The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Raymond Lavorico, a state prisoner appearing pro se, filed a Petition for Habeas Corpus under 28 U.S.C. § 2254. Lavorico is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Mule Creek State Prison. Respondent has answered. Lavorico has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In March 2006 Lavorico was convicted by a jury in the Sacramento County Superior Court of four counts of Lewd and Lascivious Acts with a Child under the Age of 14 Years (Cal. Penal Code § 288(a)), two counts of Forcible Lewd and Lascivious Acts with a Child under the Age of 14 Years (Cal. Penal. Code § 288(b)(1)), and two counts of Forcible Sodomy by a Person More Than 10 Years Older than the Victim (§§ 269(a)(3), 286). The jury also found true the multiple-victim sentence enhancement allegation (§ 667.61(e)(5)). The trial court sentenced Lavorico to an aggregate prison term of 120 years to life, comprised of consecutive, indeterminate terms of 15 years to life on each of the four counts of lewd acts (§ 288(a)) and each of the two counts of forcible sodomy (§§ 269(a)(3), 286). Lavorico timely appealed to the California Court of Appeal, Third District, which affirmed Lavorico's conviction and sentence in a reasoned, unpublished decision,*fn1 and the California Supreme Court denied review on March 12, 2008. On February 6, 2009, Lavorico filed a petition for habeas relief in the Sacramento County Superior Court, which was denied in an unreported, reasoned decision.
Lavorico's subsequent petition for habeas relief was denied by the California Court of Appeal, Third District, on July 9, 2009. Lavorico did not seek further review of the grounds raised in his state habeas petitions in the California Supreme Court. Lavorico timely filed his Petition in this Court on February 10, 2009, and his Amended Petition on September 11, 2009.
The facts underlying Lavorico's conviction, as summarized by the California Court of Appeal, are:
The two victims in this case, A. and her younger sister A-L.,FN3 were [Lavorico's] nieces. Beginning in 1993, when the girls' parents were divorced, they spent alternate weeks with each parent. FN3. A. was born in the spring of 1990. AL. was born in the spring of 1992.
In 1998, [Lavorico] and his wife Connie moved into a new house in Elk Grove where A-L. and A. visited them during the weeks they were with their father. Once or twice a month, the girls spent the night at [Lavorico's] house along with their father. About once every two months, they spent the night at [Lavorico's] house without their father.
One time when A-L. was six or seven years old, she was sleeping with her sister on an air mattress in [Lavorico's] living room. During the night, [Lavorico] picked her up and placed her on the couch where he reached under her clothing and touched both of her breasts for longer than a minute, moving his hand in a circular motion. She tried to scoot away, but he grabbed her and pulled her closer to him. When he was done, he put her back on the air mattress.
[Lavorico] touched A-L.'s breasts in that manner on five or six separate occasions. Each incident occurred at night in the living room of his house. The last time he touched her like that was when she was eight years old.
A. began staying at [Lavorico's] house when she was in the third grade and continued to visit her aunt and uncle until she was in the eighth grade. During that time-period, [Lavorico] forced her to suck his penis, touched her vagina with his lips and tongue, and "stuffed both of his fingers and his penis in [her] butt." He committed these acts both day and night. Sometimes A.'s sister and aunt Connie were in the house, but they never walked in when he was molesting A.
One such incident occurred when A. was in the fourth grade. [Lavorico] picked her up from her father's house and took her back to his own house so she could retrieve some pills she had left in the kitchen. When they arrived at his house, he grabbed her arm and pulled her into the bathroom and told her to take off her clothes. She complied by removing her jeans and underwear and he put his lips on her vagina as she was lying on her back. He then removed his own jeans and underwear and got on top of her and positioned himself with his face over her vagina and his penis over her face and told her to suck his penis. She resisted at first and tried to push him away but he was too big. She also tried to keep her mouth shut, but eventually relented. When he finally ejaculated, he told her to swallow the semen and placed his hand over her mouth. Afterwards, she grabbed her pills and ran out of the house where she waited for him to take her home. This incident lasted about 30 to 45 minutes. [Lavorico] forced A. to orally copulate him 10 to 12 times.
On another occasion, when A. spent the night at [Lavorico's] house, she was half-asleep when she noticed him next to her bed. He put his hand under her clothing and touched her breasts and her vagina.
According to A., [Lavorico] molested her every time she and her sister spent the night at his house without her father present. He touched her vagina between 15 and 20 different times and put his fingers in her buttocks more than five times. On 15 to 20 other occasions, he put his penis in her buttocks. When these incidents occurred, A. was sitting on him with her back towards him and he had his hands on her hips. With one exception, each time she tried to get away, he grabbed her by the arm and sodomized her. He ejaculated more than half the time and used a cloth to clean both of them. On the occasions when he sodomized her, he began by either putting his finger in her buttocks or inserting his penis in her mouth.
In late December 2004, A. asked A-L. if [Lavorico] had done anything to her when she was young. When A-L. indicated that he had, the two sisters spent the next two days discussing what [Lavorico] had done to them. Two days later, they told their father about the molestations and he notified the police.
On one occasion, [Lavorico] went to A.'s house in West Sacramento.
After her father left the house to take her sister to a dance class, A. and [Lavorico] were alone in her bedroom. He was on the floor and while she sat on his lap, he put his finger and then his penis in her buttocks.
In 1985, R.S. lived with her family in an apartment complex in Germany while her husband was stationed there. The couple had a son and a seven year-old daughter, M.FN11 [Lavorico] and his wife Connie lived upstairs with their two sons, F. and R., and R.S. and Connie became friends.
FN. 11. M. was born in late fall 1977.
On the afternoon of January 26, 1985, R.S.'s children went upstairs to play with F. and R. Sometime later, R.S. went upstairs to visit Connie, and after chatting a while, R.S. decided to check on her children. As she pushed open the door to F.'s room, she asked, "[w]hat are you guys doing?" The door hit [Lavorico] in the back. When she looked down to see what was blocking the door, she saw [Lavorico] was lying on the floor with M. next to him. He had his hand down the back of her pants and quickly shoved her off his leg and removed his hand from her pants. The two younger boys were playing with blocks and their backs were facing the door.
R.S. was in shock. She told her children it was time to go and they returned to their apartment where R.S. spoke to M. about what happened. They reported the incident to the military authorities and the matter was tried by court-martial, which resulted in a verdict of not guilty.
[Lavorico] did not testify but called his wife to testify on his behalf. Connie testified that [Lavorico] drove a truck for a number of years and he was gone many weekends. She was a light sleeper and because [Lavorico] snored, she knew when he was sleeping and always heard him when he got out of bed.FN12
FN12. On cross-examination Connie admitted that she sometimes slept in the living room because ...