Lincoln vs. Sacramento County Probation, et al.

Filing 21

ORDER signed by District Judge Barbara J. Rothstein on 04/13/09 ORDERING that the 1 Petition for Writ of Habeas Corpus is DENIED. This case is DISMISSED. CASE CLOSED (Benson, A.)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 record, the court hereby finds and rules as fo llows. 24 25 BACKGROUND Petit ioner Timothy Lincoln is current ly on state probation under the supervisio n of Sacramento County Probation. He filed a petit ion for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petit ioner was found guilt y by a jury o f three counts of lewd and lascivious touching of his daughter. He contends that his convict ion should be overturned because there were Sixth Amendment vio lations of his Confrontation Clause rights and because he was denied effect ive assistance of counsel. After considering the petit ion, respondent's answer, and the balance o f the IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA TIMOTHY LINCOLN, ) ) CASE NO. 07-CV-00689 ) v. ) ORDER SACRAMENTO COUNTY ) PROBATION, et al., ) ) Respondent. ) ____________________________________________________________ Petit ioner, INTRODUCTION

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The facts of this case are set forth in the Third District Court of Appeal o f California's decisio n, the relevant portion of which is summarized as fo llows: Defendant's wife, Elizabeth, was talking to their daughter, Christ ie (who was four years old at the time), about inappropriate touching. During this conversation Christ ie stated that her father had touched her in her private area "many" times. Elizabeth confronted defendant who admitted he had "rubbed" Christ ie five different times. He denied penetrating Christie's vagina. Thereafter, Sacramento County Deputy Sheriff Paul Jbeily interviewed Christ ie in the presence of her mother and asked Christ ie to point to the area where her father had touched her. Christ ie "kind of spread her legs and she po inted to her vaginal area." Fo llowing her interview wit h Deputy Jbeily, Christie was interviewed at the Mult i-Disciplinary Interview Center (MDIC). During the interview, Christ ie said, "My daddy touched me in the private area" and explained it happened "a hundred times" when she was three years old and once when she was four years old. She also claimed that her father had touched his "own private" area in her presence. At trial, Christ ie testified about her father touching her. A videotape of the Christ ie's interview at the MDIC was also played for the jury and a transcript provided. Christ ie testified that she told the truth in the MDIC interview. People v. Lincoln, 2006 WL 11337 (Cal. App.3 Dist., Jan. 3, 2006).

16 17 18 19 20 21 22 23 24 25 On July 6, 2004, the trial court sentenced pet it ioner to three years on count one, and two years on each of counts two and three, for an aggregate term o f seven years in state prison. Execut ion of the sentence was suspended and petitio ner was placed on 12 years of formal 2 On February 11, 2004, a jury found petit ioner guilt y o f three counts of lewd and lascivious touching o f his daughter, invo lving three separation incidents, in vio lat ion of California Penal Code § 288(a). Petitioner filed a mot ion for a new trial on the grounds that his constitutional rights had been vio lated by the admissio n of Christ ie's MDIC videotaped interview into evidence. The motion was denied. The pet itioner then renewed his mot ion for a new trial assert ing ineffect ive assistance of counsel. This mot ion was also denied.

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probation with the condit ions that he serve one year in the county jail, participate in both individual and family counselling, and register as a sex offender. Petit ioner appealed to the California Court of Appeal, Third District, asserting the same grounds as he assets here. The Third District Court of Appeal affirmed pet it ioner's convict ion and sentence. People v. Lincoln, 2006 WL 11337 (Cal. App.3 Dist., Jan. 3, 2006). Petit ioner timely pet it ioned the California Supreme Court for review and raised the same issues. Review was denied on March 29, 2006. Petit io ner has not filed any state habeas corpus

8 9 10 11 12 13 14 15 1. 16 17 18 19 20 21 22 23 24 25 the state court's decisio n was contrary to, or invo lved an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or if the decisio n was based on an unreasonable determinat ion of the facts in light of the evidence presented. 28 U.S.C. § 2254(d) 3 A. Standard of Review Under the Ant i-Terrorism and Effect ive Death Penalt y Act ("AEDPA"), a habeas corpus petit ion may be granted with respect to any claim adjudicated on the merits in state court only if 2. (Dk. #1 at 2). DISCUSSION He was denied effective assistance of counsel. His Sixt h Amendment Confrontation Clause rights were vio lated, and petit ions and his federal claims have been exhausted. Petit ioner timely filed his federal habeas petit ion with the United States District Court in the Eastern District of California on April 10, 2007. (Dkt. #1). The case was transferred to this court on January 22, 2009. (Dkt. #20). The matter is now ready for review. GROUNDS FOR RELIEF Petit ioner claims that he is ent it le to relief because:

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(emphasis added). The AEDPA established a "highly deferent ial standard for evaluating statecourt rulings." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (internal quotations omitted). Only if the state court's decisio n does not meet the criteria set forth in § 2254(d)(1) does this court conduct a de novo review of the Petit io ner's habeas claims. Panetti v. Quarterman, 551 U.S. 930 (2007). Under the "contrary to" clause, a federal habeas court may grant the writ only if the state court arrives at a conclusio n opposite to that reached by the Supreme Court on a question of law,

8 9 10 11 12 13 14 15 Lockyer v. Andrade, 538 U.S. 63, 69 (2003). 16 17 18 19 20 21 22 23 24 25 only evidence that petit ioner had touched his "own private area"--evidence of petit ioner's sexual intent in touching his daughter. (Dk. # 17 at 7). Petit io ner also asserts that the MDIC interview formed the so le evidence for one of the three counts of lewd and lascivious touching for which 4 B. The Confrontation Clause Petit ioner asserts that the trial court's admissio n into evidence of Christ ie's MDIC videotaped interview vio lated his Confrontation Clause rights. Petit ioner concedes that he touched his daughter inappropriately but claims he did not do so with the requisite sexual intent. (Dkt. #1 at 17). Petit ioner contends that the admissio n of the videotaped interview had a "substant ial and injurious effect or influence in determining the jury's verdict" because it was the or if the state court decides a case different ly than the Supreme Court has on a set of materially indist inguishable facts. See Williams v. Taylor, 529 U.S. 362 (2000). Under the "unreasonable applicat ion" clause, a federal habeas court may grant the writ only if the state court ident ifies the correct governing legal principle from the Supreme Court's decisio ns but unreasonably applies that principle to the facts of the prisoner's case. Id. The Supreme Court has made clear that a state court's decisio n may be overturned only if the applicat ion is "objectively unreasonable."

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he was convicted. Petit ioner raised this claim on direct review in state court. The Court of Appeal found pet it ioner's claim wit hout merit.1 The Court found that: [B]ecause [Christ ie] appeared at trial and was subject to crossexaminat ion, there was no Confrontation Clause violat ion in the admissio n of her out-of-court statements made in the MDIC interview. People v. Lincoln, 2006 WL 11337 at *4. The state court's adjudicat ion of petit ioner's Confrontational Clause claim is consistent with applicable federal law on this issue. Christ ie took the stand and testified about the sexual

8 9 10 11 12 13 14 15 Therefore, petit ioner argues, when the court in Crawford suggested that Confrontation Clause 16 17 18 19 20 21 22 23 24 25 called to the stand by the prosecutor, but was examined only on general background informat ion
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contact with petit ioner. Petitioner's counsel had the opportunit y to cross-examine Christ ie regarding the molestation. As such, the use of her prior out-of-court statements did not vio late petit ioner's Confrontation Clause rights.2 Crawford, 541 U.S. at 59, fn. 9. Nevertheless, petit ioner argues that the Confrontation Clause is not concerned solely wit h the right of cross-examinat ion, rather it enco mpasses the right of defendant to face his accuser and to require his accuser to level her accusat ion in open court in the presence of the jury.

concerns fade away when hearsay declarants testify, the court is referring to circumstances when the declarant testifies to the substance of the out-of-court statements. As such, because portions of Christ ie's videotaped interview were admitted into evidence that did not overlap with her incourt testimony, petit ioner's Confrontation Clause rights were vio lated. In support of his interpretation of Cra wford, petit ioner points to the Washington State Supreme Court case, State v. Rohrich, 132 Wn.2d 472 (1997). In Rohrich, the child-vict im was

The California Supreme Court adopted this reasoning by issuing a silent denial. See Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002) citing YIst v. Nunnemaker, 501 U.S. 797, 803-804 (1991).
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Respondent concedes that Christie's MDIC interview was testimonial in nature.

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and not on the sexual abuse allegat ions which were the subject of the lit igat ion.3 Id. at 474-75. Thereafter, the child's hearsay statements relat ing to the sexual abuse were admitted into evidence. Id. at 475. The Washington Supreme Court found that this procedure violated the Confrontation Clause. Id. at 481. The Court held that "[t]he opportunit y to cross-examine means more than affording the defendant the opportunit y to hail the witness to court for examinat ion. It requires the State to elicit the damaging testimo ny fro m the witness so that defendant may crossexamine if he so choose." Id. at 478 cit ing Shaw v. Collins, 5 F.3d 128, 132, n. 7 (5th Cir. 1993). Petit ioner also points to two other Washington cases decided after Rohrich. In State v. Clark, 139 Wn.2d 152 (1999) the Washington Supreme Court dist inguished declarants who could not recollect the subject matter of the hearsay statements from those who simply were not examined about the factual underpinnings of such statements. Thus, Clark held that the declarant must be asked specifically about the subject matter of the hearsay statements to satisfy the Confrontation Clause. Id. at 159. Further, the Court In re Pers. Restraint of Grasso, 151 Wn.2d 1 (2004) recognized its holding in Rohrich that "the opportunit y to cross-examine means more than

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simply the opportunity to hail the witness into court; the State [must] elicit the damaging testimo ny fro m the witness...[.]" Id. at 14. However, each of these cases was decided prior to the United States Supreme Court's decisio n in Cra wford, which, as noted, asserted that "when the declarant appears for crossexaminat ion at trial, the confrontation clause places no constraints at all on the use of his prior testimo nial statements." Crawford, 541 U.S. at 59, fn.9 (emphasis added). The court notes that the only federal precedent cited by pet it ioner also pre-dates Crawford.

Washington State's child hearsay statute, RCW 9A.44.120, substantially mirrors California's Section 1360.

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Petit ioner argues that this is not a case in which the witness cannot recall the alleged incident, rather this is a situation where the prosecution failed to ask Christ ie about "one specific incident of touching she described" during the MDIC interview. (Dk. # 17 at 6). In addit ion, the prosecution did not ask her about her statement that the petit ioner touched his "own private area." Id. However the petit ioner contradicts this contention in his pet ition in which he states: It is true that the prosecutor asked Christ ie about other incidents after she described the specific incident she said occurred when she was four on her first day of testimony and she replied that she could not recall. However, the prosecutor did not leave it at that; the next day he again asked her if the incident she had described the day before was the only incident of touching, to which she responded, `[n]o.' The prosecutor abrupt ly ended his examinat ion and did not question her further regarding the details of any such other incident. (Dkt. #17 at 6) . While it may be true that the prosecutor did not parse out the details o f the other

12 13 14 15 16 17 18 19 Confrontation Clause). In sum, petit ioner has failed to show that the state court decisio n reject ing 20 21 22 23 24 25 his claim based on the Confrontation Clause of the Sixth Amendment is contrary to, or an unreasonable application of, Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). C. Ineffective Assistance of Counsel To demonstrate ineffective assistance of counsel, petit ioner must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). A deficient performance is one in which 7 incidents of sexual abuse, by pet itioner's own admissio n, Christ ie did make clear during her incourt testimony that there were other incidents. Petit io ner's counsel had the opportunit y to question Christ ie about these other incidents, as well as her videotaped interview, during crossexaminat ion. Therefore, petit ioner had an adequate opportunit y to cross-examine Christ ie, thereby defeating his Confrontation Clause challenge. See United States v. Kappell, 418 F.3d 550, 556 (6th Cir. 2005) (admissio n of child-witnesses' out-of-court statements did not vio late the

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counsel made errors so serious that counsel was not funct ioning as the counsel guaranteed by the Sixth Amendment. Id. Petitioner must show that defense counsel's representation was not within the range of competence demanded of attorneys in criminal cases and that there is a reasonable probabilit y that, but for counsel's ineffect iveness, the result would have been different. Hill v. Lockhart, 474 U.S. 52, 57 (1985). Strickland and its progeny do not mandate this court act as a "Monday morning quarterback" in reviewing tactical decisio ns. Indeed, the Supreme Court admonished in Strickland, 466 U.S. at 689 (internal citations and quotation marks o mitted):

8 9 10 11 12 13 14 15 The so le disputed element during pet it ioner's trial was whether he had the requisite 16 17 18 19 20 21 22 23 24 25 demonstration of where her father touched her during the MDIC videotaped interview is not visible on screen. sexual intent when he touched his daughter. As such, petit ioner argues that the question o f where he touched his daughter is significant. Petit ioner contends that the evidence presented at trial was ambiguous on this point. At trial, the prosecutor asked Christ ie if her father touched her "where the pee comes out" of her body and she replied, "Well, he touched right over it, like right on top...[.]" People v. Lincoln, 2006 WL 11337 at *6. She described the area as her "private area," as "under her underwear," and as "between her belly button and legs." Id. Christ ie's Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after convict ion or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omissio n of counsel was unreasonable...Because of the difficult ies inherent in making the evaluat ion [of counsel's performance], a court must indulge a strong presumpt ion that counsel's conduct falls within the wide range of reasonable professio nal assistance; that is, the defendant must overcome the presumpt ion that, under the circumstances, the challenged action might be considered sound trial strategy.

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Petit ioner asserts that after the verdict in this case, Christ ie began counseling wit h a licensed family counselor who specializes in inter-family abuse. Petitioner claims that during therapy, Christ ie demo nstrated to the counselor that her father touched her in the area below her waist, but above her pubic area. Petitioner claims that had his counsel emplo yed a "trained, unbiased professional...to question Christ ie in a safe, object ive setting...prior to trial, he would have known how Christ ie would respond upon being quest ioned specifically at trial." (Dkt. #1 at 34). Petitioner argues that his counsel's failure to obtain such a statement fro m Christ ie prior to

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 trial resulted in "his need to avoid clarification from Christie at trial and thus lose the strongest form of evidence that the touching was not on Christie's genitalia." Id. Petit ioner raised this claim to the trial court in a motion for new trial, and again to the Court of Appeal and Supreme Court of California on direct appeal. It was rejected each time. Specifically, the Court of Appeal found: [T]rial counsel reasonably could have concluded he had litt le to gain and much to lose by arranging for an independent interview of C.L. The defense had been in contact with E.L. and, therefore, presumably knew of her impending testimo ny that C.L. had demonstrated to her that defendant had put his hand under her belly button and rubbed the area. The defense also presumably knew o f the MDIC interview in which C.L. stated defendant had touched her in "the private area." C.L.'s statement at the MDIC interview and the demonstration to her mother still allowed trial counsel to argue defendant did not touch C.L.'s vagina, but, rather, touched her in the area closer to her belly button, bolstering defendant's posit ion that he did not touch C.L. with the requisite sexual intent. On the other hand, if C.L. had been interviewed by an expert to determine exact ly where defendant touched her, C.L. might have indicated defendant had touched her vagina. Indeed, she so indicated to Deputy Jbeily. While defendant is correct that trial counsel would not have had to disclo se C.L.'s statement if unfavorable, counsel reasonably could have concluded that addit ional quest ioning could focus C.L.'s attention on the precise locat ion where she was touched and, therefore, she might be more likely to reveal informat ion detrimental to defendant during trial. 9

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Because trial counsel could have had these reasonable tactical reasons for failing to have C.L. interviewed, defendant's claim o f ineffect ive assistance of counsel fails. (Citat ions omitted). Lincoln, 2006 WL 11337 at *12-*13. Petit ioner responds that it was not a sound tactical decisio n to avo id learning what Christ ie would say if specifically quest ioned regarding where her father touched her. First, he contends, it is always best for trial counsel to know what a witness is likely to say, and second, even if Christ ie's responses had been unfavorable, his counsel did not need to disclose her

8 9 10 11 12 13 14 15 petit ioner argues, was at best ambiguous because the Deput y merely stated that when asked 16 17 18 19 20 21 22 23 24 25 of [the counselor's] declarat ion had been admitted into evidence." Lincoln, 2006 WL at *11. In addit ion, decisio ns related to trial strategy are given great deference under Strickland. As the Court of Appeal concluded, petit ioner's counsel had sound tactical decisio ns for failing to 10 where her father touched her, Christ ie pointed to her vaginal area, without indicating where her hand was or how she pointed. Petit ioner's claim is without merit. He has failed to show that but for counsel's alleged failure to properly investigate Christie's testimony, the outcome of his trial would have been different, as the Strickland prejudice prong requires. See 466 U.S. at 694. Both the trial court and Court of Appeal described the evidence of sexual intent as "overwhelming, even if the contents responses. Petit ioner further argues that the Court of Appeal's contention that his counsel may have made a tactical decis io n to not interview Christie so as not to "focus [Christ ie's] attention on the precise location where she was touched and, therefore, she might be more likely to reveal informat ion detrimental to defendant during trial" is purely speculat ive. Dkt. #1 at 38. Finally, petit ioner asserts that the Court of Appeal's reliance on Deputy Jbeilly's statement as evidence that petitioner touched Christie on the vagina was unfounded. Deputy Jbeilly's testimo ny,

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have Christ ie interviewed by a licensed therapist. Accordingly, pet it ioner fails to show either deficient performance or prejudice under Strickland. The state court decisio n reject ing this claim is not object ively unreasonable, and petit ioner's claim that counsel was ineffect ive must be denied. CONCLUSION Based on the foregoing discussio n, the court denies petit ioner's petit ion for writ of habeas corpus. The case is hereby dis missed.

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DATED this 13th day of April, 2009.

A

/s/ Barbara Jacobs Rothstein Barbara Jacobs Rothstein BaS.bDriatJactoCourothsdeie U. r a s ri c bs R t Ju t g n U.S. District Court Judge

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