United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT
JUDGE 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 in the custody of the California Department of
Corrections and Rehabilitation serving a sentence of 45
years-to-life for convictions of sexually abusing three
girls. Petitioner has filed the instant habeas petition
challenging his conviction. The Court finds that the state
court rejections of his claims were not contrary to, or an
unreasonable application of, Supreme Court precedent and
recommends the petition be DENIED.
March 2014, Petitioner was convicted in the Kern County
Superior Court of one count of continuous sexual abuse (Cal.
Penal Code § 288.5(a)), and two counts of committing a
lewd act upon a child (Cal. Penal Code § 288(a)).
People v. Juarez, 2016 WL 1128492, at *1
(Cal.Ct.App. Mar. 22, 2016). Allegations were found true that
each offense had been committed against multiple victims.
Id. On April 2, 2014, Petitioner was sentenced him
to a total indeterminate prison term of 45 years-to-life.
appealed to the California Court of Appeal, Fifth Appellate
District (“Fifth DCA”). Id. While the
appeal was pending, Petitioner filed a habeas petition in the
Kern County Superior Court. (Doc. 7-10 at 1.) The superior
court denied the petition in a reasoned decision on October
21, 2015. (Doc. 7-10 at 1.) On March 22, 2016, the Fifth DCA
issued its opinion affirming the judgment. Juarez,
2016 WL 1128492, at *1. Petitioner filed a habeas petition in
the California Supreme Court on September 15, 2016. (Doc.
7-11 at 1.) The petition was summarily denied on November 16,
2016. (Doc. 7-11 at 1.)
February 21, 2017, Petitioner filed the instant petition for
writ of habeas corpus in this Court. (Doc. 1.) Respondent
filed an answer on April 4, 2017. (Doc. 8.) Petitioner filed
a traverse to Respondent's answer on May 5, 2017. (Doc.
The Court adopts the Statement of Facts in the Fifth
DCA's unpublished decision.
On June 24, 2013, defendant was charged with sexually abusing
his wife's two granddaughters and grandniece between 2006
and 2011. Each girl was under the age of 13 at the time of
the abuse. At trial, all three victims testified defendant
approached them and engaged in inappropriate conduct with
them while they were staying at his house, outside Delano,
California. The first victim testified defendant touched her
breasts and vagina on numerous occasions between 2007 and
2009, and would force her to touch his penis by forcefully
manipulating her arm, while at the same time he touched her
genitals. The second victim testified that on one occasion,
in either 2010 or 2011, defendant touched her vagina and
attempted to make her touch his penis, but she was able to
run away. The third victim testified that in 2009 defendant
approached her from behind and put his hands under her shirt
and rubbed her breasts. In an instance of uncharged
misconduct, the People presented the testimony of another
teenage girl who testified that in 2009 defendant had
approached her in his home and rubbed her inner thigh. There
were no witnesses to these events.
Juarez, 2016 WL 1128492, at *1.
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).
Review of Petition
instant petition presents the following grounds for relief:
1) The state court's decision finding that the erroneous
instruction to the jury under CALJIC No. 2.50.01 was harmless
is objectively unreasonable; 2) There was insufficient
evidence to support his convictions; and 3) Ineffective
assistance of counsel deprived Petitioner of his federal
constitutional rights to due process and a fair trial.
Claim One - Instructional Error
first claims the trial court erred by instructing the jury
with CALJIC No. 2.50.01 because, he asserts, the instruction
improperly allowed for currently charged offenses to be used
as propensity evidence. He asserts that the alleged offenses
were too dissimilar or remote to be used as propensity
evidence and improperly lowered the state's burden of
proof. He contends the state court's finding that the
error was harmless was objectively unreasonable and requires
State Court Decision
raised this claim on direct review. In the last reasoned
decision, the Fifth DCA denied the claim as follows:
conclusion of defendant's trial, the court instructed the
jury with CALJIC No. 2.50.01 as follows:
“In determining whether defendant has been proved
guilty of any sexual crime of which he is charged, you should
consider all relevant evidence[, ] including whether the
defendant committed any other sexual crimes[, ]
whether charged or uncharged[, ] about which
evidence has been received. The crimes charged in Counts 1,
2, and/or 3, may be considered by you in that regard[.] [A]ny
conduct made criminal by Penal Code [s]ection 647.6 [ (a)
](1). The elements of this crime are set forth elsewhere in
“If you find by a preponderance of the evidence that
the defendant committed any such other sexual
offense, you may[, ] but are not required to [, ] infer
that the defendant had a disposition to commit sexual
offenses. If you find the defendant had this disposition, you
may[, ] but are not required to [, ] infer that he was likely
to commit and did commit the crime or crimes of which he is
accused. However, even though you find by preponderance
of the evidence that the defendant committed other
sexual offenses, that is not sufficient by itself to
prove beyond a reasonable doubt that he committed the charged
crimes you are determining.
“If you determine an inference properly can be drawn
from this evidence, this inference is simply one item for you
to consider[, ] along with all other evidence[, ] in
determining whether the defendant has been proved guilty
beyond a reasonable doubt of the charged crimes that you are
determining. You must not consider this evidence for any
other purpose.” (Italics added.)
Defendant contends that CALJIC No. 2.50.01 violates his right
to due process since, in addition to permitting the jury to
consider previously uncharged offenses as evidence of his
propensity to commit currently charged offenses, it also
allowed the jury to consider currently charged offenses as
propensity to commit other currently charged offenses as
well. The California Supreme Court rejected an identical
argument in People v. Villatoro (2012) 54 Cal.4th