ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
GONZALO P. CURIEL, District Judge.
Petitioner William Kennerson ("Petitioner"), a state prisoner proceeding in forma pauperis and in pro per, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) Pursuant to 28 U.S.C. § 636(b)(1), Magistrate Judge William McCurine, Jr. filed a report and recommendation ("Report") recommending that the petition be denied in its entirety. (Dkt. No. 21.) Petitioner filed objections to the report and recommendation on July 22, 2013. (Dkt. No. 22.) After a thorough review of the issues, the documents presented, and objections filed, the Court ADOPTS the Magistrate Judge's report and recommendation and DENIES the petition for writ of habeas corpus. The Court also DENIES a certificate of appealability.
On July 18, 2008, a jury found Petitioner guilty of four counts of committing a lewd act upon a child in violation of California Penal Code section 288(a) and three counts of committing a forcible lewd act upon a child in violation of California Penal Code section 288(b)(1). In addition, the jury found true that: (1) Petitioner committed the offenses against more than one victim; and (2) Petitioner had substantial sexual conduct with a child under fourteen years of age. (Resp't Lodgment No. 1, ECF No. 13-3 at 131-137.) On October 30, 2008, Petitioner was sentenced to a term of 45 years to life plus 12 years in state prison. (Resp't Lodgment No. 1, ECF 13-3 at 140-141.)
Petitioner appealed his conviction to the California Court of Appeal claiming: (1) his due process rights were violated by the trial court's denial of his request for a continuance to recall witnesses; (2) the trial court's failure to give a jury instruction sua sponte on child sexual abuse accommodation syndrom constituted error; (3) the trial court erred in granting the jury's request to view a videotaped interview during deliberations; and (4) the trial court erred when it precluded Petitioner from cross examining the victim of an uncharged offense about her mental state at the time of an investigative interview. (Resp't Lodgment No. 3, ECF 13-18.) On June 10, 2011, the appellate court affirmed Petitioner's conviction in a reasoned opinion. (Resp't Lodgment No. 6, ECF 13-21.)
On July 20, 2010 Petitioner filed a petition for review with the California Supreme Court, raising claims one, two and four above, which were raised in the court of appeal. (Resp't Lodgment No. 7, ECF 13-22.) The California Supreme Court denied the petition without comment or citation on September 22, 2010. (Resp't Lodgment No 8, ECF 13-23.)
On August 1, 2011, Petitioner filed a Petition for Writ of Habeas Corpus in the California Superior Court, County of San Diego, East County Division, claiming ineffective assistance of appellate counsel for failure to raise the following issues on appeal: (1) ineffective assistance of trial counsel for failure to object to the filing of a second amended information on the day of trial; (2) ineffective assistance of trial counsel for failure to request CALCRIM jury instruction 1192 and/or 1193; (3) trial court error for failure to compel the production of witnesses Socorro and Christian; and (4) failure to prove all the elements of count five of the second amended information. (Resp't Lodgment No. 9, ECF 13-24.) On September 30, 2011, the state superior court denied the Petition in a reasoned decision. (Resp't Lodgment No. 10, ECF 13-25.)
On November 11, 2011, Petitioner filed a Petition for Writ of Habeas Corpus in the California Court of Appeal, raising the same claims made in his previous state habeas petitions filed on August 1, 2011. (Resp't Lodgment No 13 ECF 13-28.) On December 6, 2011, the Court of Appeal denied the Petition in a written decision. (Resp't Lodgment No. 12 ECF 13-27.)
On February 16, 2012, Petitioner filed a Petition for Writ of Habeas Corpus in the California Supreme Court, and raised the same claims made in his previous state habeas petitions filed on August 1, 2011 and November 11, 2011. (Resp't Lodgment No. 13, ECF 13-28.) The California Supreme Court denied the Petition without comment or citation on June 13, 2012. (Resp't Lodgment No. 14, ECF 13-29.)
On August 6, 2012, Petitioner filed another Petition for Writ of Habeas Corpus in the California Supreme Court, and raised the same claims made in his previous state habeas petitions filed on August 1, 2011; November 11, 2011 and February 16, 2012. (Resp't Lodgment No. 15, ECF 13-30.) The California Supreme Court denied the Petition on October 24, 2012, citing to In re Clark , 5 Cal.4th 750, 767-69 (1993). (Resp't Lodgment No. 16, ECF 13-31.)
On November 28, 2012, Petitioner filed the instant petition for writ of habeas corpus in this Court alleging his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution were violated because appellate counsel rendered ineffective assistance by failing to raise three points in the appellate briefing. (Dkt. No. 1.) Petitioner also requested an evidentiary hearing in support of his ineffective assistance of appellate counsel claims. (Dkt. No. 1.)
On June 25, 2013, Magistrate Judge William McCurine, Jr. issued a report and recommendation denying the Petition. (Dkt. No. 21.) On July 22, 2013, Petitioner filed an Objection to the Report and Recommendation. (Dkt. No. 22.)
The following factual background is taken from the unpublished appellate court opinion affirming Petitioner's conviction on direct review. The Court presumes these factual determinations are correct pursuant to 28 U.S.C. § 2254(e)(1). Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. Id .; see also Parke v. Raley , 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness).
In 1999, when Christian was 11 or 12 years old, her mother began dating Kennerson. At that point in time, Christian, her mother and her brother lived in an apartment in El Cajon. Later in 1999, Christian, her mother and her brother moved into Kennerson's Jamul home. Kennerson molested Christian both when her family was living in the apartment in El Cajon and later when they moved into his home.
On one occasion, Kennerson forced Christian to rub her hand up and down on his penis while her brother and mother were in the house. Christian did not report the assault to her mother because she was frightened. On another occasion, Kennerson forcibly sodomized Christian. While he was sodomizing Christian, Kennerson put his hand over her mouth to muffle her screams. Christian's brother knocked on the door and asked if everything was alright; Kennerson responded that he was helping Christian. Kennerson told Christian that if she told anyone he would do it again and hurt her family.
When the family was living in Kennerson's home, Christian's mother noticed Kennerson coming from Christian's room and that Christian was terrified of sleeping alone. She became suspicious and moved out of the home three months after moving into it.
In 2002, after her mother's relationship with Kennerson had ended, Christian told her mother about the molestations and they both reported the incidents to the police.
After Kennerson's relationship with Christian's mother ended, he met another woman, Leticia. Kennerson married Leticia in 2002 and she and her five- or six-year-old daughter Carla moved into his home. Between 2003 and 2004 Kennerson molested Carla. He touched her breasts and vagina over her clothes.
Carla reported the molestations to her mother when she was eight and after she learned Kennerson was not her biological father. Leticia was not sure Carla was being truthful because previously Carla had made false accusations about an uncle.
Carla met with a social worker in 2006 and a videotaped forensic interview was conducted. Initially in the interview, Carla reported that yet another uncle had molested her and her cousin and denied that any other molestation had occurred. However, later ...