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David Franklin Barghoorn v. Ken Clark

October 3, 2012

DAVID FRANKLIN BARGHOORN, PETITIONER,
v.
KEN CLARK, WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Terry J. Hatter, Jr. Senior United States District Judge

Order

Petitioner was found guilty of two counts of forcible lewd conduct upon a child under fourteen years of age and one count of continuous sexual abuse of a child under fourteen years of age. The jury found petitioner guilty on all three counts. Petitioner had two previous serious felony convictions. He was sentenced to eighty-five years to life in state prison.

Petitioner appealed to the California Court of Appeal, which affirmed the judgment. Subsequently, he petitioned the California Supreme Court for review, which was which denied. Respondent admits Petitioner exhausted his claims for relief. Petitioner, pro se, filed this federal writ for habeas relief on the following grounds:

1. The trial court erred in giving instructions that allowed the jury to convict petitioner of continuous sexual abuse of the alleged victim based on one act of alleged abuse;

2. The trial court improperly instructed the jury to consider California Penal Code section 803(g), which violates the Ex Post Facto Clause of the United States Constitution;

3. The trial court abused its discretion by failing to exclude or limit the evidence of his prior sexual misconduct;

4. The trial court erred in instructing the jury to consider evidence of petitioner's other sexual offenses and petitioner's trial counsel rendered ineffective assistance of counsel for failing to object to this jury instruction; and

5. Petitioner's appellate counsel rendered ineffective assistance of counsel for failing to object to the jury instruction that allowed the jury to convict petitioner of continuous sexual abuse of the alleged victim based on one act of alleged abuse.

A writ of habeas corpus may only be granted if the Petitioner's state court judgment was in violation of "clearly established federal law, as decided by the Supreme Court" or was based on an "unreasonable determination of the facts" based on the evidence before the state court. 28 U.S.C. § 2254(d) (1-2). Factual decisions made by that state court are presumed to be correct and the Petitioner has the burden of proof to show the state court made a factual mistake by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Petitioner argues that the trial court erred by giving the jury two sets of conflicting unanimity instructions: California Jury Instructions ("CALJIC") Nos. 10.42.6 and 17.01. CALJIC No. 10.42.6 states the requisite elements of California Penal Code section 288.5 and instructs the jury that it must find that the defendant committed three or more acts of substantial sexual conduct to convict him of that offense. CALJIC No. 17.01 instructed the jury that it must find "any one or more of the acts" and to "agree that [defendant] committed the same act or acts."

A claim for instructional error under state law is not a basis for federal habeas relief. Indeed, federal courts do not grant relief simply because the instruction may have been deficient. Estelle v. McGuire, 502 U.S. 62, 72, 112 S. Ct. 475, 482, 116 L. Ed. 2d 385, 398 (1991). Instead, the only question for federal review is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle, 502 U.S. at 71. Additionally, the instruction "may not be judged in artificial isolation," but must be considered in the context of the instructions as a whole and the trial record. Estelle, 502 U.S. at 72.

In the context of the instructions as a whole and the trial record, CALJIC Nos. 10.42.6 and 17.01 were not inconsistent. When read together, as the jury was told to do, CALJIC No. 17.01 did not alter the requirement stated in CALJIC No. 10.42.6 that the jury must find that the defendant committed three or more acts. While CALJIC No.

10.42.6 broke down the requisite elements for the specific charge of continuous sexual abuse of a child, CALJIC No. 17.01 was given in connection with all three counts. Specifically, CALJIC No. 17.01 requires that all jurors, to return a verdict of guilty, must agree that the defendant committed the same act although the prosecution had introduced evidence for the purpose of showing that there was more than one act upon which a conviction may be based. These two instructions did not infect the entire trial or create a reasonable likelihood that the jury would have applied the instructions in a way that prevents the consideration of constitutionally relevant evidence. Because Petitioner failed to establish that the trial court's decision was objectively unreasonable, petitioner's claim fails.

Petitioner contends that California Penal Code section 803(g) violates the Ex Post Facto Clause of the United States Constitution, thereby infringing upon his due process rights. Under California Penal Code section 800, the general statute of limitations for child sexual abuse, as prescribed by sections 288 and 288.5, is six years. Section 803 specifies the circumstances which toll the general statutory period of limitations. The legislature added subdivision (g) to section 803, effective on January 1, 1994, to extend the period of limitations for violations of sections 288 and 288.5. Section 803(g) permits charges to be brought in cases where the statute of limitations had expired if the prosecution followed within one year of a complaint made to the police. (Section 803(g) has been amended several times since its original enactment and has most recently been renumbered subdivision (f.)) When petitioner was charged in 2003, ...


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