The opinion of the court was delivered by: Terry J. Hatter, Jr. Senior United States District Judge
A jury acquitted Petitioner for the crimes of lewd and lascivious acts with a child under age fourteen and misdemeanor battery, but found Petitioner guilty of the lesser included offense of misdemeanor assault, and of one count of first degree burglary. In a bifurcated trial, the jury also found the following allegations to be true: That Petitioner had suffered three strike priors; That Petitioner had suffered two prior serious felony convictions; and That Petitioner had served a prior prison term. The court sentenced Petitioner to an aggregate term of twenty-five years to life plus ten years. The California Court of Appeal affirmed the conviction, and the California Supreme Court denied review. The trial court, state appellate court, and state supreme court denied Petitioner's subsequent habeas petitions.
In his current petition for habeas relief, Petitioner asserts that the trial court:
1. Unreasonably determined that there was sufficient evidence that Petitioner entered the motel room with the specific intent to commit a felony, and that the victim's family inhabited the motel room, violating Petitioner's Fifth, Sixth, and Fourteenth Amendment rights;
2. Erred in admitting evidence of the 1995 incident where a woman awakened to find Petitioner standing naked by the couch on which she was napping, because admission of that evidence was untimely, not similar to the charged offense, and had no probative value, violating Petitioner's Fifth, Sixth, and Fourteenth Amendment rights;
3. Erred in excluding the evidence Petitioner sought to admit under the rule of completeness, violating Petitioner's Fifth, Sixth, and Fourteenth Amendment rights;
4. Erred in using Petitioner's prior conviction from a 1988 plea agreement to impose a sentence of twenty-five years to life, violating Petitioner's Fifth, Sixth, and Fourteenth Amendment rights;
5. Erred in rejecting Petitioner's claim that trial counsel was ineffective for failing to seek "specific performance" of the terms of his prior plea agreement, violating Petitioner's Sixth Amendment rights; and
6. Erred when it imposed a proscribed dual use of Petitioner's prior convictions by sentencing him under both the Three Strikes law and for two determinate, five-year terms under California Penal Code section 667(a), violating Petitioner's Eighth Amendment rights.
The petition is governed by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254. Lindh v. Murphy, 521 U.S. 320, 326, 117 S. Ct. 2059, 2063, 138 L. Ed. 2d 481, 488 (1997). Under the AEDPA, a federal court may not grant a writ of habeas corpus unless the state court's adjudication was either: 1) Contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 2) Based on an unreasonable determination of the facts in light of the evidence presented at the State Court proceeding. 28 U.S.C. § 2254(d)(1-2). Petitioner has not demonstrated that he is entitled to relief under this standard.
Petitioner's first claim fails under the AEDPA. Where there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. Lavender v. Kurn, 327 U.S. 645, 653, 66 S. Ct. 740, 744, 90 L. Ed. 916, 923 (1946). Here, the jury chose to rely on the evidence favorable to the prosecution. The evidence included, inter alia: Petitioner's admission that he entered the motel room through a window; that once inside the room, and without announcing Petitioner's presence or turning on a light, Petitioner went to the bed where the children were sleeping; the Victim's parent's testimony that once her eyes adjusted to the dark room when she awoke, she could see the children in bed, details of the bed, and a figure stand up and exit the room; that Petitioner had no trouble exiting the room through the door when the victim's parent awoke; and the victim's testimony that the figure pulled down his covers, pulled down the victim's pajama bottoms, and improperly touched the victim's genitals. It is clear that there is sufficient evidence on which the jury could rely to find that Petitioner entered the dwelling with the intent to engage in an activity proscribed by Cal. Penal Code § 288. The conviction for the lesser included offense of misdemeanor assault does not disturb the satisfaction of the intent element of the burglary conviction.
Petitioner's second claim fails. There is no clearly established Supreme Court precedent that provides habeas relief for specific errors in evidence admitted pursuant to California law. Under the AEDPA, the only justification for granting habeas relief for errors in admission of evidence is when that admission renders the trial so unfair that it violates due process. Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). First, the trial court did not abuse its discretion when it chose not to exclude the evidence of Petitioner's prior uncharged sexual incident where the victim awoke to find Petitioner standing naked by the couch on which she reclined. The trial court may, in its discretion, choose a different sanction other than excluding evidence. Second, the trial court did not abuse its discretion in finding that the prior sexual incident was similar to the charged conduct. In the prior uncharged incident and the charged incident, the Petitioner entered the dwelling of a sleeping acquaintance, engaged in arguably sexual behavior, and then apologized to the acquaintance thereafter. Third, that evidence was highly probative of Petitioner's intent. What little emotional bias that evidence contained was clearly outweighed by its probative value of showing the jury the absence of mistake and intent. Thus, the evidence was properly admitted and did not render the trial fundamentally unfair.
Petitioner's third claim fails. The trial court's exclusion of Petitioner's proffered Cal. Evid. Code § 356 completeness evidence was not an abuse of discretion and did not render the trial fundamentally unfair. The evidence Petitioner moved to be admitted was self-serving hearsay without an exception, and had little to no bearing on the prosecution's evidence the Court admitted. Thus, Petitioner's evidence was not within the ambit of the completeness rule. Although a criminal defendant has the right to present competent evidence in his defense, a court may properly exclude evidence so long as the exclusion does not deprive a defendant of due process. Montana v. Egelhoff, 518 U.S. 37, 51-53, 116 S. Ct. 2013, 2021-22, 135 L. Ed. 2d 361, 372-74 (1996). This evidence was not competent, and exclusion of such was not an unreasonable application of any Supreme Court precedent.
Petitioner's fourth claim fails. He contests the state court's decision to reject his challenge to the validity of his 1988 felony convictions, claiming that when he entered into a plea agreement, he did not fully understand the terms of the plea, and, consequently, use of these prior convictions to enhance his sentence violated his due process rights. Petitioner argues that the terms of the plea agreement guaranteed that his convictions would not be used in the future if he suffered further felony convictions. By accepting the agreement, he understood that he would receive an enhanced sentence of five years, and not a life or death sentence. When Petitioner was subsequently convicted of another offense, the state court accounted for ...