United States District Court, N.D. California, San Jose Division
AMENDED  ORDER DENYING MOTION FOR
EVIDENTIARY HEARING; AND DENYING AMENDED PETITION FOR WRIT OF
HABEAS CORPUS [RE: ECF 35, 62]
LABSON FREEMAN UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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
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
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
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
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.
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
California Supreme Court denied review on November 10, 2009.
See Am'd Pet. Exh. 18, ECF 35-2.
State Habeas Proceedings
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.
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.
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.
Federal Habeas Proceedings
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.
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.
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.
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.
Operative Amended Petition
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.
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.
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 ...