The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prison inmate proceeding pro se with a petition for a writ of habeas corpus challenging his conviction in Sacramento County Superior Court of thirty-two counts of child molestation and the resulting sentence of fifty-eight years to life. CT 666-671.*fn1
His petition contains eleven arguments: (1) violation of the statute of limitation applicable to Counts 8 through 25 of the state court indictment and of the ex post facto clause; (2) ineffective assistance of trial counsel; (3) ineffective assistance of appellate counsel; (4) consecutive sentences unconstitutionally based on findings not made by the jury and not found beyond a reasonable doubt; (5) violation of the applicable statute of limitations applicable to Counts 26 through 36 of the state court indictment; (6) insufficient evidence to convict petitioner of crimes committed by duress (Counts 1 and 3); (7) "[t]he prosecutor's deliberate misleading of the jury on the statute of limitations issue;" (8) violation of the Confrontation Clause; (9) insufficient evidence to convict petitioner of crimes against a minor under fourteen years old; (10) false or illegally obtained DNA evidence used against petitioner at trial; (11) improper imposition of the maximum term as to Counts 5 through 7, in violation of the applicable statute of limitations. See Amended Petition at 5-6b.
When Kumcha Neely married petitioner she had three daughters: Gina, born in 1982; Alicia, born in 1983, and Elizabeth, born in 1985.*fn2 RT 65, 320, 398, 549. Shortly after Kumcha and petitioner married, she and the girls moved to petitioner's house in Wilton. RT 67, 320, 399, 596. Alicia and Gina were given bedrooms upstairs, while Elizabeth's room was downstairs. RT 93. When Kumcha and the girls moved in, petitioner's son Billy lived in a downstairs bedroom. He moved out in 1996, just before he got married. RT 552-553. There were also two sheds on the property.
Petitioner made rules for the household. These included a ban on the girls' sleeping in each other's rooms or even visiting for long in each other's rooms and locking their doors at night. RT 75, 101, 421, 569. In addition, the girls were rarely allowed to have friends visit the house and were not allowed to date. RT 75, 322, 381, 570. After she got her cell phone, Alicia was required to check in with petitioner frequently. RT 296, 571. He would also call her. RT 252. The other girls were also required to check in, but not as often. RT 295, 571. Petitioner restricted their contact with their natural father, who lived in Arkansas. RT 649. They were generally scared to do something that would upset petitioner because he would yell at them. RT 322, 468. Even so, the girls called petitioner "Dad," gave him loving cards for father's day and told him they loved him. RT 209, 463.
When Alicia was in the fifth grade, petitioner started having her sit on his lap or next to him on the couch when they watched television. RT 406. Once when they were watching television when Alicia was twelve or thirteen, he kissed her and tried to put his tongue in her mouth. RT 76. On another occasion when she was thirteen, when they were outside feeding the calves, petitioner succeeded in putting his tongue in her mouth and put his hand down the front of her pants. RT 79, 81. There were perhaps five other instances when petitioner kissed and touched her sexually when she was thirteen. RT 83-84. She did not tell anyone because she hoped it would all go away. RT 82.
Petitioner first had intercourse with Alicia when she was thirteen. RT 86. He called her to his room, sat her on the bed, pushed her down and tried to take her pants off.
RT 87. She held on to her pants, but he overpowered her and pulled them down. RT 88. He stuck his fingers into her vagina as he held her down with his other arm. RT 89, 224. He then put on a condom and put his penis in her vagina. RT 89. When it was over, she put her clothes back on, went into the bathroom crying, and threw up. RT 90.
There were five other acts of intercourse in her parents' bedroom. RT 90. There were four or five acts of intercourse in her bedroom before she moved downstairs. RT 99. Every time petitioner would try to remove her pants and underwear, she would resist, and he would try harder. RT 104. At some point, petitioner engaged in oral copulation with Alicia; the first time was in her bedroom upstairs. RT 99, 100.
Sometimes Gina could hear footsteps in Alicia's room at night, through the shared wall of their upstairs' bedrooms. RT 409-410. Sometimes petitioner would announce loudly that he was going to help Alicia with her homework and go into her room. RT 412. Gina then would hear nothing until petitioner would once again say something about homework and leave Alicia's room. RT 412. Gina thought it was odd that petitioner helped Alicia because they were all bright and Alicia did well in school. RT 355, 411. Petitioner helped Alicia with her homework, but did not help Gina or Elizabeth. RT 637.
Once, during the summer of 1997, petitioner asked Gina and Elizabeth to go outside and feed the cats. RT 403-404. Gina looked in the window and saw petitioner putting his tongue in Alicia's ear. RT 404. She never said anything because she "didn't know if what I saw was really what I was seeing." RT 405.
In 1997, the family began a lengthy remodeling project on the house, which involved bumping up the roof line and adding a mudroom. The plans were drawn up by the girls' paternal great-grandfather, who also secured the permit for the remodeling in March 1997. RT 556-560. Approximately five months after they secured the permit, Alicia moved to Billy's former room downstairs, where she stayed until she was seventeen. RT 95, 100, 560. The family did most of the work themselves throughout 1998 and 1999. RT 126, 561.
After Alicia moved downstairs, petitioner would come to her room approximately once a week, generally late at night. RT 105, 108, 152. He would close and lock the door, pull her legs to the side of the bed and remove her pajama bottoms, overcoming her resistance to being undressed. RT 106. Petitioner would stick his fingers and then his penis into her vagina and perhaps seventy-five percent of the time he would touch and kiss her breasts. RT 106, 109. Petitioner would not wear a condom, but would pull out and ejaculate on her stomach, in his hand, or into a tissue. RT 107-108. Alicia would cry. RT 107. If petitioner heard someone, he would go into the bathroom. RT 110.
Once, when Alicia was in the downstairs bedroom and petitioner was having sex with her, Kumcha came to the door and tried to open it. RT 112. She knocked and said "what are you doing in there?" RT 112, 574. Petitioner pulled up his pants and opened the door.
RT 112. Alicia went under the covers. Id. Petitioner said that Alicia was having a bad dream and that the door must have locked accidentally. RT 113, 574. Kumcha came into the room and asked Alicia if she was all right. RT 113, 574. Kumcha trusted petitioner and so did not think anything inappropriate had happened. RT 664.
Kumcha and the girls were Jehovah's Witnesses and attended meeting three times a week. RT 593. Sometimes Alicia stayed home from meeting ostensibly because she had a lot of homework or had to help around the house. RT 420, 654. One evening in 1997 or 1998, Gina, Elizabeth and Kumcha returned home from a church meeting and found the front door locked. RT 419, 425. The family generally did not lock the door when anyone was home and because petitioner and Alicia had remained at home, no one had a key. RT 419. Petitioner appeared flustered when he answered the door and said he had decided that they should lock the doors from then on. RT 428. Alicia was on the couch, crying. RT 419, 425.
Petitioner bought a car for Alicia when she turned sixteen. RT 577. He worked on the car and enlisted Alicia's help. RT 135, 578. Sometimes when they were working on the car, he took her into one of the sheds on the property, pulled her pants down, told her to bend over and then put his penis in her vagina. RT 134. This occurred ten or fifteen times before she turned eighteen and ten or fifteen times after she turned eighteen. RT 135-136. He ejaculated into a towel and threw the towels into a bucket. RT 138. After the mudroom was added, petitioner would ask Alicia to get a tool and then come into the mudroom after her. She would resist as he unfastened her pants, but he would always pull harder and then bend her over for an act of intercourse. RT 129, 258. He would ejaculate into his hand or into a paper towel or tissue and dispose of the towel into a basket. RT 129. There were ten instances of intercourse in the mudroom and during half those times, petitioner also put his fingers in her vagina. RT 129.
Work on the upstairs was completed in late spring 2001, and Alicia moved back upstairs. RT 564-565. She was seventeen and a senior in high school. RT 122. Petitioner continued to put his fingers and penis in her vagina and sometimes his mouth on her vagina in her room upstairs, but generally when no one else was home. RT 122-123. Intercourse occurred less frequently when she moved back upstairs, but more frequently petitioner would grab Alicia's hand and put it on his penis. RT 110-111.
Petitioner's sexual acts with Alicia continued after she turned eighteen and had started college. RT 125. Alicia did not have class on Wednesdays and on some of those days, petitioner would come home during his lunch hour, grab Alicia by the arm and pull her into her sister Elizabeth's room for sex. RT 141.
Alicia was adamant that she never had consensual sex with petitioner, even when she was eighteen or nineteen; that she never kissed him in a sexual way on her own; that she did not initiate sex with petitioner; and never took her pants down on her own. RT 203, 281, 312. The parties stipulated, however, that during an interview with the deputy district attorney, Alicia said that although petitioner would usually pull her pants down, sometimes he would ask her to do so and she would comply. CT 452; RT 1013.
One of the last times petitioner tried to have sex with Alicia was in December 2002 or January 2003. RT 141-142. Petitioner came home at lunch and pulled Alicia into Elizabeth's room. RT 143. Alicia cried and told him she couldn't do it any more. RT 143-144. He had sex with her anyway. RT 144. After that, on another occasion, petitioner grabbed her as she walked by and when she resisted, he said "what do you think I'm going to do, rape you?" RT 145. She pushed him away. RT 145.
After Alicia graduated from high school, she began asking to move out of the house. RT 578. She was in college, though, and had no money to move out. RT 142-143. She was fighting all the time with petitioner. RT 204. Kumcha thought Alicia wanted to move out so she could have the freedom to date and to be more involved in their religious activities, which petitioner would not allow because of all the things petitioner wanted help with around the house. RT 585. Eventually, Alicia's grandfather said she could move into the apartment over his garage, rent-free. RT 143, 207.
One night in March 2003, when Kumcha was showering, petitioner grabbed Alicia and when she resisted, petitioner called her a "cold-hearted, selfish fucking bitch."
RT 146. Kumcha heard Alicia crying, so went to Alicia's room. RT 579. Alicia said petitioner had called her a cold bitch. RT 579. Kumcha asked petitioner why, but he denied saying anything. He went to Alicia's room and apologized. RT 579.
Despite petitioner's ongoing activities with Alicia, when Elizabeth turned thirteen, petitioner began to touch her sexually. RT 324.*fn3 The first time he put his hand down her pants. RT 324. After that, he began coming into her room around 6:00 a.m., where she would be sleeping on her stomach. RT 328, 329. He would lift her tee shirt, rub her back and then slide his hand under her pajama bottoms and squeeze or kiss her bare buttocks. RT 329, 331, 338. On occasion, he would attempt to reach around to her vaginal area, but she would pull his hand away. When she did so, he would say "don't be mean to me." RT 333. Petitioner touched her in a similar way hundreds of time, up until she was seventeen. RT 334-335. Elizabeth was scared of petitioner, but he did not threaten her or warn her against telling anyone. RT 361.
Once, Gina came into Elizabeth's room when petitioner had his hand on her chest; her tee shirt was pulled up. RT 365, 413. Petitioner said he was checking Elizabeth's heart beat. RT 365, 415.
On March 17, 2003, when Kumcha and petitioner were driving home from work, petitioner said he seemed to be chasing the girls away. RT 580-581. Kumcha said they were old enough to move out, so he should not worry about it. RT 581. Petitioner said they should call the girls and meet them at a Chinese restaurant. At the restaurant, Alicia said she was moving to her grandfather's house. RT 581. Petitioner became furious and left without eating. RT 581.
When they got home, petitioner asked Alicia why she was moving to her grandfather's house when her grandfather did not love her and petitioner did. RT 582. Alicia began to cry. RT 582. Kumcha then said she would take Wednesday off work so they could talk. RT 583. Kumcha told petitioner about the plan; he asked if Alicia had told her anything. RT 583.
On March 18, 2003, petitioner asked Kumcha to leave work a few hours early so he could tell her something. Once they got home, he told Kumcha he had had sexual relations with Alicia. RT 587. Kumcha asked why he ruined Alicia's life, but did not ask him how long he had been having sexual relations with Alicia. RT 588, 657.
Alicia explained that she did not tell anyone about the molestation because petitioner told her it would not turn out the way she wanted, which she understood to mean that no one would believe her. RT 113. He also said it would break her mother's heart. RT 113. In addition, she began to be worried about her sister Elizabeth, because it appeared to Alicia that petitioner was sitting too close to Elizabeth and looking at her in the same way he looked at Alicia. RT 159. Alicia thought that if petitioner continued to have intercourse with her, nothing would happen to Elizabeth. RT 158. Elizabeth did not say anything about the touching because she did not know how to tell people about it. RT 345.
On March 19, 2003, Deputy Dan Griffith of the Sacramento County Sheriff's Department was dispatched to petitioner's house in Wilton and took a statement from Alicia. RT 669. Alicia took him to the mudroom, where she pointed out a bucket that held some paper towels or napkins crumpled in the bottom. RT 671, 674-675. He could see some yellowish discoloration of the towels, which were touching each other. RT 676, 693. Griffith accompanied Alicia to a shed, where he found more crumpled up paper towels in a basket on a shelf. RT 678. These, too, had yellowish discoloration and were touching each other. RT 680, 693, 699. He collected and bagged the evidence. RT 681, 683, 695.
Dean Bowen is a detective with the Sacramento County Sheriff's child abuse unit. RT 484. On March 19, 2003, he had Alicia make a pretext call to petitioner . RT 487. He listened to the call and wrote questions for Alicia to ask petitioner. RT 153, 489. During the call, Alicia said "this has been going on . . . for six years," and petitioner said "yeah." She also said she had told Kumcha how long it had been going on and petitioner said "well, I'm not gonna put any of it on you. . . ." CT 727. Alicia asked petitioner about the first time they had sex and petitioner said it was "in the upstairs, before we did the remodel." CT 729. When she asked why petitioner chose her "to do this to," he responded that he loved her. CT 730. Alicia asked "how we did it for that long without . . . me getting pregnant," and petitioner said he never ejaculated inside her. CT 734. When petitioner said he would never do anything to hurt her, she asked "so all these years . . . this wasn't hurting me?" RT 735. And when petitioner said he thought she enjoyed it, Alicia asked how she could have enjoyed it when she was thirteen years old. CT 736. Petitioner reiterated that he thought she enjoyed it. CT 736.
There was a second call later that evening. RT 500. Petitioner told Alicia he was "not saying a thing about our relationship" and would not "lay any blame on you . . . ." Alicia asked "how is it like a relationship?" RT 750. Petitioner said he wanted her for himself.
A few days later, petitioner arrived unannounced at the house and asked to talk to Kumcha. RT 589. Petitioner said if she was going to call the police, he would sign everything. RT 590.
Criminalist Jeff Herbert performed DNA testing on the semen found on four of the paper towels recovered from the shed and the mudroom, developed profiles from the samples and compared them to the reference samples taken from Alicia and petitioner. RT 739, 741. The profile from the sperm fraction of all four towels matched petitioner. RT 742-743. When he was not able to separate the sperm fraction completely from the female contribution to the sample, he determined that petitioner was the major contributor of the sample and Alicia the minor contributor. RT 746.
Herbert acknowledged that there was a third peak at one of the allelles which did not match petitioner or Alicia, but attributed that to a "stutter" or an artifact from the process of duplicating the DNA for testing. RT 765, 768, 782. He determined that this was a stutter and not a true DNA peak because nothing else suggested a third person had been present. RT 774.
Dr. Anthony Urquiza is a psychologist and the director of the CAARE Center, part of Department of Pediatrics at UCD Medical Center, which provides services to families with abuse or violence issues. RT 512-513. He also does research into the area of child abuse as well as clinical work in the field. RT 513, 516. He described the Child Sexual Abuse Accommodation Syndrome, an educational tool applicable to children between the ages of four and eighteen. RT 525-527. Dr. Urquiza testified that it is typical for the child to delay disclosure of the abuse. RT 533. He also explained that children sometimes endure the abuse in order to protect a younger child. RT 532.
The defense called a number of witnesses. Billy Neely testified that there was a key hidden outside and everybody knew about it. RT 853. Billy's wife Jenny testified that Kumcha's girls never seemed afraid of petitioner and that they were eager to help Jenny select Christmas presents for petitioner. RT 862, 865. Sean Gehrke lived in a mobile home on petitioner's property with his grandparents and said one of the sheds belonged to his grandfather, Jim McCurry, who had the only keys to it. RT 882, 884. Gehrke also said the mudroom was only ten to fifteen feet from the trailer and one could see inside the mudroom from the trailer. RT 891. Kathy Roberts, petitioner's ex-wife, said that her stepfather Jim McCurry did not want people to get into his things stored in the shed; she acknowledged, however, that she gave petitioner the keys to the shed in October 2001. RT 901, 907. Wendi Cross, petitioner's daughter, said that the girls treated petitioner as a father figure and never seemed afraid of him. RT 840.
II. Procedural Background
A complaint was filed on June 23, 2003, charging thirty-six different counts based on acts against Alicia and Elizabeth. Lodg. Doc. 13 at 13-32, CT 13-23. Although there are records which indicate that an arrest warrant was requested, Lodg. Doc. 13 at 33-34, there is no copy of the warrant itself. On July 16, 2003, the petitioner was arraigned on the charges. Lodg. Doc. 13 at 1. In November, 2004, a jury trial commenced. Lodg. Doc 13 at 7. The jury was instructed that count two was a lesser included offense of count one and that count four was a lesser included offense of count three and that if they returned guilty verdicts on the greater counts, they need not address the lesser counts. RT 1257-1261. Because the jury returned guilty verdicts on counts one and three, as well as all the other remaining counts, there are no verdicts on counts two and four. RT 1294.
On direct appeal from his conviction, petitioner's appointed appellate counsel challenged only the determination of the custody credit and the wording of the abstract of judgment. Lodg. Doc. 2. Acting in pro per, petitioner then filed a petition for review in the California Supreme Court, raising a number of grounds not presented to the Court of Appeal. Lodg. Doc. 3. That court denied review. Lodg. Doc. 4.
Petitioner thereafter filed a petition for collateral review in the Sacramento County Superior Court. Lodg. Docs. 5 & 6. That court found that petitioner's misdemeanor convictions, counts thirty-five and thirty-six, were barred by the statute of limitations, but denied the petition in all other respects. Lodg. Docs. 7 & 8.
Petitioner thereafter sought habeas relief from the California Court of Appeal and Supreme Court, both of which denied his petitions without comment. Lodg. Docs. 9-12; see also Am. Pet. at unnumbered page 9.
III. Standards Under The AEDPA
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). Also, 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) (referenced herein in as "§ 2254(d)" or "AEDPA").*fn4 It is the habeas petitioner's burden to show he is not precluded from obtaining relief by § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) are different. As the Supreme Court has explained:
A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362 (2000)] that an unreasonable application is different from an incorrect one.
Bell v. Cone, 535 U.S. 685, 694 (2002). A state court does not apply a rule different from the law set forth in Supreme Court cases, or unreasonably apply such law, if the state court simply fails to cite or fails to indicate an awareness of federal law. Early v. Packer, 537 U.S. 3, 8 (2002).
The court will look to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003). Where the state court fails to give any reasoning whatsoever in support of the denial of a claim arising under Constitutional or federal law, the Ninth Circuit has held that this court must perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). In other words, the court assumes the state court applied the correct law, and analyzes whether the decision of the state court was based on an objectively unreasonable application of that law.
It is appropriate to look to lower federal court decisions to determine what law has been "clearly established" by the Supreme Court and the reasonableness of a particular application of that law. "Clearly established" federal law is that determined by the Supreme Court. Arredondo v. Ortiz, 365 F.3d 778, 782-83 (9th Cir. 2004). At the same time, it is appropriate to look to lower federal court decisions as persuasive authority in determining what law has been "clearly established" and the reasonableness of a particular application of that law. Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 1999); Clark v. Murphy, 331 F.3d 1062 (9th Cir. 2003), overruled on other grounds, Lockyer v. ...