United States District Court, E.D. California
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se and in forma pauperis
with a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. Petitioner challenges a judgment of conviction
entered against him on February 7, 2011 in the San Joaquin
County Superior Court on counts of lewd and lascivious acts
on a child under the age of fourteen. He seeks federal habeas
relief on the grounds that the trial court erred when it: (1)
admitted evidence of petitioner's prior uncharged crimes,
and (2) instructed the jury with CALCRIM No. 318 on the use
of a witness's pretrial statements. Both parties have
consented to the jurisdiction of a magistrate judge.
careful consideration of the record and the applicable law,
the undersigned will deny petitioner's application for
habeas corpus relief.
unpublished memorandum and opinion affirming petitioner's
judgment of conviction on appeal, the California Court of
Appeal for the Third Appellate District provided the
following factual summary:
33-year-old Robert Wolfe, a friend of defendant's, was
regularly having sex with 13-year-old Jane Doe. Wolfe
introduced Doe to defendant. Defendant was approximately 32
years old when he met Doe. Doe testified to seven sexual
encounters with defendant.
The first encounter occurred at defendant's apartment.
Wolfe directed Doe into defendant's bedroom and told her
to disrobe. Both men lay on the bed wearing only their
shirts. Doe had intercourse with Wolfe while defendant lay
next to them. After Wolfe finished and left the room,
defendant had intercourse with Doe from behind. Then Wolfe
reentered the room and orally copulated defendant. Doe had
not wanted to have sex with defendant; she did not care about
him and only had sex with him to please Wolfe.
The second encounter occurred a couple of months later in
Wolfe's apartment. Defendant was there to smoke marijuana
with Wolfe and Doe. Wolfe brought out pornographic magazines
and played pornography on his computer and television.
Defendant pushed Doe into the kitchen, pulled down her pants,
and had intercourse with her from behind. Wolfe pointed a
digital camera at them, but Doe did not know if he was
actually taking pictures.
The third encounter took place at defendant's apartment.
Wolfe, Doe, and defendant were on defendant's couch. Doe
orally copulated Wolfe while defendant had intercourse with
Doe from behind. There was a video camera on a coffee table
in the room pointed at the three of them. Doe believed the
camera was running because the camera's light was on. Doe
went into the bathroom to clean herself. As she left the
bathroom, she saw defendant shredding the video tape from the
video camera in a paper shredder.
The fourth encounter occurred when defendant was driving Doe
home. Defendant pulled into a parking lot. He wanted to have
sex with her, but she did not. She orally copulated him
The fifth encounter occurred in defendant's apartment.
Wolfe and his wife had moved into the apartment in December
2006, and Doe would spend the night there on occasion. One
night, defendant came home from work while on break. Doe was
sleeping on the couch. Defendant woke her and had sex with
her. Doe said the incident “kind of felt like rape....
I didn't want it to happen and I was sleeping. It just
didn't feel right to me.” Doe did not do anything
to stop defendant because she was afraid of saying no.
The sixth encounter occurred on another night when Doe was
staying at defendant's apartment with Wolfe and his wife.
Doe went into defendant's bedroom to ask him for some
Defendant awoke and forced her into his bathroom. He pushed
her face first against the wall. He pulled her pants down a
little bit. She felt his penis against her. She was able to
get away, and she ran out of the bathroom.
The seventh incident took place at a house to which defendant
had moved. Wolfe took Doe to the house. They went into
defendant's bedroom, and both Wolfe and defendant had
intercourse with her.
Doe testified she was high on drugs every time she had sex
with Wolfe and defendant.[fn 1]
Pursuant to Evidence Code section 1108, the prosecution
presented evidence of defendant's prior sexual
relationships with two teenage girls. G.C. was 14 years old
and defendant was 17 years old when they met. They began
dating when she was 15. At 16, she became pregnant with
defendant's child. The child was born in 1994.
M.R. met defendant when she was 15 years old, and he was 21
years old. At 16, she became pregnant with defendant's
child. The child was born in 1997.
[fn 1] Wolfe pleaded guilty to molestation charges. He
testified for the prosecution.
People v. Cuevas, No. C067437, 2014 WL 2211860, at
*1-2 (Cal.Ct.App. 2014).
Court of Appeal set out the procedural history of the case in
the trial court:
The trial court declared a mistrial in defendant's first
trial, as the jury was unable to reach a verdict. In the
second trial, the jury convicted defendant of three counts of
committing lewd and lascivious acts on a child under the age
of 14 years (Pen.Code, § 288, subd. (a)), and found true
the allegations that defendant engaged in substantial sexual
conduct with a child under the age of 14. (Pen.Code, §
1203.066, subd. (a)(8).) It acquitted defendant of an
additional count of lewd and lascivious acts on a child and a
count of using a minor under the age of 14 to perform an
obscene act. (Pen.Code, § 311.4, subd. (c).)
The trial court sentenced defendant to a state prison term of
12 years, calculated as follows: the upper term of eight
years on one of the lewd conduct counts, plus consecutive two
years for each of the remaining lewd conduct counts.
Id. at *2.
appeal, petitioner argued the trial court erred when it (1)
admitted evidence of petitioner's prior uncharged crimes,
and (2) instructed the jury with CALCRIM No. 318 on the use
of a witness's pretrial statements. (AOB (LD
The Court of Appeal rejected those claims. Cuevas,
2014 WL 2211860. Petitioner filed a petition for review with
the California Supreme Court in which he asserted the same
two claims. (LD 5.) The California Supreme Court denied
review. (LD 6.)
OF REVIEW APPLICABLE TO HABEAS CORPUS CLAIMS
application for a writ of habeas corpus by a person in
custody under a judgment of a state court can be granted only
for violations of the Constitution or laws of the United
States. 28 U.S.C. § 2254(a). A federal writ is not
available for alleged error in the interpretation or
application of state law. See Wilson v. Corcoran,
562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 U.S.
62, 67-68 (1991); Park v. California, 202 F.3d 1146,
1149 (9th Cir. 2000).
28 U.S.C. § 2254(d) sets forth the following standards
for granting federal habeas corpus relief:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the 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;
(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.
purposes of applying § 2254(d)(1), “clearly
established federal law” consists of holdings of the
United States Supreme Court at the time of the last reasoned
state court decision. Greene v. Fisher, 565 U.S. 34,
37 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th
Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362,
405-06 (2000)). Circuit court precedent “‘may be
persuasive in determining what law is clearly established and
whether a state court applied that law
unreasonably.'” Stanley, 633 F.3d at 859
(quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir.
2010)). However, circuit precedent may not be “used to
refine or sharpen a general principle of Supreme Court
jurisprudence into a specific legal rule that th[e] [Supreme]
Court has not announced.” Marshall v. Rodgers,
133 S.Ct. 1446, 1450 (2013) (citing Parker v.
Matthews, 567 U.S. 37 (2012)). Nor may it be used to
“determine whether a particular rule of law is so
widely accepted among the Federal Circuits that it would, if
presented to th[e] [Supreme] Court, be accepted as
correct.” Id. at 1451. Further, where courts
of appeals have diverged in their treatment of an issue, it
cannot be said that there is “clearly established
Federal law” governing that issue. Carey v.
Musladin, 549 U.S. 70, 76-77 (2006).
court decision is “contrary to” clearly
established federal law if it applies a rule contradicting a
holding of the Supreme Court or reaches a result different
from Supreme Court precedent on “materially
indistinguishable” facts. Price v. Vincent,
538 U.S. 634');">538 U.S. 634, 640 (2003) (quoting Williams, 529 U.S.
at 405-06). “Under the ‘unreasonable
application' clause of § 2254(d)(1), a federal
habeas court may grant the writ if the state court identifies
the correct governing legal principle from th[e] [Supreme]
Court's decisions, but unreasonably applies that
principle to the facts of the prisoner's
case.'” Lockyer v. Andrade, 538 U.S. 63,
75 (2003) (quoting Williams, 529 U.S. at 413);
Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004).
“[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.”
Williams, 529 U.S. at 411; see also Schriro v.
Landrigan, 550 U.S. 465, 473 (2007); Lockyer,
538 U.S. at 75 (“It is not enough that a federal habeas
court, in its independent review of the legal question, is
left with a firm conviction that the state court was
erroneous.” (Internal citations and quotation marks
omitted.)). “A state court's determination that a
claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree' on the
correctness of the state court's decision.”
Harrington v. Richter, 562 U.S. 86, 101 (2011)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664
“[a]s a condition for obtaining habeas corpus from a
federal court, 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.”
Richter, 562 U.S. at 103. There are two ways a
petitioner may satisfy subsection (d)(2). Hibbler v.
Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). He may
show the state court's findings of fact “were not
supported by substantial evidence in the state court
record” or he may “challenge the fact-finding
process itself on the ground it was deficient in some
material way.” Id. (citing Taylor v.
Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004)); see
also Hurles v. Ryan, 752 F.3d 768, 790-91 (9th Cir.
2014) (If a state court makes factual findings without an
opportunity for the petitioner to present evidence, the
fact-finding process may be deficient and the state court
opinion may not be entitled to deference.). Under the
“substantial evidence” test, the court asks
whether “an appellate panel, applying the normal
standards of appellate review, ” could reasonably
conclude that the finding is supported by the record.
Hibbler, 693 F.3d at 1146 (9th Cir. 2012).
second test, whether the state court's fact-finding
process is insufficient, requires the federal court to
“be satisfied that any appellate court to whom the
defect [in the state court's fact-finding process] is
pointed out would be unreasonable in holding that the state
court's fact-finding process was adequate.”
Hibbler, 693 F.3d at 1146-47 (quoting Lambert v.
Blodgett, 393 F.3d 943, 972 (9th Cir. 2004)). The state
court's failure to hold an evidentiary hearing does not
automatically render its fact finding process unreasonable.
Id. at 1147. Further, a state court may make factual
findings without an evidentiary hearing if “the record
conclusively establishes a fact or where petitioner's
factual allegations are entirely without credibility.”
Perez v. Rosario, 459 F.3d 943, 951 (9th Cir. 2006)
(citing Nunes v. Mueller, 350 F.3d 1045, 1055 (9th
Cir. 2003)). If a petitioner overcomes one of the hurdles
posed by section 2254(d), this court reviews the merits of
the claim de novo. Delgadillo v. Woodford, 527 F.3d
919, 925 (9th Cir. 2008); see also Frantz v. Hazey,
533 F.3d 724, 735 (9th Cir. 2008) (en banc) (“[I]t is
now clear both that we may not grant habeas relief simply
because of § 2254(d)(1) error and that, if there is such
error, we must decide the habeas petition by considering de
novo the constitutional issues raised.”). For the
claims upon which petitioner seeks to present evidence,
petitioner must meet the standards of 28 U.S.C. §
2254(e)(2) by showing that he has not “failed to
develop the factual basis of [the] claim in State court
proceedings” and by meeting the federal case law
standards for the presentation of evidence in a federal
habeas proceeding. See Cullen v. Pinholster, 563
U.S. 170, 186 (2011).
court looks to the last reasoned state court decision as the
basis for the state court judgment. Stanley, 633
F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044,
1055 (9th Cir. 2004). “[I]f the last reasoned state
court decision adopts or substantially incorporates the
reasoning from a previous state court decision, [this court]
may consider both decisions to ‘fully ascertain the
reasoning of the last decision.'” Edwards v.
Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc)
(quoting Barker v. Fleming, 423 F.3d 1085, 1093 (9th
Cir. 2005)). “When a federal claim has been presented
to a state court and the state court has denied relief, it
may be presumed that the state court adjudicated the claim on
the merits in the absence of any indication or state-law
procedural principles to the contrary.”
Richter, 562 U.S. at 99. This presumption may be
overcome by showing “there is reason to think some
other explanation for the state court's decision is more
likely.” Id. at 99-100 (citing Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991)). Similarly, when a
state court decision on a petitioner's claims rejects
some claims but does not expressly address a federal claim, a
federal habeas court must presume, subject to rebuttal, that
the federal claim was adjudicated on the merits. Johnson
v. Williams, 133 S.Ct. 1088, 1091 (2013).
summary denial is presumed to be a denial on the merits of
the petitioner's claims. Stancle v. Clay, 692
F.3d 948, 957 & n. 3 (9th Cir. 2012). Where the state
court reaches a decision on the merits but provides no
reasoning to support its conclusion, a federal habeas court
independently reviews the record to determine whether habeas
corpus relief is available under § 2254(d).
Stanley, 633 F.3d at 860; Himes v.
Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
“Independent review of the record is not de novo review
of the constitutional issue, but rather, the only method by
which we can determine whether a silent state court decision
is objectively unreasonable.” Himes, 336 F.3d
at 853 (citing Delgado v. Lewis, 223 F.3d 976, 981
(9th Cir. 2000)). This court “must determine what
arguments or theories . . . 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 th[e] [Supreme] Court.”
Richter, 562 U.S. at 102. The petitioner bears
“the burden to demonstrate that ‘there was no
reasonable basis for the state court to deny
relief.'” Walker v. Martel, 709 F.3d 925,
939 (9th Cir. 2013) (quoting Richter, 562 U.S. at
is clear, however, that a state court has not reached the
merits of a petitioner's claim, the deferential standard
set forth in 28 U.S.C. § 2254(d) does not apply and a
federal habeas court must review the claim de novo.
Stanley, 633 F.3d at 860; Reynoso v.
Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph
v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
raises two claims in his habeas petition here. First, he
contends that admission of evidence of other uncharged crimes
under California Evidence Code § 1108 violated his due
process and equal protection rights. He further argues that
§ 1108 is unconstitutional. Second, petitioner claims
jury instruction CALCRIM No. 318, regarding the use of a
witness's prior statements as evidence, violated his due
process rights to a fair trial. Each claim is addressed below.
Admission of Evidence of Prior Uncharged Crimes
argues that the prior uncharged acts were so dissimilar from
the crimes at issue that they were not probative and were
unduly prejudicial. Specifically, petitioner points out that
the prior acts occurred when he was much younger and the
girls involved were near his age. In addition, the amount of
time that had passed since those prior acts contributed to
their lack of probative value. (Pet. for Review (LD 5) at
5-8.) Petitioner further argues that California Evidence Code
§ 1108 is unconstitutional. Section 1108 permits the
introduction of evidence of prior sexual offenses in a trial
for a sexual offense so long as the probative value of the
evidence outweighs its potential for prejudice under
California Evidence Code § 352.
prosecution presented the testimony of two women who had
sexual relationships with petitioner when they were minors.
First, G.C. testified that in 1993 when she was fifteen years
old and petitioner was eighteen years old, they had a sexual
relationship that resulted in a pregnancy. When she was
sixteen and he was nineteen, G.C. gave birth to a son. (RT
170-171.) She testified that when she started dating
petitioner, he was out of high school. (RT 174.) Second, M.R.
testified that she met petitioner in early 1996 when she was
fifteen years old and he was twenty-one. (RT 176-177.) ...