The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Kurt Eugene Sindorf, a state parolee appearing pro se,*fn1
filed a Petition for a Writ of
Habeas Corpus under 28 U.S.C. § 2254. Sindorf is currently in the
custody of the California
Department of Corrections and Rehabilitation on parole. Respondent has
answered and Sindorf
I. BACKGROUND/PRIOR PROCEEDINGS
Following a court trial in the Siskiyou County Superior Court, Sindorf was convicted of one count of committing a lewd act upon a person of less than fifteen years of age (Penal Code § 288a(b)(3)), six counts of unlawful intercourse with a minor (Penal Code § 261.5(d)), one count of oral copulation with a minor (Penal Code § 288a(b)(2)), and two counts of attempting to dissuade a witness (Penal Code § 136.1(a)(2)).*fn2 In December 2003 the trial court sentenced Sindorf to state prison for the upper term of four years for one of his convictions of unlawful sexual intercourse, consecutive one-year sentences (one-third of the middle term) for two of his other convictions of unlawful sexual intercourse, a two year consecutive term for one of his convictions of attempting to dissuade a witness and concurrent middle terms for the remainder of his convictions, for an aggregate sentence of eight years. After the California Court of Appeal, Third Appellate District, affirmed Sindorf's conviction in an unpublished decision, the California Supreme Court denied review; however, the Supreme Court granted certiorari and vacated and remanded the decision for resentencing.*fn3 On remand, the California Court of Appeal vacated Sindorf's sentence and remanded the matter to the trial court for resentencing in an unpublished decision.*fn4 On remand, the trial court reimposed the eight-year sentence, the Court of Appeal affirmed,*fn5 and the California Supreme Court denied review on March 10, 2010. Sindorf timely filed his Petition for relief in this Court on June 7, 2011.
On October 22, 2012, this Court entered an order staying these proceedings pending completion of state-court proceedings, providing however that if proceedings were not commenced in the California Supreme Court by December 3, 2012, the stay would be terminated, the unexhausted claims dismissed, and the exhausted claims submitted for decision.*fn6
On December 3, 2012, Sindorf filed a status report in which he acknowledged that he was unable to develop sufficient factual support to support the unexhausted claims.*fn7
The Court of Appeal summarized the evidence underlying Sindorf's conviction:
Christina M. was 10 years old when she first met [Sindorf] who was one of her mother's co-workers. She became more familiar with [Sindorf] when she was 15 years old. [Sindorf] often came into the store where Christina worked.
In September 2000, when she was 15 years old, [Sindorf], who was 37 years old at the time, began a sexual relationship with her. After a day of hunting in Redding with [Sindorf] and his five-year-old son, C., Christina invited them over to her house for dinner. Her mother was not at home. After dinner, when they were sitting on the couch watching TV and C. had fallen asleep, [Sindorf] said, "I don't know if I should do what I'm about to do." Not knowing what he was talking about, Christina replied, "You don't know until you try." [Sindorf] reached over and started to kiss her. [Sindorf] reached under Christina's shirt and touched her breasts over her bra. He laid her down on the couch and continued to touch her. Christina did not refuse him as she had some feelings for him. They moved to her bedroom where [Sindorf] undressed her and himself. [Sindorf] laid Christina down on her bed and got on top of her. He put first his fingers, then his penis into her vagina. After about 15 minutes of sex, they got dressed and went back out to the living room. [Sindorf] did not spend the night.
The next day Christina got an e-mail message that said: "Christina: Hi. It's 2:45, and I just got home and built a fire and washed the dishes from the a.m. I am now ready for bed and should get almost two hours of sleep. This should be plenty as I am partially running off the 'L' word, too, and this is definite boost. I had the time of my life tonight and I owe it all to you. Good luck at the game and know my thoughts are with you always. Love Kurt. P.S. Someone has fallen."
Approximately a week later, Christina had sex again with [Sindorf], this time at his house. [Sindorf] again penetrated her vagina with his fingers and penis. She spent the night with him in his bed.
A couple of weeks later, while Christina's mother was in the hospital, Christina and [Sindorf] had sex again at [Sindorf's] house. [Sindorf] touched Christina's breasts and placed his fingers in her vagina. Then they had intercourse. Christina spent the night in [Sindorf's] bed.
Around this time, [Sindorf] and Christina went to J.C. Penney's where [Sindorf] bought Christina an engagement ring, costing $1,000, to replace the promise ring he had earlier given her. [Sindorf] talked to Christina about marriage and wanted to go to Hawaii where it was legal to get married before she turned 18. They discussed her current age. [Sindorf] told Christina not to wear the ring in public or in front of her mother.
Christina and [Sindorf] made another trip to Redding within a month after [Sindorf] bought Christina the engagement ring. On the way home in the car, [Sindorf] asked Christina to give him a "blow job" while he was driving. She told him she was uncomfortable, but he wanted her to do it. [Sindorf] undid his belt, unzipped his pants, and pulled them down. Christina sucked on his penis for maybe two minutes. She was really uncomfortable and stopped. [Sindorf] put his arm around her and said it was okay.
On another occasion, between November and December 2000, Christina was up by [Sindorf's] house. [Sindorf's] son C. was sleeping in the truck and [Sindorf] asked Christina to go into the house with him to have sex. Although she felt bad because C. was sleeping in the truck, they went inside and had sex.
During November 2000 Christina, her mother Shirley, [Sindorf] and C. went on a trip to Canada. One evening Christina's mom was not feeling well and wanted to stay at the motel. Christina and [Sindorf] drove to a Denny's restaurant for something to eat. [Sindorf] sat next to Christina and they were holding hands when Christina saw her mom standing at the window of the restaurant watching them. Christina's mom came into the restaurant and yelled at Christina. She demanded to know what was going on. She wanted Christina to walk back to the motel and pack her stuff to go. Christina defied her mother and refused. Later when they were back in their motel room, Christina's mother threatened to "call the cops" if Christina would not leave with her. [Sindorf] came to their room and told Christina to go with her mom. Christina refused. Her mother called the police, who came and took Christina and her mother to another hotel.
In December 2000, [Sindorf] sent Christina an e-mail to an address he had set up for her, stating: "Hi, Hon. Some may think they are winning the war, but my love grows stronger for you with each passing day. Thank you for being the most beautiful thing in my life. I love you more than words can say. Think of me, and I will be by your side, I promise. Love forever, Kurt."
Christina and [Sindorf] had a meeting spot by the elementary school by Christina's house, which they referred to as "the rock." [Sindorf] set it up as a place to meet and leave each other letters. After returning from Canada, around March of 2001, Christina and [Sindorf] were at the rock. [Sindorf] laid his jacket on the ground and wanted to have sex. Christina told him that she did not want to. There was snow on the ground. [Sindorf] told her everything would be okay and just to do what he told her. He laid her down on his jacket and they had sex even though she told him no.
The last time Christina had sex with [Sindorf] was in March 2001 when Christina was supposed to meet [Sindorf] on the hill. When he failed to show up, she started walking home. [Sindorf] drove up and asked Christina to get in his truck. Christina got in and they had sex.
Christina testified there was some concern she might be pregnant because [Sindorf] had not always used a condom. [Sindorf] arranged for Kim, his ex-girlfriend and the mother of C., to visit Christina while she was at the College of the Siskiyou gymnasium playing volleyball. Kim took Christina into the girl's locker room where she gave Christina a two-way radio to enable her to talk to [Sindorf] who was out in the parking lot. [Sindorf] told Christina to take a pregnancy test Kim had with her, that he loved her and everything would be okay. Christina took the pregnancy test, which turned out negative. Kim took the test stick, put it in a ziploc bag and said [Sindorf] wanted to keep it for himself. Christina gave inconsistent statements regarding when this pregnancy test occurred.
When Kim confronted [Sindorf] about being sexually involved with Christina, [Sindorf] denied it. [Sindorf] did tell her at one point that he was only human and he could make mistakes. [Sindorf] told her Christina tried to come on to him.
When Christina's mother got a restraining order against [Sindorf], [Sindorf] arranged for he and Christina to meet sometimes at Kim's home.
[Sindorf] wanted Christina to be on birth control because of continued concerns over pregnancy. [Sindorf] and Christina went together to a health clinic. [Sindorf] was present for her physical examination because Christina was afraid to tell the nurse she didn't want him in the room. He left the room when she changed back into her clothes. Christina did not feel free to tell the nurse the entire truth because of [Sindorf's] presence. She lied to the nurse about her sexual relationship with [Sindorf] because [Sindorf] told her to do so.
According to Christina, she lied when she denied any sexual relationship with [Sindorf] in early interviews with law enforcement. She was afraid to tell the truth and she still had some positive feelings for [Sindorf].
Prior to the preliminary hearing, Christina saw [Sindorf] and walked up to his truck. [Sindorf] told Christina to go to Kim's house the following night as Kim needed to talk to her. When Christina followed [Sindorf's] instructions, she discovered it was not Kim who wanted to talk to her, but [Sindorf]. [Sindorf] told her if she loved him, she would not testify. He told her to think of what she would be doing to C. if she testified.
Michelle Hobbs, a friend of [Sindorf's], came up to Christina at the store where Christina worked. She showed Christina a picture of C. and gave her an envelope with a message from [Sindorf] that if she loved C. and loved [Sindorf], she wouldn't say anything. The preliminary hearing was coming up. Ms. Hobbs then took the items back and returned them to [Sindorf]. [Sindorf] told Ms. Hobbs not to tell the authorities anything if they ever asked her about delivering the envelope.
Christina saw the numbers 381 painted on her mailbox and a number of other places around the town. [Sindorf] told Christina he was leaving those marks to show his love for her. "381" means "three words, eight letters, one meaning-I love you." Kim testified she drove [Sindorf] around town to spray paint the numbers in various places.
Christina found [Sindorf's] actions a bit scary. She was inhibited at first, but later overcame her fears to tell what had happened.
Patricia Morrison, public health nurse and family planning nurse practitioner with the Siskiyou County Public Health Department, testified [Sindorf] came into the county's Mt. Shasta clinic with Christina on November 30, 2000. [Sindorf] said Christina needed birth control services, that it was important that it be confidential, and he was a very good friend of the family. [Sindorf's] home phone number was provided as the means of contacting Christina regarding any test results. When Ms. Morrison made it clear she was a mandated reporter and she would be required to report if someone under the age of 16 was having sex with someone who is 21 or older, [Sindorf] said he was not her partner; [Sindorf] was a friend of the family.
Christina filled out a health questionnaire indicating she had sex on a regular basis, did not always use any method of birth control and was concerned about getting pregnant. [Sindorf] was present while Ms. Morrison discussed with Christina her responses to the questionnaire. At Christina's request, [Sindorf] was present in the exam room while Ms. Morrison conducted a breast and pelvic exam of Christina. [Sindorf] stood at the head of the examination table during the exam, holding and patting Christina's hand and softly talking to her. Ms. Morrison thought the contact seemed more intimate than that of a family friend. At the end of the examination, [Sindorf] stayed in the exam room while Christina washed and dressed.
Ms. Morrison called Child Protective Services and made a report of suspected child abuse.
Jeffrey Lierly, a special agent with the California Department of Justice Bureau of Investigation, spoke with Kim regarding what she knew about [Sindorf's] relationship with Christina. Initially she denied knowing anything, but after she was granted immunity by the Attorney General's Office, she agreed to talk with Lierly. Kim told Lierly she accused [Sindorf] of having a sexual relationship with Christina and [Sindorf] responded: "All's I know now is I'm human and can make mistakes, too." [Sindorf] said Christina "was all over [him]" or "she came on to [him.]"
Kim told Lierly that one night [Sindorf] came to Kim's house and told her he needed her help to help a friend with a pregnancy test. That was why Kim was involved with Christina's pregnancy test at the gym. Kim overheard [Sindorf] and Christina talking on the walkie-talkies and [Sindorf] was generally saying comforting things to Christina, who was upset. [Sindorf] told Kim to deny the pregnancy test ever occurred. [Sindorf] suggested that if she did not deny it, she could be implicated in the situation.
[Sindorf] also instructed Kim to say she was supposed to have gone with Christina to the health clinic. When the issue of the engagement ring came up, [Sindorf] told Kim to say it was her ring. He advised Kim to deny the existence of the note sent to Christina by Ms. Hobbs.
Christina's mother Shirley testified she saw Christina and [Sindorf] together at the Denny's restaurant in Canada. Christina was looking [Sindorf] eye to eye and rubbing [Sindorf's] arm very passionately. Shirley became very upset and asked Christina to go with her to the restaurant restroom. Shirley asked her daughter what she had just seen. Christina didn't answer, but looked guilty, like she had just been caught. [Sindorf] later asked for an opportunity to explain and told Shirley he was in love with Christina. Shirley later called the Canadian police who helped her relocate to a different motel for that night.
Shirley and Christina ended up driving back to California with [Sindorf], who kept saying he was in love with Christina, it was better for Christina to be with him than someone else, and kept asking Shirley if she would still remain "friends" with him. Shirley refused to remain friends. When [Sindorf] said he had discussed marriage with Christina, Shirley told him he was "a sick S.O.B." She went straight to the police when they arrived back home and sought a restraining order against him. Her first attempt was procedurally defective.
Meanwhile, [Sindorf] continued to see Christina, so Shirley met with [Sindorf] to tell him to stay away. [Sindorf] seemed embarrassed and told her he and Christina had made up the whole story the night in Canada. Shirley angrily left. When she got home, she got a call from [Sindorf] telling her if she took the matter to the police, he would have her job. Shirley got a restraining order against [Sindorf] in March 2001.
After their return from Canada, Christina became angry and cold towards Shirley. Shirley took Christina to counseling and was present when Christina denied any inappropriate relationship with [Sindorf]. Christina said she made the whole thing up to get more attention from Shirley.
Christina was recalled as a witness and admitted she had denied any sexual encounters with [Sindorf] when interviewed by Shannon Bowlin (an investigator with the Siskiyou county District Attorney's Office) prior to March 2001. She referred to [Sindorf] as an old friend and a father figure.
Christina said Bowlin told her child pornography, or pictures of other girls Christina's age, had been found on [Sindorf's] computer. According to Christina, her principal also mentioned to her that he had seen such pictures from [Sindorf's] computer. Both Bowlin and the principal denied telling Christina pornography had been found on [Sindorf's] computer.
The night before Christina was admitted to Sutter Memorial hospital in March 2001, shortly before the hearing in court regarding the restraining order, she met with [Sindorf] at Kim's house. She spent two and a half hours listening to [Sindorf] tell her everything she needed to do, what she needed to believe, and what she didn't need to believe. [Sindorf] told her if she said anything, it would ruin everything. [Sindorf] told her not to believe what Bowlin was saying about him or them.
When Christina got out of the hospital 7 to 14 days later, Bowlin contacted her again and Christina decided to tell the truth of what happened. She ended up telling Bowlin part of the truth, but she still held back some things.
Bowlin testified she first interviewed Christina in January or February 2001. During that interview, Christina denied any inappropriate relationship with [Sindorf]. Bowlin talked to Christina again in March and in May 2001.
Christina contacted Bowlin prior to the May interview to say she was ready to tell Bowlin about the relationship between her and [Sindorf]. At the May interview, Christina said [Sindorf] was in love with her, but she looked upon him as a father figure. She denied a sexual relationship. It was not until a meeting with Bowlin in August 2001 that Christina said their relationship was of a sexual nature. In her experience, Bowlin could not think of a time when she interviewed a victim in this kind of circumstance where the victim immediately disclosed the relationship with the man she was involved with. That is, in the cases where the investigation ultimately showed there was a sexual relationship, she could not recall one where the victim had "disclosed" immediately.
Catherine Golden, an investigator with the Siskiyou County District Attorney's Office, conducted an interview with Christina in May 2002. Christina admitted she was embarrassed and not truthful in her earlier interview with Bowlin. She described various incidents of sexual contact with [Sindorf]. Golden talked to Christina again in June 2002 and ...