Skidmore v. Lizarraga

• Decision Date: 18 March 2019
• Docket Number: Case No. 14-cv-04222-BLF
• Parties: CARL SKIDMORE, Petitioner, v. JOE LIZARRAGA, Warden of California State Prison at Mule Creek, Respondent.
• Court: U.S. District Court — Northern District of California

CARL SKIDMORE, Petitioner, v. JOE LIZARRAGA, Warden of California State Prison at Mule Creek, Respondent.

Case No. 14-cv-04222-BLF

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

March 18, 2019

ORDER DENYING MOTION FOR EVIDENTIARY HEARING; AND DENYING AMENDED PETITION FOR WRIT OF HABEAS CORPUS

[Re: ECF 35, 62]

Petitioner Carl Albert Skidmore, a state prisoner represented by counsel, has filed an amended petition for writ of habeas corpus under 28 U.S.C. § 2254, challenging his conviction and sentence imposed after a Sonoma County jury found him guilty of rape, sexual assault, and molestation of his two stepdaughters. Petitioner's sentence, as modified on appeal, is 307 years to life in prison.

Petitioner asserts five claims of ineffective assistance of trial counsel, a claim that his sentence is cruel and unusual, and a claim of cumulative error. He has filed a motion for an evidentiary hearing. Both the amended habeas petition and the motion for evidentiary hearing have been fully briefed.

For the reasons discussed below, the motion for an evidentiary hearing (62) is DENIED, and the amended petition for writ of habeas corpus (35) is DENIED.

I. FACTUAL BACKGROUND

The following factual summary is taken from the California Court of Appeal's opinion addressing Petitioner's direct appeal. See People v. Skidmore, No. A121339, 2009 WL 2766801 (Cal. Ct. App. Sept. 1, 2009). The California Court of Appeal found as follows:

A. Charges In This Case

An amended information charged Skidmore with 10 felony sex offenses against his stepdaughters, J.D. and A.D., who were under the age of 14.

With respect to victim J.D., Skidmore was charged with: three counts of aggravated sexual assault of a child involving rape (Pen. Code, § 269, subd. (a)(1); counts one-three); forcible rape (§ 261, subd. (a)(2); count four); continuous sexual abuse of a child (§ 288.5, subd. (a); count five); forcible sexual penetration of a child (§ 289, subd. (a)(1); count six); and committing a lewd act on a child (§ 288, subd. (b)(1); count seven).

As to victim A.D., the amended information charged Skidmore with continuous sexual abuse of a child (§ 288.5, subd. (a); count eight) and two counts of perpetrating a lewd act on a child (§ 288, subd. (a); counts nine and 10).

In regard to all counts, the amended information alleged that Skidmore had a prior serious felony child molestation conviction (§ 288, subd. (a)) for purposes of the Three Strikes Law. (§ 1170.12.) As to counts four through nine, it was further alleged that Skidmore committed the charged sexual offenses against multiple victims, and had a prior child molestation conviction under section 288, subdivision (a), for purposes of the One Strike Law. (§ 667.61, subds. (b) and (e)(5), (a) and (d)(1).)

B. Case No. SCR-471023

While these charges were pending, Skidmore was convicted in case number SCR-471023 on a felony charge of soliciting another to commit an assault by means likely to produce great bodily injury. (§ 653f, subd. (a).) This charge arose when Skidmore, while in jail on the sexual offense charges, arranged for his relatives to pay a former jail inmate to kill the molestation victims' mother, assault their older brother, and bribe the victims to withdraw their allegations. Sentencing was deferred pending the completion of trial on the current charges.

C. Trial in This Case (SCR-458973)

Jury trial commenced in January 2008.

1. Skidmore's Prior Sexual Abuse of a Stepdaughter

Skidmore's former stepdaughter, T.B., testified that Skidmore sexually molested her periodically from the time she was about seven or eight years old, to the time she was about 12 or 13 years old. T.B.'s mother was an alcoholic, and Skidmore molested T.B. while the mother was asleep. Specifically, Skidmore went to T.B.'s bed, fondled her, and inserted his fingers in her vagina. He convinced T.B. not to tell her mother because, if she did, her mother would leave her. At one point before T.B. turned 11 years old, Skidmore also tried to have sexual intercourse with her. When she told him to stop because of the pain, he became frustrated and told her that "men didn't like prick teases."

Certified documents established that Skidmore pled guilty to one count of child molestation (§ 288, subd. (a)) in July 1985.

After T.B.'s mother learned that Skidmore was engaged to Patricia H. (the mother of the child victims in this case), she informed Patricia that Skidmore was a registered sex offender. Patricia nonetheless married Skidmore in 2002.2. Skidmore's New Victims

Patricia's two daughters from a prior marriage - J.D. born in August 1990, and A.D. born in July 1993 - lived with Patricia and Skidmore. Patricia's son Jey and his girlfriend Antoinette sometimes lived with them also.

Like T.B.'s mother, Patricia was an alcoholic, and she got drunk every night after work. She never told J.D. or A.D. that Skidmore was a registered sex offender. As he had done to T.B., Skidmore molested J.D. and A.D. while their mother was asleep.

3. Sexual Abuse of J.D. (Counts 1-7)

One night when J.D. was 12 years old on a family vacation, Skidmore rubbed her leg, put his hand inside her shorts, rubbed her vagina, and inserted his finger into her vagina. He told her to "be quiet" and that she would "like it."

About two weeks after the family returned home, Skidmore resumed his molestation of J.D. About 5:30 or 6:00 a.m., he entered her bedroom, rubbed her leg and vagina, and inserted his fingers into her vagina. He told her it was "what [they were] supposed to be doing" and it was "a special thing." Frightened, J.D. pushed Skidmore's hand away and told him to stop, but he continued anyway.

For nearly a year, Skidmore molested J.D. in the same manner two to three times a week, for about a half hour each time, while her mother was sleeping. He also touched her breasts and once asked her to kiss his exposed penis.

J.D. testified that, when she was 13 in January 2004, Skidmore "started raping me." After inserting his fingers into her vagina, he took off his pants and told her, "we're going to try something new." She told him "no" and said she was scared, but he continued. He got on top of her, rubbed his penis against her vagina, and then inserted his penis in her vagina. She cried from the pain.

About a week later, Skidmore had intercourse with J.D. in her bedroom again. From then on until February 2005, he had intercourse with J.D. about two or three times a week. They had intercourse over 20 times.

While Skidmore was molesting her, he would tell J.D. that they could go shopping when they finished. Skidmore bought J.D. "everything [she] wanted." He also bought her sexy underwear, including a lace bra and matching thong, which he had J.D. pose in.

Skidmore told J.D. that if she told anyone what he was doing to her, it would break her mother's heart, break up the family, and cause him to go to jail. She did not report the abuse because she believed she was protecting her little sister A.D., her family had been poor before they met Skidmore, and Skidmore "could hurt [her]." When she did confide in her mother once, Skidmore accused her of lying, and her mother proceeded to drink even more and cried constantly. Seeing her family adversely affected, J.D. recanted. About a week or two later, Skidmore resumed raping her two or three times a week.

The last time they had intercourse was in late February 2005, a few days before Skidmore was arrested. On that occasion, J.D. used a pink towel to wipe off her vagina. J.D. gave the towel to the police after Skidmore was arrested.

4. Sexual Abuse of A.D. (Counts 8-10)

Skidmore started molesting A.D. when she was 11 years old, beginning sometime between the start of school and Christmas 2004. The first time he entered her bedroom in the morning while everyone else was asleep, and rubbed her back and her breasts. Beginning about a month later, he would rub her vagina as well. He did this every day, once in the morning and once again in the afternoon, for several months.

In February 2005, Skidmore's molestation of A.D. escalated. In addition to rubbing her breasts and vagina, he removed her clothing and put his mouth on her vagina. This continued twice a day throughout the month. At one point, Skidmore had A.D. wear a lacy pink thong for him.

A.D. did not report Skidmore's abuse because she was scared and wanted "to save [her] sister." In addition, Skidmore had warned her that if she told anyone, he would never buy anything for her again. A.D. also thought no one would believe her, because when she previously told her mother that she had seen Skidmore and J.D. kissing and naked together in J.D.'s bedroom, they denied it.

On the last day of February 2005, Skidmore went to A.D.'s bedroom around 6:00 a.m. He rubbed her breasts and buttocks, pulled down her pants, and orally copulated her as usual. This time, however, he also rubbed his penis against her vagina and tried to make her touch it. He told A.D., "I'll see you once I get home from work," and "[o]nce we do it, I'll give you a big prize." A.D. testified: "I was afraid he was going to rape me the next day."

5. Additional Evidence

Meanwhile, Jey's girlfriend Antoinette (Nettie) became concerned about J.D. and A.D. She noticed that J.D., who usually did very well in school, no longer wanted to do her homework and was not as outgoing as before. A.D. was displaying similar behavioral problems as well. Nettie also observed that Skidmore was buying J.D. "inappropriate clothing," such as thong underwear, low-cut shirts, and "unbelievably short skirts."

J.D.'s older cousin, Monique, testified that she once saw Skidmore's hand on J.D.'s thigh in a sexual manner. Further, she testified, Skidmore "always wanted to touch" J.D.

Late at night on March 1, 2005, while Skidmore was at work and Patricia was asleep, Jey, Nettie, and Monique confronted J.D. with their suspicions that Skidmore was molesting A.D. and perhaps J.D. J .D. initially denied she was being molested but

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