The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
James Carl Powell, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Powell is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Sierra Conservation Center. Respondent has answered. Powell has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On March 5, 2007, a Solano County Superior Court jury convicted Powell of the following crimes: (1) from April 25, 2000, to April 25, 2001, continuous sexual abuse against a child under fourteen in violation of California Penal Code § 288.5(a); (2) between April 25, 2001, and April 25, 2002, oral copulation of a person under sixteen in violation of California Penal Code § 288a(b)(2); (3) between the April 25, 2001, and April 25, 2002, a lewd act upon a child of fourteen or fifteen years old and at least ten years younger than Powell in violation of California Penal Code § 288(c)(1); (4) between the April 25, 2001, and April 25, 2002, a lewd act upon a child of fourteen or fifteen years old and at least ten years younger than Powell in violation of California Penal Code § 288(c)(1); (5) between April 25, 2002, and April 25, 2003, oral copulation of a person under sixteen in violation of California Penal Code § 288a(b)(2); (6) between April 25, 2002, and April 25, 2003, a lewd act upon a child fourteen or fifteen years old and at least ten years younger than Powell in violation of California Penal Code § 288(c)(1); (7) between April 25, 2002, and April 25, 2003, a lewd act upon a child fourteen or fifteen years old and at least ten years younger than Powell in violation of California Penal Code § 288(c)(1); (8) between April 25, 2003, and April 25, 2004, unlawful sexual intercourse with a minor in violation of California Penal Code § 261.5(c); (9) between April 25, 2001, and April 25, 2002, sending harmful matter to a minor in violation of California Penal Code § 288.2(a); and (10) between April 25, 2001, and April 25, 2004, furnishing controlled a substance (methamphetamine) to a minor in violation of California Health and Safety Code § 11380(a).
The Solano County jury also found true three special allegations, including: (1) the victim was particularly vulnerable; (2) the defendant induced a minor to commit or assist in the commission of a crime (count 10, using methamphetamine); and (3) the defendant took advantage of a position of trust. On March 6, 2008, the trial court sentenced Powell to a term of twenty-three years and four months. On March 19, 2010, the California Court of Appeal affirmed Powell's conviction and sentence in an unpublished, reasoned decision, People v. Powell, No. A121596, 2010 WL 1006929 (Cal. Ct. App. Mar. 19, 2010), but it corrected Powell's presentence credits by increasing his credits by 100 days, to a total of 1,490 days, id. at *9. On June 20, 2010, the California Supreme Court denied Powell's petition for review without opinion or citation to authority.
The California Court of Appeals summarized the evidence against Powell as follows:
F.J. was born to Robin and Forrest J. in May 1987. The couple had also had a son two years earlier. Robin and Forrest parted when F.J. was very young. In 1991 or 1992, by the time F.J. was four or five years old, Robin and appellant James Carl Powell became romantic partners. Powell fathered Robin's second daughter. During the key period from 2000 through 2004, Robin and Powell lived together in a house with Robin's three children, her sister and her elderly mother. The family's home life in Vacaville was chaotic. The house was dirty and frequented by people who used drugs. Robin and Powell used methamphetamine during this time period. From the time she was 13, F.J. also used methamphetamine and marijuana. Robin sometimes worked two jobs and her mother was in poor health. Powell regularly watched pornography and even used a video camera to tape Robin having sex with him. Sometimes, when Powell and Robin argued, he became violent.Powell was sometimes employed, and sometimes unemployed. He spent a lot of time with F.J. She looked up to him like a father. He coached her in soccer and wrestling.
F.J. later testified that when she was 13, Powell gave her methamphetamine and showed her a pornographic video in the bedroom he shared with Robin. He asked F.J. if she was aroused and removed some of her clothes. He touched her breasts and her clitoris, then put his finger in her vagina. Eventually, Powell ejaculated. She told a jury that this happened again and again from the time she was 13 until she was removed from her home at age 16. F.J. also reported that during those years, she and Powell engaged in vaginal intercourse once; twice, Powell videotaped her masturbating; and they orally copulated each other regularly.
F.J. told friends that she was being molested before she told family members. About a year after confiding in some friends, F.J. told her grandmother and then her brother about this. Several times, the police contacted her about third party reports of molestation that reached them. Each time F.J. denied that it was true. She was afraid to tell the truth to the police. When one officer questioned her, she did not think her denial was convincing because she was crying.
When F.J. was about 15 years old, she told her mother Robin that Powell was molesting her. Robin and Powell fought a lot after this disclosure. Powell begged F.J. to tell Robin that she had lied about this. At his request, F.J. told her mother that she had lied about the molestation because she had been angry with Powell. F.J. told Robin that she wanted Powell to move out of the house At some point-Robin later told a jury-she reported this information to Vacaville police. The police referred Robin to the Family Investigative Response Service Team (FIRST) when she passed on F.J.'s molestation report to them. It appears that Robin did not act on this referral right away.
In the meantime, F.J. was having some other problems, too. She got into trouble using drugs, running away from home and not going to school. She lied to her mother about attending school. She went to live in Fairfield for a three-month period, but she appears to have returned to the Vacaville home at the end of that time.
Eventually, Child Protective Services removed F.J. from Robin and Powell's home on child endangerment grounds, because the home was so messy that it was unsafe. In March 2004, F.J.-who was then 16 years old-was placed in a group residence in Loomis for teenagers with substance abuse problems. She received treatment for her substance abuse, as well as mental health counseling.
In May 2004, Robin spoke with Vacaville Police Detective Patrick Cowan at FIRST about some matters arising in her home. She was so distraught that the officer had difficulty determining what she meant to convey to him. Detective Cowan agreed to investigate the matter.
At this point, F.J. was living in the Loomis group home. While there, she stopped using drugs, began maturing and grew more confident as a result of the counseling she received. After she had been at the group home for four months, F.J. told a counselor that Powell had molested her. The counselor reported F.J.'s disclosure to law enforcement authorities.
In July 2004, F.J. spoke with Detective Cowan about the sexual abuse in a videotaped interview. She told him that the molestation began when she was 13 and continued until she was 16, that Powell molested her approximately once a week, and that she and Powell had vaginal intercourse once when she was 16. She told Detective Cowan what she remembered when she first talked with him. Over time, she remembered more and more details. F.J. told him that earlier, she had reported this molestation to Robin, but had retracted her charges later.
At the group home, Detective Cowan set up a means for F.J. to tape a pretext telephone call with Powell. On July 29 or 30, 2004, F.J. called home and told Powell that she had told her counselor about him by accident. She did not want him to get into trouble. Powell told her not to worry about it, that they would take things as they come. When F.J. asked if he meant she should lie, Powell told her no. He said that a few years earlier, F.J. had told Robin this because F.J. wanted Powell to leave and for her father to return to the home. Eventually, Powell handed the telephone to Robin. In a brief follow-up call, as soon as F.J. mentioned the police, the call was terminated. F.J. believed that Powell hung up. Soon afterward, the tape of the pretext call was delivered to Detective Cowan.
On August 19, 2004, Detective Cowan arrested Powell. He appeared to the officer to be a methamphetamine user, but Powell had no methamphetamine or drug paraphernalia on his person at the time of his arrest. His home was searched and his bedroom turned up a pornographic videotape. No methamphetamine or drug paraphernalia was found at the home. Detective Cowan also interviewed F.J.'s grandmother that day. She appeared to be very frail, but confirmed to Detective Cowan that F.J. and Powell were frequently in Powell's bedroom with the door closed.
Detective Cowan also interviewed Powell. During that videotaped interview, Powell denied watching pornography with F.J., stating that he had once owned such videos, but did not have them anymore. He admitted that F.J. had made sexual accusations against him two years earlier. She had later recanted her allegations and had not repeated them since. He told Detective Cowan that the girl had hoped that if she made this accusation, Powell would leave their home, allowing Robin and her father to reconcile. He denied any recent opportunity to speak with F.J., even when she called home. When reminded about the pretext call, Powell said that he forgot the call. When confronted with the fact that police had found a pornographic videotape in his room, Powell implied that he was entitled to watch them.
The case went to trial in February 2007. By that time, F.J. was 19 years old. She told the jury that from the time that she was 13 years old until the time she was placed in the group home when she was almost 17, Powell regularly touched her breasts and vagina in a lewd manner and digitally penetrated her vagina. Typically, he used drugs and molested her at night when her mother was at work. In the first year, Powell had this sort of sexual contact with F.J. at least five times and perhaps more.
When her mother's vibrator proved too large for F.J., Powell bought her a smaller one. In the second year, Powell orally copulated F.J. and encouraged her to do the same to him. She put her mouth on his penis, but was unable to orally copulate him. He also showed her many pornographic films. Twice, when she was 15 or 16, he videotaped F.J. masturbating. She hoped that he would stop molesting her if he had this videotape. Once when she was 16, they had vaginal intercourse. Although this only happened once, Powell continued to engage in other sexual conduct with her until F.J. was removed from the home.
Once she was in the group home, F.J. began to feel safe. She missed her mother while she was living there. F.J. admitted to the jury that she made an unpermitted visit to her mother's home before Powell's arrest, while he was still living there. At that time, she had permission to visit her dad but not to go to her mother's house. F.J. begged her father to take her to see Robin and he did so. Robin admitted that she never saw Powell and F.J. engage in any sexual activity. The jury heard the tape of the pretext call made to Powell. It also saw parts of Powell's videotaped interview with Detective Cowan.
An expert in child sexual abuse accommodation syndrome testified that it was common for children not to immediately disclose sex abuse. More likely, the abuse is a secret, sometimes because the abuser pressures them to keep silent. The fact that the abuser is violent toward others is a factor tending to encourage abused children not to report sexual abuse. Children who are sexually abused often feel helpless, particularly if a responsible adult fails to protect the child because the adult is using drugs. He told the jury that delayed, conflicted and undisclosed reports of sexual abuse are common. Over time, the expert opined, child sex abuse victims tend to report more and more of what happened.
F.J. remained at the group home for almost two years. Since she left, she started attending college.
Powell testified in his own defense. He told the jury that F.J. was four when he moved into the home with Robin and her extended family. He testified that he had a good relationship with F.J. until she began high school. At that time, F.J. began using drugs and skipping school. F.J.'s father Forrest began staying at the Vacaville house from time to time, which also caused some problems. Powell told the jury that F.J. wanted her father to live there permanently.
Powell admitted using methamphetamine, but categorically denied engaging in any sexual conduct with F.J., showing her pornography or providing her with drugs. He also denied inflicting any physical abuse on Robin.
Powell also testified about several issues arising from his interview with Detective Cowan. He explained to the jury that when he told the officer that he no longer owned any pornographic videotapes, he did not know that the one that Detective Cowan found was still in his bedroom. When questioned about his denial of contact with F.J., he testified that the pretext telephone call had slipped his mind. When the second call came, he did not hang up when F.J. mentioned the police-the call was cut off. He admitted saying when he was arrested that he had no idea why this had happened.
Powell, 2010 WL 1006929, at *1-4 (footnotes omitted).
II. ISSUES/GROUNDS RAISED/AFFIRMATIVE DEFENSE In his Petition to this Court, Powell raises three issues: (1) that the trial court coerced the jury in violation of Powell's constitutional right to a fair trial by instructing the jury to continue to deliberate after "the vast majority of jurors had declared a 'fair' verdict could not be reached without wearing down the lone holdout juror," Doc. No. 7 at 4,17-19; (2) prosecutorial misconduct; and (3) that Powell's trial counsel provided ineffective assistance by failing to object to and ask for a more complete legal definition of the term "vulnerable" that was given to the jury by the trial court in order for the jury to determine whether this special allegation-which could be used as an aggravating factor at sentencing-was true. Respondent does not assert any affirmative defenses. See Rules Governing Section 2254 Cases in the U.S. Dist. Courts, Rule 5(b) (2011) ("The answer must . . . state whether any claim in the petition is barred by a failure to exhaust state remedies, a procedural bar, non-retroactivity, or a statute of limitations.").
The standard of review governing federal habeas petitions is contained in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), which applies to all federal habeas petitions filed after the statute's enactment in April 1996. See Lindh v. Murphy, 521 U.S. 320, 326 (1997) (noting that Congress's intent was for AEDPA to apply to cases that were filed after the statute's enactment). Because Powell filed his Petition after the effective date of the statute, its provisions apply to his case.
Under AEDPA, this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2).
A state-court decision is "contrary" to federal law "if the state court applies a rule that contradicts the governing law set forth" in controlling, Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 362, 405-06 (2000). The Supreme Court has noted that "[a]voiding these pitfalls does not require citation of our cases-indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002).
When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be "objectively unreasonable," not just "incorrect or erroneous." Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (citing Williams, 529 U.S. at 409-10, 412). The Supreme Court has made clear that the "objectively unreasonable" standard is "a substantially higher threshold" than simply believing that the state-court determination was incorrect. Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). "AEDPA thus imposes a highly deferential standard for evaluating state-court rulings, and demands that state-court decisions be given the benefit of the doubt." Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (internal quotation marks and citations omitted). "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642, 643 (1974)). In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a "substantial and injurious effect" or influence in determining the outcome. Fry v. Pliler, 551 U.S. 112, 121 (2007). Because "[s]tate court judgments of conviction and sentence carry a presumption of finality and legality," the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief. Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002).
The Supreme Court recently underscored the magnitude of the deference required: As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.
Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011) (emphasis added).
The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision." Williams, 529 U.S. at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. See Early, 537 U.S. at 10 (explaining that clearly established federal law under must be based on Federal Constitutional grounds). Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (alterations in original) (citation omitted); see also Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam) (stating that when no Supreme Court case gives a "clear answer to the question presented," then the state-court decision cannot be contrary to or an unreasonable application of clearly established federal law); Kessee v. Mendoza-Powers, 574 F.3d 675, 678-79 (9th Cir. 2009); Moses v. Payne, 555 F.3d 742, 753-54 (9th Cir. 2009) (explaining the difference between principles enunciated by the Supreme Court that are directly applicable to the case and principles that must be modified in order to be applied to the case; the former are clearly established precedent for purposes of § 2254(d)(1), the latter are not). Accordingly, "it is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established" by the Supreme Court. Knowles v. Mirzayance, 556 U.S. 111, 122 (2009).
In applying these standards in habeas review, this Court reviews the "last reasoned decision" by the state court. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). State appellate court decisions that summarily affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court. Richter, 131 S. Ct. at 784("As every Court of Appealsto consider the issue has recognized, determining whether a states court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning."); Ylst v. Nunnemaker, 501 U.S. 797, 802-03 (1991) ("Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground."). This Court gives the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court. See Richter, 131 S. Ct. at 784-85 (rejecting the argument that a summary disposition was not entitled to § 2254(d) deference).
Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) ("Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary . . . ." (citing 28 U.S.C. § 2254(e)(1))). This presumption applies to state-trial courts and appellate courts alike. See Stevenson v. Lewis, 384 F.3d 1069, 1072 (9th Cir. 2004) ("Stevenson does not address these factual findings, let alone challenge them with clear and convincing evidence. Accordingly, we presume them to be correct." (citing 28 U.S.C. § 2254(e)(1); Pollard v. Galaza, 290 F.3d 1030, 1035 (9th Cir. 2002))).
A state court is not required to give reasons before its decision can be deemed to be "adjudicated on the merits." Richter, 131 S. Ct. at 784-85 (2011). When there is no reasoned state-court decision denying an issue presented to the state, "it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state law procedural principles to the contrary." Id. (citing Harris v. Reed, 489 U.S. 255, 265 (1989)). However, "[t]he presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst, 501 U.S. at 803). Where the presumption applies, this Court must perform an independent review of the record to ascertain whether the state-court decision was "objectively unreasonable." Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (quoting Pham v. Terhune, 400 F.3d 740, 742 (9th Cir. 2005) (per curiam)). In conducting an independent review of the record, this Court presumes that the relevant state-court decision rested on federal grounds. See Coleman v. Thompson, 501 U.S. 722, 740 (1991) ("The presumption at present applies only when it fairly appears that a state court judgment rested primarily on federal law or was interwoven with federal law, that is, in those cases where a federal court has good reason to question whether there is an independent and adequate state ground for the decision."); see also Harris, 489 U.S. at 263.
Moreover, this Court gives that presumed decision the same deference as a reasoned decision. Richter, 131 S. Ct. at 784-85, The scope of this review is for clear error of the state court ruling on the petition:
[A]lthough we cannot undertake our review by analyzing the basis for the state court's decision, we can view it through the "objectively reasonable" lens ground by Williams. . . . Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law. Only by that examination may we determine whether the state court's decision was objectively reasonable.
Delgado v. Lewis (Delgado II), 223 F.3d 976, 982 (9th Cir. 2000). "[A]lthough we independently review the record, we still defer to the state court's ultimate decision." Pirtle ...