ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is serving a sentence of six years plus thirty years to life in prison following her 2005 conviction on multiple charges of child molestation. Petitioner raises eleven claims in his petition, filed December 23, 2009. Respondent contends the claims are without merit.
In his traverse, filed December 15, 2011, petitioner moves to defer resolution of the substance of his claims pending further factual development. Petitioner has moved for an evidentiary hearing on seven of his claims and to expand the record in this action pursuant to Rule 7 of the Rules Governing Section 2254 Cases in the United States District Courts. Respondent opposes these motions.*fn1
By his first motion to expand the record, petitioner seeks to expand the record to include all of the exhibits appended to his petition for writ of habeas corpus.*fn2 Petitioner contends these exhibits are relevant to the need for an evidentiary hearing, resolution of disputed issues of fact that may arise at such hearing, and the need to develop the factual basis for petitioner's claims at that hearing. It appears that all evidence relevant to petitioner's claims that is attached to the petition was also included in the state court record.*fn3 Petitioner's motion is therefore unnecessary and will be denied.
By his second motion to expand the record, petitioner seeks to include deposition testimony given by Chevelle Washington and Kevin McCollum in criminal proceedings against petitioner in Florida. Both of these individuals testified at petitioner's trial, and he contends that their deposition testimony will prove "that evidence given at the trial was based on perjured testimony." Notice of Motion and Motion for Leave of Court to File a Supplemental Motion to Expand the Record, filed February 21, 2012, at 2. Petitioner provides no information concerning the substance of the deposition testimony of either witness. The motion will be denied.
On December 3, 2011, petitioner filed a motion for an evidentiary hearing on the first seven claims raised in his petition. Respondent opposes the motion.*fn4
Section 2254(e)(2) provides in relevant part that if a habeas petitioner "has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that -- (A) the claim relies on -- . . .
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." 28 U.S.C. § 2254(e)(2). All of the evidence presented by petitioner in support of his first seven claims for relief was also presented to the state courts, and there is no showing that additional factual development is either warranted or proper. For that reason, petitioner's motion for evidentiary hearing will be denied, as will his motion to defer resolution of the substance of his claims.
Finally, on April 30, 2012, petitioner filed a motion for leave to file a second supplemental motion to expand the record. For the foregoing reasons, that motion will be denied.
Brittany's natural father died before she was born, and her mother married [petitioner] when Brittany was two years old. Brittany considered [petitioner] to be her father and called him "Dad." [Petitioner] and Brittany's mother had a child, Cameron, who was two years younger than Brittany. In 2002, when Brittany was 12 years old, her mother passed away, leaving Brittany in [petitioner]'s sole custody. They were living in Fresno.
Within just a few months after the death of Brittany's mother, [petitioner] molested Brittany for the first time. Cameron was away at a friend's house, leaving Brittany and [petitioner] in the house alone. [Petitioner] told Brittany to come to his room because he wanted to talk about sex. The front door was locked. They went into [petitioner]'s bedroom, and [petitioner] locked the bedroom door. [Petitioner] told Brittany to take off her pants. She asked why, and petitioner said it was because he needed to talk to her about sex and that he needed to show her. Brittany felt she could not argue with [petitioner]. She asked why they could not just talk about it, and [petitioner] said that they could not because it was too hard for him. He did not know how. [Petitioner] told Brittany that sex is what boys wanted and he did not want Brittany to end up having sex with one of them. After Brittany's pants and underwear were off, [petitioner] touched the outside of her vagina with his fingers, moving them around, for about 15 minutes. [Petitioner] asked if it felt good, and Brittany replied that she did not know. Finally, [petitioner] told Brittany to put her pants back on and told her she would not have to do that again. [Petitioner] made Brittany promise not to tell anyone because they might think it was "weird" or they might "do something." [Petitioner] told Brittany she could not leave because he was her father.
[Petitioner] introduced Brittany and Cameron to a woman named Lisa Tennison. While visiting Tennison's house, Brittany and Cameron heard [petitioner] and Tennison having sex. [Petitioner] bought a motorcycle and left Brittany and Cameron with friends for a couple weeks while he went on a trip to Sturgis, South Dakota. [Petitioner] returned from the trip with a woman named Brandi Nichols, who was 21 years old.
Soon after the Fresno molestation, which was not charged in this case, and just two weeks before Brittany turned 13, [petitioner] and the children moved to Redding Until [petitioner] found a place for them to live, they stayed with [petitioner]'s stepfather. After residing there for about a week, they moved to a residence on Irene Street. At first, Nichols visited occasionally to clean the house, but eventually she moved in. Brittany liked Nichols, considering her as a big sister, but not a mother figure.
First Charged Incident -- Residence of [Petitioner]'s Stepfather
* Count 1 -- Section 269, subdivision (a)(4) (Aggravated Sexual Assault of a Child (Oral Copulation))
* Count 2 -- Section 288, subdivision (b) (Forcible Lewd Act on a Child
On one evening while [petitioner] and the children were living with [petitioner]'s stepfather, Cameron and [petitioner]'s stepfather went to ride quads (all-terrain vehicles). This left Brittany and [petitioner] alone at the house. [Petitioner] told Brittany that he needed to talk to her about sex again. She protested that they had already talked about it and asked if they really needed to talk about it again. [Petitioner] said they did, and he took her into her bedroom. [Petitioner] locked the door and made Brittany "pinkie-promise" that she would not tell anyone. [Petitioner] told Brittany to take off her pants, which she did because she did not know what else she could do. She felt like she could not say no because she felt he "overpowered" her and he could not say no to a parent. He told her to lay on the bed and she did. She was taking off her underwear slowly when [petitioner] intervened and pulled them down to her ankles. [Petitioner] fondled Brittany's vagina with his fingers and then put his mouth on her vagina. After about 15 minutes, [petitioner] said something about sperm, got off the bed, took off his pants and underwear, and rubbed his penis to make it hard. [Petitioner] had Brittany touch his penis. He rubbed sperm on Brittany's stomach. When all of this was happening, Brittany just wanted it to be over. [Petitioner] told Brittany to put her pants on and go wash herself. Brittany did not tell anyone about the incident because she did not know whom to trust.
Second Charged Incident -- Irene Street Residence
* Count 3 -- Section 288, subdivision (b) (Forcible Lewd Act on a Child)
* Count 4 -- Section 288, subdivision (b) (Forcible Lewd Act on a Child)
Some time after [petitioner] moved with Brittany and Cameron to the house on Irene Street, Cameron was away at a friend's house. [Petitioner] locked the front door. Brittany could not remember if she and [petitioner] were in her bedroom or [petitioner]'s bedroom. [Petitioner] told Brittany to take off her pants and underwear and lie on the bed. She complied. [Petitioner] opened Brittany's legs and fondled her vagina with his fingers. He then directed Brittany to do the same and "to feel the right spot." She touched herself for about five minutes while [petitioner] watched. It made her feel "weird." Brittany told [petitioner] she did not want to do it anymore. He said, "okay."
Third Charged Incident -- In the Closet
* Count 5 -- Section 269, subdivision (a)(4) (Aggravated Sexual Assault of a Child (Oral Copulation))
* Count 6 -- Section 288, subdivision (b) (Forcible Lewd Act on a Child)
Count 8 -- Section 269, subdivision (a)(1) (Aggravated Sexual Assault of a Child (Rape))
About two or three months after the first incident in the Irene Street house, Brittany went to get shoes out of [petitioner]'s closet and found a dildo.*fn6 She asked Nichols, who had moved in by then, what it was used for. Nichols would not answer Brittany's question and later told [petitioner] about the question. Soon after Brittany talked to Nichols about the dildo, Brittany and [petitioner] were again alone in the house. [Petitioner] told Brittany that he had heard she asked Nichols about the dildo. [Petitioner] asked Brittany if she wanted to know about it, and Brittany said she did. [Petitioner] took Brittany into his bedroom, locking the bedroom door, and into the closet, also locking the closet door. [Petitioner] retrieved the dildo from some folded clothes and told Brittany to lie down on the floor and take off her pants and underwear. He knelt next to Brittany, holding the vibrating dildo. Brittany, on the floor with her pants and underwear pulled down, was startled and wanted to know what [petitioner] was going to do. [Petitioner] held the dildo against Brittany's vagina. Stating that his mouth would work better, [petitioner] put down the dildo and put his mouth on Brittany's vagina, moving his tongue around. [Petitioner] took off his pants and put his penis in Brittany's vagina, "barely putting it in." Brittany told him she did not want him to do it because she was scared and did not want it to hurt.*fn7 [Petitioner] stopped. Both Brittany and [petitioner] were sweating so they left closet. [Petitioner] has a cigarette.
Fourth Charged Incident -- Digital Penetration
* Count 7 -- Section 269, subdivision (a)(5) (Aggravated Sexual Assault of a Child (Sexual Penetration))
On an occasion that Brittany believed was different from the closet incident, [petitioner] put his finger inside her vagina. It hurt her.
A "couple months" later, [petitioner] told Brittany he needed to show her more about sex, she said, "No," and [petitioner] replied, "Okay. I'm going to work now."
Fifth Charged Incident -- [Petitioner] and Brittany Sleeping Together
* Count 9 -- Section 288, subdivision (a) (Lewd Act on a Child)
[Petitioner] and Nichols had an argument, so she left the house. Cameron was also away at a friend's house, staying the night. [Petitioner] told Brittany to come sleep with him. She did not want to, but [petitioner] said, "Come on, we never get to sleep in the same bed." During the night, [petitioner] put his fingers down Brittany's pants, touching her vagina. When the telephone rang, Brittany took the opportunity to go get in her own bed.
Sixth Charged Incidents -- Horseplay
* Count 10 -- Section 242 (Battery)
* Count 11 -- Section 289, subdivision (j) (Sexual Penetration on a Child
While they were living in Redding, [petitioner] sometimes gave Brittany "wedgies," which Brittany described as pulling up her underwear until it hurt, depending upon how hard [petitioner] pulled. Sometimes her underwear would get bundled up and go up her vagina. When they were roughhousing once, [petitioner] inserted his finger into Brittany's anal opening.
Reporting of the Molestations
In the summer of 2003, after living in Redding for about one year, [petitioner] moved with Nichols, Brittany, and Cameron to Florida. On October 2 of that year, [petitioner], Cameron, and Brittany were roughhousing in a bedroom. [Petitioner] lay on Brittany, hurting her, so she slapped his face. [Petitioner] became angry, told Cameron to leave the bedroom, locked the door and told Brittany he was going to give her a spanking. [Petitioner] told Brittany to pull down her pants and underwear. She followed [petitioner]'s directions. She was in her pajamas and was not wearing a bra. [Petitioner] told Brittany to pull her top over her head. As Brittany stood there exposed, [petitioner] sat on the bed and stared at her. When she tried to pull her top back down, he pulled it back up over her head and told her to keep it there. Eventually, [petitioner] told Brittany to put her clothes back on, and he left.
Brittany spoke to Nichols, who told Brittany she should not have slapped her father. Nichols explained to Brittany that she had found child pornography on [petitioner]'s computer and that Nichols's stepfather had molested her when she was young. Nichols expressed fear that [petitioner] would have sex with Brittany. Nichols asked whether [petitioner] had "done anything" to Brittany, and Brittany replied that he had.
Brittany and Nichols made a plan to leave the next day, and Nichols called her sister for assistance. Brittany and Nichols went to bed, but Nichols's sister called an abuse hotline. Chevelle Washington of the Florida Department of Children and Families responded to the call along with Officer Kevin McCollum of the Apopka Police Department. They arrived at [petitioner]'s residence at about midnight. After speaking with Nichols, they awakened Brittany at about 1:00 a.m. and questioned her. The interview lasted about 10 or 15 minutes. This was the only time Washington interviewed Brittany. The interview was to assess the risk. It was not a forensic interview. Officer McCollum interviewed Brittany for about an hour at the police department after they transported Brittany there. This interview was also not intended to be a detailed, comprehensive interview concerning everything that had happened to Brittany. It was intended to get a basic idea of what law enforcement was required to do. Brittany signed a statement at 2:53 a.m.*fn8
Brittany was taken to a group home where she stayed for several weeks. During her stay at the group home, Brittany met a 17-year-old girl who described her sexual experiences to Brittany.
Brittany's Alleged Animosity for [Petitioner]
[Petitioner] attempted to establish that Brittany did not like him. Defense counsel asked Brittany whether, prior to her mother's death, she liked [petitioner]. Brittany replied that she "didn't really dislike him." She later told an officer who interviewed her that she had not liked [petitioner] since she was five years old and wished that her mother would have divorced him. Brittany believed [petitioner] had been cheating on her mother before her mother died. Brittany also did not like the fact that [petitioner] was dating two women, Tennison and Nichols, at the same time.
Around the time of the death of Brittany's mother, Kaiser Hospital paid a settlement for malpractice. Brittany's aunt told Brittany that [petitioner] may have spent the money. Brittany was under the impression that [petitioner] was going to withhold the money from her.
[Petitioner] denied molesting Brittany. He testified that he never told her he was going to talk to her about sex or demonstrate it. He never orally copulated her or touched her in any sexual way. One winter night, when the heater was not working, [petitioner] made a fire in the fireplace and had Brittany sleep with him in a sleeping bag. He acknowledged giving Brittany "wedgies" but did not touch her bottom. He playfully bit her bottom at time when she had jeans on.
[Petitioner] also testified that he and Nichols had discussed marriage. A week before the molestations were reported, [petitioner] told Nichols that he would not marry her. They had a major fight.
People v. Foss, slip op. ...