United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY, Magistrate Judge.
Petitioner, a former state prisoner, is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his 2011 sentence to three years in state prison following a no contest plea to one count of sexual penetration of a minor. (ECF No. 1 ("Ptn.").) Respondent has filed an answer to the petition. (ECF No. 12.) Upon careful consideration of the record and the applicable law, the undersigned will recommend that the petition be denied.
In its affirmation of the judgment on appeal, the California Court of Appeal, Third Appellate District, set forth the relevant factual background as follows:
On May 9, 2010, the 16-year-old victim was sleeping in her room when defendant (the victim's stepfather) entered and turned on the light. The victim was wearing "cheer" shorts, a white t-shirt, a sweat shirt, and panties. She pretended to sleep while defendant removed her blankets.
Defendant took pictures of the victim with his cell phone. The victim felt defendant rub her buttocks and thigh while she was lying on her stomach. Defendant then moved the victim's shorts and panties to one side and inserted his finger into her vagina for about 20 seconds. He took another picture of the victim before leaving the room. The victim texted a report of the incident to a friend as soon as defendant left.
When questioned by authorities, defendant denied the incident and said that he considered the victim like a daughter. Defendant's cell phone contained six deleted photographs which were taken on the day of the incident.
Defendant pleaded no contest to sexual penetration of a minor under the age of 18. (Pen. Code, § 289, subd. (h).) The trial court denied probation, sentenced defendant to three years in prison, and ordered him to register as a sex offender. (§§ 290, 290.006.
(Lod. Doc. 1 at 2-3.)
II. Procedural History
On April 25, 2011, in the Yuba County Superior Court, petitioner pled no contest to sexual penetration of a minor under eighteen pursuant to Cal. Penal Code. § 289, subd. (h). (Ptn. at 1.) He was sentenced to a three-year prison term and is currently on parole. (Ptn. at 1; Lod Doc. 1 at 1, 3.)
Petitioner appealed his conviction, and after briefing by the parties (Lod. Doc. 2, 3), the California Court of Appeal affirmed the judgment on October 4, 2012. (Lod. Doc. 1.)
On August 2, 2012, petitioner filed a habeas petition in the Yuba County Superior Court. On October 2, 2012, the Superior Court denied the petition without prejudice as premature, as petitioner's appeal was pending. (Lod. Doc. 7.) On October 31, 2012, petitioner filed a motion for reconsideration of the Superior Court's denial. (Lod. Doc. 8.) On November 5, 2012, the Superior Court denied the petition on its merits. (Lod. Doc. 8.)
On November 15, 2012, petitioner filed a petition for review in the California Supreme Court. (Lod. Doc. 5.) On December 19, 2012, the California Supreme Court denied review. (Lod. Doc. 6.)
On December 31, 2012, petitioner filed a habeas petition in the California Court of Appeal, which denied the petition on January 10, 2013. (Lod. Doc. 9.)
On January 28, 2013, petitioner filed a habeas petition in the California Supreme Court, which denied the petition on March 30, 2012. (Lod. Doc. 10.)
Petitioner filed this federal habeas petition on August 26, 2013. (Ptn.) Respondent filed an answer on December 23, 2013. (ECF No. 12.)
The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
As a preliminary matter, the Supreme Court has recently held and reconfirmed "that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been adjudicated on the merits.'" Harrington v. Richter , 131 S.Ct. 770, 785 (2011). Rather, "when a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 784-785, citing Harris v. Reed , 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785.
The Supreme Court has set forth the operative standard for federal habeas review of state court decisions under AEDPA as follows: "For purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law.'" Harrington, supra , 131 S.Ct. at 785, citing Williams v. Taylor , 529 U.S. 362, 410 (2000). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree' on the correctness of the state court's decision." Id. at 786, citing Yarborough v. Alvarado , 541 U.S. 652, 664 (2004). Accordingly, "a habeas court must determine what arguments or theories supported or... could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id . "Evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.'" Id . Emphasizing the stringency of this standard, which "stops short of imposing a complete bar of federal court relitigation of claims already rejected in state court proceedings[, ]" the Supreme Court has cautioned that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id., citing Lockyer v. Andrade , 538 U.S. 63, 75 (2003).
The undersigned also finds that the same deference is paid to the factual determinations of state courts. Under § 2254(d)(2), factual findings of the state courts are presumed to be correct subject only to a review of the record which demonstrates that the factual finding(s) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." It makes no sense to interpret "unreasonable" in § 2254(d)(2) in a manner different from that same word as it appears in § 2254(d)(1) - i.e., the factual error must be so apparent that "fairminded jurists" examining the same record could not abide by the ...