Flynn v. Paramo, No. 2:14-CV-0909-CMK-P

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtCRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE
Decision Date05 April 2018
PartiesJAMES FLYNN, Petitioner, v. DANIEL PARAMO, Respondent.
Docket NumberNo. 2:14-CV-0909-CMK-P

JAMES FLYNN, Petitioner,
v.
DANIEL PARAMO, Respondent.

No. 2:14-CV-0909-CMK-P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

April 5, 2018


MEMORANDUM OPINION AND ORDER

Petitioner, 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).

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I. BACKGROUND

A. Facts1

The 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.

FACTUAL AND PROCEDURAL BACKGROUND

A

The Prosecution

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

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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 why.

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.

B

The Defense

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.

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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.

B. Procedural History

Petitioner's 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.

II. STANDARDS OF REVIEW

Because 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

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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.

Where 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; or

(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.

Under § 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...

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