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Prera v. Paramo

United States District Court, C.D. California, Eastern Division

December 9, 2014

JUAN JOSE PRERA, Petitioner,
DANIEL PARAMO, Warden, Respondent

Juan Jose Prera, Petitioner, Pro se, San Diego, CA.

For Daniel Paramo Warden, Respondent: David Delgado-Rucci, Kevin R Vienna, LEAD ATTORNEYS, Office of Attorney General, California Department of Justice, San Diego, CA.



This Report and Recommendation is submitted to the Honorable Cormac J. Carney, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California. For the reasons reported below, the Magistrate Judge recommends that the Court deny the second amended petition for writ of habeas corpus by a person in state custody pursuant to 28 U.S.C. § 2254 (" SAP"), and dismiss this action with prejudice.


1.1 State Court Proceedings

On October 13, 2011, Juan Jose Prera (" Petitioner") was convicted of three counts of forcible rape (Cal. Penal Code § 261(a)(2)) and one count of sexual battery by restraint (Cal. Penal Code § 243.4(a)) following a jury trial in the California Superior Court for San Bernardino County (case no. FSB1102202). (Reporter's Transcript of Oral Proceedings (" RT") (Lodged Document (" LD") 1) at 299; Clerk's Transcript on Appeal (" CT") (LD 2) at 176-79.) Petitioner was sentenced to a term of twenty-five years in state prison. (RT at 311; CT at 197, 204-05.)

Petitioner appealed the judgment of conviction and his sentence to the California Court of Appeal, raising inter alia ground four of his pending six-claim SAP. (LD 3.) On February 20, 2013, in an unpublished opinion, the state court of appeal rejected his claims and affirmed the judgment (case no. E055004). (LD 6.) The California Supreme Court denied review of the court of appeal's decision without comment or citation (case no. S209416). (LD 7 & 8.)

Petitioner subsequently raised inter alia all six of his pending claims in state habeas petitions, one in the superior court (case no. WHC1300522), one in the court of appeal (case no. E061088), and one in the California Supreme Court (case no. S218837). (LD 9, 11, 13.) The superior court denied all six claims in a reasoned order. Specifically, the superior court denied grounds one and two on the procedural ground that those claims should have been raised on direct appeal, relied entirely on the appellate record, and should not have been raised in a habeas petition. The court also cited to In re Dixon, 41 Cal.2d 756, 759, 264 P.2d 513 (1953). The superior court then denied grounds four and six on the procedural ground that those claims were " essentially the same as those already raised on direct appeal, and may not be raised anew in a habeas corpus petition." The superior court also denied ground four on the separate procedural ground that a claim challenging the sufficiency of the evidence may not be raised in a habeas petition. Finally, the superior court rejected grounds three and five (Petitioner's ineffective assistance of counsel (" IAC") claims) on the merits. (LD 10.)

The state court of appeal and the California Supreme Court subsequently denied Petitioner's habeas petitions without comment or citation. (LD 12 & 14.)

1.2 Pending Proceedings

On October 2, 2013, Petitioner, proceeding pro se, filed his original petition initiating this action and raising four claims. (Pet. at 5-6.) Pursuant to his pre-service screening, the previously-assigned Magistrate Judge found the petition was subject to dismissal because it was not properly signed. Petitioner was given the opportunity to file an amended petition correcting the defect. (10/15/13 Order (OP) [4].)

Petitioner subsequently filed a First Amended Petition (" FAP"), again raising four claims. (FAP at 5-6.) Respondent filed a motion to dismiss the FAP on the ground that it was a mixed petition containing both exhausted and unexhausted claims. (Motion to Dismiss (" MTD") [12] at 3-6.) In lieu of an opposition, Petitioner filed a motion to stay this action and hold it in abeyance while he exhausted his unexhausted claims [15]. However, he then sought leave to file the pending SAP, which contained six claims that he was concurrently raising in his state habeas petitions [19]. The previously-assigned Magistrate Judge ordered the SAP to be filed, denied the MTD as moot, and ordered briefing on Petitioner's stay request " as it relates to the SAP." (6/11/14 Order (OP) [20].)

This case was subsequently reassigned to the current Magistrate Judge, who adopted the 6/11/14 Order to the extent it found the SAP to be the operative pleading, but vacated that order in all other respects and suspended briefing until further notice. (6/30/14 Order (AN) [23].) Petitioner was then ordered to lodge a copy of his habeas petition filed in the California Supreme Court. (7/30/14 Order (AN) [24].)

On August 8, 2014, Petitioner lodged a copy of his California Supreme Court habeas petition as ordered, and notified the Court that it had been denied, rendering the SAP fully exhausted [25]. The Magistrate Judge then denied Petitioner's stay request as moot and ordered Respondent to file a response to the SAP [26].

Next, Respondent filed an Answer arguing that grounds one and two are procedurally barred and non-cognizable, and that all six claims fail on the merits. (Answer at 11-35.) Petitioner has filed his Reply and accompanying Memorandum, and the matter now stands submitted for decision.


2.1 Standard of Review

Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"), 110 Stat. 1214, a federal court may not grant a state prisoner's application for habeas relief for any claim adjudicated on the merits in state court proceedings unless the adjudication of the claim resulted in a decision that was: (1) " contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; " or (2) " based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." § 2254(d); Harrington v. Richter, 562 U.S. 86, __, 131 S.Ct. 770, 784-85, 178 L.Ed.2d 624 (2011); see also Burt v. Titlow, __ U.S. __, __, 134 S.Ct. 10, 15, 187 L.Ed.2d 348 (2013). The above standard " recognizes a foundational principle of our federal system: State courts are adequate forums for the vindication of federal rights." Titlow, 134 S.Ct. at 15.

Therefore, although AEDPA " stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings, " it nevertheless " reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Richter, 131 S.Ct. at 786 (citation and internal quotation marks omitted). Consequently, § 2254(d) " preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents." Id. Put another way, in order to obtain federal habeas relief, " a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87; Titlow, 134 S.Ct. at 16.

" 'Clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). More specifically, clearly established Federal law " refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Carey v. Musladin, 549 U.S. 70, 74, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006) (quoting Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Additionally, clearly established Federal law is only determined by the Supreme Court, not by the circuit courts. Lopez v. Smith, 574 U.S. __, __, 135 S.Ct. 1, 4, 190 L.Ed.2d 1 (2014) (per curiam); 28 U.S.C. § 2254(d)(1). Circuit precedent also cannot " refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that this Court has not announced." Lopez, 135 S.Ct. at 4 ( quoting Marshall v. Rodgers, 569 U.S. __, __, 133 S.Ct. 1446, 1450, 185 L.Ed.2d 540 (2013)). Instead, where no decision of the Supreme Court " squarely addresses" an issue or provides a " categorical answer" to the question before the state court, § 2254 (d)(1) bars relief because the state court's adjudication of the issue cannot be contrary to, or an unreasonable application of, Supreme Court law. Wright v. Van Patten, 552 U.S. 120, 125-26, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008) (per curiam); see also Moses v. Payne, 555 F.3d 742, 754, 758-60 (9th Cir. 2009).

A state court decision is " contrary to" governing Supreme Court law if it either applies a rule that contradicts the governing Supreme Court law or " confronts a set of facts that is materially indistinguishable from a decision of [the Supreme Court] but reaches a different result." Brown v. Payton, 544 U.S. 133, 141, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005). Citation to Supreme Court cases is not required so long as " neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002); see also Bell v. Cone, 543 U.S. 447, 455, 125 S.Ct. 847, 160 L.Ed.2d 881 (2005) (" Federal courts are not free to presume that a state court did not comply with constitutional dictates on the basis of nothing more than a lack of citation."); Richter, 131 S.Ct. at 784 (" [A]s this Court has observed, a state court need not cite or even be aware of our cases under § 2254(d)."). What matters is whether the last reasoned decision by the state court was contrary to Supreme Court law, not the intricacies of the analysis. Hernandez v. Small, 282 F.3d 1132, 1140 (9th Cir. 2002).

A state court's decision involves an " unreasonable application" of Supreme Court precedent " if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. More specifically, " 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." Richter, 131 S.Ct. at 786. Federal habeas relief may only be granted if the state court's application was " objectively unreasonable, " not merely incorrect or erroneous. Andrade, 538 U.S. at 75-76; Wiggins v. Smith, 539 U.S. 510, 520-21, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

Moreover, " [f]actual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary . . . ." Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) ( citing § 2254(e)(1)). In fact, under § 2254(d)(2), a state-court factual determination is not unreasonable merely because a federal habeas court would have reached a different conclusion. Titlow, 134 S.Ct. at 15. Instead, a state court makes " an unreasonable determination of the facts in light of the evidence presented" only where the federal habeas court is " convinced that an appellate panel . . . could not reasonably conclude that the finding is supported by the record . . . [or] that any appellate court to whom the defect is pointed out would be unreasonable in holding that the state court's fact-finding process was adequate." Ocampo v. Vail, 649 F.3d 1098, 1106 (9th Cir. 2011) ( quoting Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)). " This is a daunting standard - one that will be satisfied in relatively few cases." Taylor, 366 F.3d at 1000.

Additionally, " review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, __ U.S. __, __, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011).

AEDPA's deferential standard applies to grounds three through five of the pending SAP, but not grounds one, two, or six for the following reasons.

First, Petitioner raised ground four (his insufficient evidence claim) in both the state court of appeal and the California Supreme Court on direct appeal. (LD 3 & 7.) The court of appeal rejected that claim on the merits in a reasoned opinion, and the state high court denied it without comment. (LD 6 & 8.) Under the " look through" doctrine, ground four is deemed to have been rejected for the reasons given in the last reasoned decision on the merits, which was the court of appeal's opinion. Ylst v. Nunnemaker, 501 U.S. 797, 802-06, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991).

Second, Petitioner raised grounds three and five (his IAC claims) in all three of his state habeas petitions. (LD 9, 11, 13.) The superior court denied those claims on the merits in a reasoned order, and the state court of appeal and California Supreme Court denied them without comment or citation. (LD 10 at 2-3; LD 12, LD 14.) Again, under the " look through" doctrine, grounds three and five are deemed to have been rejected for the reasons given in the last reasoned decision on the merits, which was the superior court's reasoned order. Ylst, 501 U.S. at 802-06.

Third, grounds one, two, and six were denied on collateral review by the superior court solely on procedural grounds (LD 10 at 1-2), and the later silent denials by the state court of appeal and California Supreme Court means the state courts never reached a decision on the merits of those claims. See Ylst, 501 U.S. at 803 (" [W]here, . . . the last reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits."). Consequently, while the Court will not consider the merits of grounds one or two at all due to Petitioner's procedural default, discussed below, this Court has considered the merits of ground six de novo. See Cone v. Bell, 556 U.S. 449, 472, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009) (where the state courts do not reach the merits of the federal claim at issue, " federal habeas review is not subject to the deferential standard that applies under AEDPA to 'any claim that was adjudicated on the merits in State court proceedings.' 28 U.S.C. § 2254(d). Instead, the claim is reviewed de novo .").

2.2 Facts Established at Trial

Ground four of the pending SAP is an insufficient evidence claim, requiring the Court to conduct an independent review of the trial transcript. Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997). The Court has conducted that review and finds the state court of appeal's decision affirming Petitioner's judgment of conviction contains a statement of facts that is based upon a reasonable determination of the facts in light of the evidence presented. Ocampo, 649 F.3d at 1106; Taylor, 366 F.3d at 1000. Further, the state court's factual determinations are presumed correct where, as here, Petitioner has not proffered clear and convincing evidence to the contrary. § 2254(e)(1); Miller-El, 537 U.S. at 340; see also Moses, 555 F.3d at 746 n.1. Consequently, the Court adopts verbatim the court of appeal's summary of the trial evidence as follows:

On the evening of February 27, 2010, defendant forcibly raped the victim after dragging her into his car and driving her to an abandoned parking lot. At about 6:00 p.m., defendant drove his car closely alongside the victim as she walked through a gas station, after dark and in the pouring rain. Defendant rolled down the front passenger window of his car and asked the victim for directions and other information. The victim leaned in to defendant's car because she did not have her glasses on and could not see. Defendant at that point grabbed the victim by her jacket, pulled the top portion of her body into his car and drove away.
Defendant drove to a nearby abandoned parking lot and pulled the victim completely into the car. As the victim pleaded for her life, defendant told her " I don't want to hurt you. I don't want to kill you. Just be nice to me, be nice and you won't get hurt." The victim did not initially struggle because she was afraid. When she did begin to struggle, defendant took out a knife and pointed it at her neck, without touching her with the knife, and asked her if she was going to be " nice." Defendant then climbed over to the passenger seat on top of the victim and began touching her sexually. The victim was able to open the passenger door, but defendant quickly closed and locked it. Defendant forced his penis inside the victim's vagina and moved it back and forth. Two or three times, defendant's penis became dislodged and he reinserted it. Defendant complained that the position was " uncomfortable, " and asked the victim to hold his penis to help him reinsert it. After about four minutes, defendant stopped and said he wanted to take the victim " somewhere nice."
Defendant took the victim back to the gas station and told her to continue walking to the store as she had planned. Defendant asked the victim where she lived and for her cell phone number. The victim lied about where she lived, but gave the defendant her cell phone number. The victim went home, where her sister called police. The victim underwent a sexual assault exam, from which evidence implicating defendant was collected.
Defendant called the victim on her cell phone about a week later and asked to meet her and take her to a hotel. Her sister hung up the phone. About three months later, the victim and a friend were walking near their apartment complex when defendant approached them in a truck, blocked their path, and asked them for directions through the passenger window, as he had on the prior occasion. When the two tried to leave, the defendant pulled forward and tapped the victim with his truck. The two ran to the victim's home and called police. Defendant was arrested shortly thereafter.

(LD 6 at 2-3.)

2.3 Procedural Default (Grounds One and Two)

In ground one, Petitioner claims the trial court violated his rights to due process, a fair trial, and confrontation, by admitting evidence of two prior offenses. (SAP at 6a-6b; Reply Mem. at 9-28.) In ground two, Petitioner argues he was given constitutionally-inadequate notice of the charges against him and the facts of the case. (SAP at 6b; Reply Mem. at 35-36.) In the Answer, Respondent argues that these claims are procedurally barred. (Answer at 11-15.) As discussed below, the Court agrees with Respondent.

The procedural default doctrine bars review of a petitioner's federal habeas claim when the claim was rejected in state court based on an adequate and independent state procedural bar. Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). To be independent, a procedural bar must have arisen from explicit and independent state law. Id. at 735; Harris v. Reed, 489 U.S. 255, 265, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). If the basis of the decision is interwoven with federal law, or if a threshold federal analysis is required, there is no independent basis for the bar, and the petitioner may seek relief in federal court. Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003). For the procedural bar to be adequate, it must be clear, consistently applied, and well established at the time of the alleged default. Collier v. Bayer, 408 F.3d 1279, 1284 (9th Cir. 2005) (citation and internal quotations omitted).

Here, in denying grounds one and two on state collateral review, the superior court expressly ruled that these claims " rely entirely on the appellate record, could have been raised on direct appeal, and may not be raised in a petition for writ of habeas corpus." As stated above, the superior court also cited to Dixon, 41 Cal.2d at 759. (LD 10 at 1-2.) Further, as also stated above, the subsequent silent denials by the state court of appeal and California Supreme Court are presumed to have relied on the superior court's procedural bar. Ylst, 501 U.S. at 803.

Therefore, this Court finds the state courts expressly invoked a procedural rule in California, commonly referred to as the " Dixon rule, " that " habeas corpus cannot serve as a substitute for an appeal, " and absent special circumstances, " the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction." Dixon, 41 Cal.2d at 759; see also In re Harris, 5 Cal.4th 813, 826, 21 Cal.Rptr.2d 373, 855 P.2d 391 (1993) (" [H]abeas corpus will not lie ordinarily as a substitute for an appeal . . . nor as a second appeal. . . . [¶ ] This . . . rule is now firmly established and often repeated without much explication.") (citations and internal quotation marks omitted).

The state has the initial burden to plead the existence of an independent and adequate state procedural bar as an affirmative defense. Bennett, 322 F.3d at 584-86. In the Answer, Respondent expressly raises procedural default as an affirmative defense based on the state court's application of the Dixon rule, argues that the Dixon rule is independent and adequate, and cites authority in support of his argument. (Answer at 12-14.) As a result, Respondent's initial burden is satisfied. See King v. LaMarque, 464 F.3d 963, 967 (9th Cir. 2006) (respondent's initial burden met where " [t]he government explicitly pleaded 'the existence of an independent and adequate state procedural ground, ' . . . as an affirmative defense in district court.") ( quoting Bennett, 322 F.3d at 586).

Next, " the burden to place that defense in issue shifts to the petitioner." A petitioner satisfies that burden " by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule." If the petitioner meets that burden, Respondents bear the ultimate burden of " demonstrating that the bar is applicable . . . ." Bennett, 322 F.3d at 586. In his Reply Memorandum, Petitioner contends grounds one and two are not procedurally barred, but fails to make any specific allegations contesting the adequacy of the Dixon rule. (Reply Mem. at 4-12.) He does argue, without support, that Respondent has failed to meet his initial burden (Reply Mem. at 11), but as discussed above, Petitioner is incorrect.

Petitioner also argues that he should have qualified under an exception to the Dixon rule because in ground one he was (and is) raising a facial challenge to the constitutional validity of California Evidence Code section 1108. (Reply Mem. at 11-12); see also Dixon, 41 Cal.2d at 762 (holding that a facial challenge to the constitutionality of legislation is a " recognized exception to the general rule requiring resort to appeal as a prerequisite to the remedy of habeas corpus."). Petitioner's contention fails for two reasons. First, the state courts, citing Dixon, determined that ground one " may not be raised in a petition for writ of habeas corpus, " and " it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Second, Petitioner is wrong when he claims he is challenging the constitutional validity of California Evidence Code section 1108. Although he does make one perfunctory attempt in the Reply Memorandum to cast ground one as such a facial challenge (Reply Mem. at 45), his actual argument in ground one is that " California Evidence Code section 1108[, ] as used and approved by California courts in Petitioner's case, a sexual offense prosecution, is unconstitutional as applied, in that the state court allowed the [P]eople to introduce [allegedly irrelevant and prejudicial evidence]." (SAP at 6a (emphasis added).) The foregoing is not a facial challenge to the validity of section 1108, but is instead clearly a constitutional challenge to the admission of evidence in Petitioner's specific case . See Dixon, 41 Cal.2d at 761 (state habeas corpus may not substitute for an appeal " even though the alleged errors involving factual issues relate to an asserted denial of constitutional rights.").

Lastly, Petitioner's contention that California's post-conviction process is, in its entirety, constitutionally inadequate (Reply Mem. at 5-8, attached exhibit) is legally and factually frivolous, and fails to address the procedural default at issue here.

Petitioner has failed to meet his burden to demonstrate the inadequacy of the Dixon rule, and consequently, grounds one and two are procedurally barred. Coleman, 501 U.S. at 729-30; Bennett, 322 F.3d at 586.

Moreover, as discussed in detail below, Petitioner would have been unable to meet his burden in any case because the Dixon rule is independent and adequate.

2.3.1 Independence

The Court expressly finds the Dixon rule is independent of federal law for the following reasons. Although the Ninth Circuit previously held it was not, Park v. California, 202 F.3d 1146, 1152-53 (9th Cir. 2000), the California Supreme Court subsequently held " that henceforth California courts would no longer determine whether an error alleged in a state petition constituted a federal constitutional violation." Bennett, 322 F.3d at 581; see also In re Robbins, 18 Cal.4th 770, 811-12, 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998). Subsequently, in Bennett, the Ninth Circuit held, " we respect the California Supreme Court's sovereign right to interpret its state constitution independent of the federal law" and, as a result, found California's untimeliness rule to be independent. Bennett, 322 F.3d at 581-83. Assuming Robbins and Bennett apply equally to California's Dixon rule, a California court's invocation of the Dixon rule after Robbins was decided would also be an independent state ground. Id. at 582-83; see also Park, 202 F.3d at 1153 n.4 (declining to decide " whether Robbins establishes the independence of California's Dixon rule for the future, " but also noting, " The purpose of [ Robbins 's] approach was to establish the adequacy and independence of the State Supreme Court's future Dixon/Robbins rulings . . . .").

Further, following the Ninth Circuit's reasoning in Bennett, a number of district courts have concluded that the Dixon rule is independent of federal law. See Roberts v. Uribe, No. CV 11-2665 WQH (BLM), 2013 WL 950703, at *4 (S.D. Cal. Feb. 6, 2013) (citing cases in accord); Lee v. Mitchell, No. CV 01-10751 PA (PLA), 2012 WL 2194149, at *19 (C.D. Cal. June 11, 2012), order adopting, 2012 WL 2194471 (May 1, 2012); Cree v. Sisto, No. CV 08-487 AK, 2011 WL 66253, at *1 (E.D. Cal. Jan.7, 2011) (Kozinski, J, sitting by designation); Smith v. Crones, No. CV 07-2004 AK, 2010 WL 1660240, at *1 (E.D. Cal. Apr. 22, 2010) (Kozinski, J., Chief Judge) (" Robbins converted Dixon into an independent state ground"); Protsman v. Pliler, 318 F.Supp.2d 1004, 1008 (S.D. Cal. 2004).

The Dixon rule was invoked in this case on April 11, 2014 (LD 10), long after the California Supreme Court decided Robbins . Therefore, the state courts at a minimum invoked an independent state procedural bar in denying grounds one and two. Bennett, 322 F.3d at 581.

2.3.2 Adequacy

Although the Ninth Circuit has not explicitly determined the Dixon rule to be adequate, the bar has been regularly applied since 1993, when the California Supreme Court issued its decision in In re Harris . See Cooper v. Calderon, 255 F.3d 1104, 1111 (9th Cir. 2001); Fields v. Calderon, 125 F.3d 757, 763-64 (9th Cir. 1997) (finding that prior to Harris, the Dixon rule was considered " irregular and inconsistent."). In Harris, the California Supreme Court sought to make application of the Dixon rule consistent and uniform in the California courts. See Fields, 125 F.3d at 763-64 (explaining that in Harris, the California Supreme Court intended " to reestablish California's procedural rules governing state habeas petitions and clearly define and limit the applicable exceptions."). Here, Petitioner could have, but did not, raise grounds one and two on direct appeal in the California Court of Appeal years after Harris was decided. See Fields, 125 F.3d at 760-61 (explaining that the question of whether a state procedural bar is clear, consistently applied, and well-established is determined as of the time the purported default occurred); see also Bennett, 322 F.3d at 586. In similar cases, district courts have found the Dixon rule adequate. See Roberts, 2013 WL 950703, at *5 (" The Dixon rule is now well-established and consistently applied to post- Harris cases.") (citations omitted); Lee, 2012 WL 2194471, at *17-20; Cree, 2011 WL 66253, at *2; Cantrell v. Evans, No. CV 07-1440 MMM, 2010 WL 1170063, at *13-14 (E.D. Cal. Mar. 24, 2010); Sanchez v. Ryan, 392 F.Supp.2d 1136, 1138-39 (C.D. Cal. 2005); see also Protsman, 318 F.Supp.2d at 1014 (concluding that Harris " was intended to make application of the Dixon bar consistent among California courts, " that respondent met her initial burden of pleading the adequacy of the Dixon bar when petitioner's appeal was initiated six years after Harris, and the petitioner had not met his burden to demonstrate inconsistent application of the rule). The Court concurs with these decisions and concludes that Dixon is an adequate basis on which to bar grounds one and two.

2.3.3 Cause and Prejudice/Miscarriage of Justice

Because the Court finds the Dixon rule is an independent and adequate state procedural rule, grounds one and two are procedurally defaulted unless Petitioner can " demonstrate cause for the procedural default and actual prejudice, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice." Bennett, 322 F.3d at 580 (citation omitted). " '[C]ause' under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him." Coleman, 501 U.S. at 753 ( quoting Murray v. Carrier, 477 U.S. 478, 489, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). The miscarriage of justice exception is limited to petitioners who can show that " a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (citation omitted). As Petitioner has not made any allegations, nor proffered any evidence, to satisfy these legal requirements, neither exception applies to excuse the procedural default in this case.

The foregoing establishes grounds one and two are procedurally barred and the Court is not required to consider those claims on the merits. Coleman, 501 U.S. at 729-30.

2.4 IAC Claims (Grounds Three and Five)

In ground three, Petitioner contends his appellate counsel was ineffective for failing to challenge the admission of his prior offenses on direct appeal. (SAP at 6b.) In ground five, Petitioner argues his trial counsel was ineffective for: (1) allowing the trial court to grant a short continuance during trial without explaining the " constitutional ramifications" to him; (2) failing to investigate and obtain surveillance video from the scene of the crime and the victim's apartment complex; and (3) failing to object to two jury instructions. He also complains that the public defender's office changed his attorneys and interpreters too frequently. (SAP at 6c-6d.) All of these claims are without merit, as discussed in detail below.

On state collateral review, the superior court denied Petitioner's IAC claims, in pertinent part, as follows:

[Petitioner] has not shown that appellate counsel would have had any reasonabl[e] likelihood of successfully challenging the trial court's admission of the evidence of [P]etitioner's other sex crimes. And his allegations regarding the San Bernardino County Public Defender's Office " playing 'musical chairs' with [his] life" do not show any impact on the fairness of the proceedings or the competency of the defense he was provided at trial. His allegation regarding an allegedly unexplained " bifurcation" of his trial (which the minutes of the trial suggest was a oneweek gap in the trial, not a bifurcation in the legal sense) is similarly conclusory. It is not apparent that any of Petitioner's rights were implicated by that one-week break, or that [P]etitioner was prejudiced, even assuming that the reasons for that break were not explained to him.

(LD 10 at 2-3.)

The state court's analysis and conclusion were not contrary to, or unreasonable applications of, clearly established Federal law, and were based upon a reasonable determination of the facts in light of the evidence presented. § 2254(d).

A Sixth Amendment IAC claim has two components. " First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Significantly, because " [i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable, " judicial scrutiny of an attorney's performance " must be highly deferential, " and a reviewing court " must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689 (internal quotation marks and citation omitted). The burden to show that counsel's performance was deficient " rests squarely on the defendant, " and " [i]t should go without saying that the absence of evidence cannot overcome" the " strong presumption" described above. Titlow, 134 S.Ct. at 17.

" Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. Specifically, a petitioner must " affirmatively prove prejudice, " and " [i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Instead, the petitioner " must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

Additionally, " [u]nless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Id. at 687. As a result, " a court need not determine whether counsel's performance was deficient before examining the prejudice, " and " [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. at 697.

Finally, while " [s]urmounting Strickland 's high bar" alone " is never an easy task, " the additional task of " [e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Richter, 131 S.Ct. at 788 (citations omitted). Both standards are " highly deferential, " so " when the two apply in tandem, review is 'doubly' so . . . ." Id. ( citing Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009)). Specifically, " [w]hen § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland 's deferential standard." Id.; see also Titlow, 134 S.Ct. at 15 (" Especially where a case involves such a common claim as ineffective assistance of counsel under Strickland - a claim state courts have now adjudicated in countless criminal cases for nearly 30 years - there is no intrinsic reason why the fact that a man is a federal judge should make him more competent, or conscientious, or learned . . . than his neighbor in the state courthouse.") (internal quotation marks and citation omitted).

2.4.1 The Evidence of Petitioner's Guilt Negates Prejudice

Before addressing the specifics of Petitioner's IAC claims, the Court finds they all ultimately fail under Strickland due to the evidence of Petitioner's guilt. Specifically, because the evidence of Petitioner's guilt was so strong, as compared to the errors and omissions his attorney[s] allegedly made, he cannot " affirmatively prove prejudice" by showing a reasonable probability that, but for counsels' unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 693-94.

The victim in this case testified that on February 27, 2010, at approximately 6:00 p.m., she was walking to the store from her apartment to buy juice for her niece. It was dark, cold, and raining, and the victim was dressed in a " snow jacket and sweatpants." (RT at 33, 38, 59.) As the victim was passing through the parking lot of a gas station, Petitioner pulled alongside her in his car, rolled down his passenger-side window, and asked her for directions. After making additional conversation, Petitioner then asked her to come closer to the car. When she complied, he grabbed her, pulled her into the car by the top of her jacket, and sped away. Petitioner then drove to an abandoned parking lot where he committed his crimes. (RT at 34-39, 41-45, 59.) The victim screamed, cried, pleaded with Petitioner not to hurt her and to take her home, and only stopped struggling when Petitioner threatened her with a knife. (RT at 36-39, 45, 56.) At one point while Petitioner was on top of her, the victim was able to crack the car door open and attempted to scream, but Petitioner quickly shut the door and locked it. (RT at 41.) The victim testified that she was scared that she was going to die, and " really felt how it feels to have your life flash before your eyes." (RT at 94.)

Petitioner subsequently dropped the victim off at a residence she had falsely told him was her home. However, Petitioner then told her to " just get out and go to the store like you [were] going for your niece's juice and just keep going and just act like nothing happened." (RT at 40.) The victim complied because she was " so scared" and " was going to listen to anything he said just to make sure that [she] [got] home safely." The victim also testified that Petitioner " could have asked [her] to do anything and as long as he promised that [her] life was going to be there, then [she] would have said yes." (RT at 43-44.) The victim then walked to the store, bought the juice, and returned home. (RT at 40, 43.) Once home, she went into the bathroom because she " felt like [she] couldn't breathe." When the victim's sister came in to check on her, the victim told her what happened, and her sister called 911. (RT at 40.)

On the day Petitioner was arrested, he had attempted to make contact with the victim again by pulling his vehicle up to her while she was walking with her friend, Sharon (a.k.a. " NeNe"). (RT at 54-55, 57.) In that instance, Petitioner pulled his vehicle up " fast to get [the victim] to stop, " and he " pull[ed] it up so far that he tap[ped] [her] leg with the front bumper." The victim was " terrified." She got the license plate of the vehicle, and then summoned her friend to leave with her. Both women hurried to the victim's home, which was in a " fully gated" apartment complex. Once home, the victim stated, " [O]h[] my God, NeNe, I gotta call the police, " and she did so, giving the police the license plate number and a description of the vehicle. (RT at 55-56.) Soon thereafter, the police called the victim back and told her they had made an arrest. (RT at 56.) The victim was then taken to a location where she positively identified Petitioner and his vehicle. (RT at 56.)

Petitioner's defense, which consisted of his own testimony, is best characterized as an attempt to create doubt by turning the case into a " he said, she said" scenario. Petitioner did not claim misidentification or deny having sex with the victim in his car, but instead testified that the victim consented to sex with him in exchange for $50. Petitioner further testified that the victim became angry and exited the car when Petitioner did not have enough money to pay the agreed-upon price. (RT at 208-17, 222-23.) Petitioner's defense, however, failed to rebut the persuasive evidence corroborating the victim's testimony that she was raped.

Specifically, San Bernardino County Deputy Sheriff Emanuel Popa responded to the victim's residence at approximately 6:40 p.m. on the day the rape occurred. (RT at 176-77.) Popa testified that the victim " was in the bathroom of the apartment, seated on the floor in a fetal position, holding her knees to her chest, " and crying. (RT at 177.) She told the deputy she had been raped and provided a brief description of the suspect. He then transported the victim to the police station for an interview, at which time she " had calmed down a little bit, but she was still crying." (RT at 177-78.)

Moreover, on the day of Petitioner's arrest, San Bernardino County Deputy Sheriff Joann Quiroz, who drove the victim to make her identification, testified that at the moment the victim saw Petitioner " [s]he began crying very hard and saying: That's him. That's him. That's him. I'll never forget him. His face is embedded in my [mind or brain]." The deputy reiterated that the victim was " very upset" and " crying very hard." (RT at 105.)

Finally, Petitioner's credibility as a witness was far more suspect than the victim in this case in light of the fact his story changed significantly, but the victim's did not. Specifically, when first interviewed by the police, the victim gave a detailed account of the rape that was identical in all material respects (and virtually identical in every respect) to her trial testimony. (RT at 181-84.) Petitioner, on the other hand, did not claim the sex was consensual when he was first interviewed by the police, but instead denied ever seeing the victim before, denied ever being in the area, denied ever driving the car the victim described to the police, and claimed he had no idea why he was being accused of rape. (RT at 247-49.)

In light of the foregoing, the Court finds none of the alleged attorney errors and omissions discussed below changed the result of the proceeding, Strickland, 466 U.S. at 694, and all of Petitioner's IAC claims fail on that basis alone. See id. at 697 (" [A] court need not determine whether counsel's performance was deficient before examining the prejudice."). Nevertheless, the Court addresses Petitioner's specific contentions below, as each of them individually lack merit as well.

2.4.2 Petitioner's IAC Claims Regarding Trial Counsel (Ground Five) Unsupported/Patently Frivolous IAC Claims

Petitioner's allegations that: (1) his trial counsel " allow[ed]" the trial court to grant mid-trial continuance without " explaining . . . any of the constitutional ramifications thereof"; (2) his trial counsel failed to obtain surveillance video from the crime scene or the victim's apartment complex; and (3) the public defender's office played " musical chairs" with his life by replacing his attorneys too often, are all legally frivolous. (SAP at 6c-6d; Reply Mem. at 43.) First, the complained-of delay in Petitioner's trial from September 30 to October 5, 2011, included a weekend, so it amounted to only four court days. The record does not indicate which party even requested the continuance, and Petitioner has conspicuously failed to identify any " constitutional ramifications" of that very short, routine delay. Second, there is nothing whatsoever in the record to indicate that any video surveillance evidence existed, let alone that it contained exculpatory information. Third, the record establishes not only that Petitioner was represented at every hearing and trial date by a competent attorney, but that he was represented by a single attorney, Caia Cameron, during nearly all pretrial and trial proceedings, including his first trial, which ended in a mistrial. (RT at 1, 22, 29-31, 102, 143, 164, 220, 257, 304; CT at 7, 60, 66, 67, 70, 73, 75, 77, 79, 81, 103, 104, 106, 109, 111, 113, 117, 196.) Only one other attorney ever substituted for Cameron, Tim Douglas, and he never did so in the middle of trial. (RT at 292, 295; CT at 18, 20, 24, 55, 57, 58, 59, 121, 193, 233.) Petitioner also points to nothing in the record indicating his interpreters failed to perform competently.

As to all three of the above IAC claims, the absence of evidence amounts to Petitioner's failure to satisfy both Strickland requirements. See Titlow, 134 S.Ct. at 17 (the burden to show that counsel's performance was deficient " rests squarely on the defendant, " and " [i]t should go without saying that the absence of evidence cannot overcome" the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance); see also Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001) (speculation without evidence " is insufficient to establish prejudice" under Strickland .); Gonzalez v. Knowles, 515 F.3d 1006, 1016 (9th Cir. 2008) (" [S]peculation is plainly insufficient to establish prejudice."). IAC Claims Based on Jury Instructions

Next, Petitioner's allegation that his trial attorney was deficient for failing to object to CALCRIM Nos. 1190 and 1191 because those instructions " allowed his jurors to convict upon evidence that amounted to less than proof beyond a reasonable doubt" is without merit. (SAP at 6d; Reply Mem. at 28-35.) CALCRIM No. 1190 made no reference to the burden of proof, but instead merely instructed the jury that the " [c]onviction of a sexual assault crime may be based on the testimony of a complaining witness alone." (CT at 131.) That instruction was a correct statement of the law, as California law has long been settled that a complaining witness's testimony, alone, may be sufficient to convict a defendant of a sex crime. See People v. Gammage, 2 Cal.4th 693, 700, 7 Cal.Rptr.2d 541, 828 P.2d 682 (1992). Consequently, Petitioner has failed to show any meritorious objection that his attorney could have raised to CALCRIM No. 1190. See Jones v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012) (" It should be obvious that the failure of an attorney to raise a meritless claim is not prejudicial, . . . ."); see also Gonzalez, 515 F.3d at 1017 (trial counsel is not ineffective for failing to raise a meritless objection); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (an attorney's " failure to take a futile action can never be deficient performance.").

CALCRIM No. 1191 instructed Petitioner's jury as follows:

The People presented evidence that the defendant committed the crime of Annoying or Molesting a Child that was not charged in this case. The crime is defined for you in these instructions.
You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
If the People have not met this burden of proof, you must disregard this evidence entirely.
If you decide that the defendant committed the uncharged offense, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit the offenses charged in this case. If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the offenses charged in this case. The People must still prove each charge and allegation beyond a reasonable doubt.

(CT at 132.) Again, Petitioner has failed to show any reasonable probability that an objection to this instruction would have been successful. Jones, 691 F.3d at 1101. The California Supreme Court has repeatedly upheld CALCRIM No. 1191, as well as its predecessor instruction containing nearly identical language (CALJIC No. 2.50.01 (1999)). See People v. Reliford, 29 Cal.4th 1007, 1012-16, 130 Cal.Rptr.2d 254, 62 P.3d 601 (2003); People v. Loy, 52 Cal.4th 46, 71-77, 127 Cal.Rptr.3d 679, 254 P.3d 980 (2011); see also People v. Villatoro, 54 Cal.4th 1152, 1167-68, 144 Cal.Rptr.3d 401, 281 P.3d 390 (2012). Indeed, the California Supreme Court and the Ninth Circuit have ruled that, particularly in light of other instructions which were given in this case, the instructional language in CALCRIM No. 1191 does not lower the prosecution's burden of proof. Loy, 52 Cal.4th at 76-77 ( quoting Reliford, 29 Cal.4th at 1016); see also Schultz v. Tilton, 659 F.3d 941, 945 (9th Cir. 2011), cert. denied, ___ U.S. ___, 132 S.Ct. 2436, 182 L.Ed.2d 1063 (2012) (holding that similar instructional language " was unambiguous and made clear [the petitioner] could be convicted only if the evidence as a whole proved him guilty beyond a reasonable doubt of the charged crime.") (internal quotation marks and brackets omitted).

Petitioner has fallen short of showing his counsel's failure to object to CALCRIM Nos. 1190 and 1191 was either deficient or prejudicial. Jones, 691 F.3d at 1101; Gonzalez, 515 F.3d at 1017; Rupe, 93 F.3d at 1445.

For all the foregoing reasons, the state courts' rejections of Petitioner's IAC claims in ground five were not contrary to, or unreasonable applications of, clearly established Federal law. § 2254(d).

2.4.3 Ineffective Assistance of Appellate Counsel (Ground Three)

Petitioner also contends his appellate attorney was constitutionally ineffective for failing to raise ground one (his challenge to the evidence of his prior offenses) on direct appeal. (SAP at 6b; Reply Mem. at 41-42.) The standard for evaluating a claim of ineffective assistance of appellate counsel is the same as that for trial counsel -- the petitioner must show deficient performance and prejudice. Bailey v. Newland, 263 F.3d 1022, 1028 (9th Cir. 2001). Additionally, as already discussed above, an attorney's failure to raise meritless claims does not satisfy Strickland . See Jones, 691 F.3d at 1101; see also Moormann v. Ryan, 628 F.3d 1102, 1107 (9th Cir. 2010) (appellate counsel does not act unreasonably in failing to raise a meritless claim, nor is the defendant prejudiced by the omission). Petitioner faults his appellate counsel for discussing the admission of his prior offenses in her opening brief, but then failing to challenge the constitutionality of their admission. (SAP at 6b.) As discussed below, despite his prolix allegations to the contrary, that evidence was admissible at his trial, and his appellate counsel was not ineffective for failing to raise a meritless claim on appeal. Moormann, 628 F.3d at 1107. Background Facts

Petitioner's IAC claim in ground three concerns the admission of two prior offenses. As to the first prior offense, described below, the trial court expressly found it admissible under both sections 1108 and 352 of the California Evidence Code. (RT at 23-25.) Specifically, the prosecution presented evidence that, in 2007, Petitioner asked his girlfriend's sixteen-year-old daughter to have sex with him while they were alone in his car, and then he touched her breasts over her shirt, and touched her " between [her] legs" while she resisted. (RT at 166-72.) It was stipulated by the parties that Petitioner was convicted of annoying and molesting a child based on that incident. (RT at 175.) The prosecutor subsequently brought up that conviction again in crossexamining Petitioner. (RT at 230, 233-34.) Petitioner admitted in his testimony that he did touch the 2007 victim's breasts, that he lied to detectives and denied doing so, and that he told detectives the victim only accused him because she was angry he did not buy her shoes at the mall. (RT at 233, 236-37.)

The second prior offense was presented to the jury during Petitioner's crossexamination. The prosecutor was asking Petitioner about his interview with a detective shortly after his arrest in this case, specifically, why Petitioner wanted to know the ages of the victim and her friend, NeNe, before he would answer whether he had sex with one of them. (RT at 229-30.) Petitioner testified that " for a man, it matters[, ] the age of a woman" and that " it is important for a man to know if the woman is of age or not." (RT at 230.) Based upon that testimony, the prosecutor asked Petitioner if he was arrested in 1985 for exposing himself to two girls, eight and nine years old. (RT at 231-33.) Petitioner testified that he remembered the arrest, and that he was at the beach and his shorts fell down when a wave hit him. (RT at 231-32.) The trial court had initially ruled the prosecution could use the 1985 offense to impeach Petitioner as a witness only to the extent Petitioner was convicted of a felony, but added that the jury " will hear about [it] for 1108 purposes in any case." (RT at 26-27.) When the prosecutor brought the 1985 incident up during Petitioner's cross-examination, the trial court initially sustained a defense objection, but then reversed its ruling in light of " the defendant's testimony." (RT at 231.) Analysis

Both prior offenses were admissible under California Evidence Code section 1108, which provides that, " [i]n a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses" may be admitted to prove his or her conduct on a specified occasion, as long as the evidence is not precluded under section 352. See Cal. Evid. Code § § 1108(a); 352 (" The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."). Further, section 1108's definition of " sexual offense[s]" includes the crimes of which Petitioner was convicted, as well as annoying and molesting a child and indecent exposure. See § 1108(d)(1)(A). The foregoing establishes the evidence at issue was admissible under state law, and Petitioner does not challenge that conclusion. (Reply Mem. at 10.) Petitioner's appellate counsel was not deficient for failing to raise a meritless claim under state law challenging the admission of his prior offenses. Moormann, 628 F.3d at 1107.

Moreover, in California, admitting prior sex offenses as propensity evidence to prove a charged sexual offense has been repeatedly upheld as constitutional, as long as it is not the only evidence to prove the defendant's guilt. See People v. Falsetta, 21 Cal.4th 903, 911-22, 89 Cal.Rptr.2d 847, 986 P.2d 182 (1999); People v. Lewis, 46 Cal.4th 1255, 1288-89, 96 Cal.Rptr.3d 512, 210 P.3d 1119 (2009); Loy, 52 Cal.4th at 60-61. Petitioner's appellate counsel was also not deficient for failing to raise a meritless constitutional claim challenging the admission of his prior offenses. Moormann, 628 F.3d at 1107.

Additionally, even if Petitioner could point to some legal infirmity in the admission of his prior offense evidence, the solid and ample evidence of his guilt, detailed above, would have rendered the error harmless. See People v. Huy Ngoc Nguyen, 184 Cal.App.4th 1096, 1120, 109 Cal.Rptr.3d 715 (Cal.Ct.App. 2010) (erroneous admission of evidence under section 1108 ruled harmless in light of the strength of the prosecution's case and the fact the jury was instructed with CALCRIM No. 1191).

Also notably, Petitioner's challenge to the admission of his prior offenses would have patently failed on the merits on federal habeas review, even if the claim had not been procedurally defaulted. See Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008) (admission of propensity evidence under § 1108 is not contrary to, or an unreasonable application of, clearly established Federal law because the Supreme Court has expressly reserved consideration of the issue in McGuire, 502 U.S. at 75 n.5); see also Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir. 2008) (" The Supreme Court has expressly reserved the question of whether using evidence of the defendant's past crimes to show that he has a propensity for criminal activity could ever violate due process. (Citation omitted.) Because the Court has expressly left this issue an open question, the state court did not unreasonably apply clearly established federal law in determining that the admission of evidence of [the petitioner's] criminal history did not violate due process.") (internal quotation marks omitted).

In light of the foregoing, Petitioner's IAC claim based on his appellate counsel's failure to raise ground one on direct appeal must fail. Jones, 691 F.3d at 1101; Moormann, 628 F.3d at 1107. Petitioner is not entitled to federal habeas relief in ground three.[1]

2.5 Insufficient Evidence Claim (Ground Four)

In the SAP, Petitioner contends, as he did on direct appeal, that the evidence at trial " was insufficient to establish 3 separate and distinct acts of sexual intercourse . . . ." (SAP at 6c.) However, in his Reply Memorandum, he " chooses to abandon this claim" and requests that the Court dismiss it. (Reply Mem. at 40.) The Court grants Petitioner's request.

In any event, the Court finds ground four is not cognizable in a federal habeas petition. A federal court may entertain a habeas petition by a state prisoner " only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); McGuire, 502 U.S. at 67-68. Here, the state court of appeal's analysis and conclusion in denying ground four on direct appeal establish that the resolution of Petitioner's purported insufficient evidence claim did not require assessing the evidence, but instead interpreting California law. (LD 6 at 5-8.) The Supreme Court has " repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus." Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) (holding that because " the Sixth Circuit disregarded the Ohio Supreme Court's authoritative interpretation of Ohio law, its ruling on [the] sufficiency of the evidence was erroneous."); see also McGuire, 502 U.S. at 67-68 (" [I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.").

For the foregoing reasons, ground four is denied and dismissed.

2.6 Sentencing Claim (Ground Six)

Petitioner claims in ground six that the trial court violated " double jeopardy, " " equal protection, " and Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), by aggregating his sentence from nine to twenty-five years based upon facts " that had been rejected by Petitioner's jury or admitted by him, . . . ." (SAP at 6d; Reply Mem. at 37-39.) The Court disagrees.

Pursuant to Cunningham, " the Federal Constitution's [Sixth Amendment] jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant." See Cunningham, 549 U.S. at 274-75; see also Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (" [A]ny fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt."). In this case, the trial court imposed the upper term of eight years for each of the rape counts, plus one year (the midterm sentence) for the sexual battery by restraint count, for a total of twenty-five years in state prison. (RT at 310-11.) The trial court expressly found the following aggravating factors as justification for imposing the upper terms, and for imposing the terms to run consecutively: (1) Petitioner had four prior misdemeanor convictions and one prior felony conviction, three of those five offenses were sexual offenses, and at least two of those five offenses involved minors; (2) Petitioner's " conduct, . . . [was] increasing in seriousness, to say the least"; and (3) Petitioner was " an extreme danger to the public . . . ." (RT at 310.)

To the extent Petitioner claims the trial court's imposition of upper term sentences on the three rape counts violated Cunningham and Apprendi, he is incorrect. California's Determinate Sentencing Law (" DSL"), under which Petitioner's upper term sentences were imposed, provides (and provided at the time of his sentencing on November 10, 2011): " When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court." Cal. Penal Code § 1170(b). In other words, in this case, the trial court's imposition of the upper, as opposed to the middle or lower statutory terms for rape ( see Cal. Penal Code 264(a)), was not " above the statutory maximum, " and therefore, did not implicate Cunningham . See Cunningham, 549 U.S. at 274-75; see also People v. Jones, 178 Cal.App.4th 853, 866-67, 100 Cal.Rptr.3d 780 (Cal.Ct.App. 2009) (" In response to Cunningham, the [California] Legislature amended the DSL effective March 30, 2007. (Citations omitted.) Because of these amendments, trial courts now have the discretion . . . to select among the lower, middle, and upper terms specified by statute" and " the upper term is now the statutory maximum . . . .").

Next, to the extent Petitioner claims the imposition of consecutive sentences violated Cunningham and Apprendi, his claim is foreclosed by Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), in which the United States Supreme Court held the imposition of consecutive sentences does not violate the Sixth Amendment. Id. at 163-64; see also United States v. Green, 722 F.3d 1146, 1148 (9th Cir. 2013) (" Apprendi applies to the fact-finding needed to trigger capital punishment, (citation omitted), and criminal fines, (citation omitted), but not the fact-finding needed to make concurrent sentences consecutive, . . . .") ( citing Ice, 555 U.S. at 164); Shaw v. Kirkland, 460 Fed.Appx. 699, 701 (9th Cir. 2011) (holding that a Sixth Amendment claim based on the imposition of consecutive sentences was foreclosed by Ice ) (cited pursuant to 9th Cir. R. 36-3). In fact, in Ice, the Supreme Court specifically upheld a statutory scheme for consecutive sentencing where, as here, the state " constrain[s] judges' discretion by requiring them to find certain facts before imposing consecutive, rather than concurrent, sentences." Ice, 555 U.S. at 164. As a result, Petitioner is not entitled to habeas relief for his Sixth Amendment claim based on the imposition of consecutive sentences.

Additionally, Petitioner's allegations of " double jeopardy" and " equal protection" violations (SAP at 6d; Reply Mem. at 38) are rejected because he has failed to articulate any facts explaining the basis of either a double jeopardy or equal protection claim. See Blackledge v. Allison, 431 U.S. 63, 75 n.7, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) (a federal habeas petition " is expected to state facts that point to a real possibility of constitutional error.") (internal quotation marks omitted); see also James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (" Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.").

Finally, Petitioner's perfunctory IAC claim, on the basis that neither his trial nor appellate counsel raised the above sentencing issues (Reply Mem. at 39), is rejected because his sentencing claim is without merit. Jones, 691 F.3d at 1101; Moormann, 628 F.3d at 1107.

Based upon this Court's de novo review, Petitioner is not entitled to habeas relief for his sentencing claim in ground six.

2.7 Petitioner's Request for an Evidentiary Hearing

Petitioner's request for an evidentiary hearing (Reply Mem. at 43-45) is denied because he has failed to satisfy the requirements for holding an evidentiary hearing under § 2254(e)(2)(A)-(B). See Pinholster, 131 S.Ct. at 1398-99 (review under § 2254(d)(1) is limited to the record before the state court that adjudicated the claim on the merits, and therefore, when the state court record precludes habeas relief, a district court is not required to hold an evidentiary hearing). Further, Petitioner's contention that § 2254(e)(2) should not apply (Reply Mem. at 45) is rejected.


In accordance with the foregoing, IT IS RECOMMENDED that the Court issue an order: (1) accepting the findings and conclusions of this Report and Recommendation; and (2) directing that judgment be entered dismissing this action with prejudice.

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