United States District Court, E.D. California
MEMORANDUM OPINION AND ORDER
M. KELLISON UNITED STATES MAGISTRATE JUDGE.
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).
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.
AND PROCEDURAL BACKGROUND
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
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.
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.
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.
STANDARDS OF REVIEW
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.
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;
(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.
§ 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.
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.
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.
“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
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.
Procedurally Barred Claims
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
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.
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.
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