FINDINGS AND RECOMMENDATIONS
Petitioner, Jeffrey Allen Isom, is a state prisoner proceeding pro se witha petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving an aggregate term of one hundred and fifteen years to life following his convictions by jury trial in Butte County Superior Court for three counts of lewd and lascivious acts on a child under fourteen years of age with penalty enhancements for multiple victims as to two of the counts. In addition, Petitioner admitted the truth of two prior strike convictions. Here, Petitioner challenges the constitutionality of his convictions.
Petitioner presents several grounds for relief. Specifically, the claims are as follow, verbatim:
(1) [He] was deprived of the effective assistance of counsel where his attorney advised him to admit to having suffered a prior serious felony "strike" for violation of Penal Code 220. Notwithstanding the People's proof would have been otherwise insufficient to prove this prior.
(2) [He] was subjected to double jeopardy and deprived of the Fifth, Sixth and Fourteenth Amends. where trial counsel advised him to admit to having suffered a conviction under Penal Code section 220, where the evidence was either insufficient or inadmissible under Evid. Code § 1108, based on admission of the live testimony of Jessie Dious relitigated facts to establish the "lewd" element not encompassed in the 1991 guilty plea under § 220; also where the testimony was inadmissible based on it proceeded on Proposition 115 testimony which was multiple hearsay where there is no exception to the hearsay rule.
(3) [He] was deprived of the Fifth, Sixth and Fourteenth Amends. to a jury determination when the trial court refused to instruct on the lesser offense under Penal Code section 647.6, subdivision (a).
(4) [He] was deprived of the Fifth, Sixth and Fourteenth Amends. when the trial court abused its discretion by admitting prior offense evidence which involved conduct so dissimilar from the charged offen[s]es that the prejudicial effect of such evidence substantially outweighed its probative value.
(5) The admission of prior sex offen[s]e evidence to show [his] propensity to commit such offenses violated his constitutional right to due process.
(6) [He] was deprived of the Fifth, Sixth and Fourteenth Amends. when the trial court instructed that the jury could convict him based on propensity evidence alone.
(7) [He] was deprived of the Sixth Amendment right to a jury determination of factors relied upon to impose consecutive sentences which increased his sentence beyond the prescribed statutory maximum when the trial court imposed consecutive sentences.
Petitioner's second claim alleging that he was subjected to double jeopardy and that his rights were violated under the Fifth, Sixth, and Fourteenth Amendment is unexhausted and, accordingly, was struck from his petition on May 12, 2009, by order of United States Magistrate Judge Hollows. Based on a thorough review of the record and applicable law, it is recommended that each of Petitioner's remaining six claims be denied.
The basic facts of Petitioner's crime were summarized in the partially published majority opinion of the California Court of Appeal, Third Appellate District, as follow:
On July 3, 2003, 12-year-old Samantha and her younger sister went with their grandmother, Bonnie G., to the Safeway store in Paradise. There were very few customers in the store at the time. While the threesome were standing in the card aisle looking for birthday cards, defendant walked past Samantha, slid his hand across her bottom for a second, continued walking down the aisle, and turned the corner. The only other person standing nearby was at the far end of the aisle and the aisles were wide, so it was not necessary for defendant to pass so close to Samantha. Nevertheless, Samantha told her grandmother a man accidentally touched her bottom and her grandmother agreed.
A short time later, while Samantha and her grandmother were in the cake section, defendant walked by them again and this time he grabbed Samantha's bottom. She told her grandmother defendant grabbed her butt and that he had been following her around the store, staring at her. She was shaking and nervous and her voice was quivering.
When Samantha saw defendant standing at the checkout counter, she pointed him out to her grandmother, who then pointed her finger at him and said "[d]on't you dare touch my granddaughter." When defendant finished paying for his groceries, he left the store and got into his pickup truck, where he sat for about 20 minutes. Meanwhile, another customer, Nancy C., was in the store with her 10-year-old granddaughter Michaela. While Michaela was standing next to Nancy C. in one of the aisles, defendant pinched Michaela's buttocks. Nobody else was in the aisle.
Michaela told her grandmother that defendant touched her and when Nancy C. asked her whether it was an accident, the child started to cry and said "No, grandma, it wasn't an accident. He grabbed my butt." Nancy C. saw defendant who was by then at the end of the aisle. She followed him so she could see what he looked like and what he was doing and continued to follow him until she saw him leave the store.
While Nancy C. and Michaela were on their way to the checkout counter, Nancy C. overheard Bonnie G. telling the store manager about the incident involving Samantha. After asking Bonnie G. whether her granddaughter had been touched too, Nancy C. told the manager what happened to Michaela.
As they left the store, Nancy C. and Michaela saw defendant sitting in his truck in the parking lot. Before leaving the lot, Nancy C. drove past defendant's truck and Michaela wrote down the license plate number and a description of the truck. Nancy C. then saw defendant move his truck to another area in the parking lot where he could view the store entrance, so she returned to the store with Michaela and called the police.
When the police arrived, defendant was still sitting in his truck. Officer Rowe asked him why he was still there and defendant explained that he went to buy briquettes for a barbeque and was checking his receipt to determine if he had enough money in his ATM account to make another purchase. However, he did not have a receipt in his hand and took some time to finally locate it in his wallet. The receipt had no information showing defendant's account balance. When the officer asked defendant about the reported touchings, he denied they happened, but said if he did touch anyone, it was an accident because it was very busy inside.
Meanwhile, Officer Gallagher took Samantha and Michaela outside where each one independently identified defendant as the man who touched her. Defendant was arrested and taken into custody.
On the morning of May 31, 1991, 15-year-old Jessie was walking alone on a trail on her way to the high school. As she walked through some bushes to a paved bike path, she saw defendant on the path. She walked behind him for a short distance and he kept looking back at her. When she left the path, he took another trail and fell in behind her. As Jessie was about to cross a dry creek bed, defendant ran up behind her, grabbed her, and lifted her off the ground. He put his hand over her mouth and, using "an evil, mean" tone, told her to "shut up" and then pushed her to the ground face down. As she struggled, her glasses and the rocks on the ground scratched her face. Although defendant was sitting on her, Jessie was able to turn over, but her legs were caught in the bushes, which scraped her legs whenever she moved them. Meanwhile, defendant was trying to unbuckle her belt. Believing defendant was going to rape her, Jessie decided to fight back and started to scream and hit him. He repeatedly told her to shut up and unsuccessfully attempted to control her flailing arms. When he grabbed her breast, Jessie became enraged and hit defendant harder. He finally fled and she was able to run to the school, where she reported the attack. Defendant pleaded guilty to a charge of assault with intent to commit rape (Pen. Code, § 220) and was sentenced to state prison for the attack.
The defense rested without presenting any evidence.
Following a jury trial, Petitioner was convicted of committing three counts of lewd and lascivious acts upon a child under fourteen years of age based on the two separate times he touched Samantha and the one time he touched Michaela. The jury found true a multiple victim penalty enhancement allegation as to each count, and Petitioner admitted the truth of two prior serious felony strike convictions, one of which was for the 1991 assault with intent to commit rape on Jessie. Petitioner was sentenced to forty-five years to life on count one, twenty-five years to life on count two, and forty-five years to life on count three. The multiple victim allegation was struck by the court as to count two after a finding that counts one and two were committed on the same occasion. In sum, Petitioner was sentenced to an aggregate indeterminate term of one hundred and fifteen years to life.
Petitioner timely appealed his convictions on multiple grounds to the California Court of Appeal, Third Appellate District. The court affirmed his convictions with a reasoned opinion on December 7, 2006. Resp. Ans. at Ex. A. Petitioner then filed a petition for review of the appellate court's decision in the California Supreme Court. The court initially granted review, then subsequently dismissed review on September 12, 2007. Petitioner filed a petition for writ of habeas corpus in the Butte County Superior Court on June 23, 2008, in which he alleged that he was denied the effective assistance of counsel and his right to a fair and impartial trial under the Fifth, Sixth, and Fourteenth Amendments. The petition was denied on June 24, 2008. Petitioner next filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District on July 28, 2008, in which he claimed that he was denied the effective assistance of both trial and appellate counsel in several ways, and that his rights to due process of law and a fair trial by an impartial jury were violated. The petition was denied without comment on July 31, 2008. Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court, alleging the same claims he presented in his petition to the state appellate court. The petition was denied on February 11, 2009. Petitioner filed a second petition for writ of habeas corpus in the Butte County Superior Court on January 23, 2009, in which he alleged that trial counsel rendered prejudicially ineffective assistance by advising him to admit that he suffered a prior serious felony strike and by failing to object to testimony on the strike allegation on the grounds that it "relitigated" the facts of the prior felony, in violation of double jeopardy principles. The petition was denied on January 27, 2009. Petitioner filed a second petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District, on February 18, 2009, alleging the same claims he presented in his second petition to the Superior Court. The petition was denied on February 26, 2009.
Petitioner filed this federal petition for writ of habeas corpus on August 24, 2009. Respondent filed its answer on August 10, 2010, and Petitioner filed his traverse on November 3, 2010.
IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). 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. 28 U.S.C. § 2254(d). Although "AEDPA does not require a federal habeas court to adopt any one methodology," there are certain principles which guide its application. Lockyer v. Andrade, 538 U.S. 63, 71 (2003)
First, AEDPA establishes a "highly deferential standard for evaluating state-court rulings." Woodford v. Visciotti, 537 U.S. 19, 24 (2002). Accordingly, when determining whether the law applied to a particular claim by a state court was contrary to or an unreasonable application of "clearly established federal law," a federal court must review the last reasoned state court decision. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004); Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Provided that the state court adjudicated petitioner's claims on the merits, its decision is entitled to deference, no matter how brief. Lockyer, 538 U.S. at 76; Downs v. Hoyt, 232 F.3d 1031, 1035 (9th Cir. 2000). Conversely, when it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, AEDPA's deferential standard does not apply and a federal court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
Second, "AEDPA's, 'clearly established Federal law' requirement limits the area of law on which a habeas court may rely to those constitutional principles enunciated in U.S. Supreme Court decisions." Robinson, 360 F.3d at 155-56 (citing Williams, 529 U.S. at 381). In other words, "clearly established Federal law" will be " the governing legal principle or principles set forth by [the U.S. Supreme] Court at the time a state court renders its decision." Lockyer, 538 U.S. at 64. It is appropriate, however, to examine lower court decisions when determining what law has been "clearly established" by the Supreme Court and the reasonableness of a particular application of that law. See Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 2000).
Third, the "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meanings." Bell v. Cone, 535 U.S. 685, 694 (2002). Under the "contrary to" clause, a federal court may grant a writ of habeas corpus only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides the case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams, 529 U.S. at 405. It is not necessary for the state court to cite or even to be aware of the controlling federal authorities "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002). Moreover, a state court opinion need not contain "a formulary statement" of federal law, but the fair import of its conclusion must be consistent with federal law. Id.
Under the "unreasonable application" clause, the court may grant relief "if the state court correctly identifies the governing legal principle...but unreasonably applies it to the facts of the particular case." Bell, 535 U.S. at 694. As the Supreme Court has emphasized, a 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." Williams, 529 U.S. at 410. Thus, the focus is on "whether the state court's application of clearly established federal law is objectively unreasonable." Bell, 535 U.S. at 694 (emphasis added).
Finally, the petitioner bears the burden of demonstrating that the state court's decision was either contrary to or an unreasonable application of federal law. Woodford, 537 U.S. at 24 ; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996).
A. INEFFECTIVE ASSISTANCE OF COUNSEL (Petitioner's Claim One)
Petitioner claims that trial counsel rendered prejudicially ineffective assistance in two ways. First, Petitioner contends he received ineffective assistance during a hearing bifurcated from his trial to determine whether he had suffered a prior conviction of a serious or violent felony strike within the meaning of sections 667(d)(1) and 1192.7(c)(10) of the California Penal Code when defense counsel advised him to admit a 1991 conviction for assault with intent to commit rape, a violation of section 220 of the California Penal Code.*fn1 Second, Petitioner contends that he received ineffective assistance when counsel failed to object to the testimony of Jessie Dicus, the victim of the 1991 crime. According to Petitioner, he suffered prejudice as a result of Ms. Dicus' testimony because the prosecution was permitted to "relitigate" that offense, committed years in the past, in violation of his right not to be subject to double jeopardy and his right to a speedy trial.
The Sixth Amendment to the United States Constitution guarantees to a criminal defendant the effective assistance of counsel. The United States Supreme Court set forth the test for determining whether counsel's assistance was ineffective in Strickland v. Washington, 466 U.S. 668 (1984). To support a claim that counsel's performance was ineffective, a petitioner must first show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Id. at 687-88. After a petitioner identifies the acts or omissions that are alleged not to have been the result of reasonable professional judgment, the court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the range of professionally competent assistance. Id. at 690; Wiggins v. Smith, 539 U.S. 510, 521 (2003). Second, a petitioner must establish that he was prejudiced by counsel's deficient performance. Strickland, 466 U.S. at 693-94. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, ...