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Cunningham v. Grounds

United States District Court, Ninth Circuit

May 16, 2013

JOHN EDWARD CUNNINGHAM, Petitioner,
v.
WARDEN R. GROUNDS, Respondent.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY

LUCY H. KOH, District Judge.

Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. The Court ordered Respondent to show cause why the petition should not be granted. Respondent has filed an answer, and Petitioner has filed a traverse. Having reviewed the briefs and the underlying record, the Court concludes that Petitioner is not entitled to relief based on the claims presented, and DENIES the petition.

PROCEDURAL HISTORY

On May 30, 2003, a jury found Petitioner guilty of continuous sexual abuse of a child under the age of 14. (Resp. Memo. P & A at 1.) The trial court sentenced Petitioner to an aggravated term of sixteen years in state prison. ( Id. ) In May 2005, the California Court of Appeal affirmed the judgment. (Resp. Ex. 9.) On June 29, 2005, the California Supreme Court denied Petitioner's petition for review. (Resp. Ex. 12 at 1.) The United States Supreme Court granted certiorari, found that California's sentencing scheme violated the Sixth Amendment, and remanded the case for further proceedings. Cunningham v. California, 549 U.S. 270 (2007). On November 6, 2008, the trial court re-sentenced Petitioner to the upper term of 16 years. (Resp. Ex. 13 at 2.) On January 25, 2010, the state appellate court affirmed the sentence. (Resp. Ex. 13.) On March 30, 2010, the California Supreme Court denied review. (Resp. Ex. 15.)

On November 16, 2011, Petitioner filed the underlying federal petition for writ of habeas corpus.

BACKGROUND

Victim's Testimony
The victim, referred to at trial and herein as John Doe, is appellant's son. Doe, born in August 1989, testified that he lived with his mother, Wanda, for the first 10 years of his life. In December 1999, when Doe was 10 years old, he went to live with appellant, appellant's girlfriend, Latasha, appellant's and Latasha's baby, and Latasha's young nephew.
Doe admitted that prior to moving in with appellant, Doe falsely accused his stepfather of beating him, resulting in scars on his back, because he wanted to live with appellant and did not like his new stepfather. After appellant took Doe to the hospital Doe admitted he had lied. Doe also admitted that when he was eight years old he called the telephone number for Boys' Town and falsely reported that there was no food in his mother's house and she did not provide him with enough attention. The police and child protective services investigated the call and found Doe was healthy and had ample food at his house.
Doe testified that in January 2000, shortly after he moved in with appellant, appellant began forcibly sodomizing him and forcing him to orally copulate appellant. Sometimes while being sodomized by appellant, Doe screamed for help because it hurt "very bad" and appellant put his hand over Doe's mouth to stop Doe from screaming. The acts occurred in appellant's bedroom, the living room, the bathroom and the shower. Sometimes appellant molested Doe when he was angry with Doe. Because appellant threatened to kill Doe if he told anyone about the abuse, Doe was afraid of appellant and did not tell anyone while living with him. In December 2000, Doe first told his younger cousin, Brittany, about appellant's abuse in a note while visiting her when appellant was out of town. Before giving her the note Doe said "I have to tell you, " but did not want to say it aloud. The note said, "my dad is hu[m]ping me." Thereafter Brittany showed the note to her mother, Karla, who then questioned Doe as to what it meant. Doe told Karla about appellant's repeated incidents of sodomy and forcing Doe to orally copulate him. After Karla told her husband, Gerrell, about Doe's allegations, Gerrell talked to Doe, then took him to appellant's house for a family meeting. While there, as Doe was packing his clothes, appellant confronted him while they were alone and said, "In a week you better say you are lying or else I am going to fuck you up."
After Doe reported appellant's abuse to Wanda and his stepfather, Wanda took him to the hospital. The pediatrician who performed a sexual assault examination on Doe testified that the examination revealed no trauma to Doe's anus, consistent with most postsodomy examinations. However, the doctor said that Doe's accounts of how he felt physically during and after being sodomized and orally copulating appellant were consistent with how children report such incidents.
On January 4, 2001, Doe was interviewed by San Pablo Police Officer Jeff Palmieri. Doe told Palmieri that appellant sexually abused him numerous times beginning shortly after he moved in with appellant. On January 8, Kerry O'Malley of the Children's Interview Center (CIC) conducted a videotaped sexual assault interview of Doe.[FN2] Doe's statements during the CIC interview were consistent with his earlier statements to Palmieri.
FN2. A videotape of the CIC interview was played for the jury and admitted into evidence.
On January 5, 2001, appellant agreed to a videotaped interview by Officer Palmieri and Contra Costa District Attorney's Office Inspector Ted Todd.[FN3] At the beginning of the interview appellant adamantly denied any type of sexual touching of Doe. As the questioning ensued, appellant became more forthcoming in his responses. After two or three hours, appellant admitted that Doe's mouth did make contact with appellant's penis for five seconds while in the shower on one occasion. Appellant ...

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