United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT
OF HABEAS CORPUS [TWENTY-ONE DAY OBJECTION DEADLINE]
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
is currently serving an indeterminate sentence of
twenty-five-years-to-life plus twenty-six years for
committing multiple sex acts with his stepdaughter when she
was nine and thirteen years old. He has filed the instant
habeas action claiming: 1) His confession should have been
excluded because it was obtained in violation of
Miranda; 2) His confession was involuntary and a
product of psychological coercion and improper promises of
leniency. As discussed below, the Court finds that the state
court's determinations were not contrary to or an
unreasonable application of clearly established Supreme Court
precedent and recommends the petition be DENIED.
was convicted in the Kern County Superior Court on April 2,
2013, of: (1) sexual intercourse or sodomy with a child 10
years old or younger (Cal. Pen. Code § 288.7(a)); (2)
oral copulation or sexual penetration of a child 10 years old
or younger (Cal. Penal Code § 288.7(b)); (3) two counts
of sodomy against the will of a victim under 14 years old by
force, violence, duress, menace, or fear of bodily injury
(Cal. Penal Code § 286(c)(2)(b)); (4) oral copulation by
a perpetrator older than 21 with a person under 16 (Cal.
Penal Code § 288a(b)(2)); and (6) a lewd act against a
person under 14 (Cal. Penal Code § 288(a)). People
v. Flores, No. F067133, 2015 WL 3796273, at *1
(Cal.Ct.App. June 17, 2015).
appealed to the California Court of Appeal, Fifth Appellate
District (“Fifth DCA”). The Fifth DCA affirmed
the judgment on June 17, 2015. Id. Petitioner filed
a petition for review in the California Supreme Court, and
the petition was summarily denied on September 9, 2015.
January 5, 2016, Petitioner filed the instant petition for
writ of habeas corpus in this Court. (Doc. No. 1.) Respondent
filed an answer on June 23, 2016. (Doc. No. 15.) Petitioner
filed a traverse on October 14, 2016. (Doc. No. 21.)
Court adopts the Statement of Facts in the Fifth DCA's
At trial, the victim, then 14 years old, testified that she
considered Flores to be her stepfather; he lived with her
mother but was not married to her. She testified that, from
the time she was 9 until she was 13, Flores subjected her to
sex acts around 20 times. She said yes when asked whether,
each time, “[h]e would put his penis in your
butt” and “he would touch your boobs.” He
made her touch his penis on about half of these occasions.
She told him to stop or she would tell her mother. He did not
stop. He said if she told, he would do something to her
mother. He showed her pornographic movies and said she had to
She did not remember seeing blood or feeling pain when Flores
put his penis in her buttocks. She saw “white
stuff” each time.
The victim testified about several specific instances of
molestation by Flores. The first time, she was nine. Flores
grabbed her while she was sleeping and took her to the
bathroom. He put his hands inside her clothing and touched
her breasts and buttocks. He grabbed her hands and made her
touch his penis. She told him to stop but he did not stop.
Flores made the victim touch his penis another time when she
was nine and then made her bend over and, she said,
“put his penis in my butt.” She did not know
whether his penis entered her anus, but it at least pressed
against her anus. Subsequently, “[w]hite stuff came
out” of Flores's penis and fell on the floor.
The victim testified that she did not think Flores ever put
his penis in her mouth, but she was not sure. She also said
he never touched her vagina.
Dr. John Digges testified that he examined the victim on
January 30, 2012. Digges was a child abuse physician employed
by Kern County at the Child Assessment Center at Kern Medical
Center. The victim had been brought to him, he was told,
because of allegations of sexual touching that took place
starting when she was nine. The examination yielded normal
results. There were no injuries indicating penetration of the
genitals or anus. The anus, however, could have been
penetrated repeatedly without any detectable injury remaining
by the time of the examination. The findings were consistent
with both anal penetration and abuse by rubbing the penis
against the exterior of the anus.
Flores was interviewed at a police station by detectives
César Ollague and James Conner. Flores spoke Spanish
during the interview, and Ollague, who is bilingual,
interpreted for both Flores and Conner. A recording of the
interview was played for the jury. At first, Flores denied
ever touching the victim sexually. Eventually, however, he
said the victim touched his penis when she was about 9 or 10,
and that he had vaginal intercourse with her three or four
times starting when she was 13. Flores ejaculated but not
inside the victim. Flores also said the victim put her mouth
on his penis more than 20 times. He touched the victim's
breasts and kissed her mouth when they had intercourse, but
he denied that he put his mouth on her vagina. The last time
he had sex with the victim was about 15 days before the
interview. On that occasion, there might have been either
vaginal or anal intercourse. Flores said the sex acts were
consensual and the victim never told him to stop. At the end
of the interview, Flores complied with the detectives'
request that he write a letter to the victim. In the letter,
Flores apologized and promised never to do “these
things” again. Conner said Flores would need to be more
specific, so Flores added that there would be no more sexual
Flores, 2015 WL 3796273, at *1-2.
by way of a petition for writ of habeas corpus extends to a
person in custody pursuant to the judgment of a state court
if the custody is in violation of the Constitution, laws, or
treaties of the United States. 28 U.S.C. § 2254(a); 28
U.S.C. § 2241(c)(3); Williams v. Taylor, 529
U.S. 362, 375 n. 7 (2000). Petitioner asserts that he
suffered violations of his rights as guaranteed by the United
States Constitution. The challenged conviction arises out of
the Kern County Superior Court, which is located within the
jurisdiction of this court. 28 U.S.C. § 2254(a); 28
April 24, 1996, Congress enacted the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
which applies to all petitions for writ of habeas corpus
filed after its enactment. Lindh v. Murphy, 521 U.S.
320 (1997) (holding the AEDPA only applicable to cases filed
after statute's enactment). The instant petition was
filed after the enactment of the AEDPA and is therefore
governed by its provisions.
Legal Standard of Review
petition for writ of habeas corpus under 28 U.S.C. §
2254(d) will not be granted unless the petitioner can show
that the state court's adjudication of his 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.” 28
U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S.
63, 70-71 (2003); Williams, 529 U.S. at 412-413.
court decision is “contrary to” clearly
established federal law “if it applies a rule that
contradicts the governing law set forth in [the Supreme
Court's] cases, or “if it confronts a set of facts
that is materially indistinguishable from a [Supreme Court]
decision but reaches a different result.” Brown v.
Payton, 544 U.S. 133, 141 (2005) (citing
Williams, 529 U.S. at 405-406).
Harrington v. Richter, 562 U.S. 86, 101 (2011), the
U.S. Supreme Court explained that an “unreasonable
application” of federal law is an objective test that
turns on “whether it is possible that fairminded
jurists could disagree” that the state court decision
meets the standards set forth in the AEDPA. The Supreme Court
has “said time and again that ‘an unreasonable
application of federal law is different from an incorrect
application of federal law.'” Cullen v.
Pinholster, 563 U.S. 170, 203 (2011). Thus, a state
prisoner seeking a writ of habeas corpus from a federal court
“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 of
fairminded disagreement.” Harrington, 562 U.S.
second prong pertains to state court decisions based on
factual findings. Davis v. Woodford, 384 F.3d 628,
637 (9th Cir. 2003) (citing Miller-El v. Cockrell,
537 U.S. 322 (2003)). Under § 2254(d)(2), a federal
court may grant habeas relief if a state court's
adjudication of the petitioner's claims “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.” Wiggins v. Smith, 539 U.S.
510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484,
1500 (9th Cir. 1997). A state court's factual finding is
unreasonable when it is “so clearly incorrect that it
would not be debatable among reasonable jurists.”
Jeffries, 114 F.3d at 1500; see Taylor v.
Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004),
cert.denied, Maddox v. Taylor, 543 U.S.
determine whether habeas relief is available under §
2254(d), the federal court looks to the last reasoned state
court decision as the basis of the state court's
decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803
(1991); Robinson v. Ignacio, 360 F.3d 1044, 1055
(9th Cir. 2004). “[A]lthough we independently review
the record, we still defer to the state court's ultimate
decisions.” Pirtle v. Morgan, 313 F.3d 1160,
1167 (9th Cir. 2002).
prejudicial impact of any constitutional error is assessed by
asking whether the error had “a substantial and
injurious effect or influence in determining the jury's
verdict.” Brecht v. Abrahamson, 507 U.S. 619,
623 (1993); see also Fry v. Pliler, 551 U.S. 112,
119-120 (2007) (holding that the Brecht standard
applies whether or not the state court recognized the error
and reviewed it for harmlessness).