The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER DENYING PETITIONER'S MOTION TO EXPAND THE RECORD, DENYING THE INSTANT PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge. Local Rule 305(b).
Following a jury trial in the Fresno County Superior Court, Petitioner was convicted of one count of committing a lewd act upon a child who was 14 or 15 years of age, Cal. Pen. Code § 288(c)(1), and one count of oral copulation of a person under the age of 18, Cal. Pen. Code, § 288a(b)(1). On August 3, 2007, the trial court sentenced Petitioner to two years in state prison.
On December 30, 2008, the California Court of Appeal affirmed the judgment.
On February 3, 2009, Petitioner filed a petition for review in the California Supreme Court. The petition was summarily denied on March 11, 2009.
Petitioner filed the instant federal petition for writ of habeas corpus on November 5, 2009. Respondent filed an answer to the petition on November 9, 2010, and Petitioner filed a traverse on November 30, 2010.
On August 31, 2011, Petitioner filed a motion for expansion of the record. Respondent filed an opposition on September 29, 2011.
Factual and Procedural Background On July 19, 2006, the Fresno County District Attorney filed an information, charging [Petitioner] with one count of engaging in a lewd act on a child who was 14 or 15 years old and at least 10 years younger than [Petitioner] (Pen. Code § 288, subd. (c)(1) and one count of oral copulation of a person under 18 (Pen. Code § 288a, subd. (b)(1)). The offenses were alleged to have occurred on February 12, 2004, and involved a single victim identified as "John Doe" in the information and as "J[.]" at trial. [Petitioner's] jury trial began on July 3, 2007. On July 10, 2007, the jury convicted [Petitioner] on both counts. On August 3, 2007, the trial court imposed a prison term totaling two years.
J., who was 18 years old at the time of trial, testified that when he was 14 years old, he went to a high school basketball game with his cousin. As he was leaving the game, he ran into [Petitioner]. [Petitioner] worked as a substitute teacher at J.'s high school. J. agreed to drive over to a store with [Petitioner] to buy some sodas.
Before they drove to the store, [Petitioner] and J. sat in [Petitioner's] car and talked about sports. [Petitioner] mentioned he was a trainer and helped the football coach train varsity players. J., a freshman football player, complained he had a charley horse. [Petitioner] responded by massaging J.'s left thigh for a couple minutes.
After they went to the store, [Petitioner] and J. went to [Petitioner's] motel so [Petitioner] could pick up some clothes. While [Petitioner] was in the bathroom, J. rested on the bed and watched television. When [Petitioner] came out of the bathroom, he started massaging J.'s right thigh. [Petitioner] asked J. to take off his pants. J. pulled down his pants and [Petitioner] continued to massage his thigh for a couple minutes. [Petitioner] then grabbed J.'s penis through an opening in his boxer shorts and orally copulated him. After J. ejaculated, [Petitioner] went to the bathroom and wiped his face on a towel.
[Petitioner] then drove J. back to school, where he met his cousin. That night, J. talked to the police about what happened. Officers responded to collect evidence from J., [Petitioner], and [Petitioner's] motel room.
Tests of a penile swab taken from J. indicated a mixture of DNA from only two contributors. Comparison with [Petitioner's] reference sample showed [Petitioner] was a possible minor contributor to the DNA mixture. A similar DNA mixture was found in a non-semen stain on J.'s boxer shorts; J. was a possible major contributor, and [Petitioner] was a possible minor contributor. Tests further revealed a semen stain in the crotch-area of J.'s boxer shorts. DNA detected in the stain was indistinguishable from J.'s reference sample. DNA detected in a semen stain on a washcloth collected from [Petitioner's] motel room was indistinguishable from [Petitioner's] reference sample.
E.G., who was 20 years old at the time of trial, testified that he knew [Petitioner] from when he was a sophomore at J.'s high school. [Petitioner] was his substitute teacher. E.G. played a number of sports at the time, including football, baseball, and track.
E.G. testified that once when he went to [Petitioner's] residence, [Petitioner] "massaged my leg where my muscles were probably hurting when I was playing in sports." Specifically, [Petitioner] massaged E.G.'s "thigh muscle" after he told [Petitioner] that it hurt. When asked if [Petitioner] did anything else, E.G. responded, "he didn't really like do nothing, he just massaged it to make it like probably feel better so it won't hurt no more."
E.G. then acknowledged that [Petitioner] moved his hand further up his thigh. When [Petitioner] did this, E.G. "pushed [Petitioner's] hand away" and "told him to back off just a little bit." When asked if there was a reason he pushed [Petitioner's] hand away, E.G. stated, "No reason that I know of." On cross-examination, E.G. testified that [Petitioner] never tried "to molest [him] in a sexual fashion."
The defense presented evidence reflecting some inconsistencies between J.'s trial account and his earlier police statements. Fresno Police Officer John Overstreet testified that J. told him that [Petitioner] massaged his legs and touched his penis over his clothing. J. also said that [Petitioner] pulled his pants down and orally copulated him, after which J. ejaculated into a towel. (LD 4 at 2-4.)
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Fresno County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008 (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
Where a petitioner files his federal habeas petition after the effective date of the Anti- Terrorism and Effective Death Penalty Act ("AEDPA"), he can prevail only if he can show that the state court's adjudication of his 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). "Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the earlier state court's decision "was contrary to" federal law then clearly established in the holdings of [the Supreme] Court." Harrington v. Richter, __ U.S. __, 131 S.Ct. 770, 785 (2011) (citing 28 U.S.C. § 2254(d)(1) and Williams v. Taylor, 539 U.S. 362, 412 (2000). Habeas relief is also available if the state court's decision "involved an unreasonable application" of clearly established federal law, or "was based on an unreasonable determination of the facts" in light of the record before the state court. Richter, 131 S.Ct. 785 (citing 28 U.S.C. § 2254(d)(1), (d)(2)). "[C]learly established ... as determined by" the Supreme Court "refers to the holdings, as opposed to the dicta, of th[at] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. at 412. Therefore, a "specific" legal rule may not be inferred from Supreme Court precedent, merely because such rule might be logical given that precedent. Rather, the Supreme Court case itself must have "squarely" established that specific legal rule. Richter, 131 S.Ct. at 786; Knowles v. Mirzayance, __ U.S. __, 129 S.Ct. 1411, 1419 (2009). Moreover, the Supreme Court itself must have applied the specific legal rule to the "context" in which the Petitioner's claim falls. Premo v. Moore, __ U.S. __, 131 S.Ct. 733, 737 (2011). Under § 2254(d)(1), review is limited to the record that was before the state court which adjudicated the claim on the merits. Cullen v. Pinholster, __ U.S. __, 131 S.Ct. 1388, 1398 (2011). "A state court's determination that a claim lacks merits precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Richter, 131 S.Ct. at 786.
"Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceedings, § 2254(d)(2)." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Both subsections (d)(2) and (e)(1) of § 2254 apply to findings of historical or pure fact, not mixed questions of fact and law. SeeLambert v. Blodgett, 393 F.3d 943, 976-77 (2004).
Courts further review the last reasoned state court opinion. SeeYlst v. Nunnemaker, 501 U.S. 979, 803 (1991). However, "[w]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Richter, 131 S.Ct. at 784.
III. Motion To Expand The Record
Rule 7 of the Rules Governing Habeas Corpus Cases Under Section 2254, ...