There is independent evidence that corroborates the victim's allegations. If the victim was 21 years of age or older at the time of the report, the independent evidence shall clearly and convincingly corroborate the victim's allegation." (Stats.2005, ch. 479, § 3.)
On October 3, 2006, defendant filed a motion to dismiss counts 1 through 6 as time-barred, challenging the People's reliance on section 803(f) (referred to in defendant's motion as "§ 803(g)"). [FN 7] The People opposed the motion, arguing, among other, things that counts 2, 3 and 4 were subject to the 10-year statute of limitations set forth in section 801.1, subdivision (b) [FN 8] (hereinafter section 801.1(b)). [FN 7] The provisions of section 803(f) were first codified in former section 803, subdivision (g), effective January 1, 1994. (Stats.1993, ch. 390, § 1, p. 2226.) [FN 8] Section 801.1(b) provides: "Notwithstanding any other limitation of time described in this chapter, if subdivision (a) does not apply, prosecution for a felony offense described in subdivision (c) of Section 290 shall be commenced within 10 years after commission of the offense."
At the October 16, 2006, hearing on the motion, the People filed a third amended information striking those portions of time within which the conduct was alleged to have occurred to comport with section 801.1(b). Based on that amendment, defendant conceded that section 801.1 "did extend that statute of limitations for ten years . . . ." and withdrew his motion as to counts 2, 3 and 4. Defendant claimed, however, that counts 1, 5 and 6 were time-barred because the People failed to file a charging document within one year of L. and D.'s first report to law enforcement in 1997. The court rejected defendant's arguments and denied the motion. In doing so, the court noted the language of section 803(f) does not require that the triggering report be the first report made by the victim, only that it be "a report having been made when a person was over eighteen and where the statute of limitations had already expired." The court also expressed doubt that the Legislature, in enacting section 803(f), ever intended for a defendant to benefit from having persuaded his minor victim to recant a report.
The jury found defendant guilty on all counts and found all of the special allegations true.
Elrite, 2008 WL 4152673, at *3-4.
On direct appeal, Petitioner raised Claims I-III that he raises in this federal habeas petition. While Petitioner's direct appeal was still pending before the California Court of Appeal, Petitioner filed a companion state habeas petition. Petitioner states that this state habeas petition raised his ineffective assistance of counsel claim as stated in Claim IV of his federal habeas petition. (See Pet'r's Reply at p. 4-5.) The California Court of Appeal rejected this state habeas petition and denied it on August 14, 2008, before it decided Petitioner's direct appeal. The California Court of Appeal affirmed the judgment on direct appeal on September 10, 2008.*fn2
Thereafter, Petitioner filed a petition for review in the California Supreme Court which included all four Claims that he raises in this federal habeas petition. The California Supreme Court denied the petition for review on November 19, 2008. ...