FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On April 17, 2015, Petitioner was convicted after a jury trial in the Tulare County Superior Court of: twelve counts of committing forcible lewd acts upon a child under fourteen years old; one count of aggravated sexual assault of a child under fourteen years old involving sodomy; four counts of committing lewd acts on a child under fourteen or fifteen years old; and one count of forcible sodomy on a minor aged fourteen years or older. (1 CT1 237-54). Petitioner was sentenced to a determinate imprisonment term of 109 years plus an indeterminate term offifteen years to life. (2 CT 359-63). On August 31, 2017, the California Court of Appeal, Fifth Appellate District remanded the matter for the trial court to strike a restitution fine and correct clerical errors in the abstract of judgment, but otherwise affirmed the judgment. People v. Gomez, No. F072439, 2017 WL 3754320, at *27 (Cal. Ct. App. Aug. 31, 2017). On December 13, 2017, the California Supreme Court denied Petitioner's petition for review. (LDs2 5, 6).
On May 11, 2018, Petitioner filed the instant federal petition for writ of habeas corpus. (ECF No. 1). Therein, Petitioner raises the following claims for relief: (1) erroneous admission of Petitioner's statement to detectives due to defective Miranda admonition; (2) ineffective assistance of counsel; (3) erroneous exclusion of evidence of witness's financial motive to fabricate or exaggerate testimony; (4) instructional errors; (5) prosecutorial misconduct; and (6) erroneous deprivation of right to discharge appointed counsel.3 Respondent filed an answer. (ECF No. 11).
Defendant lived with his girlfriend, Claudia L., their mutual children, and A.C., Claudia's daughter from a previous relationship. Claudia had lived with defendant since 2004 or 2005. In 2007, they moved into a house purchased by defendant.
Defendant began molesting A.C. when she was 10 years old. He touched her over her clothes. Defendant touched her on her breasts, legs, and buttocks, both over and under of her clothing. Defendant started touching A.C.'s buttocks under her clothing when she was 11 years old. Defendant did this more than two times when A.C. was between the ages of 11 and 13 years old. Defendant touched A.C.'s buttocks more than two times when she was 14 years old. When A.C. was between the ages of 11 and 13 years old, defendant touched her breasts five times both over and inside her clothing. Most of the time when defendant touched her, A.C. would tell him no and try to walk away. Defendant would grab her hand and pull her back.
Defendant touched A.C.'s breasts a lot after she was 14 years old. When defendant touched A.C.'s buttocks, she would tell him no. Defendant displayed his penis to A.C. when she was 12 or 13 years old.
When A.C. was between 11 and 13 years old, defendant more than twice took her hand and placed it on his penis. After A.C. turned 14, defendant had her touch hispenis four or five times. Sometimes, defendant moved A.C.'s hand on his penis, other times she moved it on her own. Defendant also touched A.C.'s vaginal area both over and under of her clothing more than two times from the time she was in fifth grade until after she turned 14. Starting when A.C. was 9 or 10, defendant would put his finger in her buttocks.
When A.C. was 13 years old, defendant put his penis into her buttocks more than four times. Defendant took A.C. to the living room, pulled her pants down, bent her over, and insert his penis into her buttocks. A.C. described the pain she felt as five or six on a scale of one to ten. When defendant was done, A.C. could feel his ejaculation. On one occasion, after he had forced A.C. to have anal sex with him when she was in fourth or fifth grade, defendant told A.C. he thought she was pregnant, and he made her drink something like a chocolate drink.
On multiple occasions, defendant kissed A.C. on her mouth, breasts, neck, arms, and buttocks. When A.C. was 12 or 13 years old, defendant tried to convince her to perform oral sex on him. Defendant told A.C. that if she sucked his penis, he would take her and the other children to the park. Whenever A.C. told defendant no, he got mad at her and would not accept her refusal. Defendant made her perform oral sex on him at least four times, maybe more than five times, before she turned 14 and more than five times after she turned 14.
Defendant told A.C. she would go to jail if she disclosed the molestation when he first began touching her. When A.C. told defendant she was going to tell her mother about the molestation, defendant again told her she would go to jail if she told anyone. Describing defendant's threat that A.C. would go to jail, she said, "he would always tell me that." A.C. was afraid of defendant. He would threaten to hit her when she refused to perform sexual acts. Defendant would gesture as if he was going to hit her, though he never actually struck her. Defendant molested A.C. at least once a month, making it difficult for A.C. to remember all of the acts.
Claudia explained that on a number of occasions, defendant would come home and go to A.C.'s room at night. Claudia described one such incident where defendant came home drunk, went straight to A.C.'s room, and stood close to her while she was in bed sleeping. Defendant began to pick up the covers when Claudia said, "What the fuck are you doing?" Claudia described defendant as "acting stupid," claiming he thought he was in the bathroom.
On April 9, 2014, Claudia got up early in the morning for an exercise class she regularly attended. She left the house at about 5:30 a.m., but the class was cancelled, so she went to the bank and returned home about a half an hour early. When Claudia entered the house, she saw defendant running in his underwear from the kitchen to his bedroom. Claudia heard the bedroom door slam, and went to the room to see what defendant was doing. Defendant was in the bed under the blankets.
Claudia went to A.C.'s room and noticed A.C. was very nervous. She asked A.C. what was going on, and A.C. looked at the floor and said nothing was going on. A.C. would not look at Claudia while speaking to her. Claudia returned to defendant's room to ask him what had happened. He claimed he had heard a noise from the roosters they kept and had gone into the kitchen to check on them.
Claudia went back to talk to A.C., who continued to act strangely. Claudia told A.C. she thought something had happened and she was going to call the police.
A.C. became very scared, burst into tears, and was "crazy crying." A.C. told Claudia she did not want to go to jail. Claudia again asked A.C. what was going on. A.C. reported defendant had been rubbing up against her in the kitchen and touching her legs. Claudia called law enforcement.
Detective Katherine Garcia of the Tulare County Sheriff's Office responded to the call. She contacted A.C., who was extremely emotional, crying, and terrified. Garcia questioned A.C. four times that day.
Claudia's child, A.M., who was 10 at the time of trial, told the police that on the morning defendant was arrested, A.M. saw defendant try to kiss and touch A.C. A.M. saw A.C. push defendant away. A.M. also stated that on a previous occasion, defendant went into his bedroom with A.C. and locked the door. A.M. tried to get into the room, but could not open the door.
Gomez, 2017 WL 3754320, at *2-3.
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged convictions arise out of Tulare County Superior Court, which is located within the Eastern District of California. 28 U.S.C. § 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). The instant petition was filed after the enactment of AEDPA and is therefore governed by its provisions.
Under AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner can show that the state court's adjudication of his 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.
28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 97-98 (2011); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 413.
As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is "clearly established Federal law," this Court must look to the "holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412. "In other words, 'clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set...
