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Flynn v. Paramo

United States District Court, E.D. California

April 5, 2018

JAMES FLYNN, Petitioner,
v.
DANIEL PARAMO, Respondent.

          MEMORANDUM OPINION AND ORDER

          CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are petitioner's amended petition for a writ of habeas corpus (Doc. 18), respondent's answer (Doc. 27), and petitioner's reply (Doc. 31).

         I. BACKGROUND

         A. Facts[1]

         The state court recited the following facts, and petitioner has not offered any clear and convincing evidence to rebut the presumption that these facts are correct:

Defendant, who was like a grandfather to victim F., was found guilty of molesting him nine times over a three-year period. Defendant appeals from the resulting 24-year prison sentence, raising a number of evidentiary contentions. Finding the contentions forfeited or lack merit, we affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         A

         The Prosecution

F.'s mother began dating defendant's stepson when F. was about six or seven years old. The stepson lived with defendant on a ranch in Galt, and F. spent a lot of time visiting. Much of the time, F. would watch television in defendant's room with him. Defendant also would take F. shopping and bought F. “everything [he] wanted.” Soon, they began showering naked together almost every Sunday before church. They also began sleeping together in defendant's bed with the door locked.
The molestation started when defendant told F. that F. “was getting older and that eventually [he] would have to learn how to . . . please a woman.” Defendant said he “was going to show [him] what to do.” Defendant and F. got naked, and defendant had F. orally copulate him. F. did not think there was anything wrong because he thought defendant was “teaching [him] what he said he was teaching [him].” On many other occasions, F. would have to stroke defendant's penis as well. One time, defendant tried to put his penis in F.'s “butt, ” but F. told him “no, ” and defendant stopped. Defendant told F. not to tell anybody about the molests or else F. “would get in trouble.” Defendant stopped molesting F. when he was about 10 or 11.
After F.'s mom and defendant's stepson broke up, defendant continued his presence in the lives of F., his mother, and his sister. Defendant continued taking F. to church and gave him a gold cross and chain for his first holy communion. He gave F. and F.'s sister a computer and laptop computer. He bought F. school clothes and sneakers. He enrolled F. in soccer and paid for his fees and equipment and attended all his practices and games. He took F. to Rome to see the pope when F. was 12 years old.
At some point, defendant's visits diminished. Defendant canceled a cell phone contract for F., which accompanied the cell phone defendant had also bought him. F. became concerned that defendant's visits were diminishing and he wondered why.
When F. was about 13, he realized what defendant had done was wrong. When F. was 15, he told his girlfriend he had been molested. A few days later, he told him mom and his sister. After telling his family, F. tried to commit suicide by hanging himself by a cord in the garage. His best friend was in the house, and the friend stopped F. He tried to commit suicide because he “just couldn't handle everything that had happened to [him] and what was going on, ” namely, what defendant had done to him. What put him “over the edge” was also getting in trouble at school and getting into arguments with his mom and sister.
After the suicide attempt, F. made a pretext phone call to defendant. F. started by telling defendant he could not forget what defendant had done to him. Defendant responded, “Well, we - we - we really didn't do nothing but remember - if you remember I told you I didn't - I don't love you in that way. You know, that's why I - we - you know, I had to tell you stop all that stuff. You know?” He said “it wasn't a sexual relationship.” Defendant apologized and said he should not have had F. in the shower with him, but there “wasn't the intent.” They also “just laid around . . . in the nude but . . . we really didn't do nothing. And if - and - and I didn't - never did love you in that way. It wasn't pursued.” Defendant said he didn't want to go to jail or prison. When F. asked about the “blow jobs, ” defendant responded, “On, no, no, no. I didn't do nothing. I - I swear. Nothing happened.” He admitted what he did was “wrong” but said only that they laid around naked after showering to cool down.

         B

         The Defense

Defendant testified. He did not spend much time with F. at the ranch and most of the time they were not alone. They got closer toward the end of his stepson's relationship with F.'s mother, eventually becoming like grandfather and grandson. Despite their growing closeness, F. did not spend much time in defendant's bedroom because defendant was always watching religious programs. Defendant never slept naked, and he did not do so with F. Twice, F. wandered into the shower when defendant was inside. Both times, defendant scolded him to get out. As to his statements on the pretext call, they were not as they appeared. When he admitted he was lying naked with F., his definition of naked was not wearing a shirt. He apologized to F. during the phone call because F. was looking for an apology.
In addition to his own testimony, defendant presented the testimony of two character witnesses. ReCinda Greenwood knew defendant because her niece married his stepson. She had seen defendant interact with children on hundreds of occasions, and not once had she seen him act inappropriately. There was no fact that she could learn about defendant that would change her opinions. Suzanna Schuyler was a coworker of defendant's. She believed that he would never harm a child and that the charges he was facing were out of character for him. If she learned that he admitted to showering with a six-year-old boy and lying naked with him, those facts would change her opinion.

         B. Procedural History

         Petitioner's conviction and sentence were affirmed by the California Court of Appeal and the California Supreme Court denied direct review on May 22, 2013. On November 5, 2014, this court granted respondent's motion to dismiss and granted petitioner leave to file an amended petition containing only exhausted claims. Petitioner filed a first amended petition on December 1, 2014.

         II. STANDARDS OF REVIEW

         Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) are presumptively applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998). The AEDPA does not, however, apply in all circumstances. When it is clear that a state court has not reached the merits of a petitioner's claim, because it was not raised in state court or because the court denied it on procedural grounds, the AEDPA deference scheme does not apply and a federal habeas court must review the claim de novo. See Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) (holding that the AEDPA did not apply where Washington Supreme Court refused to reach petitioner's claim under its “re-litigation rule”); see also Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (holding that, where state court denied petitioner an evidentiary hearing on perjury claim, AEDPA did not apply because evidence of the perjury was adduced only at the evidentiary hearing in federal court); Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001) (reviewing petition de novo where state court had issued a ruling on the merits of a related claim, but not the claim alleged by petitioner). When the state court does not reach the merits of a claim, “concerns about comity and federalism . . . do not exist.” Pirtle, 313 F.3d at 1167.

         Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) is not available for any claim decided on the merits in state court proceedings unless the state court's 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; 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.

         Under § 2254(d)(1), federal habeas relief is available only where the state court's decision is “contrary to” or represents an “unreasonable application of” clearly established law. Under both standards, “clearly established law” means those holdings of the United States Supreme Court as of the time of the relevant state court decision. See Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams, 529 U.S. at 412) . “What matters are the holdings of the Supreme Court, not the holdings of lower federal courts.” Plumlee v. Masto, 512 F.3d 1204 (9th Cir. 2008) (en banc). Supreme Court precedent is not clearly established law, and therefore federal habeas relief is unavailable, unless it “squarely addresses” an issue. See Moses v. Payne, 555 F.3d 742, 753-54 (9th Cir. 2009) (citing Wright v. Van Patten, 552 U.S. 120, 28 S.Ct. 743, 746 (2008)). For federal law to be clearly established, the Supreme Court must provide a “categorical answer” to the question before the state court. See id.; see also Carey, 549 U.S. at 76-77 (holding that a state court's decision that a defendant was not prejudiced by spectators' conduct at trial was not contrary to, or an unreasonable application of, the Supreme Court's test for determining prejudice created by state conduct at trial because the Court had never applied the test to spectators' conduct). Circuit court precedent may not be used to fill open questions in the Supreme Court's holdings. See Carey, 549 U.S. at 74.

         In Williams v. Taylor, 529 U.S. 362 (2000) (O'Connor, J., concurring, garnering a majority of the Court), the United States Supreme Court explained these different standards. A state court decision is “contrary to” Supreme Court precedent if it is opposite to that reached by the Supreme Court on the same question of law, or if the state court decides the case differently than the Supreme Court has on a set of materially indistinguishable facts. See id. at 405. A state court decision is also “contrary to” established law if it applies a rule which contradicts the governing law set forth in Supreme Court cases. See id. In sum, the petitioner must demonstrate that Supreme Court precedent requires a contrary outcome because the state court applied the wrong legal rules. Thus, a state court decision applying the correct legal rule from Supreme Court cases to the facts of a particular case is not reviewed under the “contrary to” standard. See id. at 406. If a state court decision is “contrary to” clearly established law, it is reviewed to determine first whether it resulted in constitutional error. See Benn v. Lambert, 283 F.3d 1040, 1052 n.6 (9th Cir. 2002). If so, the next question is whether such error was structural, in which case federal habeas relief is warranted. See id. If the error was not structural, the final question is whether the error had a substantial and injurious effect on the verdict, or was harmless. See id.

         State court decisions are reviewed under the far more deferential “unreasonable application of” standard where it identifies the correct legal rule from Supreme Court cases, but unreasonably applies the rule to the facts of a particular case. See Wiggins v. Smith, 539 U.S. 510, 520 (2003). While declining to rule on the issue, the Supreme Court in Williams, suggested that federal habeas relief may be available under this standard where the state court either unreasonably extends a legal principle to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply. See Williams, 529 U.S. at 408-09. The Supreme Court has, however, made it clear that a state court decision is not an “unreasonable application of” controlling law simply because it is an erroneous or incorrect application of federal law. See id. at 410; see also Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). An “unreasonable application of” controlling law cannot necessarily be found even where the federal habeas court concludes that the state court decision is clearly erroneous. See Lockyer, 538 U.S. at 75-76. This is because “[t]he gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness.” Id. at 75. As with state court decisions which are “contrary to” established federal law, where a state court decision is an “unreasonable application of” controlling law, federal habeas relief is nonetheless unavailable if the error was non-structural and harmless. See Benn, 283 F.3d at 1052 n.6.

         The “unreasonable application of” standard also applies where the state court denies a claim without providing any reasoning whatsoever. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 233 F.3d 976, 982 (9th Cir. 2000). Such decisions are considered adjudications on the merits and are, therefore, entitled to deference under the AEDPA. See Green v. Lambert, 288 F.3d 10811089 (9th Cir. 2002); Delgado, 233 F.3d at 982. The federal habeas court assumes that state court applied the correct law and analyzes whether the state court's summary denial was based on an objectively unreasonable application of that law. See Himes, 336 F.3d at 853; Delgado, 233 F.3d at 982.

         III. DISCUSSION

         Petitioner claims: (1) California Penal Code § 288 is constitutionally vague; (2) trial counsel was ineffective; (3) the amended information provided insufficient notice; (4) the trial court misinstructed the jury; (5) the trial court erred regarding evidence of the victim's suicide attempt; (6) the trial court erred by excluding evidence impeaching the victim; (7) the trial court erred by allowing evidence of Child Sexual Abuse Accommodation Syndrome; (8) the prosecution failed to prove the facts alleged in the amended information; (9) petitioner's classification as a violent sex offender is not supported by the evidence; (10) California's inadequate post-conviction system is unconstitutional; and (11) AEDPA is unconstitutional.

         A. Procedurally Barred Claims

         Petitioner was convicted of child molestation in violation of California Penal Code § 288. Petitioner argues that § 288 is unconstitutionally vague. Petitioner also claims that the trial court erred by excluding impeachment evidence from the victim's juvenile record, and that the trial court erred by allowing evidence relating to Child Sexual Abuse Accommodation Syndrome. Petitioner raised these claims for the first time in a habeas petition to the state court, which denied the claims as procedurally defaulted under In re Dixon, 41 Cal. 2d 756, 759 (1954), because they could have been raised on direct appeal. Respondent argues that the state court procedural default bars federal habeas review of these claims.

         Based on concerns of comity and federalism, federal courts will not review a habeas petitioner's claims if the state court decision denying relief relies on a state law ground that is independent of federal law and adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722 (1991); Harris v. Reed, 489 U.S. 255, 260-62 (1989). However, a discretionary state rule is not adequate to bar federal habeas corpus review. See Siripongs v. Calderon, 35 F.3d 1308 (9th Cir. 1994). Generally, the only state law grounds meeting these requirements are state procedural rules. Even if there is an independent and adequate state ground for the decision, the federal court may still consider the claim if the petitioner can demonstrate: (1) cause for the default and actual prejudice resulting from the alleged violation of federal law, or (2) a fundamental miscarriage of justice. See Harris, 489 U.S. at 262 (citing Murray v. Carrier, 477 U.S. 478, 485, 495 (1986)). In cases where the state court denies a claim based on a procedural default but also discusses the merits of the claim, the claim is nonetheless procedurally barred on federal habeas review unless the state court's decision fairly appears to rest primarily upon federal law. See Coleman, 501 U.S. at 737.

         A state law is independent if it is not interwoven with federal law. See Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). The independence of a state law is measured at the time the default is imposed by the state court to bar a claim. See Bennett v. Mueller, 322 F.3d 573, 582 (9th Cir. 2003); see also La Crosse v. Kernan, 244 F.3d 702, 204 (9th Cir. 2001); Park v. California, 202 F.3d 1146 (9th Cir. 2000) (assessing whether California's waiver default was independent when the California Supreme Court denied the claim). A state law is adequate if it is clear, well-established, and consistently applied. See Bargas v. Burns, 179 F.3d 1207, 1211 (9th Cir. 1999). The adequacy of a state default is measured at the time of the petitioner's purported default. See Fields v. Calderon, 125 F.3d 757, 760 (9th Cir. 1997). Thus, the respective dates for determining the adequacy and independence may not be the same.

         The government bears the ultimate burden of establishing adequacy. See Bennett, 322 F.3d at 581. However, because the petitioner bears the initial burden of putting a procedural bar affirmative defense in issue in the case (by asserting specific factual allegations as to inadequacy, for example), the scope of the state's burden of proof is measured by the specific assertions put forth by petitioner. See id. at 586. The petitioner's burden is de ...


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