The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a judgment of the Superior Court of California, County of Kern, following his conviction by jury trial on November 29, 2006, of five counts of lewd and lascivious conduct with three young boys, in violation of Cal. Penal Code § 288(a). (See Petition at 2; Resp't's Answer, Ex. A.) Petitioner was sentenced to serve five consecutive indeterminate terms of fifteen years to life in prison. (See Resp't's Answer, Ex. A.)
Petitioner appealed. On August 13, 2009, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), affirmed Petitioner's judgment in a reasoned decision. (See Resp't's Answer, Ex. A.) Petitioner then filed a petition for review in the California Supreme Court. (See Lodged Doc. No. 10.) The petition was summarily denied on October 22, 2009. (See Lodged Doc. No. 11.)
On January 20, 2011, Petitioner filed the instant federal habeas petition. Respondent moved to dismiss the petition for failure to exhaust state remedies, and Petitioner responded by moving for stay of the petition. On June 3, 2011, the undersigned stayed the petition and held it in abeyance pending exhaustion of state remedies. Petitioner proceeded to file a petition for writ of habeas corpus in the California Supreme Court on July 1, 2011. (See Lodged Doc. No. 10.) The petition was denied on November 16, 2011, with citation to In re Robbins, 18 Cal.4th 770, 780 (1998), In re Waltreus, 62 Cal.2d 218, 225 (1965), In re Dixon, 41 Cal.2d 756, 759 (1953), In re Swain, 34 Cal.2d 300, 304 (1949), and In re Lindley, 29 Cal.2d 709, 723 (1947). (See Lodged Doc. No. 11.) Petitioner then returned to federal court and the Court lifted the stay. On January 5, 2012, Respondent filed an answer to the petition. On April 3, 2012, Petitioner filed a traverse.
We present the relevant facts through the witnesses in the order the jury received the evidence. We do this to ease the analysis of the contentions raised by [Petitioner].
S. was age 12 at the time of trial. He was friends with [Petitioner]'s three sons, W.,
T., and C. All four boys were born in the Ukraine and brought to the United States after they were adopted.
S.'s mother, Sharon, would take S. to visit [Petitioner] and his sons in Bakersfield. During these visits, S. and his mother would stay at the hotel owned by [Petitioner]. On these visits, S. slept on W.'s bed, which was located in [Petitioner]'s bedroom. Sharon would sleep in a separate hotel room.
Sometimes, when everyone was in bed, [Petitioner] would ask S. to come to his bed. When S. got into [Petitioner]'s bed, [Petitioner] would touch S.'s penis and take S.'s hand and place it on his ([Petitioner]'s) penis. The two would rub each other's penises. [Petitioner] would have an erection when S. touched his penis. These encounters occurred approximately five to six times in Bakersfield.
S. also heard [Petitioner] call C. to his bed. S. could see what [Petitioner] was doing to C. when W. got out of bed to get a drink of water. It appeared [Petitioner] was "humping" C. or poking his penis into C.'s buttocks. S. did not see C. touch [Petitioner]'s penis, but he did see [Petitioner] touch C.'s penis.
S. also heard [Petitioner] call W. and T. to his bed, and he saw [Petitioner] do the same things with them that he had done with C. He saw this activity the five or six times he stayed at [Petitioner]'s house.
On one occasion S. and his mother went on a snow-skiing trip with [Petitioner] and his sons. [Petitioner] and all four boys slept in [Petitioner]'s motorhome while S.'s mother stayed in a cabin. [Petitioner] asked S. to join him in his bed in the motorhome. When S. got into [Petitioner]'s bed, [Petitioner] again fondled him as described before.
On another occasion S. and his mother went on a vacation to San Diego with [Petitioner] and his sons. S. ended up in [Petitioner]'s bed and endured the same type of inappropriate activity.
On cross-examination, S. confirmed that T. and C. had not slept in [Petitioner]'s room, so they could not see what occurred in [Petitioner]'s room from their bedroom. S. had stayed with [Petitioner] three or four times before the first molestation occurred, making S. 10 years of age when the molestations began.
On the way home from San Diego, S. told his mother that he was uncomfortable around [Petitioner]. About a week later, S. told his mother that [Petitioner] had molested him, W., C., and T. About 10 months later, S. and his mother reported the molestations to the police.
When S. first reported the molestations, he told the officers that he and the three boys all slept in the second bedroom, so he could not see what occurred in [Petitioner]'s bedroom. When S. was interviewed a second time, he stated the only other boy he saw [Petitioner] molest was W.
With the help of his mother, S. later remembered he had seen [Petitioner] also molest C. and T. S.'s mother helped him remember things about the molestations about five times, with each session lasting one hour. Sometimes S.'s mother would ask him questions, and sometimes she would suggest things to S. that would help him remember things. She did not tell S. what to say. S.'s mother first helped him remember things before his first police interview. That session lasted one and one-half hours. After that session, S. and his mother went to see the police.
S.'s mother, Sharon, testified that she adopted S. on July 29, 2002. Sharon had S. examined, and she learned that he has difficulty processing things told to him orally. He does much better if he can see pictures.
Sharon knows the [Petitioner] boys and [Petitioner]. They met in January 2003. [Petitioner] learned that Sharon had adopted S. and wanted to introduce his boys to S. The boys instantly became friends.
The first time Sharon and S. traveled to Bakersfield was for a reunion for families that had adopted children from the Ukraine. [Petitioner] hosted the event. Sharon and S. stayed at [Petitioner]'s hotel. S. slept in Sharon's room the first night and may have slept with the boys the second night.
Sharon and S. returned approximately six times to Bakersfield for visits. On most occasions, S. slept with the [Petitioner] boys. In addition, Sharon and S. took three trips with [Petitioner] and the boys-a cruise to Mexico, a snow-skiing trip, and a trip to San Diego. When snow skiing, Sharon stayed in the lodge while [Petitioner] and the boys stayed in [Petitioner]'s motorhome.
The group went to San Diego over the Presidents' Day weekend in 2005. [Petitioner] arranged for two hotel rooms. The boys were split up between the two rooms, with an adult in each room. [Petitioner] was irritable on that trip, which made Sharon uncomfortable. On the way home, Sharon asked S. if [Petitioner] made him uncomfortable. S. answered yes. Sharon then asked S. when [Petitioner] made him uncomfortable. S. replied that he was uncomfortable when [Petitioner] called him to his bed. S. said that [Petitioner] rubbed his body because S. was cold, and that [Petitioner] touched his bottom while doing this, but did not mention any other types of bad touches. Sharon asked [Petitioner] about bringing S. to his bed. [Petitioner] admitted doing so, but denied molesting S.
In December 2005, [Petitioner] posted a notice on a group Web site that stated he was hosting a boy from the Ukraine who was available for adoption. S. said he wanted to go meet the new boy and see the [Petitioner] boys. Sharon said she needed to know what happened when S. got into bed with [Petitioner]. S. stated that [Petitioner] "humped" FN2 him. S. admitted that [Petitioner] touched his penis and forced S. to touch his ([Petitioner]'s) penis. S. also said that he saw [Petitioner] do the same things with W., C., and T. Sharon admitted asking S. some questions, but denied helping S. remember what had occurred. Sharon also stated this occurred on only one occasion.
FN2. This was the term S. used for the molestation previously described. Kathleen Neuman's Testimony
Kathleen Neuman, a social worker with Kern County, supervised two visits [Petitioner] had with his adopted sons. On January 11, 2006, Neuman heard [Petitioner] ask C. how long he had been in the orphanage and whether he wanted to go back to the orphanage. C. also kissed T. on the lips and grabbed him by the shoulders and started gyrating while saying to T., "Let's dance."
During the January 18, 2006 visit, C. and T. placed their jackets over the observation window through which Neuman was watching so she could not see into the room. [Petitioner] was sitting on the couch with W. and was whispering something to him. Neuman also observed C. try to kiss T. on the lips and heard [Petitioner] comment that C. was a "pretty little boy."
W. was 12 years old when he testified. He was born in the Ukraine to a family of about 15 children. T. is W.'s biological brother and is two years younger than W.T. and
W. went to live in an orphanage when W. was about seven. T. and W. were adopted by [Petitioner] about three months before W. was to turn eight. C. was adopted about a year later.
W. stated that [Petitioner] touched his private areas only to check to see if they were clean. Before C. was adopted, T. and W. shared a room and [Petitioner] slept in another room. After C. was adopted, [Petitioner] had a door installed between the two rooms. T. and C. slept in one room and W. and [Petitioner] slept in another room in separate beds. W. would get into [Petitioner]'s bed for about 30 minutes at night about once a week or so. W. did not remember why he did so, but when he got into [Petitioner]'s bed he would just sleep.
[Petitioner] never touched W.'s penis or buttocks. Nor did W. see [Petitioner] touch T.'s or C.'s private areas. On one occasion C. got punished for touching T.'s privates, even though they were playing around.
T. was nine when he testified. He stated that no one had ever touched his penis or buttocks. He admitted that [Petitioner] touched his penis to make sure it was clean. T. admitted that on one occasion he told Donna Hansen, a licensed marriage/family therapist, that he was touched on his private area, but he meant to say that [Petitioner] did not touch him. T. also admitted in a prior hearing that he testified that [Petitioner] never touched his penis, and he never saw [Petitioner] touch anyone else's penis.
C. was nine when he testified. He stated that no one had touched his penis or his buttocks. He did not remember telling Detective William Darbee that [Petitioner] had touched his penis. He remembered telling Darbee that when [Petitioner] touched him, it made him feel weird, and that the touching occurred in [Petitioner]'s bed. C. also told Darbee he was touched on the outside of his clothes.
T. is one of Hansen's clients. During a counseling session, T. said that [Petitioner] had touched him inappropriately. The session began with T. drawing three pictures. Hansen asked T. to draw a picture of the person who had touched him. T. drew a picture of two people, one individual larger than the other. He identified the larger individual as [Petitioner] and the smaller individual as himself. T. said [Petitioner] had touched his penis. The picture T. drew showed [Petitioner]'s hand cut off.
Hansen admitted on cross-examination that T. was asked approximately five times if he had been touched inappropriately before he stated he had. She also admitted that a child could be manipulated into making an admission of abuse if the question were asked repeatedly. She admitted that T. repeatedly had denied being touched by anyone, stated he missed his father, and stated he did not understand why he could not go home. Hansen did not feel she had badgered T. into accusing [Petitioner] of molesting him.
Darbee was assigned to the juvenile/sex crimes division of the Bakersfield Police Department. He went to [Petitioner]'s hotel to interview him in December 2005. When he arrived, all the boys were dressed in their underwear, as was [Petitioner]. While waiting for [Petitioner], Darbee saw C. put his hand inside another boy's briefs, apparently touching his penis.
Darby interviewed C. on two occasions. The first was late the night he first appeared at the hotel. A video recording of the interview was introduced into evidence and played for the jury.
C. was interviewed a second time a few days later. Darbee observed the beginning of the interview and conducted the latter part of the interview. A video recording of this interview also was played for the jury. In the interview, C. admitted he had been touched inappropriately by [Petitioner] and claimed he had been molested approximately 10 times.
C.C. was age 27 at the time of trial. He was born in Cambodia and moved to Bakersfield in 1986. He met [Petitioner] through their church. C.C. began spending time with [Petitioner]. [Petitioner] molested C.C. for the first time when C.C. spent the night at [Petitioner]'s motel. [Petitioner] fondled and masturbated C.C. At the time C.C. was approximately seven years old. [Petitioner] molested C.C. approximately one to three times in a two-year period. When C.C. was 16, he told his family and the church what had occurred. The church investigated but nothing came out of the investigation.
S.R. was age 32 at the time of trial. S.R. was eight years old when he met [Petitioner]. After S.R. and his mother grew to trust [Petitioner], S.R. would spend the night at [Petitioner]'s house. Eventually, S.R. ended up sleeping in [Petitioner]'s bed. [Petitioner] began by asking S.R. to sleep in his bed so he could read him a story. After about the third time S.R. had slept with [Petitioner], [Petitioner] asked S.R. to do inappropriate things. [Petitioner] liked to masturbate while touching S.R.'s penis. [Petitioner] molested S.R. approximately 15 times, beginning when S.R. was eight and ending when S.R. was 11 or 12.
[Petitioner]'s defense consisted of several character witnesses, including his stepson, and a psychiatrist who suggested the techniques used in investigating this case could have led to false accusations. The character witnesses all testified that they did not believe [Petitioner] had molested anyone. [Petitioner]'s stepson testified that [Petitioner] was a good father, he had not been molested by [Petitioner], and he did not believe [Petitioner] would molest any child.FN3
FN3. Our brief summary of the defense evidence does not mean we give it little weight. We summarized it so because it was the jury's function to determine the weight to be assigned the testimony. (See Resp't's Answer, Ex. A.)
Relief by way of a petition for writ of habeas corpus extends to a person in custody
pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of Kern County ...