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Anatoly Kadoshnikos v. James D. Hartley

April 5, 2012

ANATOLY KADOSHNIKOS, PETITIONER,
v.
JAMES D. HARTLEY, WARDEN, RESPONDENT.



ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner without counsel seeking an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 He challenges a 2009 conviction entered against him in the Yolo County Superior Court on charges of lewd and lascivious acts on a child under the age of fourteen. He seeks relief on the grounds that the trial court's erroneous admission of evidence violated his right to due process. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

I. Procedural Background

On January 30, 2009, a first amended information was filed in the Yolo County Superior Court charging petitioner with two counts of committing a lewd or lascivious act on a child under the age of fourteen, in violation of Cal. Penal Code § 288(a). Resp.'s Lodg. Doc. 7, Clerk's Transcript on Appeal (hereinafter CT), at 139-40. On February 18, 2009, after a jury trial, petitioner was convicted on both counts. Id. at 232. On April 13, 2009, petitioner was sentenced to a term of eight years in state prison. Id. at 216-17.

On April 15, 2009, petitioner filed a timely notice of appeal in the California Court of Appeal for the Third Appellate District. Id. at 234. By order dated April 12, 2010, the appellate court affirmed petitioner's conviction and sentence. Resp.'s Lodg. Doc. 4. On May 18, 2010, petitioner filed a petition for review in the California Supreme Court. Resp.'s Lodg. Doc. 5. That petition was summarily denied by order dated June 23, 2010. Resp.'s Lodg. Doc. 6. Petitioner commenced his federal habeas action by filing the instant petition in this court on March 21, 2011.

II. Factual Background*fn2

FACTUAL AND PROCEDURAL BACKGROUND A The Charged Offenses The minor victim (minor) was six years old when she met defendant. Her mother was dating defendant at the time. During the time defendant dated minor's mother, defendant would go over to minor's house, where she and her family lived, and spend the night. On the nights defendant stayed over, he slept in the same bed as minor and her mother; minor's mother slept in the middle with minor and defendant sleeping on either side of her.

In the mornings, after defendant spent the night and minor's mother was in the kitchen, defendant touched minor sexually on three different occasions. During these occurrences, he put his hands in her underwear, touched her vagina, and put his finger inside her. On the third occasion, defendant grabbed minor's leg and hit her when she refused his request to go to him. Minor's mother came in the room that time because she heard minor's cry, and defendant "smiled like he was playing around." The incidents occurred over a period of a few weeks. Minor's mother and defendant ended their relationship about a month after the incidents.

Minor did not tell anyone about the molestation until she told her sister, Oksana, nine years later. Defendant was charged with two counts of committing a lewd or lascivious act on a child under age 14.

B The Uncharged Offense

A. is defendant's 23-year-old daughter. At trial, she testified defendant molested her when she was 12 or 13 years old for a period of four to five years. Defendant would touch her breasts over and under her clothes and suck on her breasts. He also would put his hands in her underwear and touch her vagina while touching himself. At the time, A. would sleep in the same bed as defendant, and he would always put her on his lap.

In addition to the sexual abuse, A. also testified that defendant physically and psychologically abused her. Defendant would beat her, slap her, and use his palm to hit her nose. A. further testified that defendant told her that her mother was a prostitute and was dead, and he continuously refused to give her the documentation she needed to get her United States citizenship.

At around 15 years old, A. moved out of defendant's house and moved in with a friend. A. did not tell anyone about the molestation until she told the friend she lived with at the time. When A. was 17 years old, she contacted Child Protective Services regarding her molestation because defendant wanted her to move back in with him. She was afraid defendant would physically hurt her again, and she wanted to get emancipated so she could get married and go to school. A. was subsequently referred to the Sacramento County Sheriff's Department where Detective Kathryn Dewante investigated her molestation allegations. Detective Dewante asked A. to make a pretext phone call to defendant. But A. never made the call, and her case was closed for lack of corroboration or other evidence indicating the alleged acts actually occurred.

In his in limine motions, the prosecutor moved to admit the evidence of defendant's prior uncharged sexual acts with A. under Evidence Code*fn3 section 1108. Defendant opposed the motion on the ground the evidence should be excluded under section 352. Specifically, defendant argued, "the evidence is of limited probative value, is likely to confuse issues and will cause an undue consumption of time."

During the hearing on the in limine motions, both the prosecutor and defense counsel submitted the issue on the briefs. The trial court admitted the uncharged sex offense evidence involving A. stating: "The [section] 352 issue, obviously, if the jury believes the [section] 1108 evidence, then it would be evidence that could be quite prejudicial. But it's the type of prejudice that comes from it having probative value. If it doesn't have probative value, then if the jury thought it didn't prove anything, then of course there wouldn't be any prejudice to it either. So it's not that type of prejudice, which goes to other issues." "Same thing with there being undue consumption of time or probability of confusion. Those don't really enter into it either. None of the [section] 352 issues come up in such a level that they substantially outweigh the probative value. So I'll allow it in." Defendant did not object to A.'s testimony during the trial.

Resp.'s Lodg. Doc. 4 (hereinafter Opinion) at 1-4.

III. Analysis

A. Standards for a Writ of Habeas Corpus

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). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State ...


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