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Howard K. Kanehe v. James E. Tilton

August 9, 2012


The opinion of the court was delivered by: Dean D. Pregerson United States District Judge



Petitioner Howard K. Kanehe, a state prisoner in the custody of the California Department of Corrections and Rehabilitation, filed a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (the "Petition" or "Pet.") on March 18, 2008. Respondent filed an answer to the Petition on July 2, 2008, after obtaining an extension of time in which to do so. (See June 4, 2008 Order at 1.) Petitioner filed a traverse ("Trav.") on August 27, 2008, after obtaining an extension of time in which to do so. (See August 13, 2008 Order at 1.)

Pursuant to 28 U.S.C. § 636, the court has reviewed the Petition, all the relevant records and files, and the Report and Recommendation of the United States Magistrate Judge. Objections to the Report and Recommendation have been filed. Having made a de novo determination of those portions of the Report and Recommendation to which objections have been made, the court concurs with the majority of the Magistrate Judge's findings, conclusions, and recommendations. Accordingly, the court adopts the following order, which is drawn largely from the Report and Recommendation.


On November 6, 2003, a Riverside County Superior Court found petitioner guilty of 10 counts of lewd and lascivious conduct with a child under the age of 14 by force, duress, or menace (Cal. Penal Code § 288(b)(1)). As to each count, the court found that the requirements of California Penal Code section 803(g)(1) (2003) were met. (Clerk's Transcript ("CT") 184-85; Reporter's Transcript ("RT") 76.) On December 4, 2003, the trial court sentenced petitioner to 10 consecutive terms of three years each, for a total prison term of 30 years. (CT 223-24; RT 89-90.)

Petitioner appealed his conviction and sentence in the California Court of Appeal. (Lodg. Nos. 3, 5.) On July 13, 2004, the Court of Appeal found that there was insufficient evidence of force, fear, or duress. The court modified the judgment to reflect convictions of the lesser included offense of violating California Penal Code section 288(a). The court remanded the case for resentencing. (Lodg. No. 6 at 10-11.) On November 12, 2004, the trial court resentenced petitioner to three years on Count One and two years on the remaining counts, for a total prison term of 21 years. (Lodg. No. 7 at 4-5; Lodg. No. 8 at 28-29.)

Petitioner appealed his sentence in the California Court of Appeal, claiming, inter alia, that his rights to due process, to a jury trial, and to the effective assistance of counsel were violated. (Lodg. No. 9.) He raised slightly different ineffective assistance grounds in a petition for writ of habeas corpus before the same court. (Lodg. No. 12.) On June 30, 2006, the Court of Appeals rejected petitioner's claims on direct review and on habeas review and affirmed the judgment. (Lodg. No. 11.)

Petitioner filed a petition for review of the Court of Appeal's decision in the California Supreme Court. (Lodg. No. 14.) He also filed a habeas petition in the California Supreme Court, again raising various ineffective assistance grounds. (Lodg. No. 16.) On October 18, 2006, the California Supreme Court summarily denied the petition for review and the habeas petition. (Lodg. Nos. 15, 17.)

Petitioner filed the Petition on March 18, 2008.


As petitioner does not challenge the sufficiency of the evidence supporting his conviction, the following factual summary is taken from the California Court of Appeal's opinion on direct review after resentencing:

[Petitioner] molested his daughter, K., beginning when she was three years old. He would touch her "private area" in a rubbing motion both over and under her clothing. He would also place his fingers inside her vagina. The molestations continued until K. was seven years old. During this time, [petitioner] attempted to insert his penis in her vagina, and he orally copulated her at least once a week. [Petitioner] told his daughter "once or twice" not to tell her mother what he was doing.

[Petitioner] stopped molesting his daughter for about a year when the family moved back to Hawaii. The molestations resumed when K. was in the sixth grade and the family was back in California. On one occasion, [petitioner] showed his daughter a pornographic video. Finally, in April 2002, when K. was 17, she disclosed the molestations to her family.

The family members confronted [petitioner], and eventually he admitted the molestations. A family member thereafter called the police. [Petitioner] admitted to the authorities that he had repeatedly molested his daughter. [Petitioner] had also molested his stepdaughter when she was a teenager. (Lodg. No. 11 at 3-4.)


1. The trial court's imposition of consecutive sentences based on facts not found by a jury beyond a reasonable doubt violated petitioner's Sixth Amendment rights (Pet. Memorandum ("Pet. Mem.") at 13-15 ("Claim One");

2. The trial court's imposition of consecutive sentences based on improper factors and inaccurate statements of fact violated petitioner's Sixth Amendment rights (Pet. Mem. at 15-20) ("Claim Two"); and

3. Petitioner was denied the effective assistance of counsel by virtue of his trial counsel's failure to introduce mitigating evidence and to object to the imposition of consecutive sentences on various grounds (Pet. Mem. at 21-32) ("Claim Three").


The review of petitioner's claims herein is governed by provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").*fn1 See 28 U.S.C. § 2254; see also Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997). Under AEDPA, a federal court may not grant habeas relief on a claim adjudicated on its merits in state court unless that adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn2 28 U.S.C. § 2254(d) ("Section 2254(d)"); see Williams v. Taylor, 529 U.S. 362, 402-03, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).

The phrase "clearly established Federal law" means "the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision."*fn3 Lockyer, 538 U.S. at 71-72. However, a state court need not cite the controlling Supreme Court cases in its own decision, "so long as neither the reasoning nor the result of the state-court decision contradicts" relevant Supreme Court precedent which may pertain to a particular claim for relief. Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002) (per curiam).

A state court decision is "contrary to" clearly established federal law if the decision applies a rule that contradicts the governing Supreme Court law or reaches a result that differs from a result the Supreme Court reached on "materially indistinguishable" facts. Williams, 529 U.S. at 405-06. A decision involves an "unreasonable application" of federal law if "the state court identifies the correct governing legal principle ...

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