Shumate v. Newland

• Decision Date: 07 December 1999
• Docket Number: No. C98-04472 WHA.,C98-04472 WHA.
• Court: U.S. District Court — Northern District of California
• Parties: Neil R. SHUMATE, Petitioner, v. Anthony NEWLAND, Respondent.

75 F.Supp.2d 1076

Neil R. SHUMATE, Petitioner, v. Anthony NEWLAND, Respondent.

No. C98-04472 WHA.

United States District Court, N.D. California.

December 7, 1999.

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Michael R. Snedeker, Snedeker Smith & Short, Attorneys at Law, Portland, OR, Thomas M. Burton, Pleasanton, CA, Juliet B. Haley, CA State Attorney General's Office, San Francisco, CA.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND REQUEST FOR EVIDENTIARY HEARING

ALSUP, District Judge.

INTRODUCTION

Petitioner, a California state prisoner incarcerated at California State Prison, Solano, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, raising 15 claims with numerous subparts. Applying the deference to state court determinations required by the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, the Court rejects each claim raised. The petition is DENIED.

STATEMENT

On February 6, 1995, an Alameda County, California, jury convicted Neil R. Shumate of 16 counts of sexual misconduct involving minors. The jury further found to be true a number of charged special allegations. On August 17, 1995, the trial judge sentenced petitioner to a state prison term of 12 years. Petitioner appealed his conviction to the California State Court of Appeal, First Appellate District ("state court of appeal"). At the same time, he filed a petition for writ of habeas corpus in the same court. In an opinion that disposed of both matters, the state court of appeal reversed as time-barred four convictions for acts of sexual misconduct involving petitioner's ex-foster child James Halloway ("Halloway convictions"). Otherwise, the court upheld petitioner's convictions. Petitioner next petitioned the California Supreme Court for direct review of the state court of appeal's holdings. That court denied review, and this petition followed.

Petitioner was a long-time kindergarten teacher accused of sexually molesting a series of children. At one point during the investigation, a Pleasanton Police Department detective publicly announced the existence of as many as 70 victims. In pursuit of those allegations, Pleasanton detective Michael Dunn, the lead detective in the case, interviewed approximately 29 children. Prior to each interview, Dunn instructed the parents not to explain to their child the reason for the interview, and to tell the child that Dunn was a friend of the family. Dunn began each interview in the presence of the parents, then asked the child if it was alright for Dunn to speak with the child alone. Once alone, Dunn asked each child whether the child knew what the child's private parts were, and whether the child understood the difference between "good" and "bad" touches. Dunn further asked each child to indicate on a sketch whether they ever had been touched in any location that made them feel uncomfortable.

After a brief break, during which the parents joined Dunn and the child, Dunn and the child resumed their interview alone, this time in more detail. Unbeknownst to each child, Dunn taped the second half of the interview. When the interview was over, Dunn asked the families not to discuss the case with anyone, lest the investigation fuel rumors regarding petitioner's guilt.

Of the children interviewed, seven claimed that petitioner had molested them. Petitioner also was charged with sexual misconduct in relation to several foster children who lived in petitioner's home at various times during the period of July 1988 to June 1993. All in all, petitioner was charged with 25 counts of sexual misconduct. The first were lodged June 2, 1994, in the form of a 10-count information filed by the Alameda County District Attorney. The information alleged acts of lewd and lascivious conduct toward six of petitioner's former students, in violation of California Penal Code Section 288(a). With respect to the first seven counts, the information further alleged that petitioner occupied a position of special trust and committed an act of substantial sexual conduct. The next 15 counts were contained in a grand jury indictment handed down August 30, 1994. The indictment charged seven more violations of Section 288, as well as four alleged violations of Penal Code Section 220 (assault with intent to commit a lewd and lascivious act against a child under 14 years of age) and four alleged violations of Penal Code Section 288(b) (commission of a lewd and lascivious act with force on a child under the age of 14 years of age). With respect to eleven of those counts, the information further alleged that petitioner committed a violation of Section 288 against more than one victim, and that petitioner had a substantial sexual relationship with a child under age 11 while occupying a position of special trust.

Petitioner's jury trial began November 30, 1994. On December 19, 1994 the prosecutor moved to dismiss eight counts ("Pearce counts") of the indictment. The counts alleged the sexual abuse by petitioner of foster child Steven Pearce, who lived in petitioner's home from August 1998 through March 1989, when the child was 11 years old. The prosecutor described that alleged abuse during her opening statement. Prior to calling the child to testify, however, the prosecutor informed the trial court that the child had become incompetent as a witness. One other charge was dropped at the close of the prosecution's case.

The prosecution's case in chief contained other evidence of alleged conduct for which petitioner was not convicted or, in some cases, charged. Perhaps the most damaging was the testimony of Daniel Bromberg, a former teaching aide to petitioner. Bromberg testified that, on the afternoon of the last day of the 1980-1981 school year, petitioner admitted to Bromberg that petitioner had a sexual interest in his students, the boys in particular. Bromberg testified that petitioner further stated on that afternoon that petitioner had engaged in a sexual relationship with one of petitioner's foster children.

On January 31, 1995, Danielle Barrantes, Kacie and Christina Buna, Eric Scanlon, Ariel Grajeda, and Cody Daniel filed, through their parents as Guardians Ad Litem, a civil action against petitioner and the Pleasanton Unified School District. They sought recovery of damages for the petitioner's molestation of them in the open class room. The case settled on June 6, 1996, for the costs of defense.

ANALYSIS

In AEDPA, Congress further narrowed the habeas corpus jurisdiction of federal courts as it applies to persons in state custody pursuant to the judgment of a state court. As before, under 28 U.S.C. § 2254(a), federal courts may entertain only petitions that claim a violation of federal law. Under Section 2254(b), the applicant must demonstrate that he or she has "exhausted the remedies available in the courts of the state", that there is no available state remedy, or that any such remedy is, under the circumstances, ineffective to protect the rights of the applicant. Even if the exhaustion requirement is met, no petition can be granted unless the alleged violation of federal law meets yet further requirements. With respect to state court factual determinations, any determination of a factual issue is presumed to be correct and the applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. If the applicant failed to develop the factual basis for a claim in the state court proceeding, then the federal court may not hold an evidentiary hearing on the claim unless the applicant shows that (i) the claim relies on a new and retroactive rule of constitutional law or a factual predicate that could not have been previously discovered through the exercise of due diligence; (ii) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense; or (iii) the state court refused to permit development of the facts relevant to the claim. Baja v. Ducharme, 187 F.3d 1075, 1078-9 (9th Cir. 1999).

The most restrictive amendment made by AEDPA concerns legal determinations made by a state court, it is not enough to demonstrate that the state court erred in interpreting federal law. It must be further shown that the erroneous legal determination was contrary to or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States, or that it was an unreasonable application of Supreme Court precedent.

Petitioner challenges his conviction on fifteen grounds with multiple subparts. The Court heard oral argument for more than two hours. The Court has had considerable difficulty in tracking the arguments of petitioner's counsel and in verifying petitioner's assertions against the record. Nonetheless, the Court has reviewed each and every argument and finds them without merit, especially when measured against the deference demanded by AEDPA.

1. Vagueness

Petitioner claims that California Penal Code Section 288(a) is both vague and overbroad.¹ Petitioner bases his contention on the California Supreme Court's interpretation of the statute, as set forth People v. Martinez, 11 Cal.4th 434, 45 Cal.Rptr.2d 905, 903 P.2d 1037 (1995). The Martinez court held that, to support a conviction under Section 288(a), a touch need not appear lewd to a "member[ ] of the mainstream population" so long as it is effected with the requisite intent. Id. at 452, 45 Cal.Rptr.2d 905, 903 P.2d 1037. The intent, the court further held, must be inferred from the circumstances in which the touch is made. Ibid. Petitioner argues that, interpreted as such, the statute could encompass almost any touch of a minor — even one that was not objectively lewd — so long as that touch were found to have...