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Skidmore v. Lizarraga

United States District Court, N.D. California, San Jose Division

January 9, 2020

CARL SKIDMORE, Petitioner,
v.
JOE LIZARRAGA, Warden of California State Prison at Mule Creek, Respondent.

          AMENDED [1] ORDER DENYING MOTION FOR EVIDENTIARY HEARING; AND DENYING AMENDED PETITION FOR WRIT OF HABEAS CORPUS [RE: ECF 35, 62]

          BETH LABSON FREEMAN UNITED STATES DISTRICT JUDGE.

         Petitioner Carl Albert Skidmore, a state prisoner represented by counsel, has filed an amended petition for writ of habeas corpus under 28 U.S.C. § 2254, challenging his conviction and sentence imposed after a Sonoma County jury found him guilty of rape, sexual assault, and molestation of his two stepdaughters. Petitioner's sentence, as modified on appeal, is 307 years to life in prison.

         Petitioner asserts five claims of ineffective assistance of trial counsel, a claim that his sentence is cruel and unusual, and a claim of cumulative error. He has filed a motion for an evidentiary hearing. Both the amended habeas petition and the motion for evidentiary hearing have been fully briefed.

         For the reasons discussed below, the motion for an evidentiary hearing (ECF 62) is DENIED, and the amended petition for writ of habeas corpus (ECF 35) is DENIED.

         I. FACTUAL BACKGROUND

         The following factual summary is taken from the California Court of Appeal's opinion addressing Petitioner's direct appeal. See People v. Skidmore, No. A121339, 2009 WL 2766801 (Cal.Ct.App. Sept. 1, 2009). The California Court of Appeal found as follows:

A. Charges In This Case
An amended information charged Skidmore with 10 felony sex offenses against his stepdaughters, J.D. and A.D., who were under the age of 14.
With respect to victim J.D., Skidmore was charged with: three counts of aggravated sexual assault of a child involving rape (Pen. Code, § 269, subd. (a)(1); counts one-three); forcible rape (§ 261, subd. (a)(2); count four); continuous sexual abuse of a child (§ 288.5, subd. (a); count five); forcible sexual penetration of a child (§ 289, subd. (a)(1); count six); and committing a lewd act on a child (§ 288, subd. (b)(1); count seven).
As to victim A.D., the amended information charged Skidmore with continuous sexual abuse of a child (§ 288.5, subd. (a); count eight) and two counts of perpetrating a lewd act on a child (§ 288, subd. (a); counts nine and 10).
In regard to all counts, the amended information alleged that Skidmore had a prior serious felony child molestation conviction (§ 288, subd. (a)) for purposes of the Three Strikes Law. (§ 1170.12.) As to counts four through nine, it was further alleged that Skidmore committed the charged sexual offenses against multiple victims, and had a prior child molestation conviction under section 288, subdivision (a), for purposes of the One Strike Law. (§ 667.61, subds. (b) and (e)(5), (a) and (d)(1).)
B. No. SCR-471023
While these charges were pending, Skidmore was convicted in case number SCR-471023 on a felony charge of soliciting another to commit an assault by means likely to produce great bodily injury. (§ 653f, subd. (a).) This charge arose when Skidmore, while in jail on the sexual offense charges, arranged for his relatives to pay a former jail inmate to kill the molestation victims' mother, assault their older brother, and bribe the victims to withdraw their allegations. Sentencing was deferred pending the completion of trial on the current charges.
C. Trial in This Case (SCR-458973) Jury trial commenced in January 2008.
1. Skidmore's Prior Sexual Abuse of a Stepdaughter Skidmore's former stepdaughter, T.B., testified that Skidmore sexually molested her periodically from the time she was about seven or eight years old, to the time she was about 12 or 13 years old. T.B.'s mother was an alcoholic, and Skidmore molested T.B. while the mother was asleep. Specifically, Skidmore went to T.B.'s bed, fondled her, and inserted his fingers in her vagina. He convinced T.B. not to tell her mother because, if she did, her mother would leave her. At one point before T.B. turned 11 years old, Skidmore also tried to have sexual intercourse with her. When she told him to stop because of the pain, he became frustrated and told her that “men didn't like prick teases.” Certified documents established that Skidmore pled guilty to one count of child molestation (§ 288, subd. (a)) in July 1985.
After T.B.'s mother learned that Skidmore was engaged to Patricia H. (the mother of the child victims in this case), she informed Patricia that Skidmore was a registered sex offender. Patricia nonetheless married Skidmore in 2002.
2. Skidmore's New Victims
Patricia's two daughters from a prior marriage - J.D. born in August 1990, and A.D. born in July 1993 - lived with Patricia and Skidmore. Patricia's son Jey and his girlfriend Antoinette sometimes lived with them also.
Like T.B.'s mother, Patricia was an alcoholic, and she got drunk every night after work. She never told J.D. or A.D. that Skidmore was a registered sex offender. As he had done to T.B., Skidmore molested J.D. and A.D. while their mother was asleep.
3. Sexual Abuse of J.D. (Counts 1-7)
One night when J.D. was 12 years old on a family vacation, Skidmore rubbed her leg, put his hand inside her shorts, rubbed her vagina, and inserted his finger into her vagina. He told her to “be quiet” and that she would “like it.”
About two weeks after the family returned home, Skidmore resumed his molestation of J.D. About 5:30 or 6:00 a.m., he entered her bedroom, rubbed her leg and vagina, and inserted his fingers into her vagina. He told her it was “what [they were] supposed to be doing” and it was “a special thing.” Frightened, J.D. pushed Skidmore's hand away and told him to stop, but he continued anyway.
For nearly a year, Skidmore molested J.D. in the same manner two to three times a week, for about a half hour each time, while her mother was sleeping. He also touched her breasts and once asked her to kiss his exposed penis.
J.D. testified that, when she was 13 in January 2004, Skidmore “started raping me.” After inserting his fingers into her vagina, he took off his pants and told her, “we're going to try something new.” She told him “no” and said she was scared, but he continued. He got on top of her, rubbed his penis against her vagina, and then inserted his penis in her vagina. She cried from the pain.
About a week later, Skidmore had intercourse with J.D. in her bedroom again. From then on until February 2005, he had intercourse with J.D. about two or three times a week. They had intercourse over 20 times.
While Skidmore was molesting her, he would tell J.D. that they could go shopping when they finished. Skidmore bought J.D. “everything [she] wanted.” He also bought her sexy underwear, including a lace bra and matching thong, which he had J.D. pose in.
Skidmore told J.D. that if she told anyone what he was doing to her, it would break her mother's heart, break up the family, and cause him to go to jail. She did not report the abuse because she believed she was protecting her little sister A.D., her family had been poor before they met Skidmore, and Skidmore “could hurt [her].” When she did confide in her mother once, Skidmore accused her of lying, and her mother proceeded to drink even more and cried constantly. Seeing her family adversely affected, J.D. recanted. About a week or two later, Skidmore resumed raping her two or three times a week.
The last time they had intercourse was in late February 2005, a few days before Skidmore was arrested. On that occasion, J.D. used a pink towel to wipe off her vagina. J.D. gave the towel to the police after Skidmore was arrested.
4. Sexual Abuse of A.D. (Counts 8-10)
Skidmore started molesting A.D. when she was 11 years old, beginning sometime between the start of school and Christmas 2004. The first time he entered her bedroom in the morning while everyone else was asleep, and rubbed her back and her breasts. Beginning about a month later, he would rub her vagina as well. He did this every day, once in the morning and once again in the afternoon, for several months.
In February 2005, Skidmore's molestation of A.D. escalated. In addition to rubbing her breasts and vagina, he removed her clothing and put his mouth on her vagina. This continued twice a day throughout the month. At one point, Skidmore had A.D. wear a lacy pink thong for him.
A.D. did not report Skidmore's abuse because she was scared and wanted “to save [her] sister.” In addition, Skidmore had warned her that if she told anyone, he would never buy anything for her again. A.D. also thought no one would believe her, because when she previously told her mother that she had seen Skidmore and J.D. kissing and naked together in J.D.'s bedroom, they denied it.
On the last day of February 2005, Skidmore went to A.D.'s bedroom around 6:00 a.m. He rubbed her breasts and buttocks, pulled down her pants, and orally copulated her as usual. This time, however, he also rubbed his penis against her vagina and tried to make her touch it. He told A.D., “I'll see you once I get home from work, ” and “[o]nce we do it, I'll give you a big prize.” A.D. testified: “I was afraid he was going to rape me the next day.”
5. Additional Evidence
Meanwhile, Jey's girlfriend Antoinette (Nettie) became concerned about J.D. and A.D. She noticed that J.D., who usually did very well in school, no longer wanted to do her homework and was not as outgoing as before. A.D. was displaying similar behavioral problems as well. Nettie also observed that Skidmore was buying J.D. “inappropriate clothing, ” such as thong underwear, low-cut shirts, and “unbelievably short skirts.”
J.D.'s older cousin, Monique, testified that she once saw Skidmore's hand on J.D.'s thigh in a sexual manner. Further, she testified, Skidmore “always wanted to touch” J.D.
Late at night on March 1, 2005, while Skidmore was at work and Patricia was asleep, Jey, Nettie, and Monique confronted J.D. with their suspicions that Skidmore was molesting A.D. and perhaps J.D. J .D. initially denied she was being molested but said she believed Skidmore was molesting A.D. J.D. then started to cry and admitted that for two years Skidmore had been molesting her as well. As they confronted Patricia, A.D. emerged from her room, crying. She explained: “I'm crying because I'm happy because I know it's over.” A.D. thought Skidmore was going to rape her the next morning.
After the police were called, they had J.D. make a pretext telephone call to Skidmore. Skidmore told J.D. to lie and deny that there was ever any sexual contact between them, because otherwise he would go to jail. The tape of the telephone call was admitted into evidence and played for the jury.
The police interviewed J.D. and A.D., and audiotapes of their interviews were admitted into evidence and played for the jury. The sisters underwent sexual assault examinations and were swabbed for DNA evidence. Expert witnesses testified at trial that J.D.'s pink towel contained seminal fluid, and swabs of J.D.'s and A.D.'s breasts contained male DNA, all of which included Skidmore as a statistically likely source.
Dr. Anthony Urquiza, an expert in Child Sexual Assault Accommodation Syndrome, testified about the reasons child victims of sexual abuse may not immediately report molestations and often recant.
6. Defense Case
Skidmore did not call any witnesses of his own. He rested his case on the state of the evidence.
D. Jury Verdict and Sentence
The jury returned guilty verdicts on counts one, two, three, four, six, seven, nine, and 10, and on the lesser included offense of lewd act on a child (§ 288, subd. (a)) on count eight. Skidmore was acquitted on count five. The jury found the One Strike allegations true. The court found the Three Strikes allegations true.
The court sentenced Skidmore to a determinate term of 25 years four months, plus an indeterminate term of 290 years to life in state prison. The determinate term consisted of consecutive 12-year terms on counts eight and 10, calculated by doubling the full six-year midterm under the Three Strikes Law, and a consecutive 16-month term in the consolidated case, SCR-471023, calculated by doubling one-third of the two-year midterm under the Three Strikes law. The indeterminate term consisted of consecutive 30-year to life terms on counts one, two, and three, calculated at 15 years to life doubled under the Three Strikes law, and consecutive 50-year to life terms on counts four, six, seven, and nine, calculated at 25 years to life under the One Strike law, doubled under the Three Strikes law.

People v. Skidmore, 2009 WL 2766801, at *1-4.

         II. PROCEDURAL BACKGROUND

         A. Direct Review

         The California Court of Appeal reduced Petitioner's sentence on count 8 from twelve to four years and otherwise affirmed the judgment in an unpublished decision issued September 1, 2009. See People v. Skidmore, 2009 WL 2766801, at *8.

         The California Supreme Court denied review on November 10, 2009. See Am'd Pet. Exh. 18, ECF 35-2.

         B. State Habeas Proceedings

         In December 2009, Petitioner retained counsel, Angelyn Gates, to file a federal habeas petition for a flat fee of $15, 000. See Am'd Pet. Exh. 3, ECF 35-1. In June 2010, Ms. Gates received an additional $45, 000. See Am'd Pet. Exh. 4. Ms. Gates did not prepare or file either a state or federal habeas petition on Petitioner's behalf. In March 2013, Petitioner fired Ms. Gates. See Am'd Pet. Exh. 1. In May 2013, Petitioner paid new counsel, David Carico, $15, 000 to review his case. See Skidmore Decl. ¶ 94, Am'd Pet. Exh. 34. In October 2013, Mr. Carico met with Petitioner and requested in excess of $35, 000 to prepare a federal habeas petition. See Id. ¶ 105. Petitioner did not have the funds to retain Mr. Carico. See Id. ¶ 106.

         Petitioner then began filing pro se state habeas petitions. See Skidmore Decl. ¶ 107, Am'd Pet. Exh. 34. He filed a petition for writ of habeas corpus in the Sonoma County Superior Court, which was denied in a reasoned decision on January 28, 2014. See Am'd Pet. Exhs. 19, 20. He filed a petition for writ of habeas corpus in the California Court of Appeal, which was denied as unexhausted on March 19, 2014. See Am'd Pet. Exhs. 21, 22. He filed a second petition for writ of habeas corpus in the California Court of Appeal, which was denied summarily on April 9, 2014. See Am'd Pet. Exhs. 23, 24. And he filed a petition for writ of habeas corpus in the California Supreme Court, which was denied summarily on July 23, 2014. See Am'd Pet. Exhs. 25, 26.

         On June 8, 2014, Skidmore retained current counsel, James Thomson. See Skidmore Decl. ¶ 117, Am'd Pet. Exh. 34, ECF 35-2. Mr. Thomson filed a second habeas petition in the California Supreme Court, which was denied on state procedural grounds on January 14, 2015. See Am'd Pet. Exhs. 31, 32.

         C. Federal Habeas Proceedings

         While Petitioner was filing pro se habeas petitions in the state courts, he simultaneously was filing pro se habeas petitions in federal district courts. He filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of California in January 2014, which was immediately transferred to the Northern District of California. See Am'd Pet. Exhs. 27, 28. Magistrate Judge Jacqueline Scott Corley, to whom the case was assigned upon transfer, dismissed the petition without prejudice for failure to pay the filing fee or complete an application to proceed in forma pauperis. See Am'd Pet. Exh. 28.

         Petitioner filed a second pro se federal habeas petition in the Northern District of California, which was assigned to Judge Corley. See Am'd Pet. Exhs. 29, 30. On March 27, 2014, Judge Corley dismissed the petition without prejudice as wholly unexhausted. See Am'd Pet. Exh. 30.

         Petitioner's counsel, Mr. Thomson, filed a third federal habeas petition - commencing the present action - in the Northern District of California on September 18, 2014. See Petition, ECF 1. The case was assigned to Judge Corley, who granted Petitioner's motion to stay and abate to permit him to exhaust claims in state court. See Order Granting Petitioner's Motion to Stay, ECF 5. It was during that stay period that Mr. Thomson filed a habeas petition on Petitioner's behalf in the California Supreme Court, as discussed above. On February 25, 2015, Judge Corley granted Petitioner's motion to lift the stay, and she ordered Respondent to file a response to the petition. Order Granting Petitioner's Motion to Lift Stay, ECF 9. The case thereafter was reassigned to the undersigned on July 7, 2015. See Order of Reassignment, ECF 15.

         On July 13, 2015, Respondent moved to dismiss the petition as untimely. See Motion to Dismiss, ECF 16. In opposition, Petitioner conceded that his conviction became final in February 2010, and that the one-year statute of limitations to file a federal habeas petition expired in February 2011, well before he filed the present action in September 2014. See Opposition, ECF 23. However, Petitioner asserted that he is entitled to equitable tolling of the statute of limitations due to the misconduct of his former counsel, Ms. Gates. See id. The motion to dismiss was heard on January 21, 2016. See Minute Entry, ECF 27. On January 28, 2016, the Court granted the motion, holding that Petitioner had not alleged sufficient facts to support a finding of extraordinary circumstances warranting equitable tolling of the limitations period. Order Granting Respondent's Motion to Dismiss, ECF 29. However, the Court granted Petitioner's request for leave to amend the petition to allege additional facts in support of equitable tolling. See id.

         1. Operative Amended Petition

         Petitioner, through counsel, filed the operative amended petition on September 18, 2016, adding factual allegations supporting Petitioner's request for equitable tolling of the statute of limitations. See Am'd Pet., ECF 35.

         The amended petition contains five claims for ineffective assistance of trial counsel in violation of the Sixth Amendment to the United States Constitution: (1) trial counsel was ineffective in failing to adequately investigate and challenge the DNA evidence; (2) trial counsel was ineffective in failing to investigate and present evidence that J.D. had denied that any abuse has occurred; (3) trial counsel was ineffective in failing to seek to exclude testimony concerning Petitioner's prior conviction; (4) trial counsel was ineffective in failing to investigate the factual and legal issues in the case; and (5) trial counsel was ineffective in failing to object to the introduction of unreliable evidence. The amended petition also asserts that: (6) the sentence of 307 years to life in prison constitutes cruel and unusual punishment in violation of the Eighth Amendment; and (7) the cumulative effect of the errors alleged in the amended petition deprived Petitioner of a fair trial in violation of the Due Process Clause of the Fifth Amendment. Am'd Pet., ECF 35.

         Respondent did not file a renewed motion to dismiss; instead he filed an answer on December 1, 2016. See Answer, ECF 41. In his answer, Respondent took the position that “the petition should have been dismissed with prejudice upon the granting of respondent's motion to dismiss.” Answer at p. 4. n. 4, ECF 41. However, Respondent did ...


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