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Fermin Coronado Galvez v. James D. Hartley

December 6, 2011

FERMIN CORONADO GALVEZ, PETITIONER,
v.
JAMES D. HARTLEY, RESPONDENT.



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

ORDER, FINDINGS AND RECOMMENDATIONS

Petitioner, Fermin Coronado Galvez, is a state prisoner proceeding with a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a determinate sentence of ten years and eight months in prison after a jury found him guilty on two counts of lewd and lascivious acts upon a child under fourteen (Cal. Penal Code § 288(a)), two counts of digital penetration of a child under fourteen (Id. § 289(a)), one count of battery (Id. § 242), and one count of indecent exposure (Id. § 314(1)). On June 11, 2010, Petitioner submitted an amended petition for writ of habeas corpus. In that petition, Petitioner raises four claims for relief; specifically: (1) the redaction of two portions of a letter Petitioner wrote to the victim's mother that was submitted into evidence violated his right to a complete defense and fundamentally fair trial ("Claim I"); (2) the trial court erred by failing to appoint an interpreter for Petitioner throughout the proceedings ("Claim II"); (3) Petitioner's trial counsel was ineffective for failing to introduce evidence during a motion for a new trial ("Claim III"); and, (4) his counsel was ineffective for failing to investigate evidence that Petitioner was at work in California a the time he was alleged to be in Utah and Nevada with the victim ("Claim IV"). For the reasons stated herein, the federal habeas petition should be denied.

I. FACTUAL BACKGROUND*fn1

Defendant began molesting the victim when she was nine years old and he was the live-in boyfriend of her maternal grandmother, M. The victim was very close to her grandmother, viewed defendant as a grandfather, and felt that defendant's child and her grandmother's children were like siblings to her.

The first incidents took place about a week before the victim was to accompany her grandmother, defendant, and their children on a trip to Utah. While she was watching television late at night in the living room, defendant sat down on the couch next to her chair and started to hand her notes. The initial notes were simple, such as "How are you?" They then escalated to telling her she was pretty and ultimately inquiring whether she liked pornography and showing her sexually explicit photographs in several pornographic magazines. Defendant told her that one day they would do what the magazines depicted. She was "very scared" and said nothing. Defendant next asked her, "Do you want to see something?" She shrugged her shoulders, and defendant pulled down his pants, exposing himself. The victim was too scared to tell anyone what had happened.

Two nights later, while the victim was alone on the living room couch, defendant moved her body so she was on her hands and knees, put his penis on her vagina, and penetrated her with his fingers. After hearing a noise, defendant pulled his pants up and told the victim to do the same.

Several incidents happened during the trip to Utah, which started early the next morning. As the victim was taking a shower with her grandmother's daughter in a hotel room, defendant tried to grope the girls through the shower curtain, but failed as they scooted back. Once, when the victim was sick in bed, defendant put his hands down her pants and molested her.

The last incident on the trip took place while they were driving in the family's van. It was late at night when the victim's grandmother was driving, her daughter was in the front passenger seat, and the two boys were sleeping in the backseat. Defendant and the victim were in the middle seats, where he put a pillow over her, quietly unzipped her pants, and penetrated her with his fingers. The victim went home after the Utah trip, and some sort of incident took place every time she returned to visit her grandmother. For example, when her grandmother was gone, defendant would crawl into the victim's bed and place her on her hands and knees as he had done before. Once when she was coming out of the laundry room, he told her to stop and played with himself until he ejaculated. One early December morning, he unsuccessfully tried anal intercourse with her. She was 10 years old at the time. According to the victim, defendant touched her inappropriately "[p]robably more than 20 times" when she was 10 years old. The last incident took place in August 2003. Defendant was in the grandmother's bed when the victim quietly went through the room to check her cell phone in the bedroom of her grandmother's daughter. Defendant followed the victim, placed her on her hands and knees, and had intercourse with her.

The victim also described an incident when she was watching television on her grandmother's bed and defendant made the victim and her grandmother's daughter put their hands on each other, trying to make the girls grope each other. After defendant left, the victim asked the other girl, "is this, like, just for me?" The other girl replied, "Don't worry about it. Just forget about it." Another time, when the two girls were in bed together, defendant got into the bed and molested the victim and appeared to be doing the same to the grandmother's daughter.

When she was in the seventh grade, the victim told a friend about the incidents, but asked her not to tell anyone because the victim was afraid of what might happen to her family. The friend eventually told her mother, who told the victim's mother, who then found out about the incidents from the victim.

The victim's mother testified the trip to Utah took place in August 2000. After learning about the molestation from her daughter in late September 2003, she called the grandmother and told her about the victim's disclosure. The grandmother called the victim a liar and said there was no way it could have happened. Within a week of the phone call, the victim's mother received a letter from defendant.

In the four-page, handwritten letter, defendant claimed that the victim's mother was destroying the family by dealing with the accusations in the wrong way. He also indicated he might be in Mexico by the time she read the letter. Defendant alleged the victim used to grab him and reach for people's private parts. He also claimed any inappropriate touches were accidental, and if he was that sick "I woldit [sic] fucker [sic]." Defendant's letter went on to say had he "want it [sic] to fucker [sic]," he "wold it [sic] did it."

Two passages were redacted from the letter, allegations by defendant that the victim was being molested by another person and was using him as a scapegoat, and that she was mad at him because he caught her outside the door with a boy "sucking" his "dick." Over defendant's objection that those portions of the letter should not be redacted, the trial court allowed the prosecutor to introduce the redacted letter but left open the possibility that the redacted portions could be admitted as defense evidence. Regarding the boy to whom defendant's letter referred, the victim testified she met the boy at the eighth grade "promotion" ceremony for the grandmother's daughter. She had her first kiss with him, but they were just friends. They were once walking together in the front yard of her grandmother's house when defendant told the victim not to get involved with the boy because he lived five hours away from her. At the time, she thought defendant's comment was not "a big deal."

When Deputy Sheriff Alex Nishimura interviewed the victim about the reported molestations, she had considerable difficulty taking about them, several times breaking down and crying after two or three sentences. She could not fully discuss every incident, but she could relate the details of several incidents where defendant molested her during the trip to Utah.

The victim's friend confirmed that the victim confided to her about being molested by defendant, telling her during gym class in the seventh grade. According to the friend, the victim was at first reluctant to tell and was crying and very upset when she finally said she had been raped by her grandmother's boyfriend.

A physical examination of the victim was normal, but an expert testified that over 95 percent of sexually assaulted children have "normal exams." A doctor testifying as a defense expert agreed the exams were normal, but could not conclude from this whether the victim had in fact been molested.

The grandmother's daughter testified she never saw defendant touch the victim inappropriately. She also testified that defendant was not in the middle seat with the victim during the trip to Utah, because he did all the driving due to the grandmother's bad back.

According to this witness, defendant did nothing improper to either girl while they were together and she never saw a pornographic magazine in the home.

The boy described in defendant's letter testified he met the victim at the eighth grade graduation and then had a "little . . . summer fling" with her, where he might have been her first kiss. Once, in the summer of 2003, he was sitting outside with her and defendant asked her to go inside. He did not recall the victim getting mad at defendant over this. The boy and the victim did nothing more than kiss each other once or twice.

Defendant's son testified that he never saw anything inappropriate occur between defendant and the victim.

The grandmother testified she never saw pornography in her house and never saw defendant inappropriately touch either girl.

The grandmother's son testified it was not possible for defendant to have molested the victim in the van on the trip to Utah because defendant did all of the driving. The witness once commented to defendant about the victim and the boy doing their "little cuddle thing" on the couch. Defendant then talked to the victim about this, which upset her. Defendant had a vintage Playboy magazine which he kept in his desk, but had no other sexually explicit materials in the house.

Defendant relied on an interpreter in giving his testimony. English was defendant's second language, and defense counsel felt that an interpreter would allow defendant to testify in Spanish, his native tongue, with which he was more comfortable explaining subtleties and complex ideas. According to defendant, the victim was like a friend and granddaughter to him, while the victim's mother was often mad at him and they did not get along. Defendant admitted writing the letter and explained that he was angry at the victim's mother for believing the accusations. He thought about going to Mexico because he was so angry, and stated this in the letter. He felt someone should talk to an alleged perpetrator before going to the police with the accusation. Defendant, who completed only the sixth grade, said he meant "hug" when the letter referred to the victim grabbing him. A statement in the letter that the victim opened her legs to him meant when she would play "horsey" on him. The assertion that he saw her grabbing private parts was derived from defendant thinking the victim had once done this to the boy. Defendant denied doing anything improper to the victim or the grandmother's daughter and denied showing the victim any pornography.

II. 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. 1993); 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); Perry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000).

In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). "When it is clear, however, that the state court has not decided an issue, we review that question de novo." Reynoso v.Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S. 374, 377 (2005)).

III. ANALYSIS OF PETITIONER'S CLAIMS

1. Claim I

After Petitioner was accused of molesting his girlfriend's granddaughter, he wrote a letter to the victim's mother denying the allegations. That letter, which is presented in full in the state court opinion below, was read to the jury at Petitioner's trial with two portions redacted. One of the redactions eliminated a sentence where Petitioner alleged that someone else had molested the victim and that Petitioner was a scapegoat. In the other redacted section, Petitioner alleged that the victim was lying about the molestation because she was mad at Petitioner for catching her performing oral sex on a male friend. In Claim I, Petitioner contends that these redactions violated his right to a fair trial.

The last reasoned state court decision on this claim is the opinion of the California Court of Appeal on direct appeal.*f ...


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