Klippenstein v. Fraunheim, No. 2:21-cv-00086 KJM GGH P

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtGregory G. Hollows UNITED STATES MAGISTRATE JUDGE
Docket NumberNo. 2:21-cv-00086 KJM GGH P
Decision Date19 March 2021


No. 2:21-cv-00086 KJM GGH P


March 19, 2021


Introduction and Summary

Petitioner, a state prisoner proceeding through counsel, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 626(b)(1) and Local Rule 302.

Petitioner was convicted of forcible acts of sexual misconduct, and incest, upon his biological daughter. For purposes of this proceeding, petitioner conceded the incest claims, i.e., he had sexual relations with his daughter before she reached the age of 18, but he denies that these relations were carried out by force. Petitioner asserts two primary, but related, claims: (1) his Sixth Amendment right to cross examine a witness was violated on account of the inability to cross-examine his daughter about her pre-trial denial of sexual activities (both after petitioner's sexual acts and before); and (2) (assuming his daughter would have remained steadfast at trial in

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her denial of prior sexual activities) petitioner's Sixth/Fourteenth/Amendment rights were violated due to the inability to mount a complete defense because of the inability to introduce evidence of his daughter's sexual activities. Petitioner also disputes the admission of Child Sexual Abuse Accommodation Syndrome ("CSAA") evidence, and a jury instruction related thereto.

In sum, because evidence of the sexual activities of the daughter did not evince bias on her part, or otherwise relate to allegations of petitioner's coercive actions, only probable embarrassment, or at worst a falsehood to protect her new teacher love interest subsequent-to-petitioner's-unlawful-actions, in this AEDPA case, the trial court's preclusion of the cross-examination was not unreasonable. It follows that preclusion of admission of extrinsic evidence of prior sexual activities was also not AEDPA unreasonable either. The CSAA claims should be denied as well as not violative of any established Supreme Court holdings and on the merits

Background Facts

Prior to trial, petitioner had been charged with lesser unlawful sex with a minor offenses, incest, and more serious forcible sex charges. Perhaps as a method of taking away any potential for a compromise verdict, or because the prosecutor was very confident in the "force" case, the unadorned unlawful sex charges were dropped during trial leaving only the forcible sex charges and incest charges. ECF No. 14-4 at 248-249. The only ultimate contested issue was whether petitioner used force to accomplish the conceded sexual activities. The factual summary of the California Court of Appeal, Third Appellate District ("Court of Appeal") is set forth below:

The victim, S., is defendant's biological daughter. She lived with her mother for most of her childhood. When she was 15 years old, she moved in with defendant and his family.

After S. turned 17 years old, defendant started commenting on her appearance and constantly asking her if he could see and touch her breasts. S. repeatedly told him "no."

One morning while S. was asleep, defendant came into her room and began touching and kissing her. S. did not kiss him back; she was scared, confused, and hurt. However, she performed oral sex on defendant after he took off all her clothes and continued to touch her. A couple of days later, defendant had sexual intercourse with S. for the first time.

Thereafter, S. and defendant had sexual intercourse more than 100 times and she performed oral sex on him numerous times.

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Defendant also inserted his finger into S.'s vagina more than 100 times, performed oral sex on her more than 50 times, and stimulated her with a vibrator.

S. repeatedly told defendant "no" or tried to stop him from engaging in sexual acts with her. According to S., defendant held her down and had sexual intercourse with her more than 20 times. S. explained that she was unable to push defendant away and eventually gave up on trying to stop him because he was too big. S. further explained that she was scared and confused by defendant's conduct, and feared that he would kill her if she said no to him while he raped her.

Defendant told S. that he planned to marry her and move with her to Colorado or Montana and have a child together. He also told S. not to tell anyone about their relationship because he would be very upset and end up in jail. At one point, defendant threatened to take S. away from "society" and keep her in a basement.

When S. was 18 years old, she moved out of defendant's house after he physically attacked her. During the attack, defendant pushed S. into a wall and strangled her.

Approximately two months later, S. reported defendant to the police. During a pretext phone call (i.e., a recorded phone call with law enforcement present), defendant admitted to having sex with S. and indicated that he was not going to force himself on her anymore. Defendant also acknowledged that S. had told him multiple times that she did not want to have a sexual relationship with him anymore.

When defendant was interviewed at the police station following his arrest, he denied engaging in a sexual relationship with S. However, during recorded jail phone calls with his wife (Cheryl), defendant admitted to having a sexual relationship with S. He also asked Cheryl to get rid of several items, including a sex toy, an outfit, and lotion.

After defendant was arrested, Cheryl confronted S. about her allegations of force. According to Cheryl, she told S., "You know as well as I do that the relationship was not forced and it was ... not rape." In response, S. said, "Yes" and apologized.

People v. Klippenstein, No. C083373, 2018 WL 3298027, at *1-2 (Cal. Ct. App. July 5, 2018).

Issues Presented

1. Whether Petitioner Was Denied His Sixth Amendment Right to Fully Confront (Impeach) His Accuser With Her Other Sexual Activities;



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2. Whether Petitioner's Sixth/Fourteenth Amendment Rights Were Violated When Petitioner Was Not Permitted to Introduce Extrinsic Evidence of the Accuser's Other Sexual Activities;

3. Whether the Admission Of Child Sexual Abuse Accommodation Syndrome Evidence Violated Due Process; and

4. Whether the Jury Instruction Related to the CSAA Evidence Violated Due Process.

The Antiterrorism and Effective Death Penalty Act of 1996 Standards

Of course, the issues here are decided not by whether the undersigned believes the state courts to have made an erroneous legal determination, but whether the state courts were unreasonable in their determinations pursuant to 28 U.S.C. § 2254.

The statutory limitations of the power of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The text of § 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.

For purposes of applying § 2254(d)(1), clearly established federal law consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 565 U.S. 34, 39 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)). Circuit precedent may not be "used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced." Marshall v. Rodgers, 569 U.S. 58, 63-64 (2013) (citing Parker v. Matthews, 567 U.S. 37, 48 (2012)). Nor may it be used to "determine whether a particular rule of law is so

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widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct. Id.

A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, supra, 529 U.S. at 412. See also Lockyer, supra, 538 U.S. at 75 (it is "not enough that a federal habeas court, 'in its independent review of the legal question,' is left with a 'firm conviction' that the state court was 'erroneous.' ") "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a...

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