United States District Court, N.D. California, San Francisco Division
ORDER DENYING PETITION FOR WRIT OF HABEAS
RICHARD SEEBORG United States District Judge.
seeks federal habeas relief from his state convictions. For
the reasons set forth below, the petition for such relief is
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
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
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
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.)
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.)
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.
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
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 ...