ORDER:
(1) DENYING PETITION FOR WRIT OF HABEAS CORPUS;
(2) ADOPTING REPORT AND RECOMMENDATION; AND
(3) DENYING CERTIFICATE OF APPEALABILITY
On June 26, 2014, Petitioner Robin Andrew Dunn, a state prisoner proceeding pro se and in forma pauperis, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state court conviction. (Doc. No. 1.) On September 5, 2014, Respondent David B. Long filed a response to the petition. (Doc. No. 6.) On September 29, 2014, Petitioner filed a traverse. (Doc. No. 8.) On March 12, 2015, the magistrate judge issued a report and recommendation, recommending that the Court deny the petition for writ of habeas corpus. (Doc. No. 9.) On May 20, 2015, Petitioner filed objections to the magistrate judge's R & R, (Doc. No. 13), and on June 24, 2015, Petitioner filed an amendment to his objections to the R & R. (Doc. No. 16.) After careful consideration, the Court denies the petition for writ of habeas corpus and adopts the magistrate judge's R & R.
Background
The Court adopts the facts from the California Court of Appeal opinion denying Petitioner's direct appeal and affirming his conviction. See People v. Dunn, 205 Cal. App. 4th 1086 (2012). (See Doc. No. 7-29, Lodgment No. 8.) This Court, pursuant to 28 U.S.C. § 2254(e)(1), presumes the following facts to be correct:
A. [Petitioner]'s Molestation of Minor
In the summer of 2007, [Petitioner] and a relative who was eight years old at the time (hereafter Minor) lived in an apartment with [Petitoner]'s girlfriend, Ava Loftis. Several relatives of Loftis also lived in the apartment.
One night, while Loftis was at work, Minor watched a movie with [Petitioner] in the master bedroom and then went to sleep on the floor. [Petitioner] picked Minor up from the floor, laid her supine on the bed, removed her pajama bottoms and underwear, and lowered his own underwear. Then, in the words of Minor, Dunn got "on top of [her]," "humped" her, and touched his "private part" to her "private part" in a way that hurt her. [FN1] As Minor tried to push Dunn away, she told him "to get off [her] and [she] wasn't his girlfriend," but Dunn told her to be quiet.
FN1: At trial, when Minor was given diagrams depicting frontal views of a man and a woman, she circled the genital areas to indicate what she meant by "private parts."
Dunn eventually got off Minor, who went back to the floor and lay down. Approximately five minutes later, Dunn lifted Minor back onto the bed, and again touched his "private part" to her "private part."
B. Minor's Reports of the Molestation
The following morning, Loftis's son told Minor he heard her say, "Stop. You're nasty. I'm not Ava," and asked her why she said that. [FN2] Minor told him what Dunn had done to her in the bedroom.
FN2: One of Loftis's nephews also heard Minor say, "I'm not Ava"; and another nephew heard her say, "Stop. Get off me. You're nasty. I'm not Ava."
When Loftis returned home from work, Minor also told her that Dunn "was feeling on her and humping on her." A few days later, Loftis and Minor telephoned and reported the molestation to Minor's mother (hereafter Mother), who immediately went to Loftis's apartment to pick up Minor.
Mother took Minor to a hospital. While there, Minor met with a social worker and informed her that she (Minor) was in the hospital because [Petitioner] had "humped" her and touched her with his penis "inside [her] pants."
Minor also spoke to a police officer at the hospital. She told the officer she was at the hospital because "she had humped [Petitioner]," and explained that "'humped' meant that two people lie down, one on top of the other, and they don't wear any clothes and then they go up and down." Minor also told the officer that Dunn had taught her what "humped" means.
Minor later repeated this account of the molestation to a forensic interviewer. During the videotaped interview, which was played for the jury, Minor used anatomically correct dolls to illustrate how [Petitioner] had "humped" her. Minor pointed to the "private" on the male doll and stated Dunn put that "[i]nside" her "private."
C. Minor's Sexual Assault Examination
After Mother and Minor left the hospital, Mother immediately took Minor to be examined by Marilyn Kaufhold, a pediatrician specializing in child abuse. Kaufhold examined Minor's genitalia and anus, but found nothing of significance that was abnormal.
Kaufhold testified that a normal physical examination was consistent with Minor's report that [Petitioner] had "humped" her and it hurt, provided [Petitioner] had rubbed his penis against Minor's vulva (or external genitalia) but had not inserted it into her vagina. Kaufhold explained that young children generally do not know the anatomy of their genitals or understand how the various parts "fit together." Thus, a girl might say something went "inside" her if it went "inside the labia and in the vestibule without going into the anatomic vagina." If Dunn's penis had actually penetrated Minor's vagina, however, Kaufhold would expect to have found "serious tears" requiring surgical repair.
D. Minor's Diagnosis with Syphilis
Approximately six weeks after Mother took Minor to Kaufhold, Mother took Minor to her regular pediatrician, Genevieve Minka, for a scheduled appointment. Mother informed Minka that Minor had a discharge in her underwear, and Minor's vulva "had a sore spot" and "looked swollen like somebody was messing with her." Minka observed a circular ulcer with a raised edge on Minor's right labium majus. The lesion extended from the outer to the inner aspect of the right labium majus; to visualize it fully, Minka had to separate Minor's labia majora. Minka also detected redness and enlarged lymph nodes in Minor's groin. Based on these physical findings and the history of sexual abuse, Minka suspected Minor might have a sexually transmitted disease and ordered her blood tested. The test came back positive for syphilis.
Before this diagnosis of Minor with syphilis, neither Minor nor Mother had been diagnosed with or treated for that disease. Subsequently, Mother's blood tested negative for syphilis, but [Petitioner]'s tested positive.
Kenneth Katz, a public health practitioner who specializes in sexually transmitted diseases, testified at trial about the transmission of syphilis. Katz explained that syphilis is a sexually transmitted disease caused by a bacterium that infects the body at the site of exposure and then spreads throughout the whole body. According to Katz, the disease spreads from one person to another when the skin or mucous membrane of an infected person comes into contact with the skin or mucous membrane of another person.
Katz further explained that the initial stage of syphilis produces acharacteristic ulcer called a "chancre," which appears between 10 and 90 days after initial exposure and expands concentrically outward from the point of exposure. According to Katz, a chancre is highly infectious; and in the vast majority of cases, a person contracts syphilis when the person's skin or mucous membrane comes into contact with a chancre of an infected person.
The prosecutor presented Katz with a hypothetical based on the facts of this case and asked whether he had an opinion as to how Minor contracted syphilis. Katz testified it was "likely" she got it from [Petitioner].
Dunn, 205 Cal. App. 4th at 1088-91. In addition, the Court adopts the detailed discussion of the facts presented at Petitioner's trial set forth in the magistrate judge's R & R. (Doc. No. 9 at 4-14.)
II. State Procedural History On June 8, 2010, the State filed an Amended Information charging Petitioner with one count of sexual intercourse with a child 10 years of age or younger in violation of California Penal Code § 288.7(a) (count one); and one count of committing a lewd act on a child under the age of 14 years of age in violation of California Penal Code § 288(a) (count two). (Doc. No. 7-2, Lodgment No. 1 at CT 6-7.) With respect to count two, the Amended Information also contained two sentencing enhancement special allegations: (1) that Petitioner had engaged in substantial sexual conduct with the minor victim within the meaning of California Penal Code § 1203.066(a)(8); and (2) that Petitioner personally inflicted great bodily injury upon the minor victim within the meaning of California Penal Code § 12022.8. (Id.) The Amended Information also alleged that Petitioner had four prior felony convictions and had served three prior prison terms. (Id. at CT 7-9.)
On July 23, 2010, the jury found Petitioner guilty on both counts. (Doc. No. 7-4, Lodgment No. 1 at CT 283-84.) With respect to the conviction on count two, the jury also found true the two sentencing enhancement special allegations. (Id. at CT 284.) On July 30, 2010, the trial court found true the allegations concerning Petitioner's prior felony convictions and prison terms. (Id. at CT 288.) On September 24, 2010, the trial courtsentenced Petitioner to 28 years to life in state prison and entered judgment. (Id. at CT 289-90.)
Petitioner appealed the judgment. On appeal, Petitioner argued that the judgment should be reversed because "(1) the trial court abused its discretion in denying his motion for mistrial, which was based upon the failure of his retained expert witness to appear at trial; and (2) trial counsel provided ineffective assistance by failing to subpoena the expert witness to appear at trial." Dunn, 205 Cal. App. at 1088. (See Doc. Nos. 7-26, 7-28, Lodgment Nos. 5, 7.) On May 7, 2012, the California Court of Appeal rejected Petitioner's argument and affirmed the judgment in a published decision. See Dunn, 205 Cal. App. at 1088, 1102. Petitioner filed a petition for review in the California Supreme Court raising the same claims. (Doc. No. 7-30, Lodgment No. 9.) On ...
