The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Mark Stephen Woolums, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Woolums is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Sierra Conservation Center.
Respondent has answered. Woolums has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
A Solano County Superior Court jury found Woolums guilty of one count of continuous sexual abuse of N.E., a child under 14 years of age, under California Penal Code § 288.4(a).
After the trial court declared a mistrial on the remaining counts, Woolums entered a negotiated no contest plea to one count of lewd and lascivious conduct upon B.M., another child under fourteen years of age, under California Penal Code § 288(a), with the understanding that a concurrent prison term would be imposed. The trial court sentenced Woolums to an aggravated upper term of sixteen years in state prison on the sexual abuse conviction and a concurrent aggravated upper term of eight years on the lewd and lascivious conduct plea. The California Court of Appeal, First District, affirmed Woolums' conviction and sentence in an unpublished decision,*fn1 and the California Supreme Court denied review on April 17, 2009. Woolums timely filed his Petition for relief in this Court on May 26, 2010.
The California Court of Appeal summarized the evidence:
N.E. was 14 years old and in the 8th grade when she testified at [Woolums's] trial. At the time [Woolums's] sexual activity began with N.E., she was 10 years old and was attending the in-home child day care [Woolums's] wife operated from their home. [Woolums] was in his early 40's. [Woolums] would initially put N.E. on his lap and she would feel his "private part" getting "hard." He would either move her around or move himself.
N.E. stopped going to the daycare in [Woolums's] home at the end of sixth grade or beginning of seventh grade. However, she continued to see [Woolums] because he worked out regularly with her stepfather in the gym they set up in her parents' garage. The sexual conduct with [Woolums] continued and occurred in the garage when N.E.'s stepfather would leave to go running. [Woolums's] conduct included "French kissing," having N.E. rub his penis, and vaginal touching.
On September 9, 2004, N.E. told her mother that [Woolums] "did some bad stuff with me." That evening, N.E.'s mother took her to the police station, and [Woolums] was arrested and charged with molesting N.E.
Based on this evidence, [Woolums] was charged, tried and convicted for the continuous sexual abuse of N.E., a child under 14 years of age. (Pen.Code, § 288.5, subd. (a).) He was also charged and tried-but ultimately not convicted-for sexually inappropriate conduct with two other young girls, B.M. and K.A.
Briefly, B.M. testified that [Woolums] and his wife were best friends with her parents and B.M. attended the day care at [Woolums's] home. B.M. testified that from fall of 2004 until spring of 2005, [Woolums] engaged in a number of sexual acts with her. She recalled an incident when she was 13 and home sick with strep throat. [Woolums] stopped by her house to check on her at her father's request. During this encounter, [Woolums] orally copulated her, digitally penetrated her, and ended up having sexual intercourse with her. She testified that [Woolums] then gave her $20 a week "[s]o I would be quiet."
K.A., the third alleged victim, was B.M.'s good friend. She testified that in the fall of 2004, when she was at [Woolums's] home with B.M., [Woolums] grabbed her breast.
[Woolums] testified in his own defense and adamantly denied any sexual misconduct with N.E., B.M., or K.A. The defense also put on extensive evidence to show that [Woolums] was very busy working at his Big-O Tires store, that he only had incidental and occasional contact with the children who attended his wife's in-home child day care, and that the ...