Cannedy v. Adams

• Citation: 706 F.3d 1148
• Decision Date: 07 February 2013
• Docket Number: No. 09–56902.,09–56902.
• Parties: Earl Eugene CANNEDY, Jr., Petitioner–Appellee, v. Derral G. ADAMS, Warden, Respondent–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

706 F.3d 1148

Earl Eugene CANNEDY, Jr., Petitioner–Appellee,

v.Derral G. ADAMS, Warden, Respondent–Appellant.

No. 09–56902.

United States Court of Appeals,Ninth Circuit.

Argued Feb. 16, 2011.

Resubmitted Jan. 22, 2013.

Filed Feb. 7, 2013.

Daniel Rogers, Deputy Attorney General, San Diego, CA, for Respondent–Appellant.

Mark M. Kassabian, Buehler & Kassabian, LLP, Pasadena, CA, for Petitioner–Appellee.

Appeal from the United States District Court for the Central District of California, Cormac J. Carney, District Judge, Presiding. D.C. No. 5:08–cv–01230–CJC–E.

Before: ANDREW J. KLEINFELD, CARLOS F. LUCERO,^* and SUSAN P. GRABER, Circuit Judges.

Opinion by Judge GRABER; Dissent by Judge KLEINFELD.

OPINION

GRABER, Circuit Judge:

Petitioner Earl Eugene Cannedy, Jr., stands convicted of committing lewd and lascivious acts upon his stepdaughter, and of attempting to dissuade her from reporting those acts to the police. The California state courts rejected Petitioner's direct and collateral challenges to his conviction. Petitioner then filed a federal habeas petition under 28 U.S.C. § 2254, arguing that he had received ineffective assistance of counsel. After an evidentiary hearing, the district court granted the petition. We affirm.

FACTUAL AND PROCEDURAL HISTORY

A jury found Petitioner guilty of three counts of lewd acts upon a child, in violation of California Penal Code section 288(a), and one count of attempting to dissuade a witness from reporting a crime, in violation of California Penal Code section 136.1(b)(1). Those charges stemmed from allegations made by Petitioner's stepdaughter, “A.G.” ¹

At trial, A.G. testified that Petitioner had molested her several times in the winter of 2003, when A.G. was 13 years old. According to A.G., the first incident occurred when Petitioner kissed and licked A.G. on the lips while she was wearing strawberry lip gloss. The next incident took place about one month later, in December 2003. A.G.'s mother, Pia, was at work, and Petitioner and A.G. were watching a movie in the living room. Petitioner offered to give A.G. a foot massage but then moved his hands up A.G.'s leg, under her clothes, to her vagina. He touched the inside of her vagina with his finger. A.G. then went to her room and fell asleep. In the morning, A.G. did not tell her mother about the incident because she was confused and scared.

A.G. testified that the next incident occurred approximately two weeks later. A.G. was ill and was lying on the couch in the family room. Petitioner offered to give A.G. a back massage, and she accepted his offer. During the massage, Petitioner moved his hands under her pajamas and slid her underwear and pajamas down. He then pulled her hips up and put his mouth to her vagina. A.G. started crying, and Petitioner stopped what he was doing, apologized, and told A.G. that it would never happen again. A.G. went to her room and, when her mother returned home, A.G. did not mention Petitioner's behavior.

According to A.G., the final incident occurred on either Christmas day or the day after Christmas. On holidays, the children often joined Petitioner and his wife in their bed. A.G. went to her parents' bedroom, joined her parents and two sisters on the bed, and fell asleep. When she awoke, her mother was in the shower. Petitioner slid his hands down A.G.'s pants to the top of her underwear but did not touch her vagina. A.G. got out of the bed and went to her room. She did not tell her mother about the incident.

A.G. testified that the first person she told about the molestation was her boyfriend, B.R. Approximately a week after the foot massage incident, A.G. told B.R. that Petitioner had touched her inappropriately. A.G. recalled that her boyfriend wanted her to “tell” but that she did not want to do so. After the last incident, A.G. went to the San Francisco Bay Area to visit family. While there, she told her cousin about the molestation, but did not tell her aunt.

After she returned from the Bay Area, in early January, A.G. told her best friend, “L.M.,” about Petitioner's inappropriate behavior. L.M. wanted A.G. to tell an adult, but initially A.G. refused. That weekend or the next week, L.M.'s mother Melanie picked the girls up from the mall. A.G. told Melanie what Petitioner had done. Melanie took A.G. back to Melanie's house and called Pia. Pia arrived shortly thereafter, and A.G. told her “everything that had happened.” Pia was shocked and left to speak with Petitioner. A few hours later, Pia returned. By that time, A.G. had become sick and had a headache, so Pia suggested that A.G. return home. At home, A.G. saw Petitioner but did not speak with him.

A few days later, A.G. went to the emergency room. Before leaving for the hospital, A.G. testified that Pia and Petitioner had a talk with her about the allegations that she had made. A.G. stated that Petitioner told her that “we should just keep it in the family and that it—it's all over and it'll never happen again, just to forget about it and not tell anyone that it happened.” A.G. further testified that Petitioner told her that if the police tried to speak with her about the molestation, she should deny that it had ever occurred. Petitioner said that if A.G. told the police, she and her sisters would be taken away and put in a foster home.

At the emergency room, A.G. spoke with several child protection agents and police officers. She denied being abused and said, “I love my step-dad. He'd never molest me, not in a million years.” The next day, A.G. spoke with two child protection agents and first denied, but then admitted, that Petitioner had molested her.

On cross-examination, the defense pointed out several inconsistencies between A.G.'s testimony at the preliminary hearing and her testimony at trial. Those inconsistencies included A.G.'s earlier testimony that Petitioner had never put a finger inside her vagina, as well as other inconsistencies about details surrounding the alleged incidents of molestation. The defense also highlighted A.G.'s close relationship with her mother and questioned why A.G. would accept Petitioner's offer of a back massage and climb into bed with him after the first incident had allegedly occurred.

The prosecution called several witnesses to testify about what A.G. had told them, including B.R., L.M., Melanie, and Pia. Their testimony corresponded with the same basic narrative regarding A.G.'s disclosureof the molestation, but there were several inconsistencies among the various witnesses' accounts. For example, B.R. repeatedly testified that, in early December 2003, A.G. had told him that Petitioner had warned her that she would be taken into custody by child protection services if she divulged the molestation. By contrast, A.G. testified that Petitioner had given her that warning in January 2004, right before she left for the emergency room. As another example, Melanie testified that when Pia returned from confronting Petitioner about A.G.'s allegations, Pia said that Petitioner had admitted the allegations and had assured Pia that he would sign over the house to her. Meanwhile, Pia testified that Petitioner had never admitted the allegations or offered to sign over the house and that she had told Melanie no such thing. Pia also testified that A.G. never directly told her that Petitioner had molested her.

The government also offered propensity evidence, admissible under California Evidence Code section 1108, concerning Petitioner's alleged sexual assault of Pia's sister, T.C. At the time of the trial, Petitioner had not been convicted of any crime related to that incident. Three government witnesses offered testimony regarding the alleged assault, and each of them provided a slightly different account of the incident. T.C. alleged that, while she was drunk, Petitioner had penetrated her vagina with a dildo. Pia and T.C.'s sister, Claire, testified that she received a call from Pia in which Pia stated that Petitioner was orally copulating with T.C. and asked Claire to come fetch T.C. from Pia's house. Finally, Pia testified that she never saw Petitioner assault T.C., but instead asked Claire to pick up T.C. because T.C. was drunk and acting inappropriately.

Petitioner testified as the sole defense witness. He denied ever molesting A.G. He also denied assaulting T.C., providing an account of the 2000 incident that largely corresponded with Pia's testimony. He hypothesized that A.G. might have harbored animosity toward him because he and Pia had planned to sell their house and move to Mountain Center, despite A.G.'s preference for living in the city. The defense theory of the case was that Petitioner was innocent and that A.G. had fabricated the allegations.

After seven days of testimony, the jury convicted Petitioner on three counts of lewd and lascivious conduct, but acquitted him of a fourth count, which pertained to Petitioner's alleged licking of A.G's lips. The jury also convicted Petitioner of attempting to dissuade A.G. from reporting the molestation to police and found true two special allegations of substantial sexual conduct with a minor under the age of 14. The trial court sentenced Petitioner to a term of 128 months' imprisonment.

After trial, Petitioner hired a new lawyer. Petitioner then moved for a new trial, grounded in part on his trial lawyer's alleged ineffective assistance of counsel. Specifically, Petitioner alleged that his trial lawyer, Mark Sullivan, “failed to present witnesses who could have corroborated [A.G.]'s motives for accusing [Petitioner] of molestation.” Petitioner pointed in particular to a handwritten statement submitted by one of A.G.'s friends, a copy of which he filed with his motion, that read:

The second week of February, I logged on the internet to talk to my friends. That day, I was talking to [A.G.], and I decided to look at her profile. To my surprize the profile said, “To everyone whos reading this, the rumers that you've heard are wrong. I...