FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury in 2005 of substantial sexual conduct with a child under the age of fourteen (in violation of Cal. Pen. Code § 288.5(a)*fn1 ); three counts of aggravated sexual assault of a child by oral copulation (§ 269(a)(1)); aggravated sexual assault of a child by sodomy (§ 269(a)(3)); four counts of rape (§ 269(a)(4)); seven counts of forcible lewd and lascivious acts with a child (§ 288(b)(1)); attempted forcible lewd conduct (§§ 664/288(b)(1)); with the special allegations that the crimes were committed against two or more victims (§ 667.61(e)(5)). Lodged Document ("LD") 1 at 745-46. In light of petitioner's prior felony convictions, petitioner was sentenced to state prison for 338 years to life. Id.
This action is proceeding on three claims raised in the petition,
filed August 14, 2009. Petitioner claims that his Faretta*fn2
waiver was obtained without the requisite knowledge and
understanding of consequences; that the trial court improperly
excluded evidence that one of the victims consented to "rough sex"
with him in the past; and that his appellate counsel was ineffective
for failing to raise three claims in his direct appeal.
Following a month-long trial on thirty-one counts that resulted in a mistrial due to a hung jury, the State elected to retry petitioner. See LD 1 at 25. Two court days prior to the commencement of the second trial, petitioner made a Faretta motion, which was denied as untimely. Id. at 21-28. When the trial date was continued by three weeks, petitioner renewed his Faretta motion and the trial court granted it. See LD 5. Petitioner represented himself throughout the remainder of his criminal proceedings, and was subsequently convicted and sentenced to 338 years to life in state prison. See LD 1 at 745-56.
Petitioner appealed to the state appellate court, which denied the appeal on February 14, 2007. LD 3. On March 23, 2007, petitioner appealed to the California Supreme Court. LD 4. This appeal was denied on June 13, 2007. Id.
On August 13, 2008, petitioner filed a petition for habeas relief in the Sacramento County Superior Court raising the same claims raised here, and he attached to the petition a declaration purportedly executed by him.*fn3 See LD 5. On September 23, 2008, petitioner supplemented his petition with the transcript of the hearing on petitioner's second Faretta motion. LD 6. /////
On October 2, 2008, the superior court denied the habeas petition. LD 7. As to petitioner's first two claims, the court found them procedurally barred with citation to In re Dixon, 41 Cal.2d 756 (Cal. 1953). Id. As to petitioner's ineffective assistance of counsel claims, the court found, inter alia, that petitioner failed to state prima facie claims for relief. Id.
On November 21, 2008, petitioner appealed to the state appellate court. LD 8. That appeal was summarily denied on December 4, 2008. Id.
On January 23, 2009, petitioner filed an appeal with the California Supreme Court, which also summarily denied the petition on August 12, 2009. LD 9.
N. M. met [petitioner] through mutual friends when she was 16 years old and he was 21 years old. She has one son and [petitioner] has one son and one daughter, A.
N. M. and [petitioner] began dating shortly before her 18th birthday and became engaged on Christmas 1998. N. M. and her son would spend the night at [petitioner]'s mother's home where [petitioner] and his children also lived. In May 2002, N. M. and [petitioner] bought a house together.
On December 13, 2003, N. M. was hosting a party for her son's soccer team at a bowling alley in Sacramento. [Petitioner] and his two children also attended. While the children played games, [petitioner] drank heavily. At the end of the evening, N. M. drove [petitioner] and the children home and told the children to help [petitioner] into the house while she was going to park her truck in the back. The children were having trouble helping [petitioner], so N. M. turned off her truck and came into the house, where she found [petitioner] lying on the couple's bed. [Petitioner] confirmed that he was okay and told N. M. to park her truck. As N. M. was getting ready to walk out, [petitioner] called to his daughter, and she came running. N. M. then walked out of the bedroom and parked her truck.
When N. M. reentered the bedroom, [petitioner] was lying on the bed with his pants around his knees and his penis erect. A. had her thumbs on the waistband of her pants, as though she was about to pull down her pants. N. M. screamed, "what the [fuck] is your dick doing out and your daughter laying next to you?" [Petitioner] rolled off the bed, and A. "took off running."
N. M. tried to jump over [petitioner], but he grabbed her and started punching her. He told her to "suck his dick" and pushed her face into his "privates." N. M. orally copulated [petitioner] while he kept punching her. He then ordered her to get on top of him, and when she said "no," he punched her again. She got on top of him, and the two had sexual intercourse. Thereafter, he told her to "suck [his] dick again," and she complied. After this second act of oral copulation, [petitioner] told N. M., "if you don't take care of this, A[.] will."
N. M. ran down the hall and gathered up the children. They got in her truck, and N. M. "just drove." In the truck, N. M. asked A. if "this [had] ever happened to you before?" A. said "yes." N. M. then asked if [petitioner] had ever hurt her, and A. replied, "kinda." When N. M. told her "this is a yes-or-no question," A. said, "well, then yes." N. M. ended up taking the children to a motel where they all spent the night.
The next morning, N. M. and the children returned to the house. N. M. decided not to call the police because she was afraid [petitioner] would lie, A. would be "too afraid to tell the truth," and then [petitioner]'s children would be returned to him, as she was not their biological mother.
When they entered the house, [petitioner] said he had "blacked out" and "need[ed] to know what happened." N. M. told [petitioner] only what he had done to her and said she wanted to leave. She did not tell [petitioner] about what she had seen in the bedroom between him and A. because she (N. M.) would be in danger. [Petitioner] was leaving for work and asked N. M. to drop some things off at his mother's house. N. M. agreed and took the children with her. She told [petitioner]'s mother that she did not want to be in the relationship any longer because [petitioner] drank too much and was abusive.
N. M. took the children back home. N. M. "was still in a state of shock." She slept on the couch and the children slept in their bedrooms. The next morning, Monday, she went to work, and the children went to school. N. M. confided in a co-worker that [petitioner] was molesting A. She also contacted a friend who worked at child protective services, who told her that all schools are "mandated reporters" and that if a molested child "tells somebody at school," she would be "protected the moment that [she] t[old]." N. M. told A. that A. needed to tell her story to a school nurse on Wednesday when [petitioner] was at work.
On Wednesday morning when A. was at school, she called N. M. at work and said the school nurse was not there. N. M. drove to the school, and A. told the school secretary "a little bit" of what had happened to her. The secretary then called the principal, who in turn called child protective services.
At trial, 10-year-old A. testified that [petitioner] started molesting her when she was four. These incidents would take place when N. M. was at work, or N. M. and the boys were at soccer practice, or when everyone else was sleeping. When she was five years old, [petitioner] put his penis in her vagina and "butt" more than five times. When she was six and seven years old, [petitioner] put his penis in her vagina, "butt," and mouth more than five times. When she was eight years old, [petitioner] put his penis in her vagina more than five times, put his penis in her "butt" more than 10 times, and put his penis in her mouth more than 10 times. [Petitioner] repeatedly told her that if she told anyone, he would hurt her.
A. remembered one specific incident when N. M. was on a business trip to Colorado. After [petitioner] and the children had finished watching a movie in the living room, [petitioner] took A. into his room, took off her pajamas, and put his penis in her vagina, "butt," and mouth.
On December 17, 2003, nurse practitioner Glendora Trestler examined A. There was thickening of A.'s hymen that could have been due to a healed injury. There was also an immediate dilatation of A.'s anus when she was lying back, which indicated that something had happened to the anal tissue to "mak[e] it relax quickly as opposed to staying closed."
A. was examined again on February 1, 2004. A.'s hymen was unchanged since the last examination, so A.'s previous examination would not be considered normal.
Dr. Anthony Urquiza, an associate professor in the pediatrics department at the University of California, Davis Medical Center, testified as an expert on child sexual abuse accommodation syndrome (CSAAS). The concept of CSAAS was created by an [sic] psychiatrist in 1983 to educate therapists about typical behavior exhibited by child sexual abuse victims and to dispel any misperceptions about how child victims might react. There are five parts to CSAAS: secrecy, helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and recantation. Dr. Urquiza further explained that 90 percent of children are sexually abused by someone with whom they have an ongoing relationship because part of sexual abuse is having control and power over children.
Prior Acts During N. M.'s relationship with [petitioner], he was abusive. He would lose his temper when he was "stressed out," which happened at least four times a month. His anger would be directed at her, other family members, or the children. Afterward, [petitioner] would become calm and sometimes apologetic. On one occasion he threatened to kill her if she did not do what he said. On other occasion he choked her until she passed out. He had also threatened to hunt her down if she ever left him.
When they moved to their home, [petitioner] slapped N. M. on the face and called her a "[s]tupid bitch" because she spilled a frozen pitcher of red margarita or daiquiri on the new carpet. There were also times when he would force her to have sex with him. She never told any of her family or friends about the abuse because she was ashamed and embarrassed.
N. M. recalled one incident in Vacaville a few days after she and [petitioner] became engaged. [Petitioner] got into a fight with her father and threatened to kill N. M. [Footnote omitted.]
The Defense Nurse practitioner Cathy Boyle examined A. in February 2004 and March 2005. She saw no physical evidence of sexual abuse, so she could not confirm or negate A.'s allegations. Nurse practitioner Leslie Schmidt examined N. M. on September 17, 2003, and found no injuries.
C. D. lived next door to [petitioner], had known him since she was 13 years old, and babysat his children. She described [petitioner] as a "great father" and never saw any abuse in the house. She never saw [petitioner] intoxicated, combative, or threatening to anybody. She never saw [petitioner] and N. M. fight. On cross-examination, she was "shock[ed]" to hear that [petitioner] had gone to prison for felony possession of methamphetamine, "surprise[d]" to hear about the Vacaville incident in which [petitioner] was combative with police officers, and "disturb[ed]" to hear the nature of the sexual abuse allegations A. was making against [petitioner].
A. H., [petitioner]'s mother's live-in boyfriend, never heard the children say that [petitioner] was sexually abusing them. A. H. recalled that on December 19, 2003, he went to [petitioner]'s house and saw N. M. and two men loading up some property. When he went back to the house the next day to retrieve [petitioner]'s mother's car, it was not there, and another car had been stripped of all its musical equipment.
[Petitioner] took the stand on his own behalf. He admitted that he and N. M. fought, and once he slapped her. On the night of December 13, he was very drunk, and they had been fighting. His children helped him into the house, and he laid down on the bed. N. M. and A. came into the room, and A. gave him a hug.
N. M. left on her own to park her car. [Petitioner] closed his eyes, and A. got into the bed. He did not have his pants down. N. M. came back into the room, and [petitioner] and N. M. started arguing. He told A. to leave, and she complied. He ended up vomiting on his clothes, so he undressed down to his boxer shorts.
N. M. told him, "don't think you're gonna get sex from me," and he replied that he did not want her "pussy," told her to "[g]et the fuck out of [his] house," and that he would "rather fuck the transvestite at the bar, the sister bowling next to us or A[.]" He denied ever touching A. in a sexual way.
Federal habeas corpus relief 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.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. 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." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'") The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002).
Petitioner's first ground for relief is that his Faretta waiver was improperly granted. Petitioner's second ground for relief is that relevant evidence was improperly excluded.
The state appellate court denied both of these grounds as procedurally barred: Petitioner's conviction for sex offenses against his daughter and his girlfriend was affirmed on appeal and became final in June 2007. Petitioner now claims that the trial court erred in granting his Faretta motion and also erred when it excluded evidence at trial that his girlfriend had consented to "rough sex" on prior occasions. These claims should have been raised on appeal. (In re Dixon, supra, 41 Cal.2d at p. 759.) Petitioner has not demonstrated that any exception applies which would allow these claims to be considered on habeas corpus. Thus, these two claims should have been raised on appeal and are barred. (Ibid.) . . .
As the United States Supreme Court has explained, in all cases in which a state prisoner has defaulted his federal claim in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claim is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). The state rule is only "adequate" if it is "firmly established and regularly followed." Id. (quoting Ford v. Georgia, 498 U.S. 411, 424 (1991)); Bennett v. Calderon, 322 F.3d 573, 583 (9th Cir. 2003) ("[t]o be deemed adequate, the state law ground for decision must be well-established and consistently applied"). The state rule must also be "independent" in that it is not "interwoven with the federal law." Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000), cert. denied, 531 U.S. 918 (2000) (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). Even if the state rule is independent and adequate, the claims may be heard if the petitioner can show: (1) cause for the default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 749-50.
Ordinarily, "cause" to excuse a default exists if the petitioner "can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Ineffective assistance of counsel may be cause to excuse a default only if the procedural default was the result of an independent constitutional violation. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000) ("Not just any deficiency in counsel's performance will do, however; the assistance must have been so ineffective as to violate the Federal Constitution."). Put another way, "[s]o long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, [466 U.S. 668 (1984)] the federal courts discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default." Murray, 477 U.S. at 488.
Here, trial counsel failed to raise these two issues on direct appeal. That failure precludes review of these claims. Petitioner seeks to bypass the Dixon bar by arguing that while Dixon is "independent," it is not "adequate" in that California courts have not consistently applied the bar to a habeas claim that is based upon facts which are not contained within the record on direct appeal. See Traverse at 11-12. Petitioner then cites to two cases and makes the erroneous argument that his burden in establishing inadequacy is "modest," with citation to Dennis v. Brown, 361 F. Supp. 2d 1124, 1130 (N.D. Cal. 2005). Petitioner misreads Dennis. There, the court reviewed the burden-shifting test delineated by the Ninth Circuit in Bennett v. Mueller, 322
F.3d 573, 585-86 (9th Cir.2003), for determining whether a state procedural bar is adequate. The Ninth Circuit held that the ultimate burden of proving the adequacy of the California state bar is upon the State of California.... Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner. The petitioner may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule. Once having done so, however, the ultimate burden is the state's. [¶] 322 F.3d at 585-86. Under Bennett, the initial burden is the respondent's: the State must first "adequately ple[a]d the existence of an independent and adequate state procedural ground as an affirmative defense." Id. at 586. As noted by the Bennett court, this "is an exceedingly modest burden." 361 F. Supp. 2d at 1129 (emphasis added). Once the respondent has met this "modest" burden, the burden shifts to the petitioner to show inadequacy. Id. Petitioner confuses his burden with that of the State's.
Because respondent met its burden by pleading procedural default, petitioner attempts to meet his burden by presenting the circular argument that because his claims were not before the state court on direct appeal (and, therefore, not in the appellate record), Dixon is inapplicable because that case only applies to claims based on facts contained in the appellate record. See Traverse at 13-15. Petitioner then cites to In re Sakarias, 35 ...