United States District Court, E.D. California
JAMES K. SINGLETON, Jr., Senior District Judge.
Mark Douglas Strong, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Strong is currently in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at Salinas Valley State Prison. Respondent has answered. Strong has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Strong was charged with multiple sex offenses against F. and O., two 5-year-old children, including two counts of oral copulation with F. (counts 1 and 2), attempted oral copulation with F. (count 3), two counts of committing a lewd and lascivious act with F. (counts 4 and 5), attempted commission of a lewd and lascivious act with F. (count 6), oral copulation with O. (count 7), and two counts of committing a lewd and lascivious act with O. (counts 8 and 9). People v. Strong, No. C064081, 2012 WL 1885246, at *1-2 (Cal.Ct.App. May 23, 2012). It was further alleged that Strong committed the offenses against two or more victims. Id. at *2. A jury convicted him of counts 1 through 6 and count 9 and found true the multiple victim enhancement. Id. at *2. The jury found Strong not guilty on count 8 and could not reach a verdict on count 7, and count 7 was subsequently dismissed. Id. The court sentenced Strong to a term of 7 years on count 3, and two consecutive terms of 15 years to life on counts 1 and 9. Id. On counts 2, 4, and 5, Strong was sentenced to concurrent terms of 15 years to life, and on count 6 was sentenced to a 3-year concurrent term. Id. Various fines and fees were imposed, including a $10, 000 restitution fund fine. Id.
Strong directly appealed through counsel, arguing that: 1) the trial court erred in denying his motion to exclude the statements he made to Officer Galliano because he did not voluntarily waive his right to counsel during the interview; 2) the trial court erred in prohibiting him from cross-examining Galliano about Strong's interest in retaining an attorney, in that it infringed on his ability to challenge the reliability of his confession at trial; and 3) his conviction for lewd and lascivious conduct against O. (count 9) must be reversed because there was insufficient evidence that he committed the act upon which the jury was instructed, and because he was convicted of an act upon which the jury was not instructed. On May 23, 2012, the California Court of Appeal affirmed Strong's judgment of conviction in a reasoned, unpublished opinion. Strong, 2012 WL 1885246, at *9.
Strong filed a counseled petition for review to the California Supreme Court, raising the same arguments he raised in his unsuccessful appeal to the Court of Appeal. On August 29, 2012, the California Supreme Court denied review without comment. Strong filed his undated Petition for Writ of Habeas Corpus with this Court on March 7, 2013.
II. GROUNDS RAISED
In his pro se Petition to this Court, Strong raises the same three claims he unsuccessfully raised on direct appeal: 1) the trial court erred in denying his motion to exclude the statements he made to Officer Galliano because he did not voluntarily waive his right to counsel during the interview; 2) the trial court erred in prohibiting him from cross-examining Galliano about Strong's interest in retaining an attorney; and 3) his conviction for lewd and lascivious conduct against O. must be reversed because there was insufficient evidence that he committed the act upon which the jury was instructed, and he was convicted of an act upon which the jury was not instructed.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, " § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision." Id. at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court unreasonabl[y] appli[ed] clearly established Federal law.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
In applying these standards on habeas review, this Court reviews the "last reasoned decision" by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Strong has not replied to Respondent's answer. The relevant statute provides that "[t]he allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true." 28 U.S.C. § 2248; see also Carlson v. Landon, 342 U.S. 524, 530 (1952). Where, as here, there is no traverse filed and no evidence offered to contradict the allegations of the return, the court must accept those allegations as true. See Phillips v. Pitchess, 451 F.2d 913, 919 (9th Cir. 1971).
Claim one: invocation of right to counsel
Strong first argues that his waiver of the right to counsel was not voluntary because the interrogating officer "blocked [his] attempts to invoke that right." In resolving this claim on direct appeal, the Court of Appeal recounted the facts of the interrogation as follows:
[Strong] was arrested and interrogated by Officer Galliano on March 20, 2009. The interrogation was audio taped. Galliano was the only officer present and was dressed in plain clothes. Although [Strong] was in custody, he was not handcuffed. The interview lasted approximately 30 minutes. Officer Galliano advised [Strong] of his Miranda rights, [and] [Strong] indicated he understood those rights and implicitly waived them.
[Strong] initially denied any wrongdoing. Galliano left the room and pretended to view a nanny cam. When he returned, he told [Strong] that DNA test results were in and established his guilt. [Strong] then acknowledged F. liked to "snuggle and cuddle." The nanny cam and the DNA tests were ruses to encourage [Strong] to confess.
Approximately eight minutes into the interrogation, as Galliano continued pressing [Strong], [Strong] stated "Perhaps I should retain a lawyer." Because [Strong] said this softly and while hunched over, Galliano thought [Strong] was talking to himself and his statement about counsel was ambiguous.
Galliano left the room for about five minutes, to give [Strong] an opportunity to consider whether he wanted counsel. To clarify [Strong's] meaning, when he returned, Galliano readvised [Strong] of his right to an attorney and that one would be provided for him if he could not afford one. [Strong] interrupted Galliano, and said "Um, I don't know." Galliano responded by telling [Strong] not to interrupt him, "reminding him of his manners" and continuing to tell [Strong] he needed to hear [Strong's] side of the story. It did not appear to Galliano that [Strong] had been trying to invoke his Miranda rights at that time.
The interrogation continued for approximately another 17 minutes. [Strong] did not mention an attorney again. He ultimately admitted he had exposed his penis to F. a couple of times and she had touched it three times in the last month. He got an erection after she touched his penis, but he did not ejaculate in front of her. He denied ever having her lick his penis, although he admitted asking her if she had ever licked a penis. He admitted he told F. not to tell her parents, because he felt guilty. He continued to deny anything happened with O.
Prior to trial, [Strong] moved to exclude these statements, claiming they were obtained in violation of his Miranda rights and the court conducted an Evidence Code section 402 hearing on the matter. [Strong] acknowledged that since he did not invoke his Miranda rights after the first advisement, he had impliedly waived them. However, he argued his statements were not voluntary, as he had been compelled to make them through "police intimidation, coercion or deception, " in that "Galliano explicitly promised [him] that he would walk out of the interrogation room with his head held high if he confessed."FN2 He also argued that "as soon as [he] attempted to invoke his right to an attorney, Officer Galliano immediately told him to be quiet and let him finish. [Strong] never again attempted to invoke his right to an attorney, but became upset and distraught in the face of additional questioning."
FN2 Strong does not renew this claim on appeal, accordingly the facts relevant to that claim are not recounted.
Galliano testified at the Evidence Code section 402 hearing on the motion and the court listened to the audiotape of the interrogation. The court found there were no overly coercive, deceptive or intimidating tactics used by Galliano. The court found [Strong's] initial statement regarding a lawyer was not an unequivocal invocation of his right to an attorney. The court also found [Strong's] claimed attempted invocation, when he interrupted Galliano while he was rereading [Strong] his rights, was not an attempted assertion of rights. Rather, [Strong] "[was clearly] thinking about his rights, but it's also clear he is debating among his options in trying to decide whether he ...