KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
Petitioner
is a state prisoner, proceeding without counsel, with an
application for a writ of habeas corpus pursuant to 28 U.S.C
§ 2254. Petitioner challenges his October 26, 2017,
conviction for meeting a minor for lewd purposes and
contacting a minor with the intent to commit a sexual
offense, with a prior strike conviction. Petitioner was
sentenced to eight years in state prison. Petitioner claims:
(1) improper jury instructions; (2) prosecutorial misconduct;
(3) insufficient evidence; (4) insufficient reasons to impose
the upper term sentence; (5) lower court's ruling was
contrary to clearly established law; and (6) ineffective
assistance of counsel. After careful review of the record,
this court concludes that the petition should be denied.
On
October 26, 2017, a jury found petitioner guilty of meeting a
minor for lewd purposes and contacting a minor with the
intent to commit a sexual offense, with a prior strike
conviction.
On
November 28, 2017, petitioner was sentenced to eight years in
state prison.
Petitioner
appealed the conviction to the California Court of Appeal,
Third Appellate District. The Court of Appeal remanded the
case for resentencing, but otherwise affirmed the conviction.
(ECF No. 21-10.)
Petitioner
filed several state habeas petitions, which the state courts
denied. (ECF Nos. 21-14 to 21-24.) He filed the instant
petition on April 7, 2020. (ECF No. 1.) Respondent filed an
answer on November 3, 2020. (ECF No. 20.) Petitioner filed a
traverse on February 8, 2021. (ECF Nos. 27 & 28.)
After
independently reviewing the record, this court finds the
appellate court's summary accurate and adopts it herein.
In its unpublished memorandum and opinion affirming
petitioner's judgment of conviction on appeal, the
California Court of Appeal for the Third Appellate District
provided the following factual summary:
We relate the facts of defendant's crimes here and the
procedural background relevant to the issues on appeal when
addressing defendant's claims.
In May 2017, defendant posted an advertisement in the casual
encounters section of Craigslist. The post described
defendant as a 47-year-old man who recently moved to Platina
from the Bay Area and had had no luck meeting anyone.
Defendant was “just looking to meet someone who is open
to come hang out for a night or two, eat, [watch] movies,
listen to music, have a drink or two, and get naked in
between it all.” Defendant ended his post saying,
“Other than that I handle myself well when we are
slapping sweat and I have been known to really get along well
with younger women:) Let me know.” He attached several
pictures to the post showing his home and himself both
clothed and nude. Several of the pictures depicting defendant
in the nude showed him with an erection.
Tehama County Bureau of Investigations Officer Heidi Curtis
was monitoring Craigslist's posts for adults attempting
to contact minors. Defendant's assertion that he got
along well with younger women alerted Officer Curtis that
defendant may be attempting to contact minors for sexual
encounters, requiring further investigation. So, Officer
Curtis sent defendant a message through Craigslist posing as
“Maddie Paulson.” The message read,
“I'm for real ... you get along
with younger girls huh? ? ?” and included a phone
number where “Maddie” could be reached.
Thereafter, defendant texted “Maddie” and the two
engaged in a several-week-long texting conversation.
In “Maddie's” initial texts she indicated
that she was young and in high school. She told defendant she
played percussion in the band and that he could not text her
after 11:00 p.m. because her mother would freak out.
Defendant responded, “Well we dont want mom freaking
out now do we:).” Over the course of the next few text
conversations, defendant and “Maddie” assured
each other they “wouldnt put [each other] off.”
Defendant then asked “Maddie” whether she
“had the experience of a boyfriend yet:)” and to
send him a G-rated picture so he could see with whom he was
texting. “Maddie” sent defendant a photo of a
young blond woman baring cleavage and wearing heavy makeup.
The photo would not immediately load on defendant's
phone, so he responded “Its cool Maddie. I am very
patient and I think about you all day so I am confident that
you will look very pleasingtto [sic] my
eyes:).” Defendant later gave “Maddie” his
e-mail address so she would send photos of herself there as
well.
Around this same time, defendant drove to Red Bluff, where
“Maddie” lived, and texted her that he wished he
“could have picked her up from school:).” After
“Maddie” said she was at the movies and was sorry
to miss him, defendant replied, “Its cool. I was mostly
just playing. I didnt expect you would ever want to meet for
the first time that way although I would be good with
it.”
The next day, defendant texted “Maddie” again. He
told her his plans for the weekend and then continued,
“Of course I am always open to coming down to Red Bluff
if you can get away for a few minutes:).”
“Maddie” responded that she was not available but
would be the next weekend and wondered if they could
“Netflix and chill? ?” “Maddie” also
asked defendant the age of the youngest girl he had ever hung
out with. Defendant responded that he had the capability to
stream video and they could “Netflix and chill however
long you like:).” Defendant also told
“Maddie” he had spent time with a 16 year old but
they never touched sexually because of her age.
“Maddie” told defendant she was 15 years old and
clarified that “Netflix and chill” meant to
“hook up.” Defendant responded, “We can
talk about that after we meet. Being that you say you are
under 18 we need to keep our texts PG:) What we discuss in
private is our business.” He ended this conversation
“Goodnite pretty young Maddie:).”
In the next conversation, defendant told “Maddie”
he wanted to meet her. He said he knew he liked her because
he would usually stop texting with women who did not respond
to him promptly, but instead he waited for her responses
“becuz I want you.” In the next text
conversation, defendant again asked “Maddie” if
he could meet her. She said she could get away over the
weekend but he would need to pick her up. Defendant agreed.
He told her that because she had less freedom of movement, he
could work around her schedule and they could meet for
“coffee or whatever just to make that first
connection:).” “Maddie” responded she could
“meet anyone for coffee, [but wanted] to do more than
that.” Defendant later indicated
he did not receive that text message and “Maddie”
clarified, “You know what your ad said. That's what
I want.” Defendant responded “Ok then Maddie.
When would you like to meet? Bottom line:).”
The conversation continued with “Maddie” saying,
“Depends on how long you want me for. If it's
overnight itll have to be a weekend so my mom thinks I'm
at a friends house. I'm not allowed to spend the night
with friends on school nights.” Defendant responded he
wanted “Maddie” to spend the night, and
“[a]nything else would be a tease:).” Defendant
also assured “Maddie” he had condoms when she
asked. The two then agreed for defendant to pick up
“Maddie” on either Thursday or Friday so that
they could spend the weekend together.
As the day approached, the two agreed to meet at the old
Walmart in Red Bluff at 9:00 a.m. on Friday morning. The
night before the two were to meet, defendant checked in with
“Maddie”. “Maddie” said she still
wanted to meet defendant but was nervous because of the size
of his erection in the photos he attached to his Craigslist
post. She asked him whether he knew “how to be easy,
” to which he responded “Of course Maddie. Being
easy makes it good and being good makes them come
back:).”
After waiting for “Maddie” in the parking lot
where he agreed to meet her, defendant became suspicious and
drove away. He was arrested during a traffic stop shortly
after. Condoms were found upon a search of defendant's
home.
(ECF No. 21-10 at 2-4.)
IV.
Standards for a Writ of Habeas Corpus
An
application for a writ of habeas corpus by a person in
custody under a judgment of a state court can be granted only
for violations of the Constitution or laws or treaties of the
United States. 28 U.S.C. § 2254(a). A federal writ is
not available for alleged error in the interpretation or
application of state law. See Wilson v. Corcoran,
562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 U.S.
62, 67-68 (1991).
Title
28 U.S.C. § 2254(d) sets forth the following standards
for granting federal habeas corpus relief:
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.
28 U.S.C. § 2254(d).
For
purposes of applying § 2254(d)(1), “clearly
established Federal law” consists of holdings of the
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, 132 S.Ct
38, 44-45 (2011)); Stanley v. Cullen, 633 F.3d 852,
859 (9th Cir. 2011) ...
