The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS and (2) DENYING CERTIFICATE OF EDMUND GERALD APPEALABILITY
On August 13, 2008, Derek L. Cordeiro ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for two counts of lewd and lascivious acts upon a minor, one count of indecent exposure, and one count of child annoyance. (Doc. No. 1 at 36.)
On March 10, 2009, Petitioner filed his First Amended Petition. (Doc. No. 28.) The Court denied Respondents' motion to dismiss the First Amended Petition and ordered Respondents to file an answer. (Doc. Nos. 37-38.) On March 24, 2010, Respondents filed an answer to the First Amended Petition. (Doc. No. 41.) Petitioner filed a traverse on September 24, 2010. (Doc. No. 48.) On February 22, 2011, the magistrate judge issued a Report and Recommendation that the Court deny Petitioner's First Amended Petition in its entirety. (Doc. No. 49).
For the reasons set forth below, the Court DENIES Petitioner's First Amended Petition and adopts the Report and Recommendation.
On November 9, 2004, Petitioner was charged with commission of a lewd act upon a child for touching of child's thigh in violation of California Penal Code § 288(a) (count 1); commission of a lewd act upon a child for touching of child's hand in violation of California Penal Code § 288(a) (count 2); indecently exposing himself in violation of California Penal Code § 314.1 (count 3); and child molesting in violation of California Penal Code § 647.6(a) (count 4). (Lodg. No. 14 at 7-10.) Petitioner had previously been convicted of two felonies, making him eligible for sentencing under California's Three Strikes Law (California Penal Code §§ 667(b)-(i), 1170.12). (Id.) On December 13, 2004, a jury found Petitioner guilty of all counts. (Lodg. No. 14 at 149-152).
On January 12, 2005, Petitioner appeared before the state trial court for sentencing and requested to strike a prior conviction alleged under three strikes. (Lodg. No. 15 at 492-502.) The trial court denied Petitioner's request to strike a prior and sentenced Petitioner to 75 years to life plus 10 years for two serious felony priors with credit for time served. (Lodg. No. 14 at 503-04.)
On February 23, 2005, Petitioner filed a direct appeal, claiming prosecutorial misconduct, ineffective assistance of counsel for failing to object to the misconduct, alleged hearsay, and cumulative error. (Lodg. No. 1, Appendix at 1-3.) On April 27, 2006, the California Court of Appeal affirmed the judgment of the trial court. (Lodg. No. 1, Appendix.) On May 30, 2006, Petitioner filed a petition for review in the California Supreme Court alleging the same claims. (Lodg. No. 1.) On August 18, 2006, the California Supreme Court summarily denied the petition. (Lodg. No. 2.)
On August 30, 2007, Petitioner filed a state habeas petition in San Diego Superior Court, arguing that his prior convictions were unconstitutional and could not be used to enhance his sentence, ineffective assistance of counsel, and denial of due process because of the cumulative effect of trial counsel's errors. (Lodg. No. 3.) On October 29, 2007, the Superior Court denied the petition. (Id.) On January 22, 2008, Petitioner filed a state habeas petition in the California Court of Appeal raising the same claims raised in the Superior Court and adding a claim of ineffective assistance of appellate counsel. (Lodg. No. 5.) On May 8, 2008, the California Court of Appeal denied the petition. (Lodg. No. 6.) On July 3, 2008, Petitioner filed a state habeas petition in the California Supreme Court raising the same claims raised in the Court of Appeal. (Lodg. No. 9.)
On January 7, 2009, approximately four months after filing his federal habeas petition, Petitioner filed a second habeas petition in the California Supreme Court, alleging the claims raised in his federal First Amended Habeas Petition. (Doc. No. 29, Attach. 1.) On January 21, 2009, the California Supreme Court denied Petitioner's first petition in that court, case number S164972. (Doc. No. 25, Ex. 2.) On June 24, 2009, the California Supreme Court denied Petitioner's second petition, case number S169564. (Doc. No. 33, Ex. C.)
The following facts are taken from the California Court of Appeal opinion in People v. Cordeiro, No. D045966, 2006 WL 1099473 (Cal. Ct. App. April 27, 2006). ( Lodg. No. 1.) This Court relies on the state court findings of fact pursuant to 28 U.S.C. § 2254(e)(1). See Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness). The relevant facts from the state appellate court are as follows:
On February 25, 2004, at approximately 4:00 in the afternoon, Cordeiro walked out of his house with his dog, Cocoa. D.W., the granddaughter of Cordeiro's next-door neighbors, was riding her scooter nearby at the time. D.W. was familiar with Cordeiro and Cocoa. She stopped in front of Cordeiro's house, approached the front porch where Cordeiro and Cocoa were standing, and knelt down to pet Cocoa. While she was petting Cocoa, D.W. talked with Cordeiro about "Girl Scout stuff." Cordeiro squatted about one to two feet away from D.W. He began rubbing the top of D.W.'s thigh with his hand, which was shaking, and said to Cocoa, "Isn't [D.W.] getting so beautiful?" Cordeiro's comment made D.W. feel a little uncomfortable, but also good about herself. She thanked Cordeiro, and he removed his hand from her thigh. At this point, D.W. noticed Cordeiro's penis protruding from the right side of his shorts. He was not wearing underwear.
D.W. became uncomfortable and backed away from Cordeiro. Cordeiro scooted forward and then both he and D.W. stood up. Cordeiro pulled his penis out farther and asked D.W. if she wanted to touch it as he grabbed her hand and pulled it toward his penis. D.W. pulled her hand back. Cordeiro apologized, stating that he did not know that what he had done would offend her, and put his penis back in his shorts. D.W. sat with Cordeiro in the chairs on Cordeiro's front porch and wondered whether she should tell anyone what had happened. After a few more minutes of discussion about the Girl Scouts, D.W. returned to her grandparents' house.
Jose Garcia, another neighbor, happened to be watching the interaction between D.W. and Cordeiro from his front window. Garcia saw D.W. petting Cocoa while Cordeiro was standing next to her, talking with her. However he could not see what Cordeiro was doing with his hand or what happened while Cordeiro and D.W. were squatting down, because his view was blocked by a bush in Cordeiro's yard.
When D.W. returned to her grandparents' house, her grandmother thought she was behaving in an odd manner. D.W.'s grandmother asked D.W. if she was okay, and D.W. said she was. Her grandmother then asked, "Is there a problem?" In response, D.W. told her grandmother that she had been petting Cocoa in front of Cordeiro's house and that Cordeiro had exposed himself to her, asking if she wanted to touch "it." About five or ten minutes later, D.W. related the same events to her grandfather. D.W.'s grandfather telephoned the police.
San Diego Police Officer Scott Sandefur responded to the call. After speaking with D.W. and her grandparents, Officer Sandefur returned to his patrol car. At this point, Cordeiro came out of his house. When Sandefur told Cordeiro that he was being accused of indecent exposure, Cordeiro told the officer that he may have accidentally exposed himself, because he was wearing very short shorts and wasn't wearing underwear. Officers then arrested Cordeiro, who was still wearing the shorts. Cordeiro's penis was not accidentally exposed at any time while Officer Sandefur was speaking with Cordeiro, while he placed Cordeiro in the patrol car, or when Cordeiro put on a pair of jeans over his shorts.
Later that evening, D.W. disclosed to her grandmother that Cordeiro had grabbed her hand when he asked her if she wanted to touch his penis. A few days later, D.W. told her grandmother that Cordeiro had also touched her leg.
Five days later, Anne-Marie Aguilar, a social worker at Children's Hospital, interviewed D.W. about the incident. The statements D.W. made during this videotaped interview were consistent with her testimony at trial, except that she did not mention that Cordeiro had grabbed her hand. In response to questioning by the prosecutor at trial, Aguilar testified regarding Child Sexual Abuse Accommodation Syndrome (CSAAS). Specifically, Aguilar said that children sometimes do not disclose information about an incident right away or disclose the incident but provide more details later, and that this behavior is known as "delayed disclosure."
Thirty-five-year-old Kristi B. testified that when she was 12 years old, Cordeiro's daughter Stacie was her best friend. Kristi would visit Stacie's house, where Cordeiro and his first wife lived, and would sometimes spend the night there. Kristi remembered that Cordeiro would often wear only a towel while walking around the house, and that he would often sit in a manner that exposed his genitals. One night, while she and Stacie were sleeping in the living room of Stacie's house, Kristi awoke during the middle of the night and discovered that her panties had been pulled down and that Cordeiro was kneeling next to her. Cordeiro began fondling her and orally copulated her.
Kristi eventually told her mother about what had happened with Cordeiro, and the incident was reported to authorities. When confronted by police officers about the incident with Kristi, Cordeiro initially denied having had physical contact with her. He told an investigating officer that he had been wearing a towel and that he had to step over the girls to let the cat out. He explained that this may have been how they saw his nude body underneath the towel. Cordeiro later admitted that he had fondled and orally copulated Kristi, but said that he had been drinking at the time, and that when he drank, he could be a real "asshole."
Cordeiro admitted that he had touched D.W.'s hand and leg, but said that he had done so with an innocent intent, and that exposing his penis to her had occurred accidentally. Cordeiro said that he first realized he was attracted to young girls when he was stationed in Vietnam as a soldier in the late 1960's or early 1970's. He sustained his first conviction for committing a lewd act upon a child in 1982, as a result of a guilty plea arising from the incident involving Kristi. Cordeiro testified that at the time of that incident, he smoked marijuana and drank alcohol regularly, and that he also occasionally used methamphetamine and cocaine. After pleading guilty, Cordeiro was placed on probation and sought court-ordered counseling.
Cordeiro also admitted that in 1985 he incurred a second conviction for lewd conduct involving his current wife's oldest daughter, Tina, which began when Tina was 10 or 11 years old. Cordeiro said that over a period of a couple of months, he orally copulated, digitally penetrated, and fondled Tina. Cordeiro pled guilty and received an 11-year sentence. It was only after his conviction for the incidents involving Tina that Cordeiro admitted that his conduct was wrong. He served three years in prison as a result of this conviction. When he was released from prison in 1989, Cordeiro contacted Larry Corrigan, a therapist who provides treatment for sex offenders, and began counseling. Corrigan diagnosed Cordeiro as a pedophile. Cordeiro admitted to Corrigan that he was a pedophile and said he believed his sexual impulse for young girls would never go away.
Cordeiro testified that although he has not been cured of pedophilia, he has taken a number of steps to avoid acting upon his impulses, including (1) driving past the prison in Norco every six months, (2) attending church, (3) no longer consuming alcohol or drugs, (4) staying away from children unless their parents are around, and (5) having his wife with him most of the time.
With regard to the current charges, Cordeiro testified that he and Cocoa were outside when D.W. approached them and asked why Cocoa was limping. While D.W. was squatting down petting Cocoa, Cordeiro knelt down and took D.W.'s hand so she could feel the knot on Cocoa's arthritic leg, but D.W. yanked her hand away. Cordeiro thought D.W. pulled her hand away because she did not want to touch Cocoa's leg, but when he looked down, he realized that he had exposed himself to D.W. Cordeiro apologized to D.W., moved back, and adjusted himself. He denied that he had caressed D.W.'s thigh or leg, or that he tried to get D.W. to touch his penis. He admitted that he had touched the back of D.W.'s legs, but said he had done so only in order to move her over after he realized that she was standing on his wife's flowers. Cordeiro denied that he had said to Cocoa, "Isn't D.W. getting beautiful." Rather, Cordeiro explained, he had told Cocoa to "sit pretty."
Cordeiro admitted that he had lied about, or failed to acknowledge, that he fantasized about young girls when he was interviewed by probation officers and health care professionals in 1982, 1985, and 1986. He also acknowledged that he had lied to doctors in 1982 when he told them that he did not realize he had exposed himself to Kristi and his daughter. When the prosecutor asked Cordeiro whether he had ever exposed his penis to other people and other children, Cordeiro said he had not. In response to further questioning by the prosecutor, Cordeiro then admitted that he had sexually molested his nieces, Michelle and Kimberly, in the 1970's. Cordeiro had Michelle orally copulate him, and fondled and orally copulated her over a seven-year period, from the time she was nine years old until she was 16. He had also fondled Kimberly and exposed his penis to her.
The last time Cordeiro had seen a therapist for his pedophilia was 17 years prior. However, during that time, he had not reoffended, had been an active member of his church, and had been a good friend and father. He had worked as a manager for United Van Lines since 1989.
Cordeiro presented the testimony of five character witnesses. The witnesses testified that they had seen Cordeiro interact with girls between the ages of 7 and 16, after 1989, on a regular basis, and that they never saw Cordeiro engage in any inappropriate touching. They also said that Cordeiro did not appear to show any particular interest or fascination with girls in that age group. (Lodg. No. 1, Appendix at 4-9.)
IV. DISCUSSION ON THE MERITS
A. Standard of Review for Federal Habeas Petitions
Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
A federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established [f]ederal 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);
"Clearly established [f]ederal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision. Lockyer v. Andrade, 538 U.S. 63 (2003). A state court's decision is "contrary to" clearly established federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts . . . materially indistinguishable from a decision of the ...