The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner, Paul Alexander, a state petitioner proceeding through counsel, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Alexander is currently in the custody of the California Department of Corrections, incarcerated at the California State Prison, Corcoran, in Corcoran, California. Respondent has filed an answer, and Alexander has filed a traverse.
STATEMENT OF THE FACTS P.B. moved from Mexico to the United States in 1997 and met the defendant while working for the California Conservation Corps in 1997 or 1998. The two began a dating relationship and soon moved in together.
In January 1999, P.B.'s daughter, P.S.B., born in August, 1991, came to the United States to live with her mother. n1 She moved in with Big P. and defendant in the Greenback Terrace Apartments in Citrus Heights (also referred to as the Birdcage apartment). Big P. was approximately four months pregnant with defendant's child at that time. n1 To avoid confusion, P.B. is referred to as "Big P.," and her daughter, P. S.B., is referred to as "Little P." This nomenclature was used in the trial court; we intend no disrespect.
Between January 1999 and March 2002, Big P. worked varying schedules for different employers and, in 2001, also attended school to obtain her CNA license. n2 When Little P. was not in school or at daycare, she was under the care of defendant. n2 Big P. did not work from May to mid-September 1999, when she took time off for maternity leave. Her son was born in July 1999. She was also unemployed for approximately two months in late-Spring of 2000.
In mid-July 2000, Big P., defendant and the two children moved into a house on Glenn Avenue. Little P. was enrolled in the fourth grade.
In mid-March 2002, Little P. reported to school officials that she had been molested by defendant. Citrus Heights Police Officer John Linke interviewed Little P. Little P. told Linke that she was six years old when the first incident occurred at the Birdcage Apartment. n3 She was sleeping in her mother's bedroom when the defendant came in, lay on the bed next to her and put his hands on her "chest" under her clothes. He then pulled her pants off and placed his hand on her vagina. He first put his finger inside her vagina, then slid down and placed his mouth on her vagina. He eventually climbed on top of her and partially inserted his penis inside of her vagina. Little P. told Linke that she pretended to be asleep, but said, "Ouch" when he penetrated her, causing the defendant to jump up and stand by the bed, where Little P. observed him with his pants down and his penis erect. According to Little P., Big P. was not home at the time of the incident. n3 Little P. was 10 years old when she reported the incident in March 2002, which would have made her seven years old when the incident occurred.
Little P. also told Linke about four subsequent incidents during which defendant touched her vaginal area. She told Linke that she did not tell her mother about any of the incidents because she was afraid.
Little P. later testified at trial that another incident occurred at the Birdcage apartment, when defendant pushed her down to her knees, pulled down his pants and underwear, grabbed her head and pushed it towards his erect penis, forcing her to put it inside her mouth.
Defendant was arrested and charged by amended information with aggravated sexual assault of a child (rape - Count One), aggravated sexual assault of a child (oral copulation - Count Three), and 10 counts of lewd and lascivious acts on a child (Counts Two, Four, Five, Six, Seven, Eight, Nine, Ten, Eleven and Twelve), all counts being serious felonies within the meaning of section 1192.7, subdivision (c). Defendant entered a plea of not guilty to all counts.
Following a jury trial, defendant was found guilty of Counts One, Three, Five, Six and Seven. The jury found him not guilty of the remaining counts. Defendant moved for a new trial, arguing ineffective assistance of counsel by virtue of his attorney's failure to allow him to testify at trial, as well as other alleged failures in representation during the course of the trial. The court denied defendant's motion and sentenced him to an indeterminate term of 15 years to life as to Count One, a consecutive 15-year-to-life term as to Count Three, a consecutive six-year term as to Count Five, and concurrent six-year terms as to Counts Six and Seven each, for an aggregate term of six years consecutive to 30 years to life in state prison.*fn1
Following his conviction and the denial of his motion for a new trial, Alexander filed a timely motion for appeal with the California Court of Appeal raising the following issues: ineffective assistance of counsel; the trial court erred by denying Alexander's motion for a new trial; the trial court erred by disallowing argument before the jury on Alexander's failed attempt to invoke privilege, and; instructional error. On July 12, 2007, the court denied Alexander's appeal in an unreported, reasoned decision. On September 11, 2007, Alexander filed a Petition for Review in the California Supreme Court which was denied on November 14, 2007.
On August 5, 2008, Alexander filed a petition for a writ of habeas corpus in this Court. In his petition he raises three grounds for relief: 1) Alexander was denied his right to testify on his own behalf; 2) his trial counsel rendered ineffective assistance of counsel, and; 3) the trial court should have sua sponte instructed Alexander on his right to testify, based on his trial counsel's ineffective performance. Respondent does not claim that any of Alexander's grounds are procedurally barred, however, Respondent alleges that Alexander has not properly exhausted his third claim for relief.
Under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless
the decision of the state court was "contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States" at the time the
state court renders its decision or "was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding."*fn2 The Supreme Court has
explained that "clearly established Federal law" in § 2254(d)(1)
"refers to the holdings, as opposed to the dicta, of [the Supreme
Court] as of the time of the relevant state-court
decision."*fn3 The holding must also be intended to be
binding upon the states; that is, the decision must be based upon
constitutional grounds, not on the supervisory power of the Supreme
Court over federal courts.*fn4 Thus, where holdings of
the Supreme Court regarding the issue presented on habeas review are
lacking, "it cannot be said that the state court 'unreasonabl[y]
appli[ed] clearly established Federal law.'"*fn5 When
a claim falls under the "unreasonable application" prong, a state
court's application of Supreme Court precedent must
be objectively unreasonable, not just incorrect or
erroneous.*fn6 The Supreme Court has made clear that
the objectively unreasonable standard is a substantially higher
threshold than simply believing that the state court determination was
incorrect.*fn7 "[A]bsent a specific constitutional
violation, federal habeas corpus review of trial error is limited to
whether the error 'so infected the trial with unfairness as to make
the resulting conviction a denial of due process.'"*fn8
In a federal habeas proceeding, the standard under which this
Court must assess the prejudicial impact of constitutional error in a
state-court criminal trial is whether the error had a substantial and
injurious effect or influence in determining the outcome.*fn9
Because state court judgments of conviction and sentence
carry a presumption of finality and legality, the petitioner has the
burden of showing by a preponderance of the evidence that he or she
merits habeas relief.*fn10
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn11 State appellate court decisions that affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn12 Under California's unique habeas procedure, a defendant who is denied habeas relief in the superior court files a new original petition for relief in the court of appeal. If denied relief by the court of appeal, the defendant has the option of either filing a new original petition for habeas relief or a petition for review of the Court of Appeal's denial in the California Supreme Court.*fn13 This is considered as the functional equivalent of the appeal process.*fn14 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn15 This presumption applies to state trial courts and appellate courts alike.*fn16
When there is no reasoned state court decision denying an issue presented to the state court and raised in a federal habeas petition, this Court must presume that the state court decided all the issues presented to it and perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable.*fn17 The scope of this review is for clear error of the state court ruling on the petition:
[A]lthough we cannot undertake our review by analyzing the basis for the state court's decision, we can view it through the "objectively reasonable" lens ground by Williams .. . . Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law. Only by that examination may we determine whether the state court's decision was objectively reasonable.*fn18
"[A]lthough we independently review the record, we still defer to the state court's ultimate decision."*fn19
As noted above, Alexander has raised three grounds for relief, and Respondent contends that Alexander's third ground has not been properly exhausted. This Court will address the claims in order and will address the issue of exhaustion in its discussion of Alexander's third ground.
I. Denial of the Right to Testify
Alexander claims that his Fifth, Sixth and Fourteenth Amendment rights were violated by both his counsel and the trial court because he was denied his right to testify on his behalf. Specifically, Alexander claims that he wanted to testify but that his trial counsel, Paul Chan, did nothing to effectuate his requests to testify. With respect to the court, Alexander claims that the court should have made a sua sponte inquiry as to whether there was a conflict between Alexander and Chan as to whether Alexander would testify.
A. Denial of the Right to Testify by Counsel
Alexander claims that Chan deprived him of his right to testify by not informing Alexander that he had an absolute right to testify and then by not effectuating his repeated requests to testify. This argument is the same substantive argument that Alexander raises in his ineffective assistance of counsel claim, therefore, this Court will discuss counsel's actions with ...