United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding through counsel with a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. He challenges a judgment of conviction entered
against him on February 16, 2012, in the Solano County
Superior Court (No. VCR204879) on two counts of committing
lewd acts upon a child under the age of fourteen years, with
findings that there were multiple child victims, one prior
strike conviction, and one prior serious felony conviction.
Petitioner seeks federal habeas relief on the ground that his
trial counsel rendered ineffective assistance by allegedly
failing to investigate and present a voluntary intoxication
defense or present expert testimony that petitioner does not
fit the profile of a child molester. Upon careful
consideration of the record and the applicable law, it is
recommended that petitioner's application for habeas
corpus relief be denied.
unpublished opinion affirming petitioner's judgment of
conviction, the California Court of Appeal for the First
Appellate District provided the following factual summary of
the evidence presented at petitioner's trial:
M.R. and six-year-old B.H. were best friends and neighbors at
the time of the relevant events. Jamie J. is M.R.'s
mother. Her boyfriend, Ken, is Johnson's nephew.
afternoon of June 14, 2009, Jamie and Ken took M.R. and B.H.
to a barbecue at the home of Johnson's friend, Patty. The
barbecue lasted late into the night. The adults, including
Johnson, watched the NBA playoffs and drank. The girls were
jumping around and acting rowdy, “Just, you know, just
doing silly things.”
girls wanted to spend the night at Patty's house, and
Jamie agreed. By the time Jamie and Ken went home around
midnight, Johnson had gone upstairs to bed. Jamie assumed the
girls would sleep downstairs in the living room. From this
point the witness accounts diverge until Jamie and Ken
returned to pick the girls up the next morning.
was 10 years old at trial. She testified that she and B.H.
spent the night of the barbecue in Patty's room with
Patty and Johnson. The girls slept “in the end of the
bed.” She wore her underwear and a big t-shirt to bed
because she did not have pajamas with her.
M.R. and B.H. woke up the next morning, Patty was gone and
Johnson was still asleep. The girls woke Johnson up by
jumping on the bed. Then Johnson touched M.R. beneath her
shirt “on my chest” and “down on my private
part.” He rubbed his hand all over her chest. Johnson
rubbed B.H.'s chest too, but M.R. did not remember
whether his hand was underneath or on top of B.H.'s
clothing. Johnson touched the outside of M.R.'s panties,
but not underneath them.
cross-examination, M.R. said she and B.H. slept on the
bedroom floor and Patty and Johnson slept in the bed. Johnson
was angry when the girls woke him up. Initially, M.R.
testified that Johnson pulled her leg to make her lie down on
the bed and then touched her, but she also testified that she
decided to lie down because she was tired. Then she said
“it was something around there that somebody pulled my
leg and I fell down, ” but she did not know who the
“somebody” was. Then she again said she was tired
so she lay down next to Johnson, but also that somebody
pulled her down, and then “I laid down because I was
rubbed M.R.'s chest and “tummy” and touched
her between her legs. In an earlier interview at the Rainbow
Center, M.R. said Johnson only touched her tummy and chest,
not anywhere else. At trial, she testified that he also
touched her “near my legs” and that she told this
to the man at the Rainbow Center. While defendant was
touching M.R., B.H. was still jumping on the bed. M.R. pulled
Johnson's hand away and moved farther from him, but he
“scooted closer” and started to rub her all over.
Then B.H. pulled M.R. up, and the girls went downstairs.
Later, they went back and jumped on the bed some more before
they left again to go downstairs to the kitchen. Johnson came
downstairs and made them chicken soup, then he went back
upstairs. M.R. and B.H. returned to Johnson's room and
started lighting matches he gave them to play with. They also
played marbles with Johnson.
was eight years old at trial. She and M.R. slept on the floor
at the end of the bed. When they woke up in the morning,
Patty had already left for work. The girls got up and jumped
on the bed. Johnson woke up and “pulled us down and
started touching us in private places.” He touched M.R.
“[o]n the sides near her private area, ” but
nowhere else. He touched B.H.'s chest, but not
M.R.'s. Johnson touched the girls under their long
t-shirts but did not put his hand inside their panties. B.H.
pulled Johnson's hand as he was touching M.R. and the
girls ran off and started playing on the stairs.
M.R. and B.H. went back into the bedroom and jumped on the
bed some more. Johnson woke up and told them to get off, but
instead the girls sat on the end of the bed. He did not make
the girls breakfast or soup. B.H. did not remember playing
with matches and did not know whether or not she did.
Jamie and Ken arrived to pick them up the next morning, the
girls rushed to the door looking frantic and scared. They
said Johnson had played with M.R.'s chest, patted her
private parts, and put his thumbs between her leg and vagina.
was upstairs in the bedroom. Patty was still at work. Jamie
and Ken spoke with Johnson, then stayed at the house until
Patty came home in the early afternoon. The girls repeated
their story to Jamie and Patty, and later at home Jamie
continued to talk to them about the incident. Throughout the
day, the girls remained adamant about what Johnson did to
evening Johnson came to Jamie and Ken's home. At one
point Ken went outside, and Jamie had a private conversation
with Johnson while sitting in his lap. Ken came in and asked
Jamie why she was sitting there. She told him it was not
anything. Jamie called the police the next morning.
testified that he and Johnson drank “more than the
limit” at the barbecue. He did not want to believe what
the girls told them about Johnson when he and Jamie returned
to get them the next morning. Johnson was upstairs on the
bed, still dressed in his clothes from the previous night.
Ken could tell he “was still been drinking or feeling
it from the night before.” Ken discussed the girls'
allegations with Johnson that morning and again that evening
when Johnson came over to his house. Ken did tell Jamie to
get off of Johnson's lap, but he was not angry about it.
next day Ken called the police. He also called Victoria
James, Johnson's girlfriend, and told her about the
alleged molestation. Ken explained that he and Jamie
“knew that [Johnson had] been doing things to [James]
and this and that and figured she was upset and that she got
the kids and Jamie got kids, and I was like this is what my
uncle doing.” He asked James to tell the police about
an incident in which he thought that Johnson had attacked
James's car or house with a baseball bat, but he did not
tell her to say Johnson beat her with a baseball bat, and he
did not ask her to lie to the police.
and Johnson did not get along and had gotten into a couple of
confrontations since Jamie and Ken started dating.
Police Officer Mark Bassett was the investigating officer and
attended the police interviews of both girls at the Rainbow
Center in August 2009. M.R. said that she and B.H. were
jumping on the bed when she got tired and decided to lie down
next to Johnson. She never said she was pulled down onto the
bed. When M.R. was asked where Johnson touched her, she said
that he rubbed her chest and tummy. Johnson also rubbed the
area between “the hem of her panty line and her thigh
area, ” but M.R. repeatedly said he did not touch her
privates or put his hand inside her underpants. M.R. did not
say that Johnson also touched B.H. during this interview, but
later in a second interview she was asked whether Johnson
touched anyone else. She responded that Johnson touched B.H.
while B.H. was bouncing on the bed.
told Officer Bassett she saw Johnson put his hand inside the
top of M.R.'s panties and touch her “coco, ”
the area under her panties. M.R. smacked Johnson's hand
away and said, “Don't touch me like that.”
B.H. also said Johnson put his hand under her own shirt, and
she slapped him. None of the prior police reports reflected
that B.H. had claimed Johnson touched her too.
James dated Johnson between January and June 2009, but broke
up with him in June because of his heavy drinking. Ken told
her about the girls' accusations and told her to tell the
police that he had beaten her with a baseball bat. Ken knew
this was a lie. James testified that her relationship with
Johnson was peaceful, but she admitted that she sought a
restraining order after a violent incident in September 2009
to get Johnson out of her house and help him stop drinking.
testified that he drank heavily at the barbecue,
“upwards of [a] quarter of a gallon.” The next
morning when he woke up he was hung over but not drunk. The
girls were screaming and jumping on the bed. He screamed at
them and “told them to get the ‘F' off the
bed, ” but they just laughed and kept jumping. Then he
threatened to tell their parents if they did not stop. M.R.
stopped, but B.H. did not, so Johnson pushed M.R. off the bed
and the girls left the room. Johnson drank a shot of alcohol
and continued to doze on and off until the girls came back
and resumed their jumping. Johnson again responded by yelling
at them and saying he would tell Jamie. B.H. told him to stop
yelling at her or she would “tell on [him].” The
girls left again, but a while later they returned and started
striking matches against the bedroom furniture. Johnson
jumped up and the girls ran off. They all went downstairs,
where Johnson made the girls soup and sandwiches for
breakfast. After breakfast the girls played, and Johnson
showed them how to play marbles before he returned upstairs
to nap and drink brandy.
that afternoon Patty told him about the girls'
accusations. That night Johnson went over to Ken and
Jamie's house. He testified: “I was crying. I was
telling them, ‘You know me better than that. Why would
you even ask me some shit like that?'” Ken and
Jamie assured him that the matter “was already
squashed” and would not go any further.
after Ken left, Jamie sat on Johnson's lap to console
him. When Ken returned, he asked what was going on and told
Jamie to “get the fuck off” Johnson's lap.
Jamie immediately got up, and she and Ken “kicked
had never previously been accused of a sexual crime. He
denied that he ever touched either girl's chest or
private parts. He pushed M.R. because he was angry, not ...