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Timothy Kevin Shea v. M. Mcdonald

August 26, 2011

TIMOTHY KEVIN SHEA, PETITIONER,
v.
M. MCDONALD, WARDEN RESPONDENT.



The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge

ORDER, FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner, Timothy Kevin Shea, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is currently serving a sentence of 525 years to life imprisonment plus seventy years after being convicted of seven counts of lewd and lascivious acts on a child under the age of fourteen. The jury also found true specific allegations with respect to each count that Petitioner engaged in substantial sexual conduct with the victim within the meaning of California Penal Code § 1203.066(a)(8). Petitioner raises three claims in his federal habeas petition; specifically: (1) ineffective assistance of trial and appellate counsel ("Claim I"); (2) trial court error in instructing the jury using a lower burden of proof to the substantial sexual conduct allegations ("Claim II"); and (3) trial court error in using the phrase "victim" in instructing the jury and using the word "victim" on the verdict forms ("Claim III"). For the following reasons, the habeas petition should be denied.

II. FACTUAL BACKGROUND*fn1

In 2006, L. reported that approximately 7 to 12 years earlier and over a period of several years, when she was under the age of 14, defendant repeatedly molested her. He touched her breasts and vagina with his hands and mouth, put her hand on his penis, touched himself to the point of ejaculation, showed her child pornography, and touched her vagina as he posed her and took pornographic pictures of her.

Two pretext phone calls from L. to defendant were recorded and played for the jury. During those calls, defendant admitted molesting L. and acknowledged touching and kissing her vagina, making her touch his penis, masturbating in front of her, showing her child pornography, and posing her and taking pictures of her. When asked about his motivation, he said he was lonely at the time and looking for someone with whom to be close, is attracted to little girls, is "wired different" than others, and obviously has a problem. He apologized, said he would take it back if he could, and offered to pay for her counseling. He also told her not to worry about the ramifications of disclosing what he had done because it has been so long ago, they were not going to "come lock [him] up."

Defendant's half-sister testified that defendant molested her when she was a young girl. The jury also learned that defendant had two prior convictions for committing lewd and lascivious acts upon a child under the age of 14.

Prior to trial, defense counsel asked that the term "victim" not be used in referring to L.; in an unreported decision in chambers, counsel cited to a case which she contended supported the request. The prosecutor took the position that the case cited by defense counsel stood only for the proposition that use of the term "victim" by the court in jury instructions may be inappropriate and did not stand for the proposition that the prosecutor could not use the term "victim." The trial court said it was amenable to not referring to L. as a victim but did not make any other ruling because it had not yet read the case cited by the parties. The issue was not revisited. Prior to submitting the case to the jury, the court went over jury instructions with counsel in chambers and later reviewed the in- chambers discussions on the record. Although one of the two instructions of which defendant now complains was discussed at length on the record, defense counsel did not lodge an objection or otherwise comment on the isolated use of the word "victim" in either instruction.

After the jury had deliberated for an hour and one-half, it found defendant guilty of all seven counts and found, for each, that he had engaged in substantial sexual conduct. (Slip Op. at p. 2-3.)

III. PROCEDURAL HISTORY

After Petitioner was convicted and sentenced he appealed to the California Court of Appeal. Petitioner raised one claim in his direct appeal. Petitioner argued that the trial court erred in using the term "victim" in the jury instructions. The California Court of Appeal affirmed the judgment. Petitioner's petition for review to the California Supreme Court was summarily denied on August 27, 2008.

In April 2009, Petitioner filed a state habeas petition in the Superior Court of California, County of Sacramento. In May 2009, the Superior Court denied the state habeas petition in a written decision. Subsequently, Petitioner's state habeas petitions to the California Court of Appeal and the California Supreme Court were summarily denied.

Petitioner filed the instant federal habeas petition in May 2009. Respondent answered the petition on February 2, 2010. Respondent then filed a traverse on February 26, 2010. The matter was reassigned by Chief Judge Ishii to the undersigned on July 5, 2011.

IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS

An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1994); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. 2254(d).

As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the 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 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").

The first step in applying AEDPA's standards is to "identify the state court decision that is appropriate for our review." See Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). When more than one court adjudicated Petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).

V. ANALYSIS OF PETITIONER'S CLAIMS

A. Claim I

I. Ineffective Assistance and Burden of Proof In Claim I, Petitioner argues that counsel was ineffective for failing to object to the fact that there were purportedly two different burdens of proof given to the jury on the substantial sexual conduct allegation. He also argues that appellate counsel was ineffective for failing to raise this issue on appeal. The last reasoned decision on this argument was from the Superior Court of California, County of Sacramento in Petitioner's state habeas petition. That court stated the following in analyzing this argument:

Petitioner claims trial and appellate ineffective assistance of counsel, in failing to challenge the jury instructions because in one part, the jury instructions told the jury that "substantial sexual conduct" requires proof beyond a reasonable doubt while in another part the instructions told the jury that "substantial sexual conduct" requires proof only by a preponderance of the evidence. Petitioner attaches copies of jury instructions 1110, requiring proof by a preponderance of the evidence of substantial sexual conduct for proving Counts One through Seven's charges of committing a lewd or lascivious act on a child under age 14, and "Substantial Sexual Conduct," requiring proof beyond a reasonable doubt during the commission of Counts One through Seven that petitioner engaged in substantial sexual conduct within the meaning of Penal Code § 1[2]03.066(a)(8).

The court's underlying file shows the jury instructions that were given in the case. Pages 25 and 26 are indeed instruction 1110 that petitioner attaches to the petition, and page 27 is indeed the separate "Substantial Sexual Conduct" instruction that petitioner attaches to the petition.

There is indeed the conflict in the instructions. It does not appear that the court explained to the jury that for purposes of determining the statute of limitations issue, substantial sexual conduct need only be established by a preponderance of the evidence, but that for purposes of determining the separate verdict for Penal Code § 1203.066(a)(8) allegations, proof must be beyond a reasonable doubt. As such, it does appear that the jury could have been left confused as to which standard of proof was supposed to have applied in the matter.

However, instruction 1110 did explain to the jurors that substantial sexual conduct under the meaning of Penal Code § 1203.066(a)(8) means oral copulation or masturbation of either the child or the perpetrator, or penetration of the child's or perpetrator's vagina or rectum by any foreign object; that oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person and that penetration is not required; that masturbation is any touching or contact, no matter how slight, of the genitals or sexual organs of either the victim or the perpetrator, either on the bare skin or through the clothing, and that penetration is not required; and that "masturbation that is not mutual" means masturbation wherein the offender touches only himself or the victim touches only herself. On the verdict form for Count One, the jury found petitioner guilty of the substantive crime of violating Penal Code § 288(a), in that "defendant's fingers touched victim's vagina, in car, first time," separate and apart from the substantial sexual conduct allegation that followed in the next paragraph on the form. Similarly, on the verdict form for Count Two, the jury found petitioner guilty of the substantive crime of violating Penal Code § 288(a), in that "defendant's fingers touched victim's vagina, in car, last time," separate and apart from the substantial sexual conduct allegation that followed in the next paragraph on the form. On the verdict form for Count Three, the jury found petitioner guilty of the substantive crime of violating Penal Code § 288(a), in that "defendant's tongue touched victim's vagina, in his apartment, first time," separate and apart from the substantial sexual conduct allegation that followed in the next paragraph on the form. On the verdict form for Count Four, the jury found petitioner guilty of the substantive crime of violating Penal Code § 288(a), in that "defendant's tongue touched victim's vagina, in his apartment, last time," separate and apart from the substantial sexual conduct allegation that followed in the next paragraph on the form. On the verdict form for Count Five, the jury found petitioner guilty of the substantive crime of violating Penal Code § 288(a), in that "defendant's fingers touched victim's vagina in shower, first time," separate and apart from the substantial sexual conduct allegation that followed in the next paragraph on the form. On the verdict form for Count Six, the jury found petitioner guilty of the substantive crime of violating Penal Code § 288(a), in that "defendant's fingers touched victim's vagina, in shower, last time," separate and apart from the substantial sexual conduct allegation that followed in the next paragraph on the form. And, on the verdict form for Count Seven, the jury found petitioner guilty of the substantive crime of violating Penal Code § 288(a), in that "defendant's hand touched victim's vagina, while he photographed her, first time," separate and apart from the substantial sexual conduct allegation that followed in the next paragraph on the form. As such, the jury necessarily found true, beyond a reasonable doubt, the specific acts that constituted substantial sexual conduct, for each count, in finding guilt on the substantive crime itself, as each was specifically stated in the verdict. At that point, it became a legal formality for the jury to determine that each such act constituted substantial sexual conduct.

Thus, even if it had been clarified for the jury that one standard of proof applied for one purpose while a stricter standard of proof applied for another purpose, beyond a reasonable doubt the jury would have reached the same verdicts.

Nor did the jury appear to be confused by the instructions, as the jury did not ask the court any question during its deliberations. And, under the conflict, it would appear that the jury should have understood that it needed to find substantial sexual conduct both by proof beyond a reasonable doubt and by a preponderance of the evidence, meaning that the jury necessarily followed the instructions and found the proof under both standards.

As the jury necessarily found proof of substantial sexual conduct beyond a reasonable doubt both by following the instructions and by their guilt findings of the specific acts that constituted substantial sexual conduct as a matter of law, any error that occurred in the instructions is harmless beyond a reasonable doubt, requiring denial of the petition (see generally People v. Lewis (2006) 139 Cal.App.4th 87; People v. Mauer (1995) 32 Cal.App.4th 1121). (Resp't's Lodged Doc. 7 at p. 1-3.)

The Sixth Amendment guarantees effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated the test for demonstrating ineffective assistance of counsel. First, the petitioner must show that considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. See id. at 688. Petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. See id. at 690. The federal court must then determine ...


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