United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS.
F. BRENNAN UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding without counsel with a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner challenges a judgment of conviction
entered against him on June 19, 2012 in the Superior Court of
Colusa County on charges of: (1) one count of orally
copulating a child under fourteen; (2) two counts of
committing lewd acts on a child under the age of fourteen;
(3) one count of sodomizing a child under the age of
fourteen; (4) six counts of exhibiting harmful matter to a
minor; (5) one count of orally copulating a child under
sixteen; (6) one count orally copulating a disabled person;
(7) two counts of committing lewd acts on a child under
sixteen; (8) one count sodomizing a child under sixteen; and
(9) one count of sodomizing a disabled person. He seeks
federal habeas relief on the following grounds: (1)
prosecutorial misconduct resulted in an unfair trial; (2) his
convictions are not supported by sufficient evidence; and (3)
his due process rights were violated by the trial court's
decision to admit evidence of a prior, uncharged sex offense.
Upon careful consideration of the record and the applicable
law, the undersigned recommends that petitioner's
application for habeas corpus relief be denied.
unpublished memorandum and opinion affirming petitioner's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 procedural and factual summary:
Jesus Andres Lopez was convicted of 16 counts of various sex
crimes against seven boys. He asserts reversible error on the
1. The prosecutor committed misconduct in his rebuttal jury
2. Insufficient evidence supports his six convictions of
exhibiting harmful matter to a minor;
3. The trial court erred by admitting evidence of a prior
uncharged sex crime;
4. The trial court imposed unauthorized restitution and
parole revocation fines; and
5. The abstract of judgment incorrectly records his
presentence custody credits.
In addition, the Attorney General asks us to modify the
judgment to impose sentences on subordinate consecutive terms
in the correct manner and to order the abstract of judgment
be similarly corrected. Defendant agrees with the Attorney
We reverse the judgment as to two of the convictions for
exhibiting harmful matter; we modify the judgment to impose
the correct restitution and parole revocation fines and
sentences on the subordinate consecutive terms; and we order
the abstract of judgment amended to record defendant's
sentencing, restitution fines, and presentence custody credit
accurately. In all other respects, we affirm the judgment.
not recite all of the sordid facts in order to address
defendant's contentions. Suffice it to say, defendant,
who turned 39 years old three days after trial in 2012, was
convicted of committing the following crimes against seven
boys in 2010 and 2011:
One count of orally copulating a child under the age of 14
(Pen.Code, § 288a, subd. (c)(1))1 (count I);
Two counts of committing lewd acts on a child under the age
of 14 (§ 288, subd. (a)) (counts II and XVII);
One count of sodomizing a child under the age of 14 (§
286, subd. (c)(1)) (count III);
Six counts of exhibiting harmful matter to a minor (§
288.2, subd. (a)) (counts IV, VIII, XVI, XVIII, XIX, and XX);
One count of orally copulating a child under the age of 16
(§ 288a, subd. (b)(2)) (count IX);
One count of orally copulating a disabled person (§
288a, subd. (g)) (count X);
Two counts of committing lewd acts on a child under the age
of 16 (§ 288, subd. (c)(1)) (counts XI and XIV);
One count of sodomizing a child under the age of 16 (§
286, subd. (b)(2)) (count XII); and
One count of sodomizing a disabled person (§ 286, subd.
(g)) (count XIII).
The jury also found true a multiple victim enhancement under
section 667.61, subdivisions (b), (c)(8), and (e)(4), as to
counts II and XVII.
The trial court sentenced defendant to state prison for an
indeterminate term of 30 years to life, plus 19 years four
months, calculated as follows: Consecutive 15 years to life
terms on counts II and XVII (lewd acts on a child under 14)
pursuant to the multiple victim enhancement; a consecutive
upper term of eight years on count III (sodomy on a child
under 14); consecutive middle terms of six years stayed
except for one-third of the middle term sentences of two
years on counts I, X, and XIII (oral copulation of a child
under 14, oral copulation of a disabled person, and sodomy of
a disabled person); and consecutive middle terms of two years
stayed except for one-third of the middle term sentences of
eight months on counts IV, VIII, XVI, XVIII, XIX, and XX
(exhibiting harmful matter to a minor) and counts XI and XIV
(lewd acts on a child under 16).
The court also imposed and stayed under section 654 the
middle term sentences of two years on counts IX and XII (oral
copulation of a child under 16 and sodomy of a child under
The court imposed restitution and parole revocation fines of
$100, 000 each. It also granted defendant a total of 499 days
of custody credit; 434 days for actual custody and 65 days
for worktime credits.
People v. Lopez, No. C072072, 2014 WL 5796683, at
*1-2 (Cal.Ct.App. Nov. 7, 2014), review
denied (Jan. 14, 2015).
Standards of Review Applicable to Habeas Corpus
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. Thompson v. Runnels, 705 F.3d
1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher,
565 U.S. 34, (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, 132 S.Ct. 2148, 2155 (2012) (per curiam)). 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. 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, 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). 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 the 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); Williams, 529 U.S. at 413; Chia v.
Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this
regard, 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 412. 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.'”). “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 (2004)).
“[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.
state court's decision does not meet the criteria set
forth in § 2254(d), a reviewing court must conduct a de
novo review of a habeas petitioner's claims.
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.”).
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). If 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 ascertain the reasoning of the last
decision. Edwards v. Lamarque, 475 F.3d 1121, 1126
(9th Cir. 2007) (en banc). “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 a showing “there is
reason to think some other explanation for the state
court's decision is more likely.” Id. at
785 (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, 568
U.S. 289, 292 (2013).
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. Where no reasoned decision is available, the habeas
petitioner still has the burden of “showing there was
no reasonable basis for the state court to deny
relief.” Richter, 562 U.S. at 98.
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). While the federal
court cannot analyze just what the state court did when it
issued a summary denial, the federal court must review the
state court record to determine whether there was any
“reasonable basis for the state court to deny
relief.” Richter, 562 U.S. at 98. 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 [the Supreme]
Court.” Id. 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 ...