Sandoval v. Tilton

Filing 49

REPORT and RECOMMENDATION signed by Magistrate Judge John L. Weinberg on 8/4/10 RECOMMENDING that the 38 Second Amended Petition be denied and judgment be entered dismissing this action with prejudice. Referred to Judge Ricardo S. Martinez. Objections to R&R due within 14 days of service. (Owen, K)

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01 02 03 04 05 06 HERMAN GARCIA SANDOVAL, 07 08 09 10 11 12 13 I. INTRODUCTION ) ) Petitioner, ) ) v. ) ) MIKE MARTEL, Warden, ) ) Respondent. ) ____________________________________ ) UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA CASE NO. 2:07-cv-00004-RSM-JLW REPORT AND RECOMMENDATION Petitioner Herman Sandoval is currently incarcerated at the Mule Creek State Prison, 14 in Ione, California. He was convicted by a jury in the Sacramento County Superior Court on 15 March 4, 2005, of committing sexual offenses against two boys under the age of fourteen, 16 M.M. and J.S., in October 2003 and April 1998, respectively. Specifically, petitioner was 17 convicted of one count of committing a lewd and lascivious act on a child, four counts of 18 forcefully committing lewd and lascivious acts on a child, and having committed the charged 19 offenses against two or more victims. He is currently serving a sentence of thirty-years-to20 life, and has filed a second amended petition for writ of habeas corpus under 28 U.S.C. 2254 21 challenging his 2005 conviction and sentence. (See Docket 38.) 22 REPORT AND RECOMMENDATION - 1 01 Respondent has filed an answer to the second amended petition in which he concedes 02 that petitioner has exhausted his state court remedies, but contends that petitioner's claims are 03 without merit. (See Dkt. 41 at 2-3.) Petitioner filed a traverse in opposition to the answer. 04 (See Dkt. 47.) Accordingly, the briefing is now complete and this matter is ripe for review. 05 See Rule 5(e), Rules Governing Section 2254 Cases. The Court, having thoroughly 06 considered the record, recommends the Court deny the second amended petition and dismiss 07 this action with prejudice. 08 09 II. FACTUAL AND PROCEDURAL HISTORY Petitioner is challenging his 2005 conviction for four counts of forcefully committing 10 lewd and lascivious acts on a child, J.S., and having committed the charged offenses against 11 two or more victims. While he was also convicted of one count of forcefully committing a 12 lewd and lascivious act on a child under age fourteen, M.M., that count is not at issue in this 13 petition. Petitioner received an indeterminate sentence of thirty-years-to-life in prison. 14 The California Court of Appeal summarized the facts of the offense against J.S., 15 noting, as in this case, that the facts of the M.M. molestation were not at issue in the state 16 court petition and therefore it did not need to address them: 17 18 19 20 21 22 J.S. was 19 years old when he testified and 13 years old at the time of the offenses. When he was 13, he lived with his father and worked at the father's produce stand at a flea market. While at the market, J.S. met defendant who was a friend of his father. On April 19, 1998, after obtaining the father's permission, defendant hired J.S. to mow his lawn and help him clean up his residence. J.S. left the flea market and went with defendant in his truck. As he drove, defendant asked J.S. if he wanted to drink beer, smoke cigarettes, and watch dirty movies. Even though he wasn't really interested, J.S. said yes because REPORT AND RECOMMENDATION - 2 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 defendant was bigger than him and he did not want to make defendant mad. No one was at defendant's residence when they arrived. They went inside and started talking and watching television. At defendant's request, J.S. stood up. Defendant pulled down J.S.'s pants and underwear and started to play with J.S.'s penis. Defendant pulled down his own pants, pushed or tossed J.S. onto the couch, and began rubbing his penis against J.S.'s penis and stomach. Defendant was on top of J.S., making a humping motion, sucking on J.S.'s lip, trying to kiss him, and not saying anything. Defendant tried to put his tongue in J.S.'s mouth, but J.S. kept it tightly closed. J.S. was unable to get up off the couch because defendant was too heavy. After about five minutes on the couch, defendant took J.S. to the bedroom. Defendant told J.S. to lie down and got on top of him. Defendant rubbed his penis on J.S.'s penis and stomach and tried to kiss him. J.S. did not have any bruises or marks, and he testified that defendant was not trying to hurt him. J.S. told defendant that he had to return to the flea market because his father would be worried. Defendant said okay and got off of him. They went to the living room where defendant gave J.S. a root beer. Defendant acted as if everything were fine. On the way back to the flea market, defendant asked J.S. whether the acts felt good, whether he had liked them, and whether he would tell anyone about it. J.S. told him no, because he was scared and did not want defendant to hurt him. Defendant asked J.S. if he wanted anything, and J.S. sarcastically said, "five hundred dollars." J.S. denied that this request was a threat to "accuse him of something that he didn't do" if the money were not paid. Defendant gave J.S. $1.50 or $2.00 and told him that he could drive defendant's truck any time he wanted. When defendant dropped off J.S. at his father's stand, he again asked if J.S. was going to tell anyone. J.S. said no and defendant left. J.S. then told his father that defendant had rubbed and touched him. At first, the father did not believe him. REPORT AND RECOMMENDATION - 3 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 The father testified that when J.S. returned to the flea market, he was highly upset and very close to tears. The father had never seen J.S. so mad. The father tried to find out what was wrong but J.S. did not want to tell him. J.S. went to the back of the fruit stand to calm down. Defendant hastily arrived and tried to push some money into J.S.'s pocket. J.S. again became irate. Eventually, defendant left. Later that afternoon, J.S. revealed to his friend, Patty, that defendant had pulled down J.S.'s pants, tried to grab J.S.'s penis, and tried to rub J.S.'s penis on him. J.S. and Patty reported the incident to a sheriff's officer. J.S. did not see defendant after that day. In February 1999, when J.S. was 14 years old, he suffered juvenile adjudications for residential burglary and attempted residential burglary. When he was 16 years old, he left California for Texas because he was getting in trouble here. At trial, Deputy Sheriff Robert Wilson testified to what J.S. had told him when he took the report. J.S. had not mentioned a specific number of times that defendant had rubbed his penis on J.S.'s body. J.S. had described the initial activity as a "continuous humping motion." He had related a total of "two separate incidences," both of which had occurred on the couch. J.S. had not mentioned going into the bedroom. J.S. explained at trial that he had left that part out so that the police would not think he wanted to participate. Deputy Wilson testified for the defense that J.S. had not reported that defendant touched J.S. before pushing him onto the couch. Rather, the only reported contact occurred when J.S. was lying on the couch. The security manager for defendant's cable television company testified that defendant did not subscribe to an adult entertainment channel. 20 (Dkt. 38, Exh. A at 2-5.) 21 A jury found petitioner guilty of committing a lewd and lascivious act on a child under 22 age 14 (Count I), and forcefully committing lewd and lascivious acts on a child under age 14 REPORT AND RECOMMENDATION - 4 01 (Counts II-V). (See Dkt. 41 at 5.) Pursuant to an amended information, the jury also found 02 true the special allegations that petitioner committed the charged offenses against more than 03 one victim. (See id.) He was sentenced to an indeterminate sentence of thirty-years-to-life on 04 Counts I and II (two consecutive terms of fifteen-years-to-life), and concurrent terms of six 05 years each on Counts III - V. (See id.) 06 Petitioner timely appealed his conviction and sentence to the California Court of 07 Appeal, raising one of the issues presented in this federal habeas petition. (See Dkt. 38, Exh. 08 A.) The Court of Appeal affirmed the trial court's judgment in an unpublished decision on 09 August 24, 2006. (See id.) Petitioner filed a petition for review in the California Supreme 10 Court which was summarily denied. (See id., Exh. B.) 11 On January 3, 2007, petitioner filed a petition for habeas corpus in this Court, although 12 he admitted that he had not yet exhausted all of his claims. (See Dkt. 1.) He therefore 13 requested that the Court stay his case and hold his petition in abeyance until he exhausted his 14 state court remedies. (See id.) Petitioner's request for a stay was granted by the Honorable 15 Kimberly J. Mueller on October 9, 2007. (See Docket 15.) 16 Petitioner then filed a habeas corpus petition in the Sacramento County Superior 17 Court, which was denied on May 4, 2007, pursuant to a reasoned decision. (See Dkt. 38, Exh. 18 E.) Petitioner subsequently filed a petition with the California Supreme Court. (See id., Exh. 19 Q.) The California Supreme Court later granted petitioner's request to withdraw that petition. 20 (See id., Exh. D.) Petitioner filed a new habeas corpus petition in the state's highest court on 21 March 28, 2008. That case was summarily denied on September 10, 2008. (See id.) 22 REPORT AND RECOMMENDATION - 5 01 Because petitioner represented that he had exhausted his state court remedies, the stay 02 in this Court was lifted and petitioner was permitted to file an amended petition incorporating 03 his newly exhausted claims. (See Dkts. 20 and 22.) Less than a month later this case was 04 transferred to the Honorable Robert S. Lasnik. (See Dkt. 21.) The case was subsequently 05 reassigned to the Honorable Ricardo S. Martinez, and on October 1, 2009, this case was 06 referred to the undersigned. (See Dkts. 23 and 30.) 07 Meanwhile, petitioner filed another habeas petition in the California Supreme Court 08 on June 25, 2009. (See Dkt. 43, Lodged Document 10.) While that petition was pending, 09 petitioner filed multiple requests for a second stay and abeyance to pursue his additional 10 claims for relief. (See Dkts. 26-28 and 31.) On October 22, 2009, this Court struck three of 11 petitioner's four pending motions for a stay and abeyance and directed respondent to file a 12 response to petitioner's fourth request for a stay. (See Dkt. 32.) The California Supreme 13 Court summarily denied his petition on November 10, 2009. On December 8, petitioner filed 14 objections to respondent's response, informing the Court that he had exhausted all of his state 15 court remedies as to all of his federal claims for relief. (See Dkt. 34.) He also renewed his 16 17 18 19 20 21 22 request for a stay on the ground that he required additional time to file a second amended petition, incorporating the additional recently exhausted claims for relief. (See id.) By Order of December 14, the Court struck petitioner's fourth request for a stay and abeyance as moot and gave petitioner 90 days to file a second amended petition incorporating all of his exhausted federal habeas claims for relief. (See Dkt. 35.) A subsequent thirty-day extension of time was granted and petitioner filed his second amended petition on March 29, 2010, presenting four claims for relief. (See Dkts. 37 and 38.) REPORT AND RECOMMENDATION - 6 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 III. FEDERAL CLAIMS FOR RELIEF1 Petitioner presents the following claims in his second amended petition: 1. The admission of other crimes evidence was erroneous under Evidence Code Sec. 1101, sub. (b) an abuse of Evidence Code Sec. 352 Discretion, and a violation of due process applied; 2. The revival of a time barred charge violated the Ex Post Facto Clause of the United States Constitution; 3. The judgment must be reversed because the corroboration requirement of Sec. [803](g) has not been met; 4. The denial of jury trial on aggravating and mitigating factors affecting the sentence violated the Fifth, Sixth, and Fourteenth Amendments; 5. Petitioner was denied due process of law; and 6. Ineffective assistance of trial counsel. (Dkt. 38 at i.) Respondent appears to concede that petitioner has exhausted all of his claims for relief, but contends that petitioner fails to demonstrate that the state courts either made an unreasonable factual determination or failed to comply with clearly established U.S. Supreme Court precedent in rejecting his claims. (See Dkt. 41 at 2-3.) IV. STANDARD OF REVIEW The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this second amended petition as it was filed after the enactment of AEDPA. See Lindh v. Murphy, 1 We do not reach petitioner's claims that his state rights under the California Constitution 22 were violated, as state claims are not cognizable in a federal habeas petition. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (asserting that "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions"). REPORT AND RECOMMENDATION - 7 01 521 U.S. 320, 326-27 (1997). Because petitioner is in the custody of the California 02 Department of Corrections pursuant to a state court judgment, 28 U.S.C. 2254 provides the 03 exclusive vehicle for his habeas petition. See White v. Lambert, 370 F.3d 1002, 1009-10 (9th 04 Cir. 2004). Under AEDPA, a habeas petition may not be granted with respect to any claim 05 adjudicated on the merits in state court unless petitioner demonstrates that the highest state 06 court decision rejecting his petition was either "contrary to, or involved an unreasonable 07 application of, clearly established Federal law, as determined by the Supreme Court of the 08 United States," or "was based on an unreasonable determination of the facts in light of the 09 evidence presented in the State court proceeding." 28 U.S.C. 2254(d)(1) and (2). 10 As a threshold matter, this Court must ascertain whether relevant federal law was 11 "clearly established" at the time of the state court's decision. To make this determination, the 12 Court may only consider the holdings, as opposed to dicta, of the United States Supreme 13 Court. See Williams v. Taylor, 529 U.S. 362, 412 (2000). It is also appropriate to look to 14 lower federal court decisions to determine what law has been "clearly established" by the 15 Supreme Court and the reasonableness of a particular application of that law. See Duhaime v. 16 Ducharme, 200 F.3d 597, 598 (9th Cir. 1999). In this context, Ninth Circuit precedent 17 remains persuasive but not binding authority. See Williams, 529 U.S. at 412-13; Clark v. 18 Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). 19 The Court must then determine whether the state court's decision was "contrary to, or 20 involved an unreasonable application of, clearly established Federal law." See Lockyer v. 21 Andrade, 538 U.S. 63, 71 (2003). "Under the `contrary to' clause, a federal habeas court may 22 grant the writ if the state court arrives at a conclusion opposite to that reached by [the REPORT AND RECOMMENDATION - 8 01 Supreme] Court on a question of law or if the state court decides a case differently than [the] 02 Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. 03 "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the 04 state court identifies the correct governing legal principle from [the] Court's decisions but 05 unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. At all 06 times, a federal habeas court must keep in mind that it "may not issue the writ simply because 07 [it] concludes in its independent judgment that the relevant state-court decision applied clearly 08 established federal law erroneously or incorrectly. Rather that application must also be 09 [objectively] unreasonable." Id. at 411. 10 In each case, the petitioner has the burden of establishing that the state court decision 11 was contrary to, or involved an unreasonable application of, clearly established federal law. 12 See 28 U.S.C. 2254; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). To determine 13 whether the petitioner has met this burden, a federal habeas court normally looks to the last 14 reasoned state court decision, which in this case is the Sacramento County Superior Court 15 decision's decision on one issue presented in his federal habeas petition. See Ylst v. 16 Nunnemaker, 501 U.S. 797, 803-04 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 17 2007). Where, as in this case, the state courts have reviewed the claims and denied them 18 without comment, the federal court conducts an independent review of the record "to 19 determine whether the state court clearly erred in its application of controlling federal law." 20 Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). 21 Finally, AEDPA requires federal courts to give considerable deference to state court 22 decisions, and state courts' factual findings are presumed correct. See 28 U.S.C. 2254(e)(1). REPORT AND RECOMMENDATION - 9 01 Federal courts are also bound by a state's interpretation of its own laws. See Murtishaw v. 02 Woodford, 255 F.3d 926, 964 (9th Cir. 2001) (citing Powell v. Ducharme, 998 F.2d 710, 713 03 (9th Cir. 1993)). Thus, while our review of the record is conducted independently with regard 04 to some claims, we continue to show deference to the state court's ultimate decision. See 05 Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). 06 07 08 V. 1. DISCUSSION Due Process Violation -- Admission of Other Crimes Evidence Petitioner contends that his federal due process rights were violated when the trial 09 court admitted evidence of his uncharged 1998 sexual offense with J.S. under California 10 Evidence Code 1101, 1108 and 352, and subsequently instructed the jury to consider such 11 evidence. (See Dkt. 38 at 1-7.) Respondent asserts that while the California Supreme Court 12 summarily dismissed this claim, it was properly rejected as "[t]here is nothing in the record to 13 suggest the prosecution ever sought to introduce additional `other crimes' evidence with 14 respect to crimes Petitioner may have committed against victim Joseph S. in 1998 or any 15 other time." (Dkt. 41 at 10.) Because there is no factual support for petitioner's claim, 16 respondent contends the state court's rejection of this claim was reasonable. (See id.) 17 Counts II-V charged petitioner with forcefully committing lewd and lascivious acts 18 upon thirteen-year-old Joseph S. "on or about April 19, 1998." (Dkt. 43, Clerk's Transcript at 19 88-91 and 108-09.) There is no evidence in the record before this Court that the prosecution 20 sought to introduce evidence of any sexual offenses committed by petitioner against J.S., 21 other than the charged offenses which took place "on or about April 19, 1998." (Dkt. 43, 22 Reporter's Transcript at 336-382; id., CT at 108-09.) Specifically, no "other crimes" evidence REPORT AND RECOMMENDATION - 10 01 involving uncharged offenses committed by petitioner against J.S. was discussed during the 02 pre-trial motions, admitted at trial, or discussed in the jury instructions. (See id., RT at 1-11 03 and 336-382; id., CT 103-117.) 04 Because there is no "other crimes" evidence with regard to the 1998 charged offenses, 05 this Court cannot conclude that the California Supreme Court's decision was contrary to or an 06 unreasonable application of clearly established Supreme Court law. I therefore recommend 07 the Court find that petitioner's "other crimes evidence" claim is without merit. 08 09 2. Ex Post Facto Clause Violation (Cal. Pen. Code 803(g)) Petitioner contends that his 1998 offense was time-barred by California's statute of 10 limitations and, thus, his prosecution for such offense violated the Ex Post Facto Clause of the 11 United States Constitution. (See Dkt. 38 at 10 -11.) See also U.S. CONST., art. I, 10 ("No 12 state shall . . . pass any bill of attainder, ex post facto law, or law impairing the obligation of 13 contracts. . . ."). Specifically, he claims that California Penal Code 803(g), which extends 14 the state's statute of limitations for sexual offenses with minors, violates the Ex Post Facto 15 Clause on its face by reviving time-barred offenses. (See id.) Respondent asserts that the 16 state court's summary rejection of petitioner's claim was proper, that the Ninth Circuit Court 17 of Appeals has previously rejected this precise claim, and that no federal law holds to the 18 contrary. (See Dkt. 41 at 11-12.) Because the California courts failed to issue a reasoned 19 decision on this issue, this Court must independently review the record and the federal law to 20 determine whether the state courts' decision was reasonable in light of clearly established 21 U.S. Supreme Court law. See Delgado, 223 F.3d at 982. 22 REPORT AND RECOMMENDATION - 11 01 The Ninth Circuit Court of Appeals recently upheld the constitutionality of California 02 Penal Code 803(g) against the same Ex Post Facto Clause challenge petitioner presents in 03 his petition based upon a careful analysis of U.S. Supreme Court case law. Renderos v. Ryan, 04 469 F.3d 788, 795 (9th Cir. 2006), cert. denied, 551 U.S. 1159 (2007) (citing Stogner v. 05 California, 539 U.S. 607 (2003)). Here, as in Renderos, petitioner contends that the 06 applicable six-year limitations period in Cal. Pen. Code 800 expired prior to the date the 07 information was amended to include his April 19, 1998, offense. (See Dkt. 38 at 10.) The 08 application of 803(g)2 revives the expired six-year statute of limitations period and allows 09 the prosecution to charge a defendant with an offense that is more than six-years-old. Section 10 803(g) states: 11 12 13 14 15 16 17 18 19 20 21 2 (1) Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section 261, 286, 288, 288a, 288.5, 289, or 289.5. (2) This subdivision applies only if all of the following occur: (A) The limitation period specified in Section 800, 801, or 801.1, whichever is later, has expired. (B) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual. (C) There is independent evidence that corroborates the victim's allegation. If the victim was 21 years of age or older at the time This statute was amended in 2005 to delete "the old subsection (f) and renumber the old 22 subsection (g) as subsection (f) without any substantive alterations." Renderos, 469 F.3d at 793 n.3. Thus, while the subsection at issue is currently subsection (f), for the sake of clarity, the Court refers to this subsection (as the parties have) in its pre-amendment form, as subsection (g). See id. REPORT AND RECOMMENDATION - 12 01 02 03 04 of the report, the independent evidence shall clearly and convincingly corroborate the victim's allegation. (3) No evidence may be used to corroborate the victim's allegation that otherwise would be inadmissible during trial. Independent evidence does not include the opinions of mental health professionals. 05 Thus, this subsection only applies to charges in which the original period under 800 or 801 06 has run, and it only tolls such statutes of limitation where all the criteria are met. See Cal. 07 Pen. Code 803(g)(2)(A), (B), and (C). 08 In evaluating a similar provision of 803, the Supreme Court held that the critical 09 question in this context is whether "the amendment in question became effective after the 10 statute of limitations expired." Renderos, 469 F.3d at 795 (citing Stogner, 539 U.S. at 61811 19). "[A] law enacted after expiration of a previously applicable limitations period violates 12 the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution." 13 Stogner, 539 U.S. at 632-33. However, the State is not prevented "from extending time limits 14 for future offenses, or for prosecutions not yet time barred." Id. at 632. 15 Here, the statute extending the limitations period went into effect in January 1994 16 four years before petitioner committed the 1998 offenses. The State's extension of the six17 year statute of limitations was therefore permissible as it was an extension of time for a future 18 offense (one not yet committed) and for a prosecution that was not yet time barred (again, 19 because the crime had not yet been committed). See id. at 618-19. See also People v. 20 Robertson, 113 Cal.App.4th 389, 309-310 (2004) (upholding the constitutionality of 803(g) 21 on the ground that "the statute of limitations in count I had not expired when this section went 22 into effect in 1994, the defendant was properly prosecuted under this new statute extending REPORT AND RECOMMENDATION - 13 01 the statute of limitations") (citing Stogner, 539 U.S. at 618); Summers v. Adams, 2010 WL 02 358963 (C.D. Cal. Jan. 7, 2010) (unpublished) (the same). 03 In addition, petitioner appears to misunderstand the relevant period of limitations as he 04 concedes in his second amended petition that only five years and eight months had elapsed 05 between the time he was accused and arrested for the crimes against J.S. (April 19, 2008) and 06 the time he was charged with those crimes (December 30, 2003). (See Dkt. 38 at 24.) 07 Because the initial six-year statute of limitations period under 800 had not yet run when 08 petitioner was charged for the crimes against J.S, it does not appear to have been necessary to 09 apply the tolling provision in 803(g). 10 Regardless, this Court cannot conclude under either analysis that the California 11 Supreme Court's decision was contrary to or an unreasonable application of clearly 12 established Supreme Court law as such case law supports the holding that 803(g) is 13 constitutionally valid when applied to unexpired statutes of limitations. The Court declines 14 petitioner's invitation to revisit the state court's holding in Robertson on the same grounds, as 15 we are bound by the U.S. Supreme Court's decision in Stogner. (See Dkt. 38 at 11.) I 16 therefore recommend the Court find that petitioner's Ex Post Facto Clause challenge is 17 without merit. 18 19 3. Due Process Clause Violation (Cal. Pen. Code 803(g)) Petitioner contends that even if this Court finds 803(g) constitutional, the 20 prosecution violated his federal due process rights when it failed to "clearly and convincingly 21 corroborate the victim's allegation." (Dkt. 38 at 11-15.) Respondent, citing Renderos, asserts 22 this claim is without merit on the ground that "[n]o clearly established Supreme Court REPORT AND RECOMMENDATION - 14 01 authority requires a state to provide corroborating evidence of a victim's account in order to 02 toll or extend the statute of limitations for charging an offense." (Dkt. 41 at 12.) Petitioner 03 properly presented this claim to the California Supreme Court and it was summarily denied. 04 This Court therefore conducts an independent review of the record to determine whether the 05 state courts erred in its application of controlling federal law. See Delgado, 223 F.3d at 982. 06 Petitioner and respondent both rely upon the Supreme Court's decision in In Re 07 Winship for the proposition that the due process clause requires a specific quantum of proof. 08 (See id. and Dkt. 38 at 12.) The Court in Winship addressed the level of proof required to 09 convict a juvenile offender in juvenile court, but limited its holding to whether such elements 10 needed to be proven beyond a reasonable doubt. 397 U.S. 358, 364 (1970). Respondent's 11 reliance upon Renderos also appears misplaced, as the petitioner in that case claimed that 12 because the California courts have treated statute of limitations as an element of the offense, 13 they must also be proven beyond a reasonable doubt. 469 F.3d at 796-97. Petitioner in this 14 case contends there was insufficient evidence to corroborate the victim's allegations based 15 upon the clear and convincing evidence standard set forth in 803(g). (See Dkt. 38 at 14.) 16 Petitioner fails to identify, and this Court is not aware of, any U.S. Supreme Court 17 precedent that either identifies the appropriate evidentiary standard, or even assuming the 18 "clear and convincing evidence" standard is appropriate, defines the meaning of that standard 19 in the statute of limitations context. In particular, what is unclear from the statute and relevant 20 case law is what standard of review applies in cases such as this one, where both victims 21 reported the incidents when they were under 21 years of age. 22 REPORT AND RECOMMENDATION - 15 01 The Court in Renderos held the preponderance of the evidence standard is appropriate 02 when addressing tolling provisions. The Ninth Circuit explicitly stated there that "[t]he 03 findings necessary to trigger 803(g) do not fall within the due process penumbra expounded 04 in In Re Winship, and no subsequent case has so expanded it." Renderos, 469 F.3d at 797 05 (citing In Re Winship, 397 U.S. at 364 and United States v. Gonsalves, 675 F.2d 1050, 1054 06 (9th Cir. 1982) (holding that the [a] major reason for adhering to the `reasonable doubt' 07 standard is absent . . . when the evidence offered to prove a defense is unrelated to the issue of 08 guilt.") Petitioner claims the use of the "clear and convincing" evidence standard is 09 appropriate, and the state courts appear to concur. See People v. Mabini, 92 Cal.App.4th 654, 10 659-63 (2001); People v. Preciado, 2004 WL 2153627 1, *8 (Cal. App. 2004) (unpublished). 11 Because petitioner's claim fails under either standard, we address it under the stricter clear 12 and convincing evidence standard. In so doing, the Court looks to the California state courts 13 for a workable definition of "clear and convincing" evidence in this context. (See id. at 1214 13.) 15 The California Court of Appeal has acknowledged that it has provided varying 16 definitions of "clear and convincing evidence" under 803(g), and as a result, "the proper 17 meaning of `clear and convincing evidence' can be settled only by our Supreme Court," 18 which has not yet considered the issue. Mabini, 92 Cal.App.4th at 660. Despite the slight 19 variations in the definitions set forth by the California Court of Appeal, however, the state 20 court has consistently found that evidence that a defendant "committed [other] offenses of the 21 character charged in the information against the victim whose testimony is being 22 corroborated" can constitute "independent" and "clear and convincing" corroboration under REPORT AND RECOMMENDATION - 16 01 803(g)'s standard of proof. Preciado, 2004 WL 2153627 at *8. In fact, the California 02 Court of Appeal has held that even uncharged sexual abuse, if it was sufficiently similar to the 03 charged acts, may be used to corroborate alleged sexual abuse under 803(g), because "the 04 precise probative value to be accorded this evidence will depend on various considerations, 05 such as the frequency of the charged acts and their similarity and temporal proximity to the 06 charged acts." People v. Yovanov, 69 Cal.App.4th 392, 404 (1999) (noting that it "need not 07 decide whether the evidence of [the defendant's] uncharged sexual misconduct, standing 08 alone, would constitute clear and convincing corroborative evidence. . . ."); Mabini, 92 09 Cal.App.4th at 659 (subsequently holding that "such evidence, if credited by the trier of fact, 10 may standing alone constitute independent evidence that clearly and convincingly 11 corroborates the victim's allegation.") 12 For example, the court held in Mabini that where the uncharged offenses occurred at 13 the same location, during roughly the same time period, the victims "were similar in age when 14 they were molested," and "the offenses involved similar behavior" by defendant, the evidence 15 of the defendant's molestation of other victims provided sufficient corroboration of the 16 charged offenses under 803(g)'s standard of proof. Mabini, 92 Cal.App.4th at 659. See 17 also Preciado, 2004 WL 2153627 at *8 (holding that although evidence that defendant abused 18 his male child almost a decade after he abused his female child may not be sufficient 19 corroboration of the female child's allegations, an admission by defendant of molestation 20 "during the very period she says the charged offense happened" is "powerful" evidence that 21 clearly and convincingly corroborates the victim's allegation under 803(g)). 22 REPORT AND RECOMMENDATION - 17 01 Similarly, this Court finds that the circumstances of petitioner's molestation of M.M., 02 a charged offense that petitioner does not challenge in these proceedings, were sufficiently 03 similar to J.S.'s molestation allegations to provide "independent" and "clear and convincing" 04 corroboration under 803(g)'s standard of proof even though the offenses took place 05 approximately five years apart. See Mabini, 92 Cal.App.4th at 659. Specifically, both M.M. 06 and J.S. were thirteen-year-old boys at the time of the offenses; petitioner asked both victims' 07 parents for permission to "hire" the boys to do some work around petitioner's house and/or 08 flea market in exchange for money; both victims allege that petitioner initiated the 09 molestation when they were alone with petitioner near his living room couch; and both 10 victims allege that the molestation began with petitioner silently removing their pants and 11 rubbing their penises with one hand. (See RT 24-113; RT at 333-370.) As in Mabini, 12 petitioner's molestation of M.M. and J.R. "shared many similarities," and this Court 13 concludes that J.S.'s molestation allegations were clearly and convincingly corroborated by 14 the uncontested evidence of petitioner's molestation of M.M. Mabini, 92 Cal.App.4th at 659. 15 Accordingly, even if the Due Process Clause requires the state courts to find "clear 16 and convincing" evidence to collaborate J.S.'s molestation allegations under 803(g)'s 17 standard of proof, there was ample evidence in the record to satisfy this requirement. I 18 therefore recommend the Court find that petitioner's due process claim is without merit. 19 20 4. Fifth, Sixth, and Fourteenth Amendment Violations Petitioner contends the trial court violated his Fifth, Sixth and Fourteenth Amendment 21 rights and the Supreme Court's holding in Blakely v. Washington, 542 U.S. 296 (2004), by 22 imposing consecutive and upper terms based upon facts not found by the jury. (Dkt. 38 at 15- REPORT AND RECOMMENDATION - 18 01 21.) Respondent asserts that petitioner was properly sentenced by the jury and that no 02 constitutional violation occurred. (See Dkt. 41 at 13-14.) 03 Petitioner properly presented this claim to the California Supreme Court and it was 04 summarily denied. This Court therefore conducts an independent review of the record to 05 determine whether the state courts erred in its application of controlling federal law. See 06 Delgado, 223 F.3d at 982. 07 08 A. Sentence with Consecutive Terms Petitioner was sentenced to consecutive indeterminate terms of fifteen years to life on 09 Counts I and II, totaling an indeterminate term of thirty-years-to-life. 10 The Sixth Amendment to the U.S. Constitution, applicable to the states through the 11 Fourteenth Amendment, guarantees a criminal defendant the right to a trial by jury. Duncan 12 v. Louisiana, 391 U.S. 145, 149-50 (1968). Ten years ago, the Supreme Court explained that 13 this right extends to any fact finding used to enhance a criminal defendant's sentence above 14 the statutory maximum for charged offense. Apprendi v. New Jersey, 530 U.S. 466, 490 15 (2000). "Other than the fact of a prior conviction, any fact that increases the penalty for a 16 crime beyond the prescribed statutory maximum must be submitted to a jury, and proved 17 beyond a reasonable doubt." Id. Five years later, the Supreme Court explained in Blakely 18 that "the statutory maximum for Apprendi purposes is the maximum sentence a judge may 19 impose solely on the basis of the facts reflected in the jury verdict or admitted by the 20 defendant. 542 U.S. at 303 (internal quotations omitted). 21 Here, petitioner claims the trial court's decision to impose consecutive rather than 22 concurrent terms for his convictions on Counts I and II violated his U.S. Constitutional rights REPORT AND RECOMMENDATION - 19 01 under Blakely. First and foremost, since petitioner's trial, the Supreme Court has held that the 02 Sixth Amendment permits states to assign the question of consecutive versus concurrent 03 sentencing to judges rather than juries. Oregon v. Ice, --- U.S. ----, 129 S.Ct. 711, 714-15 04 (2009) (upholding the authority of the States to follow the common-law tradition of allowing 05 judges to decide whether to assign consecutive or concurrent sentences to defendants). See 06 also Blakely, 542 U.S. at 309 (holding that a defendant does not have a legal right to 07 concurrent sentencing which "makes all the difference insofar as judicial impingement upon 08 the traditional role of the jury is concerned."). See e.g., Cacoperdo v. Demosthenes, 37 F.3d 09 504, 507 (9th Cir. 1994) ("The decision whether to impose sentences concurrently or 10 consecutively is a matter of state criminal procedure and is not within the purview of federal 11 habeas corpus."); accord Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002) ("[b]ecause the 12 trial court actually had absolute discretion to impose either consecutive or concurrent 13 sentences[,] . . . neither an alleged abuse of discretion by the trial court in choosing 14 consecutive sentences, nor the trial court's alleged failure to list reasons for imposing 15 consecutive sentences, can form the basis for federal habeas relief.") 16 Even if petitioner's claim is cognizable in this case, it is without merit because 17 California law does not require any factual findings to impose consecutive terms. See e.g., 18 People v. Black, 41 Cal.4th 799, 820-21 (2007), cert. denied, 128 S.Ct. (2008) (holding "that 19 imposition of consecutive terms under section 669 does not implicate a defendant's Sixth 20 Amendment rights."). 21 Accordingly, the trial court's decision to assign petitioner to consecutive rather than 22 concurrent sentences was constitutional and consistent with Supreme Court case law. REPORT AND RECOMMENDATION - 20 01 02 B. Alleged "Upper Term" Sentence Petitioner also contends the trial court erred when it sentenced petitioner to the upper 03 term instead of the middle term on Count I, in violation of his Sixth Amendment rights under 04 Blakely. (See Dkt. 38 at 18-19.) While respondent's answer addressed this claim with regard 05 to Counts III-V, his argument is generally correct. (See Dkt. 41 at 14.) 06 Petitioner was not sentenced to an upper term. He was sentenced pursuant to the 07 statutory presumption set forth in Cal. Pen. Code 667.61 based upon facts submitted to the 08 jury. While many of California's criminal sentencing statutes do have lower, middle, and 09 upper terms, the statute under which petitioner was sentenced only includes two statutorily 10 mandated sentencing options. California law mandated petitioner's fifteen-years-to-life term 11 on Count I based upon the jury's findings and this did not constitute an upper term sentence. 12 It was, in fact, the lower term under 667.61. Consequently, petitioner's claim does not 13 implicate his Sixth Amendment rights under Supreme Court precedent as he was sentenced at 14 the lower end of a statutorily mandated term. See also United States v. Booker, 543 U.S. 220, 15 233 (2005) (the Supreme Court "has never doubted the authority of a judge to exercise broad 16 discretion in imposing a sentence within a statutory range.") 17 I therefore recommend the Court find that trial court's decision to assign petitioner to 18 the statutory sentence of fifteen-years-to life was constitutional and consistent with Supreme 19 Court law. 20 In sum, the California Supreme Court's decision regarding both of petitioner's Blakely 21 claims was not contrary to nor an unreasonable application of clearly established federal law. 22 REPORT AND RECOMMENDATION - 21 01 02 03 5. Speedy Trial Violation A. Sixth Amendment Petitioner contends that his Sixth Amendment right to a speedy trial was violated 04 when the State waited almost six years to file charges against him for the 1998 offenses. (See 05 Dkt. 38 at 24-29.) Respondent contends the trial court's denial of petitioner's pretrial motion 06 to dismiss on this ground, as well as the California Court of Appeal's decision regarding the 07 same issue, were both reasoned decisions consistent with clearly established Supreme Court 08 precedent. (See Dkt. 41 at 15-18.) 09 10 11 12 13 14 15 16 17 18 19 20 21 22 The delay is a long one from 1998 to 2003, but in the circumstances, one, there's been no showing whatsoever of prejudice to the defendant beyond general allegations with regard to the loss of memory and possible witness unavailability. And there's a compelling justification for the delay in the belated filing of the complaint based on the 1998alleged 1998 crimes, that is, that the charges involving another In addressing this issue the California Court of Appeals found as follows: Defendant contends his convictions involving J.S. and the multiple-victim enhancement must be reversed because the delay of five years eight months between his initial arrest and release in April 1998 and the filing of the complaint and arrest warrant in December 2003 violated due process and deprived him of the ability to defendant against J.S.'s accusations. We disagree. Defendant raised this issue in his section 995 motion. The trial court denied the motion, finding: "With regard to the speedy trial arguments, after the '98 arrest no charges were filed. So under the rule of [United States v. Marion (1971) 404 U.S. 307, 318-320. . .] for purposes of the 6th Amendment, [Barker v. Wingo (1972) 407 U.S. 514. . .] issue, you look at the delay after the complaint was refiled. I will point out there is no declaration to support any of the allegations in the motion or the opposition, but I'm going to assume the facts as stated in the various papers. REPORT AND RECOMMENDATION - 22 01 02 03 04 05 06 07 08 09 victim were in the meantime filed. And that's sufficient justification given the lack of any proved prejudice to justify the delay." Defendant claims his 1998 arrest triggered his Sixth Amendment speedy trial right. We disagree. The United States Supreme Court has defined the point at which the federal speedy trial right begins to operate: " `[I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.' " (People v. Martinez (2000) 22 Cal.4th 750, 755, quoting United States v. Marion, supra, 404 U.S. at p. 320 [30 L.Ed.2d at p. 479], italics added.) In this case, defendant had been arrested in 1998 but he was not held to answer any criminal charge. Thus, his federal speedy trial right was not violated. 10 (Dkt. 43, LD 4 at 8-9.) 11 The California Court of Appeals is correct. While Marion involved a claim of pre-- 12 indictment delay, it and subsequent Supreme Court cases make clear that the length of time 13 between a dismissal and reindictment is excluded from the length of delay considered under 14 the speedy trial clause of the Sixth Amendment. See United States v. Loud Hawk, 474 U.S. 15 302, 311 (1986). After dismissal of the charges, the Court concluded, "`a citizen suffers no 16 restraints on his liberty and is [no longer] the subject of public accusation: his situation does 17 not compare with that of a defendant who has been arrested and held to answer.'" Id. 18 (quoting United States v. MacDonald, 456 U.S. 1, 9 (1982)). Although such defendants may 19 still be the subject of some public suspicion, because the government's desire to prosecute 20 them remains a matter of public record, their liberty remains unimpaired and they are "in the 21 same position as any other subject of a criminal investigation." Id. at 311. Thus, the Court in 22 Loud Hawk made clear that the distinction between a citizen against whom charges have been REPORT AND RECOMMENDATION - 23 01 dismissed and one "who has been arrested and held to answer" is central to the speedy trial 02 inquiry, because "when defendants are not incarcerated or subjected to other substantial 03 restrictions on their liberty, a court should not weigh that time towards a claim under the 04 Speedy Trial Clause." Id. at 312. See also Marion, 404 U.S. at 319 (making a similar 05 distinction). 06 Because petitioner was not held to answer for any charges, there was no speedy trial 07 violation under the Sixth Amendment. The California courts' decision to deny relief as to this 08 claim was therefore consistent with and a reasonable application of clearly established 09 Supreme Court law. 10 11 B. Due Process Petitioner contends that the prosecution's failure promptly to pursue charges based 12 upon his 1998 arrest violated his federal due process rights, because "actual prejudice" 13 resulted from the delay. (See Dkt. 38 at 29-33.) Specifically, he claims that his "key eye 14 witness passed away before the prosecution did file these charges," and she "would have 15 contradicted [J.S.]'s testimony and corroborated Petitioner's assertions that [J.S.] was lying. 16 She was physically present on the day Joseph was at Petitioner's home." (Id. at 32.) 17 In his declaration, petitioner asserts that his elderly next door neighbor, Doris Fedor, 18 was present at petitioner's house on April 19, 1998, at the time of the alleged offense. (Id., 19 Exh. E at 1-3.) Petitioner states, "Ms. Fedor met me in the driveway and told me she was not 20 feeling well, she had been having health issues lately and so I took this very seriously, guided 21 her to a seat on my cover[ed] front patio and stayed with her until I was sure she was okay[.]" 22 (Id. at 2.) Meanwhile, "Joseph was waiting for me and becoming impatient, wanting a tour of REPORT AND RECOMMENDATION - 24 01 the house and Ms. Fedor assured me she was feeling better so I took him inside. . . ." (Id.) 02 Petitioner asserts that he gave J.S. a tour of his house and they each got a soda from the 03 kitchen, but "[w]e were in the house no more than ten minutes" while Ms. Fedor sat outside 04 on the front porch. (Id. at 3.) He states that Ms. Fedor passed away on Thanksgiving Day in 05 2002. (See id. at 4.) Although petitioner also attaches a declaration from Doris Fedor's 06 daughter, Wendy Fedor, her declaration does not include any information regarding her 07 mother's activities or whereabouts on April 19, 1998. It simply expresses a belief that "if my 08 mom was alive today I know she would gladly testify on [petitioner]'s behalf" because she 09 had never voiced any concerns about petitioner's behavior. (Id., Exh. M at 4.) 10 Petitioner first presented his due process claim concerning Ms. Fedor's potential 11 testimony to the California Supreme Court on March 28, 2008, but that petition was 12 summarily denied. (See Dkt. 43, LD 8 and LD 9.) Thus, the California courts failed to issue 13 a reasoned decision on this issue, and this Court must independently review the record and 14 Supreme Court law to determine whether the state courts' denial of petitioner's claim was 15 reasonable. See Delgado, 223 F.3d at 982. 16 The Supreme Court has held that pre-indictment delay following dismissed charges 17 may be scrutinized under the Fifth Amendment's Due Process Clause. MacDonald, 456 U.S. 18 at 7. The Supreme Court and this Circuit have established a two-prong test for determining if 19 a pre-indictment delay rises to the level of a denial of due process. First, the defendant has 20 the heavy burden of proving that actual, non-speculative prejudice resulted from the delay. 21 United States v. Lovasco, 431 U.S. 783, 789 (1977); United States v. Moran, 759 F.2d 777, 22 782 (9th Cir. 1985). Second, the court must balance the government's reasons for causing the REPORT AND RECOMMENDATION - 25 01 delay against the demonstrated prejudice to the defendant. Lovasco, 431 U.S. at 789-90; 02 Moran, 759 F.2d at 781-82. 03 Here, petitioner's due process claim fails because he has not shown that actual, non- 04 speculative prejudice resulted from the absence of Ms. Fedor's testimony at his trial. Aside 05 from petitioner's bare assertions, there is no evidence in the record that Ms. Fedor was 06 physically present at petitioner's house on April 19, 1998, when J.S. was there. There is also 07 little evidence in the record to establish that Ms. Fedor, if available to testify at all, would 08 have testified on his behalf. See United States v. Wallace, 848 F.2d 1464, 1470 (9th Cir. 09 1988) (finding no actual prejudice where there was little indication in the record that the 10 witness would have testified favorably for the defendant, if he had testified at all). 11 In any event, even assuming arguendo that Ms. Fedor could and would have testified 12 on petitioner's behalf, it would not have changed the jury's verdict. As discussed above, 13 petitioner admits that he left Ms. Fedor outside on the front porch of his house for 14 approximately ten minutes, and was alone with J.S. inside his house, where the alleged 15 molestation took place. He does not allege that Ms. Fedor accompanied him inside or even 16 stepped inside the house when J.S. was present. As a result, petitioner is unable to show how 17 Ms. Fedor was a "key eye witness" to the events that would have contradicted J.S.'s 18 testimony about the molestation, or could have corroborated petitioner's assertions that J.S. 19 was lying. 20 Accordingly, petitioner's assertion of prejudice is merely speculative. Without more, 21 an allegation that a witness' testimony was lost is not enough. Because we conclude that 22 petitioner failed to establish actual prejudice under the first prong of the test, we do not REPORT AND RECOMMENDATION - 26 01 consider the reasons for and the length of the delay under the second prong. See id. The 02 California Supreme Court's decision to deny relief as to this claim was therefore consistent 03 with and a reasonable application of clearly established Federal law. 04 05 6. Ineffective Assistance of Counsel Petitioner contends his trial counsel was ineffective when he failed to investigate the 06 facts surrounding the 1998 offenses. (See Dkt. 38 at 33-37.) If trial counsel had properly 07 investigated this case, petitioner claims he would have been able to demonstrate "actual 08 prejudice" under the Speedy Trial Act. Specifically, petitioner claims trial counsel would 09 have learned that in 1998 petitioner appeared in court with his prior attorney, Lorie Teichert, 10 on five separate occasions, and that the only eye-witness to the events involving J.S., who 11 would have exonerated petitioner, had passed away in 2002. (See id.) 12 Respondent contends petitioner's claim is without merit and while the California 13 Supreme Court denied review without comment, such decision was not contrary to or 14 involved an unreasonable application of clearly established federal law, nor was it based upon 15 an unreasonable determination of the facts. (See Dkt. 41 at 20-22.) Because there is no 16 underlying reasoned state court decision on this issue, this Court must independently review 17 the record to determine whether the California's Supreme Court's decision was reasonable in 18 light of clearly established Supreme Court law. See Delgado, 223 F.3d at 982. 19 In order to establish an ineffective assistance of counsel claim, petitioner must 20 demonstrate under Strickland v. Washington: (1) "that counsel's performance was deficient" 21 and (2) "that the deficient performance prejudiced the defense." 466 U.S. 668, 687 (1984). 22 REPORT AND RECOMMENDATION - 27 01 As petitioner is required to satisfy both prongs in order to prevail under Strickland, this Court 02 may dispose of his claim if he fails to satisfy either prong of the two-part test. Id. at 697. 03 Turning first to the "performance prong," petitioner "must show that counsel's 04 representation fell below an objective standard of reasonableness." Id. at 688. Courts must be 05 "highly deferential" to counsel's performance such that "the defendant must overcome the 06 presumption that, under the circumstances, the challenged action might be considered sound 07 trial strategy." Id. at 689 (internal quotation marks omitted). The Supreme Court in 08 Strickland recognized that an attorney's duty to provide reasonably effective assistance of 09 counsel includes the "duty to make reasonable investigations or to make a reasonable decision 10 that makes particular investigations unnecessary." Id. at 691; see also ABA Standards for 11 Criminal Justice: Prosecution Function and Defense Function 4-4.1(a) (3d ed. 1993) 12 ("Defense counsel should conduct a prompt investigation of the circumstances of the case and 13 explore all avenues leading to facts relevant to the merits of the case. . . ."). Trial counsel's 14 investigation, however, depends a great deal upon the information provided to him by 15 defendant. As noted in Strickland: 16 17 18 19 The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. 20 Strickland, 466 U.S. at 691; see also Howard v. Clark, --- F.3d ----, 2010 WL 2366012 (9th 21 Cir. Jun 15, 2010); Jones v. Wood, 114 F.3d 1002, 1011 (9th Cir. 1997). 22 REPORT AND RECOMMENDATION - 28 01 Here, based upon petitioner and his paralegal's own admissions, petitioner failed to 02 recognize the value of the allegedly exculpatory eye-witness, Doris Fedor, until almost eleven 03 years later. (See Dkt. 38, Exh. E at 4-5 and Exh. L at 2.) It is difficult to understand how 04 petitioner could fail to ask trial counsel to investigate petitioner's only defense witness, if in 05 fact she was the "key" to his defense. More importantly, no case, especially a U.S. Supreme 06 Court case, holds that defendant's trial counsel is required to extract information from his 07 client of which trial counsel is unaware. As set forth above, the burden remains on the 08 defendant to inform his trial counsel of relevant information so that he could make informed 09 and strategic decisions based upon the information provided to him. 10 Even if trial counsel had carefully investigated the 1998 molestation, it is unclear how 11 such an investigation would have assisted petitioner in this case. For example, petitioner does 12 not know whether trial counsel consulted with his 1998 attorney, or what that prior attorney 13 would have said if asked. Petitioner's 1998 attorney simply appeared with petitioner on 14 multiple occasions before a complaint had been filed against him. It is extremely unlikely 15 that she would have had any relevant knowledge to impart. Moreover, petitioner does not 16 present any evidence, aside from a bare assertion that Ms. Fedor was an eyewitness whose 17 testimony would have exonerated him. As discussed in Section V.5.B above, this statement is 18 pure speculation and does not constitute actual prejudice with regard to his due process claim. 19 Similarly, without more evidence to support his contention here, petitioner is unable to satisfy 20 the prejudice prong of Strickland. Because petitioner fails to show that the state court's 21 decision on this issue was contrary to or an unreasonable application of Strickland, I 22 recommend the court deny this claim as well. REPORT AND RECOMMENDATION - 29 01 02 VI. CERTIFICATE OF APPEALABILITY The federal rules governing habeas cases brought by state prisoners were recently 03 amended to require a district court that denies a habeas petition to grant or deny a certificate 04 of appealability in the ruling. See Rule 11(a), Rules Governing 2254 Cases, 28 U.S.C. 05 2254 (effective December 1, 2009). Previously, the Ninth Circuit held that a prisoner was 06 not required to obtain a certificate of appealability from administrative decisions, such as a 07 denial of parole. See White v. Lambert, 370 F.3d 1002, 1010 (9th Cir. 2004); Rosas v. 08 Nielsen, 428 F.3d 1229, 1231-32 (9th Cir. 2005). 09 In Hayward the Ninth Circuit overruled "those portions of White and Rosas which 10 relieve a prisoner from obtaining a certificate of appealability." Hayward, 603 F.3d at 554. A 11 certificate of appealability is now required to "confer jurisdiction on [the Ninth Circuit] in an 12 appeal from a district court's denial of habeas relief in a 2254 case, regardless of whether 13 the state decision to deny release from confinement is administrative or judicial." Id. 14 In order to obtain a certificate of appealability, a petitioner must make "a substantial 15 showing of the denial of a constitutional right." See 28 U.S.C. 2253(c)(2). Specifically, if a 16 court denies a petition, a certificate of appealability may only be issued "if jurists of reason 17 could disagree with the district court's resolution of his constitutional claims or that jurists 18 could conclude the issues presented are adequate to deserve encouragement to proceed 19 further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). See also Slack v. McDaniel, 529 20 U.S. 473, 484 (2000). While the petitioner is not required to prove the merits of his case, he 21 must demonstrate "something more than the absence of frivolity or the existence of mere 22 good faith on his . . . part." Miller-El, 537 U.S. at 338. REPORT AND RECOMMENDATION - 30 01 For the reasons set forth in the discussion of the merits in my Report and 02 Recommendation, jurists of reason would not find the result recommended in this case 03 debatable. Accordingly, I recommend that the Court deny petitioner a certificate of 04 appealability on the issue of whether the state courts' rejection of petitioner's claims was 05 contrary to, or involved an unreasonable application of, clearly established Federal law as 06 determined by the Supreme Court of the United States, or resulted in a decision that was 07 based on an unreasonable determination of the facts in light of the evidence presented. 08 09 VII. CONCLUSION For all of these reasons, I recommend this Court find that petitioner's second amended 10 petition fails on the merits. Accordingly, I recommend the Court find that the California 11 courts' decisions denying relief as to petitioner's claims were not contrary to, or an 12 unreasonable application of, clearly established Federal law. The Court should therefore enter 13 an Order approving and adopting this Report and Recommendation, denying the second 14 amended petition, and directing that judgment be entered dismissing this action with 15 prejudice. 16 This Report and Recommendation is submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. 636(b)(l). Within fourteen (14) 18 days of being served with this Report and Recommendation, any party may file written 19 objections with this Court and serve a copy on all parties. Such a document should be 20 captioned "Objections to Magistrate Judge's Report and Recommendation." Any response to 21 the objections shall be filed and served within fourteen (14) days after service of the 22 objections. Failure to file objections within the specified time may waive the right to appeal REPORT AND RECOMMENDATION - 31 01 the District Court's Order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). A proposed 02 Order accompanies this Report and Recommendation. 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 DATED this 4th day of August, 2010. JOHN L. WEINBERG United States Magistrate Judge A REPORT AND RECOMMENDATION - 32

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