Renderos v. Ryan

• Decision Date: 08 November 2006
• Docket Number: No. 05-16454.,05-16454.
• Parties: Victor Manuel RENDEROS, Petitioner-Appellant, v. Stuart RYAN, Warden, California State Prison, Calipatria, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

469 F.3d 788

Victor Manuel RENDEROS, Petitioner-Appellant, v. Stuart RYAN, Warden, California State Prison, Calipatria, Respondent-Appellee.

No. 05-16454.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 5, 2006.

Filed November 8, 2006.

COPYRIGHT MATERIAL OMITTED

Anne C. Beles, Robert J. Beles, and Paul McCarthy, Oakland, CA, for the appellant.

Gregg E. Zwycke, Bill Lockyer, Robert R. Anderson, Gerald Engler, and Peggy S. Ruffra, San Francisco, CA, for the appellee.

Appeal from the United States District Court for the Northern District of California; Charles R. Breyer, District Judge, Presiding. D.C. No. CV-04-05250-CRB.

Before: SILER, JR.,^* JRAWLINSON, and BYBEE, Circuit Judges.

SILER, Circuit Judge:

Petitioner Victor Renderos appeals the denial of his petition for a writ of habeas corpus. Because Renderos identifies no "clearly established federal law" that was misapplied or violated by the California Court of Appeal, and does not contend that there was an unreasonable determination of the facts, we deny the petition.

I.¹

Renderos dated Lisa C. during the early 1990s. She had two sons, Ryan and Jordan, both of whom were under 14 years old. Renderos spent a lot of time with Lisa and her sons, and Ryan thought of Renderos as a father. However, the relationship ended after a few years, sometime in the mid 1990s.

When Ryan was seventeen, he told his mother that Renderos had sexually molested him. He had not previously said anything to his mother because the incidents made him feel "gay" and he feared he would get in trouble. On March 19, 2001, Ryan reported the abuse to the police. One month later, investigators taped two telephone conversations between Ryan and Renderos. Ryan asked Renderos whether he remembered the molestations and asked why Renderos had molested him. Ryan reminded Renderos about an incident that had occurred on a canoeing trip and asked why Renderos had touched him. Renderos at first stated he did not remember the trip and denied touching Ryan when he was little. Renderos then stated,

But don't worry about shit like that, Man. That was something that, you know, happened a long time ago and that you—we just did some playing around, you know? . . . No big thing.

During the second call, Ryan asked Renderos for advice about problems which he thought were based upon his past. Renderos protested,

Hey, come on over, Man. You know . . . things like that happen. Hey, it was just—you was crazy at the time. You remember that. . . . You know, you were crazy and you want to experiment things, you know and things like that. You're the one that motivated the whole thing, you know? Just let the guilt out of your head.

Ryan further stated he was bothered by Renderos's act of "always, like, mak[ing] me put my hand on your penis." Renderos replied, "Oh well, you know? You— you wanted to do that. You know remember? You wanted to." When Ryan wondered why this was relevant given that he was only eight years old then, Renderos claimed: "You were about 12, Man. You were old, already. . . . I didn't meet you when you was eight. You were older than that." When Ryan again stated it was not normal for "guys to grab each other's dicks," Renderos replied, "Oh, it's a—I know. Yeah, I couldn't figure out why you want to do it. Remember that?" When Ryan said he did not really want to do it but Renderos forced his hand, Renderos replied, "No, you're . . . the one. You started out, remember, you wanted to experiment crazy things. You . . . were always doing crazy things. Remember that?" When Ryan again said he did not understand why Renderos wanted Ryan to "try to suck his dick" because it was like Renderos was using Ryan to get what he wanted, Renderos replied,

Oh, no. Huh-uh. No, no. You got me wrong. . . . You're the one that always wanted it. Remember the way you are, Man. The way you used to be. You want to do this, you want to do that . . . . I didn't force you into doing anything. You're the one that motivated everything. Think about that.

Ryan stated he did not know how he had motivated the sex because he was too young, to which Renderos replied, "Well, you knew what you were doing, Bro."

The remainder of the telephone conversation continued in the same vein, with Ryan asking Renderos if he remembered the sexual encounters, and Renderos telling Ryan to forget about the incidents and inviting Ryan to talk to Renderos more about the incidents because then they might stop bothering him.

Five days after the telephone conversations, on April 25, 2001, California filed a criminal complaint against Renderos charging him with various and multiple counts of felony sex offenses.

At trial, Ryan testified that the incidents began when he was only eight years old. The first incident occurred during a canoeing trip on the Russian River. After urinating next to each other, Renderos took Ryan's hand, placed it on Renderos' penis and told Ryan to keep it there. Ryan withdrew his hand after a few seconds. The second incident occurred about two months later. Renderos was at Ryan's home for the nightly dinner with the family. After dinner, Ryan's mother left the house to attend to her real estate business. Ryan was in his bedroom changing his clothes when Renderos came in. Renderos reached through the opening in Ryan's boxer shorts and pulled on Ryan's penis for a few seconds. Renderos then placed Ryan's hand on his penis and instructed Ryan to pleasure him.

The sexual abuse, which Ryan described as "touching, the[n] me jacking him off," became more frequent as Ryan got closer to nine. Ryan testified that it occurred "at least once every three days." In addition to the forced masturbation, Ryan testified that when he was nine or ten, he was forced to orally copulate Renderos; and on a few occasions, Renderos used his finger and once used his penis to penetrate Ryan's rectum. Ryan testified that the abuse occurred from the time he was eight years old until he was eleven.

Renderos testified on his own behalf and denied molesting Ryan on any occasion. He claimed that he met Ryan's mother sometime in 1992 or 1993, and he dated her for three or four years. He could not recall how old Ryan was when he first met the boy; he thought Ryan must have been around ten years old at the time. He testified that although he ate dinner at their home almost every night, he never inappropriately touched Ryan. Renderos testified that practically every night that he was at Lisa's home, he and Lisa had intimate relations in her bedroom after the boys went to bed, and that he left at about 11:00 p.m. He recalled caring for the boys on only five occasions without their mother.

Renderos explained that his statements during the recorded telephone calls with Ryan referred to incidents that took place when Ryan was eleven or twelve years old. On a few occasions, after having sex with Ryan's mother, Renderos came out of Lisa's bedroom to find Ryan outside the bedroom door. He recalled Ryan once asking coyly, "how do [you] like my mother's . . . female part?" Renderos said Ryan would grab [Renderos's] penis through his clothes. Renderos told Ryan to stop touching him and told Lisa about the incidents, suggesting they have intimate relations later in the evening. The incidents happened on five occasions. Renderos claimed all the statements he made on tape were references to these incidents instigated by Ryan.

Renderos was found guilty of one count of committing continuous sexual abuse (during a four-month period when Ryan was eight years old), one count of oral copulation (when Ryan was nine or ten years old), one count of sexual penetration with a foreign object (when Ryan was ten years old), and 23 counts of committing a lewd act on a child under 14 (each count covering a one-month interval from September 1, 1992 through July 31, 1994 when Ryan was eight, nine, and ten years old). Although the statute of limitations had expired under CAL. PEN. CODE §§ 800 and 801, the jury found that the prosecution satisfied the predicate requirements under Section 803(g), which made the prosecution timely. The trial court sentenced Renderos to an aggregate term of 66 years in prison.

On direct appeal, the California Court of Appeal denied summary reversal. See People v. Renderos, 114 Cal.App.4th 961, 8 Cal.Rptr.3d 163 (2003) (partially published). The California Supreme Court denied review. See People v. Renderos, 2004 Cal. LEXIS 3290 (Cal. April 14, 2004). The district court denied Renderos's application for a writ of habeas corpus. The court issued a Certificate of Appealability ("COA") on several grounds: (A) that application of CAL. PEN. CODE § 803(g), which extended the statute of limitations for sex offenses with minors, is a violation of the Ex Post Facto Clause as declared by the Supreme Court in Stogner v. California, 539 U.S. 607, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003); (B) that it was error to hold that the conditions for invoking section 803(g) could be proven by a standard lower than "reasonable doubt"; (C) that it violated due process to admit evidence of Renderos's other bad acts; (D) that it was prejudicial prosecutorial misconduct to refer to stricken testimony by the victim's mother during closing argument; (E) that Renderos was prejudiced by trial counsel's ineffective assistance; and (F) that there was cumulative error.

II.

This appeal is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. Subsection (d) states:

An application for a writ of habeas corpus . . . 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...