The opinion of the court was delivered by: James K. Singleton, United States District Judge
Brent Jeffrey Lambert, a state prisoner, appearing through counsel, filed a Petition for Habeas Corpus under 28 U.S.C. § 2254. Lambert is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at Mule Creek Prison. Respondent has answered, and Lambert has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following a jury trial, in June 2007 Lambert was convicted in the Sacramento County Superior Court of six counts of lewd conduct against a minor, Cal. Penal Code § 288(a), involving two, or more victims, Cal. Penal Code § 667.61(e)(5). The trial court sentenced Lambert to six consecutive terms of fifteen years to life, for an aggregate sentence of ninety years to life. The California Court of Appeal, Third Appellate District, affirmed Lambert's conviction and sentence in an unpublished decision,*fn1 and the California Supreme Court denied review on September 16, 2009. Lambert then filed a petition for habeas relief in the California Supreme Court on September 2, 2009, which was denied on March 18, 2010 citing In re Swain, 209 P.2d 793, 796 (Cal. 1949).*fn2 Lambert timely filed his Petition for relief in this Court on September 17, 2010.
The facts underlying Lambert's conviction, as summarized by the court of appeal:
C. is the mother of A. and B. A. was eight years old at the time of the crimes in 2003 and 12 years old at the time of trial in 2007. B. was five years old at the time of the crimes and nine years old at the time of trial. C. also has two other children.
C. met [Lambert] when they were teenagers and dated for one year before she joined the military in 1991. She married another man, but in October 1996, after she had broken up with her husband, she moved in with [Lambert] in another state.
In 1999, C. and [Lambert] broke up for several months. During that time, C. and the children lived with a woman and a man whom the children called Grandpa Jim. On several occasions when Grandpa Jim was alone with the children, he took
A. to his bedroom and molested her. A. was six years old when this was reported to the police. Around August 1999, C. and [Lambert] reunited and lived together again.
In March 2002, [Lambert], C., and the children moved to the Sacramento area.
In March 2003, B. who was five years old at the time, approached C. and said, "Don't worry mommy, I know daddy and I are not having sex." C. asked her what she meant, and B. responded that she wasn't supposed to talk about it and didn't want
A. to know that she had said anything. C. called A. into the room and asked her what
B. meant by saying that she and [Lambert] were not having sex. A. became upset at
B. and yelled at her for telling their mother. A. told C. that, while C. was at work, [Lambert] had been touching A. and B. sexually.
C. waited more than one week before going to the police on March 16, 2003, with the information she received from A. and B. In the meantime, she took money out of a joint account with [Lambert] and put it into her own name so that she would be able to pay rent and bills in the event [Lambert] were to flee. When C. finally went to the police, she lied about when the victims had told her about the abuse.
Deputy Michael Liston of the Sacramento County Sheriff's Department went to the home to investigate the abuse report. He interviewed A. and B. together in the kitchen to substantiate that a crime had occurred. The conversation lasted 10 or 15 minutes, during which the victims disclosed sexual abuse by [Lambert].
A. told Deputy Liston that [Lambert] would place his penis between her legs and attempt to put it in her vagina and anus, both while she faced him and while her back was to him. He would spit on his hand for lubrication. She knew it was wrong but was afraid to say anything. B. would come into the room while A. and [Lambert] were under the covers.
B. told Deputy Liston that [Lambert] had touched her in her "crotch" area with his "dick." Deputy Liston clarified with B. that she was talking about her vaginal area and [Lambert's] penis. A. and B. were interviewed separately at the Multidisciplinary Interview Center (MDIC) on April 2, 2003, 17 days after C. reported the abuse to the police.
At the time of the interview, A. was eight years old and in second grade. The interviewer established that A. knew the difference between a lie and the truth.
The interviewer asked A. if anything had happened to her that was not "okay." A. responded that [Lambert] "did a bad thing to me and my sister." A. explained that she knew something bad had happened to B. because B. had told her.
During the interview, A. said that what [Lambert] had done to her occurred once in her bedroom and all of the other times in his room. [Lambert] molested her when she was five and six years old. [Lambert] stopped molesting her, then Grandpa Jim molested her and got arrested, then [Lambert] started molesting her again. [Lambert] did not molest her during the time that Grandpa Jim was molesting her. [Lambert] also molested her when she was seven and eight years old.
A. described a game she would play with [Lambert] and B., in [Lambert's] bedroom at night, called "cats." After playing the game, [Lambert] would put his tongue and his penis in her vagina, while using his hands to spread her legs. He would also twist her breasts with his hands. His penis was stiff and he would move back and forth. He would also spit on his hand and wipe it on his penis. A. was too scared to try to get away. B. was in the room when this happened but did not see it happen because [Lambert] and A. were under the covers. This happened while C. was at work. [Lambert] threatened A. that, if she ever told anyone, he would hurt her.
A. said that [Lambert] put his penis in her vagina 17 times and his tongue in her vagina 5 times. He twisted her breasts 16 times. About 20 times, [Lambert] put his penis in her anus. When asked whether anything else happened with [Lambert],
A. replied that "[n]othing else different happened." [Lambert] never had A. do anything to his body.
A. said that, when she was five, she told C. about the molestation because her brother saw it happen and got upset. (Later in the interview, A. said that her brother saw Grandpa Jim, not [Lambert], molesting her.) C. got mad at [Lambert] and had
A. stay away from him for 60 days, but she did not call the police because, in A.'s words, "it wasn't so bad the first time" and "he wasn't doing that to me very oftenly [sic ]."
At the time of the MDIC interview, B. was five years old and in kindergarten.
The interviewer established that B. knew the difference between a lie and the truth, and B. promised to tell the truth.
When the interviewer asked B. whether anything had happened to her body that was not okay, she responded that [Lambert] "did something to my sister and me, and that was gross." He did something to her two times, once in her bed and once in [Lambert's] bed, while C. was at work.
The time that it happened in [Lambert's] bedroom, he put his penis in B.'s vagina. His penis was hard, and he was not moving. He stopped because he had to go to the bathroom. A. was not in the room at the time.
In B.'s bedroom, she was lying on her bed on her stomach. [Lambert] put his penis in her anus. His penis was hard, and he was not moving. Although B. said that something had happened only twice, she said that [Lambert] put his penis in her anus on another occasion also.
B. saw [Lambert] molest A.
D. The Prosecutor's Interviews of A. and B.
The prosecutor interviewed A. and B. on May 25, 2007, which was shortly before trial and more than four years after the MDIC interviews. An investigator from the District Attorney's office observed the interview and took notes. The investigator testified concerning the interview.
A. stated that most of [Lambert's] acts took place in the living room during the daytime. He put A. on his lap and put his penis in her anus and his fingers in her vagina. A. and B. played a game called "cats" with [Lambert]. B. was the wild cat, and A. was the house cat. [Lambert] was the father cat. He had A. and B. purr while he touched them sexually. [Lambert] put his penis in A.'s mouth, his penis in her vagina, and his mouth on her vagina and chest. He also hit her in the face with his penis. She said that it happened several times during each week and more than once during some days. She also saw [Lambert] molest B. three times. He made B. watch and purr while he molested A.
B. stated that [Lambert] molested her three times, all in [Lambert's] bedroom. They played "cats," during which they all were on the bed. They rubbed up against [Lambert] and purred and cuddled with him. He threatened her that, if she told anyone, he would kill the entire family.
A. testified that she was 12 years old and in sixth grade at the time of trial. She demonstrated her knowledge of the difference between truth and lies.
Grandpa Jim molested A. while she lived in another state. One time, her brother saw this happening through the window. They told C. what was happening.
[Lambert] molested A. while she lived in California. (She moved from the state after [Lambert] was arrested.) She did not remember how old she was or what grade she was in when [Lambert] molested her. The molestation took place in the living room or in [Lambert's] bedroom.
In the living room, he would sit on a chair with his pants down and a blanket over him. He would tell A. to sit on his lap and, when she did, he would put his penis in her anus. He did this frequently.
In [Lambert's] bedroom, [Lambert] would put his penis in A.'s vagina and anus and he would touch her chest. He would also put his tongue in her vagina. He made her put her mouth on his penis. [Lambert] played "cats" with A. and B. He would have them crawl around on the bed and purr, then he would molest A.
A. saw [Lambert] put his penis in B.'s vagina once when he was putting her to bed. B. screamed, and [Lambert] told her to shut up and left. Another time, in [Lambert's] room, A. saw [Lambert] put his penis in B.'s vagina and anus after he had done the same thing to A. After he finished with B, he returned to A. and put his penis in her vagina.
A. did not remember talking to the police after C. reported the molestation. She also did not remember the MDIC interview and could not answer questions concerning that interview.
A. felt that [Lambert] was nicer to B. than to her. She was "quite happy for him to move out of the house."
B. testified that she was nine years old (within a month of being 10) at the time of trial. She demonstrated her knowledge of the difference between truth and lies.
B. said that [Lambert] sexually abused her three times. The first incident occurred in [Lambert's] bedroom. [Lambert] put his penis in B.'s vagina and moved up, down, and sideways. The second incident also happened in [Lambert's] bedroom. He put ...