Orduno v. Lackner

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          RICHARD SEEBORG United States District Judge.

         INTRODUCTION

         Petitioner seeks federal habeas relief from his state convictions. For the reasons set forth below, the petition for such relief is DENIED.

         BACKGROUND

         In 2012, a Santa Clara Superior Court jury convicted petitioner of four counts of aggravated sexual assault on a child under the age of fourteen (Cal. Penal Code § 269); six counts of committing a lewd and lascivious act on a child by force, violence, duress, menace, or fear (id. § 288(b)(1)); and four counts of committing a lewd and lascivious acts on a child (id. § 288(a)). (Ans., Ex. F (State Appellate Opinion) at 1.) The jury also found true several sentencing enhancement allegations that he committed crimes against more than one victim (id. § 667.61(b) & (e)). (Id., Ex. B, Vol. 9 at 690-93.) Consequent to these verdicts and findings, he was sentenced to a term of 90 years to life, plus 14 years, in state prison. (Ans., Ex. F at 2.) He sought, but was denied, relief in the state courts. This federal habeas petition followed.

         Evidence presented at trial showed that petitioner committed sexual crimes against his daughter M.D. and his stepsister J.D. M.D. testified that petitioner sexually molested her from when she was five years old until she was about 10 or 11. (Id. at 1.) He would penetrate her vagina with his fingers and penis and touch her breasts and vagina. When she would yell and try to push him away, he would push her back, or put his hand on her mouth, or hold her down. He stopped assaulting her after she threatened to inform the police or a teacher. (Id.)

         M.D. did not report the assaults to police until she was 19. At the suggestion of the police, she telephoned petitioner. When she asked him why he molested her, he said he had "fucked up" and did not "want to remember." (Id.)

         J.D. was molested by petitioner, who is J.D.'s senior by nine years, from when she was in first grade until she was 11. (Id. at 1-2.) He would digitally penetrate her and have her masturbate him. He discouraged her from telling her mother, who, when J.D. eventually told her about petitioner, did not believe her. (Id. at 2.)

         At petitioner's trial, the prosecutor presented propensity evidence in the form of uncharged sexual offenses petitioner committed against his nephew E.D. He testified petitioner started touching him "in a sexual way" when he was in kindergarten. Over the next two years, petitioner fondled E.D.'s genitals, groped him, and orally and anally copulated him. (Id. at 2.)

         As grounds for federal habeas relief, petitioner claims (1) the trial court violated his right to due process by failing to instruct the jury regarding corroborating evidence; (2) defense counsel rendered ineffective assistance; and (3) there was insufficient evidence to support the multiple victim sentencing enhancement.^[1]

         STANDARD OF REVIEW

         Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), this Court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court 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). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's 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." Id. § 2254(d). "Under the ‘contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).

         "Under the ‘unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry ...