King v. Adams et al

Filing 25

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY (Illston, Susan) (Filed on 8/26/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California

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ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS AND
DENYING CERTIFICATE OF
APPEALABILITY

Petitioner,

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v.

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No. C 11-02792-SI

ALTON A. KING,

DERRAL G. ADAMS, Warden,
Respondent.

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INTRODUCTION
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Alton A. King, a prisoner in the custody of the California Department of Corrections, filed this
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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 2008 conviction from
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the Santa Clara County Superior Court. This matter is now before the Court for consideration of the
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merits of the petition. For the reasons discussed below, the petition is DENIED.
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BACKGROUND
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I.

The Crime

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King was convicted in Santa Clara County Superior Court of continuous sexual abuse of a child
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under fourteen years in violation of California Penal Code § 288.5(a) and lewd and lascivious act on a
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child under fourteen in violation of California Penal Code § 288(a). The following factual background
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is taken from the order of the California Court of Appeal:
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D.’s Mother

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In August 1993, just before the start of the school year, D., his brother C. and their
mother moved to an apartment near their local Seventh Day Adventist Church.
Beginning on August 23, 1993, the children attended the church’s school (the Church
School). Appellant and his family attended the same church and school as D.

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United States District Court
For the Northern District of California

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Appellant used to see D. and his brother waiting at the bus stop and began giving them
rides. Subsequently, appellant’s family and D.’s family began to spend holidays together.
In addition, the boys spent at least every other weekend, and sometimes, consecutive
weekends at appellant’s home.
D. and his brother were involved in a church-sponsored youth organization called
Pathfinders. Pathfinders held weekly meetings, which began about 7 p.m. at the church.
Pathfinders’ activities included camping trips, an annual bike-a-thon, and jamborees.
D. and his family moved to Sacramento on December 26, 1996. In 2004, D.’s mother had
a conversation with D.’s brother who disclosed to her that he had been molested by
appellant. D.’s mother spoke with D. Eventually, D. admitted that appellant had
molested him. D.’s mother called her sister and then reported the matter to the San Jose
Police Department. D.’s mother said that she reported the matter, “Because we needed
to stop him from getting to somebody else’s child.”

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D.’s mother admitted that she had conducted an Internet search on appellant’s name and
discovered that appellant had been convicted of molesting other boys. She thought that
she had read something on Google or heard something that some of the other boys that
had been molested had received money from a lawsuit, but she was not sure whether it
was before or after she reported that her boys had been molested by appellant.

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Victim D.
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D. attended the Church School from fifth through seventh grade, ages 11 through 13.
[FN1] D. was the same age as appellant’s twin children, J1 and J2, and was in the same
class. D. confirmed that he was involved in Pathfinders and each week, on the day of the
meeting, D. would go to appellant’s home after school and then appellant would drive
him and his brother to church for the evening meeting. Appellant was a lead counselor
who chaperoned, transported children and helped out at events. Appellant nearly always
drove D., his brother C., J1, and J2 to the weekly Pathfinder meetings.

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FN1. The parties stipulated that D. commenced attending school on “August
23rd, 94.” However, this appears to be a misstatement by the prosecutor because
the stipulation then goes on “through June 2nd of ‘94.”

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At appellant’s home, appellant routinely molested D. on the day of the weekly
Pathfinders meeting, on the weekends when D. spent the night and on Pathfinder’s
camping trips. Appellant would fondle D.’s penis, orally copulate him, and on one
occasion sodomized him. Sometimes, appellant would have D. orally copulate him.
D. testified that appellant molested him nearly every time they were alone. However,
he described a number of specific instances of sexual abuse.

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First, when D. was in fifth grade, he was playing video games alone while sitting on the
edge of the bed in the loft playroom in appellant’s home. The other children were
playing basketball outside or watching television in another part of the house. D. was
at appellant’s house that day because there was a Pathfinders meeting that evening.
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United States District Court
For the Northern District of California

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Appellant climbed into the loft, appellant lay[ed] down on the bed behind him and
started fondling him over his clothes. D. said that after about 10 minutes, appellant left
to check on some food he was cooking. When appellant returned to the loft, he began
to fondle D. again, but this time removed D.’s pants and orally copulated him until D.
ejaculated.
D. described another incident in which appellant sodomized him. On that day, D.’s
brother had stayed at school and appellant had taken his children to the orthodontist and
left them there before returning to his house with D. In the guest bedroom, appellant
fondled and orally copulated D. After D. ejaculated, appellant went into the bathroom,
returned with lotion, which he applied to D.’s anus, and then inserted his penis into D.’s
anus. Appellant stopped after D. told him that it hurt. D. testified that since this
incident, he is bothered by the smell of lotion because it “brings back bad memories.”
D. recounted an incident that happened in Madera County, where the Pathfinders held
their annual bike-a-thon (hereafter the Chowchilla incident). While the Pathfinder’s
leader, Mr. Tupper, played the guitar and lead the children in singing songs, appellant
told D. to go to his “truck,” a four door Ford Explorer. D. got into the back seat of the
vehicle with appellant. Appellant looked around to see if anyone was coming, but did
not appear worried. Appellant fondled D. and then orally copulated him until he
ejaculated. Next, appellant removed his own clothing and had D. orally copulate him.
D. noted that this was not the first time he had orally copulated appellant.

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D. testified about an incident that happened in Napa County. This incident took place
toward the end of D.’s second year at the Church School, during a Pathfinders’ trip to
Calistoga Park (hereafter the Calistoga incident). While hiking with the group, appellant
pulled D. off to the side on a small trail and then orally copulated D. D. remembered this
trip because afterwards he broke out with a poison ivy rash around his genitals and
buttocks.
D. told the jury about another incident that he remembered happening at Mount Lassen.
D. was staying in a tent with his brother and one other boy. Appellant entered the tent
and pretended to tickle and wrestle with the boys, but actually grabbed D.’s genitals. As
the boys were falling asleep, appellant pretended to be asleep, but after awhile, appellant
started stroking D.’s penis. [FN2]
FN2. Witnesses testified at length regarding the timing of the Mount Lassen trip,
which the prosecution alleged occurred shortly after D. and his brother joined
Pathfinders in August of 1993. D.’s brother testified that he had been abused on
this trip as well. However, before trial the prosecutor informed the court that he
would not use this incident as one of the incidents involving D. Rather, the
prosecution elected to use the incident to establish a timeline and for propensity
evidence. Accordingly, the parties stipulated that the “Mount Lassen incident
will not be sought as a basis to convict the defendant on counts 1, 2, or 3.”

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D. described an occasion when he was in sixth grade, which occurred after he and his
brother had taken the bus home from school. Appellant called D. on the telephone, asked
who was home with him and if his mother was there. D. told appellant that he was home
with his brother. According to D., “[a]ll of a sudden, he was at the door.” Appellant
gave D.’s brother some money and asked him to go to the store to buy some sodas. Once
D.’s brother left, appellant masturbated D. and then orally copulated him. When D.’s
brother returned, appellant drank some soda and left quickly.

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D. remembered another incident that occurred when he was in sixth grade that took place
at church. In the 20 minutes between the end of Bible class and the church service,
appellant pulled D. into one of the youth classrooms and locked the door. The room was
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“pitch black.” Appellant directed D. to the back of the classroom, fondled D. under his
clothes and as soon as D. had an erection, appellant undid D.’s belt, unzipped D.’s pants
and orally copulated him.
According to D., when he was in seventh grade, appellant drove him to school regularly.
On one occasion, appellant reached into the back seat of the car and at every red light
fondled D. while pretending to tickle him. According to D., appellant’s children were
in the front of the car.

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D. recounted another occasion that happened while he was in seventh grade that occurred
at appellant’s house on a Pathfinders’ meeting day. D. was playing video games in the
loft when appellant entered and began to fondle him over his clothing. After a short
time, appellant went downstairs to check on something. When appellant returned to the
loft, appellant began to fondle D. under his clothing and tried to remove D.’s pants.

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United States District Court
For the Northern District of California

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D. refused, telling appellant that he did not want to do “it” anymore and that appellant
should go and molest his own children. According to D., appellant told him that he did
not do “it” to his own children. D. characterized appellant’s demeanor after this incident
as “pissed off.” D. noted that appellant left abruptly and did not speak to him for the rest
of the night.

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After this incident, temporarily, appellant stopped molesting D. for three or four weeks.
Eventually, appellant started again, but would give D. gifts or take D. to the store for ice
cream or a soda.

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D. described the next incident as having occurred in the loft area on the day of a
Pathfinders’ meeting. He was alone playing video games when appellant fondled D. by
stroking D.’s penis. The following weekend, D. was at appellant’s house where he was
watching television in the den. The other children had finished watching television and
left the room. Appellant entered the room, fondled D., orally copulated him until he
ejaculated and then left the room.
D. recalled another occasion that happened before a Pathfinders’ meeting just after he
used the bathroom near the guest bedroom in appellant’s house. Appellant appeared in
the bedroom, fondled D., orally copulated D. and then had D. orally copulate him. D.
remembered this incident because after it was over appellant gave him $25.

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D. testified that there were many occasions during which appellant would wrestle with
him and his brother and grab their genitals. On one occasion, appellant’s wife walked
in during the wrestling and D. thought “She wasn’t happy about it.”

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D. never spoke to his brother about having been molested, but he did have suspicions
that his brother was being molested also.
Appellant ceased molesting D. about one and a half months before D. and his family
moved to Sacramento. The last time that appellant fondled and orally copulated D. while
in the loft, appellant told D. not to tell anyone about the abuse because D. would be the
one who would be in trouble.

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1108 Evidence

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Andre Doe

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Andre testified that during his freshman year at school he played football. He knew
appellant when appellant was a chaperone at a football tournament. One night during
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the tournament, while sleeping in the choir room at the Fresno Adventist Academy, after
the lights were turned out, he was awakened by a hand grabbing his penis over his
clothing. Initially, he did not see who had done it, but then he was awakened a second
time by someone touching his penis. [FN3] Andre saw appellant on the floor in close
proximity to him. Appellant had not been there when Andre awoke the first time. Andre
told appellant he needed to speak to him and they “stepped out to a separate room outside
of the sleeping area.”
FN3. Andre described the touching as an up and down motion on the shaft of his
penis.

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Andre asked appellant what he was doing and appellant would not give him an answer.
Eventually, appellant told Andre that since he was a doctor, he needed to perform an
examination on Andre “because of a deformity that happens to [H]ispanics in their
penis.” Andre did not want appellant to do anything, but finally appellant convinced him
to let him do it. Appellant pulled down Andre’s shorts, and masturbated Andre’s penis.
Andre told appellant to stop and appellant pulled away. Two other students entered the
room and asked Andre if he was “doing fine.” Andre said yes and went back to sleep.
He told appellant to stay away.

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John Doe

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John testified that he knew appellant through his church and first met appellant in 1997
at a church camp in Soquel. John came to know appellant’s son and daughter through
school as well as church. John explained that in 1997 he would have been going into
eighth grade and had classes in common with appellant’s son and daughter. John was
invited to go to appellant’s house, usually after school. Sometimes he would spend the
night.

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United States District Court
For the Northern District of California

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John described an incident that happened at the end of 1998 when appellant asked him
to pull down his pants to check how he “was doing physically down there in the groin
area.” John was under the impression that appellant was a doctor. Appellant started
touching and “groping” John. Specifically, appellant touched John’s penis and testicles
for about a minute. John was 15 years old at this time.

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John described a second incident that happened in 1999 at a church camp in Soquel.
Again, appellant said that he wanted to examine John. Eventually, after appellant
persisted, John went into a tent with appellant. After John pulled down his pants
appellant started touching him again. John described the touching as “masturbating”
him. At the time appellant was “[m]aking kind of sighs, moaning sounds, grunting . . .
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John explained to the jury that there was a third incident that happened at appellant’s
house in the closet where a computer was located. John was sitting at the computer
when appellant reached for John’s groin area “kind of playing around” and “kept asking
[John] to show him.” John unzipped his pants, pulled down his boxer shorts and
appellant started feeling him in the groin, specifically his penis and testicles. After about
a minute, John pulled up his pants and left.

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John described other occasions when he would be staying at appellant’s house when he
was sleeping in the top bunk in J1’s room. Appellant would come up and ask John to
show him his genitals or appellant would grab John in the groin area. Near the end of
2000, John stopped going to appellant’s house because he did not feel comfortable going
there anymore.

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Jordan Doe

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Jordan testified that he knew appellant both through church and school. Jordan spent the
evening and stayed overnight at appellant’s house. Appellant made sexual advances
towards Jordan on more than one occasion. Jordan remembered the first incident
occurred in the living room of appellant’s house. Appellant was watching television
when he had Jordan sit down next to him. They started talking about appellant being a
doctor and appellant asked Jordan when he had last had a check-up.

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Jordan said that it had been awhile. Appellant said he “could help . . . out with that.”
Appellant persisted until Jordan gave in; the physical consisted of Jordan pulling down
his pants and appellant masturbating him. Jordan was 13 years old at the time of this
incident.
Jordan recalled a second incident that happened at the church camp in Soquel. While
they were cleaning up on the last day of the camp, appellant pulled Jordan into an empty
tent and proceeded to give him a “physical exam” that consisted of appellant
masturbating him.

United States District Court
For the Northern District of California

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A third incident occurred on a school sponsored choir trip in the spring of 2000 when
Jordan was 14 years old. They were staying at the Motel 6. Jordan was watching
television in his room when appellant came in. Jordan decided that it was time to go to
bed, but his friend was in his bed. Appellant told Jordan that he could spend the night
in his room. Although Jordan did not want to go to appellant’s room, appellant persisted
and eventually Jordan went with appellant. Once they got to appellant’s room, appellant
gave Jordan “another physical examination” that consisted of appellant masturbating him
until he ejaculated.
Jordan described a fourth incident that happened in appellant’s guest room a few months
after the previous incident. Again, appellant masturbated him and started to engage in
oral sex with Jordan until Jordan pushed him away.
Finally, Jordan recalled an incident that happened in Colorado on another school
sponsored choir trip. While they were staying at a motel/lodge, Jordan went to appellant
for some advice about a girl. Appellant ended up masturbating Jordan.

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The prosecution introduced evidence that appellant was convicted in 2002 of molesting
John Doe in November 1999 and Jordan Doe between July 1999 and October 2000.
After appellant testified, the prosecution introduced evidence of appellant’s convictions
of sexual abuse of three additional Doe victims—a second John, Steven, and
Christopher, for abuse that occurred between September 1998 and November 2000.

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Child Sexual Abuse Accommodation Syndrome

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Carl Lewis, a senior investigator from the Santa Clara County District Attorney’s Office,
testified as an expert in Child Sexual Abuse Accommodation Syndrome (CSAAS). The
court instructed the jury with CALCRIM No. 1193 [FN4] concerning the limited purpose
for which the jury could consider the evidence. Mr. Lewis reiterated that CSAAS
evidence does not prove that sexual abuse has occurred.

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FN4. CALCRIM No. 1193 as given here provides, “You have heard testimony
from Carl Lewis regarding child sexual abuse accommodation syndrome. [¶] Carl
Lewis’ testimony about child sexual abuse accommodation syndrome is not
evidence that the defendant committed any of the crimes charged against him.
[¶]You may consider this evidence only in deciding whether or not [C.] or [D.]
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. . . ’s conduct was not inconsistent with the conduct of someone who has been
molested, and in evaluating the believability of his testimony.”

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The Defense Case
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Appellant testified in his own defense that the victims were untruthful and that they were
motivated to falsely report abuse in order to recover civil damages. Appellant claimed
that he did not pick up D. and his brother after school to go to Pathfinder meetings, or
at least until 1995. He was not a member of the Pathfinders and was too disabled to take
trips with Pathfinders or climb into the loft where D. claimed he was molested.

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Appellant admitted his prior convictions for molesting other victims and for
embezzlement. In addition, he admitted he orally copulated Jordan, and molested John
and Steven at his home. Appellant said that he misrepresented himself as a doctor in
order to molest his victims.

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In rebuttal, the prosecutor played the tape of an interview that appellant gave to police
in which appellant stated that D. and his brother were dependent upon him for rides and
acknowledged transporting them to Pathfinders’ meetings and on weekend trips.

United States District Court
For the Northern District of California

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II.

Procedural History

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On March 25, 2008, petitioner was charged with: (1) count one, lewd and lascivious act on a
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child, in violation of California Penal Code section 288(a), against C. Doe; (2) count two, continuous
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sexual abuse of a child under fourteen years in violation of California Penal Code section 288.5(a),
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against D. Doe, committed between August 23, 1993 and March 29, 1995; and (3) count three, lewd and
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lascivious act on a child under fourteen in violation of California Penal Code section 288(a), against D.
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Doe, committed between March 30, 1996 and April 6, 1996. Lodgement, Ex. 1, Vol. 2, RT at 329-336.
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On April 2, 2008, a jury convicted petitioner on counts two and three.1 The trial court imposed an

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upper-term sentence of sixteen years on petitioner for his conviction on count two. Lodgement, Ex. 1,
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Vol. 2, RT at 441. For count three, the court imposed a two-year sentence. Id.
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On April 30, 2008, petitioner filed a timely notice of appeal to the California Court of Appeal
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for the Sixth District. Lodgement, Ex. 1, Vol. 2, RT at 443. On December 15, 2009, the Court of
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Appeal affirmed the trial court’s judgement. Lodgement, Ex. 6. Petitioner sought review from the
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California Supreme Court on January 24, 2010. Lodgement, Ex. 7. The California Supreme Court
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denied review on March 10, 2010. Lodgement, Ex. 8.
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The jury was unable to reach a verdict on count one. Lodgement, Exhibit 1, Vol. 2, RT at 399.
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On June 7, 2011, petitioner filed the “mixed” petition for habeas corpus review that is currently

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before the Court. Docket No. 1, Petition. The petition contained six claims that were exhausted on

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direct review and three that petitioner did not exhaust. Id. On March 5, 2012, the Court issued an order

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striking the three unexhausted claims from the petition. Docket No. 10 at 2-3.
In the six remaining claims, petitioner asserts that the trial court: (1) improperly based venue on

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a law that violates the Ex Post Facto Clause; (2) improperly admitted evidence of uncharged offenses

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in violation of petitioner’s right to due process; (3) improperly instructed the jury in violation of his right

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to due process; (4) improperly admitted expert testimony in violation of his right to due process and his

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rights under the confrontation clause; (5) improperly excluded impeachment evidence in violation of

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United States District Court
For the Northern District of California

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his right to present a defense; (6) improperly sentenced petitioner to an upper term in violation of his

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right to due process and his right to a jury trial.

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JURISDICTION AND VENUE

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This Court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C.

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§ 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction

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occurred in Santa Clara County, California, within this judicial district. 28 U.S.C. §§ 84, 2241(d).

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EXHAUSTION

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Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either

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the fact or length of their confinement are required first to exhaust state judicial remedies, either on

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direct appeal or through collateral proceedings, by presenting the highest state court available with a fair

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opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28

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U.S.C. § 2254(b), ©. The petition contains six claims that were exhausted on direct review and three

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claims that petitioner failed to exhaust. On March 5, 2012, the Court issued an order striking the three

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unexhausted claims from the petition. See Docket No. 10 at 2-3. Accordingly, the Court will address

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the six exhausted claims below.

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STANDARD OF REVIEW

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This Court may entertain a petition for writ of habeas corpus “in behalf of a person in custody

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pursuant to the judgment of a State court only on the ground that he is in custody in violation of the

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Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The petition may not be

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granted with respect to any claim that was adjudicated on the merits in state court unless the state court’s

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adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable

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application of, clearly established Federal law, as determined by the Supreme Court of the United States;

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or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the

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evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

United States District Court
For the Northern District of California

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“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court arrives

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at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court

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decides a case differently than [the] Court has on a set of materially indistinguishable facts.” Williams

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(Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).

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“Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the

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state court identifies the correct governing legal principle from [the] Court’s decision but unreasonably

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applies that principle to the facts of the prisoner’s case.” Id. at 413. “[A] federal habeas court may not

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issue the writ simply because that court concludes in its independent judgment that the relevant state-

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court decision applied clearly established federal law erroneously or incorrectly. Rather, that application

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must also be unreasonable.” Id. at 411. A federal habeas court making the “unreasonable application”

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inquiry should ask whether the state court’s application of clearly established federal law was

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“objectively unreasonable.” Id. at 409.

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DISCUSSION

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I.

Ex Post Facto Violation
Petitioner contends that his convictions as to counts two and three violate the Ex Post Facto

4 Clause of the United States Constitution. Petition at 8.2 Petitioner argues that the prosecution improperly
5 relied on California Penal Code § 784.7, which was enacted after the offenses were committed, to bring
6 offenses that occurred in Madera and Napa counties before the Santa Clara County Superior Court. Id.
7 Petitioner implies that without these Madera and Napa offenses the prosecution could not have charged
8 and convicted him on counts two and three. Id.
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In California, the general rule for venue is that, absent a statutory exception, venue in a criminal

United States District Court
For the Northern District of California

10 proceeding is set in the county or judicial district in which the crime was committed. See Cal. Penal
11 Code § 777; People v. Simon, 25 Cal. 4th 1082, 1093-94 (2001). California Penal Code § 784.7 is a
12 statutory exception to that general rule. See Cal. Penal Code § 784.7. This section gives courts the
13 authority to consolidate in a single venue trials of multiple offenses for crimes such as domestic violence,
14 child abuse or molestation involving the same defendant. See People v. Betts, 34 Cal. 4th 1039, 1059
15 (2005); Price v. Sup. Court, 25 Cal. 4th 1046, 1071(2001) (“Section 784.7 creates a multicounty venue
16 for trial of offenses involving sexual or child abuse by the same defendant against the same victim.”).
17 As petitioner points out, section 784.7 was not in effect at the time he committed the criminal acts.3
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The California Court of Appeal rejected petitioner’s Ex Post Facto Clause challenge to the

19 prosecution’s reliance on section 784.7. First, the Court of Appeal explained that section 784.7 was not
20 being applied retroactively because a new law addressing the conduct of trial has only a prospective
21 effect, as it is only applied to trials occurring after the law’s effective date. Lodgement, Ex. 6 at 14-15.
22 Second, the Court of Appeal held that section 784.7 merely reflects a procedural change in the law, i.e.,
23 it did not alter the definition of criminal conduct or increase the punishment for a crime. Id. at 15-16.
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Article I, section 10 of the United States Constitution prohibits States from passing any ex post

25 facto law. U.S. Const. art. I, § 10, cl. 1. “To fall within the ex post facto prohibition, a law must be
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When citing the Petition the Court will refer to the pagination given to the document by
CM/ECF.
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The offenses were alleged to have occurred between 1993 and 1996. Lodgement, Ex. 1, Vol.
2, RT at 329-336. California Penal Code § 784.7 was enacted in 1998. See 1997 Cal Stats. ch. 302.
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1 retrospective—that is, ‘it must apply to events occurring before its enactment’—and it ‘must
2 disadvantage the offender affected by it,’ by altering the definition of criminal conduct or increasing the
3 punishment for the crime.” Lynce v. Mathis, 519 U.S. 433, 441 (1997) (citations omitted); see also
4 Collins v. Youngblood, 497 U.S. 37, 43 (1990) (“Legislatures may not retroactively alter the definition
5 of crimes or increase the punishment for criminal acts.”). Generally, a law that changes the procedure
6 by which a case is adjudicated does not violate the Ex Post Facto Clause even if it disadvantages the
7 defendant. See Collins, 497 U.S. at 45. However, a legislature cannot not immunize a law from scrutiny
8 under the Ex Post Facto Clause simply by labeling it procedural. Id. A procedural change in the law may
9 constitute an ex post facto violation if it affects matters of substance by depriving a defendant of
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For the Northern District of California

10 substantial protections with which the existing law surrounds the person accused of the crime. Id. The
11 Supreme Court has explained that a law affects matters of substance if (1) it punishes as a crime an act
12 previously committed, which was innocent when done; (2) it makes more burdensome the punishment
13 for a crime, after its commission; or (3) it deprives one charged with crime of any defense available
14 according to law at the time when the act was committed. Id. (quoting Beazell v. Ohio, 269 U.S. 167,
15 169-70 (1925)). “In Carmell v. Texas, 529 U.S. 513 (2000), the [Supreme] Court added that a law which
16 ‘alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the
17 time of the commission of the offence, in order to convict the offender’ also violates the [Ex Post Facto]
18 Clause.” Wilson v. Belleque, 554 F.3d 816, 831 n.4 (9th Cir. 2009) (quoting Carmell, 529 U.S. at 530,
19 534-35).
20

Here, the prosecution’s reliance on section 784.7 did not violate the Ex Post Facto Clause because

21 the enactment of section 784.7 was merely a change in the procedural law governing venue. See People
22 v. Posey, 32 Cal. 4th 193, 200 (2004) (“[V]enue is a procedural question involving the appropriateness
23 of a place for a defendant’s trial on a criminal charge, and not a substantive question relating to the
24 defendant’s guilt or innocence of the crime charged.”); Manetti-Farrow, Inc. v. Gucci America, Inc., 858
25 F.2d 509, 512-13 (9th Cir. 1988) (stating that issues of venue are procedural). As the Court of Appeal
26 noted the enactment of 784.7 did not alter the definition of criminal conduct or increase the punishment
27 for a crime. The enactment of 784.7 also did not deprive petitioner of any available defense or
28 substantively alter the legal rules of evidence in order to convict petitioner. Section 784.7 merely
11

1 “creates a multicounty venue for trial of offenses involving sexual or child abuse by the same defendant
2 against the same victim.” Price v. Sup. Court, 25 Cal. 4th 1046, 1071(2001). Accordingly, the state
3 court’s rejection of this claim was not contrary to, or an unreasonable application of, clearly established
4 Federal law, as determined by the Supreme Court. Therefore, petitioner is not entitled to habeas relief
5 on this claim.
6
7 II.

Evidence of Uncharged Sexual Misconduct

8

Petitioner contends that the trial court improperly admitted evidence of uncharged sexual

9 misconduct in violation of his due process rights. Petition at 8. Petitioner argues that this evidence was
United States District Court
For the Northern District of California

10 so unduly prejudicial that it allowed the jury to convict him based solely on his propensity to commit
11 sexual misconduct.4 Id.; see also Lodgement, Ex. 3 at 12-14.
12

During his criminal proceedings, the trial court allowed three witnesses to testify, under

13 California Evidence Code §§ 1108 and 1101, regarding the sexually abusive relationships they had with
14 petitioner when they were between the ages of fourteen and seventeen. Lodgement, Ex. 2, Vol. 5, RT
15 at 516-521, 580, 562. In the trial at issue, petitioner was not charged with crimes against any of the three
16 witnesses. Petition at 8. However, in a prior proceeding, petitioner was found guilty of molesting two
17 of the three witnesses. See Lodgement, Ex. 3, App. Brief at 12. On direct review, the California Court
18 of Appeal held that the admission of this evidence did not violate petitioner’s due process rights because
19 the California Supreme Court has held that the admission of evidence of a criminal’s propensity does not
20 offend fundamental due process principles. Lodgment, 6 Ex. at 19-20 (citing People v. Falsetta, 21 Cal.
21 4th 903, 914-15 (1999)).
22

“Simple errors of state law do not warrant federal habeas relief.” Holley v. Yarborough, 568 F.3d

23 1091, 1101 (9th Cir. 2009). “[F]ailure to comply with the state’s rules of evidence is neither a necessary
24 nor a sufficient basis for granting habeas relief.” Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir.
25 1991). The improper admission of evidence will only provide a basis for habeas relief if “‘it rendered
26 the trial fundamentally unfair in violation of due process.’” Holley, 568 F.3d at 1101. Evidence
27
28

4

The Court will address petitioner’s argument that the jury instruction allowed a conviction
based solely on propensity evidence in Section III.
12

1 introduced by the prosecution will often raise more than one inference, some permissible, some not, and
2 it is up to the jury to sort out the inferences in light of the court’s instructions. Jammal v. Van de Kamp,
3 926 F.2d 918, 920 (9th Cir. 1991). “Only if there are no permissible inferences the jury may draw from
4 the evidence can its admission violate due process. Id. (emphasis in original).
5

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) further restricts this

6 already stringent standard. The Ninth Circuit has explained that, “[u]nder AEDPA, even clearly
7 erroneous admissions of evidence that render a trial fundamentally unfair may not permit the grant of
8 federal habeas corpus relief if not forbidden by ‘clearly established federal law,’ as laid out by the
9 Supreme Court.” Holley, 568 F.3d at 1101. Where the Supreme Court has not adequately addressed a
United States District Court
For the Northern District of California

10 claim, a court cannot use precedent from a lower court to find a state court ruling unreasonable. Carey
11 v. Musladin, 549 U.S. 70, 77 (2006).
12

First, even assuming that the evidence admitted by the court was purely propensity evidence and

13 was not relevant to any other issue, AEDPA precludes federal habeas relief because the United States
14 Supreme Court has expressly left open the question of whether the admission of propensity evidence
15 violates due process. See Estelle v. McGuire, 502 U.S. at 62, 75 n.5 (1991) (“[W]e express no opinion
16 on whether a state law would violate the Due Process Clause if it permitted the use of ‘prior crimes’
17 evidence to show propensity to commit a charged crime.”); see also Mejia v. Garcia, 534 F.3d 1036,
18 1047 (9th Cir. 2008) (“[T]he United States Supreme Court has never established the principle that
19 introduction of evidence of uncharged offenses necessarily must offend due process.”). Because the
20 Supreme Court has elected to leave this an open issue, a trial court’s decision to admit propensity
21 evidence does not violate clearly established federal law as determined by the Supreme Court. See Mejia,
22 534 F.3d at 1046; Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir. 2008).
23

Second, the admission of the evidence did not violate petitioner’s due process rights because the

24 jury could draw permissible inferences from the evidence. Under California law, prior crimes evidence
25 is admissible to prove motive, opportunity, intent, preparation, plan, or identity. Cal. Evid. Code
26 § 1101(b). At trial, the prosecutor sought to admit evidence of the uncharged sexual misconduct in hopes
27 that the similarity between the charged and uncharged offenses would show petitioner’s intent to commit
28 the charged offenses. As the Court of Appeal emphasized, the uncharged sexual conduct was sufficiently
13

1 similar to establish petitioner’s intent based on the “nature of the acts, the location of the abuse, the age
2 and gender of the victims, and their association with appellant’s church and the school attended by his
3 children.” Lodgement, Ex. 6 at 23. As the Ninth Circuit explained in Jammal, “evidence introduced by
4 the prosecution will often raise more than one inference”; the admission of evidence only violates the
5 Due Process clause “if there are no permissible inferences the jury may draw from the evidence.” 926
6 F.2d at 920 (emphasis in original). Here, the evidence of the uncharged offenses was permissible to
7 establish petitioner’s intent to commit the charged offenses. See Cal. Evid. Code § 1101(b). Therefore,
8 the admission of the evidence did not violate petitioner’s due process rights.
9

Accordingly, the state court’s rejection of this claim was not contrary to, or an unreasonable

United States District Court
For the Northern District of California

10 application of, clearly established Federal law, as determined by the Supreme Court. Therefore,
11 petitioner is not entitled to habeas relief on this claim.
12
13 III.

Jury Instruction

14

Petitioner argues that jury instruction CALCRIM No. 1191, which sets forth how a jury may

15 consider evidence of uncharged offenses, violated his due process rights by permitting the jury to find
16 him guilty based solely on his propensity to commit an offense. Petition at 8-9. The California Court
17 of Appeal rejected this argument and held that the instruction contained in CALCRIM No. 1191 is
18 constitutional. Lodgement, Ex. 6 at 24-26 (citing People v. Reliford, 29 Cal. 4th 1007 (2003); People
19 v. Schnabel, 150 Cal. App. 4th 83, 87 (2007)).
20

To obtain federal relief for alleged errors in a jury instruction, the petitioner must show that the

21 “‘ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.’”
22 See Estelle v. McGuire, 502 U.S. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). “Even
23 if there is some ‘ambiguity, inconsistency, or deficiency’ in the instruction, such an error does not
24 necessarily constitute a due process violation.” Waddington v. Sarausad, 555 U.S. 179, 190 (2009). In
25 reviewing an instruction, the inquiry is not how reasonable jurors could or would have understood the
26 instruction; rather, the court must inquire whether there is a “reasonable likelihood” that the jury has
27 applied the challenged instruction in a way that violates the Constitution by, for example, relieving the
28 State of its burden of proving every element of the crime beyond a reasonable doubt. See id. at 190-91;
Estelle, 502 U.S. at 72.
14

1

The challenged jury instruction, CALCRIM No. 1191, gave the jury specific instructions on how

2 to consider the uncharged offenses. CALCRIM No. 1191 explicitly instructed the jury that if they found
3 that defendant committed the uncharged offenses, they could conclude, but were not required to
4 conclude, “that the defendant was disposed or inclined to commit sexual offenses.” They were
5 cautioned, however, that the uncharged offenses are “. . . only one factor to consider along with all the
6 other evidence. It is not sufficient by itself to prove that the defendant is guilty of the crimes charged in
7 counts 1, 2 or 3.” Lodgement, Ex. 1, Vol. 2, RT at 356; accord CALCRIM No. 1191. The instruction
8 also explains that “[t]he People must still prove each element of every charge beyond a reasonable
9 doubt.” Id. Petitioner fails to point to anything in CALCRIM No. 1191 that implies that the jury could
United States District Court
For the Northern District of California

10 convict petitioner based solely on his propensity to commit sexual misconduct. As such, there is no
11 constitutional defect in the jury instruction, and there is no likelihood that the jury applied the instruction
12 in a way that violates the Constitution. Therefore, the trial court’s use of CALCRIM No. 1191 did not
13 violate petitioner’s due process rights. See Kralovetz v. Grounds, No. C 11-1552 JSW (PR), 2014 U.S.
14 Dist. LEXIS 39532, at *44-46 (N.D. Cal. Mar. 25, 2014) (holding that the petitioner was not entitled to
15 habeas relief based on the trial court’s use of CALCRIM 1191); Rodriguez v. Wanda, C-13-0015-EMC,
16 2013 U.S. Dist. LEXIS 173489, at *14-23 (N.D. Cal. Dec. 11, 2013) (same); see also Schultz v. Tilton,
17 659 F.3d 941, 943-45 (9th Cir. 2011) (denying petitioner’s claim based on the use of the prior version
18 of CALCRIM No. 1191, CALJIC NO. 2.50.01, because the jury instruction “made clear that [the
19 defendant] could be convicted only if the evidence as a whole proved [him] guilty beyond a reasonable
20 doubt of the charged crime”).
21

Accordingly, the state court’s rejection of this claim was not contrary to, or an unreasonable

22 application of, clearly established Federal law, as determined by the Supreme Court. Therefore,
23 petitioner is not entitled to habeas relief on this claim.
24
25 IV.

Expert Testimony

26

Petitioner contends that the admission of the testimony of Carl Lewis, an expert on Child Sexual

27 Abuse Accommodation Syndrom (“CSAAS”), violated his right to confrontation and his right to present
28 a defense under the Sixth and Fourteenth Amendments. Petition at 9. Petitioner argues that this type of
testimony has been criticized by the Ninth Circuit, and it has been found to be an impermissible way of
15

1 bolstering the credibility of a child witness. Id. (citing Franklin v. Henry, 122 F.3d 1270, 1273 (9th Cir.
2 1997); Docket No. 24, Traverse at 13-14. The California Court of Appeals rejected this claim, holding
3 that petitioner had failed to properly object to the admission of the CSAAS evidence and that the
4 admission of the evidence in the case was appropriate. Lodgement, Ex. 6 at 28-29.
5

Under federal review, “[t]he admission of evidence does not provide a basis for habeas relief

6 unless it rendered the trial fundamentally unfair in violation of due process.” Holley, 568 F.3d at 1101.
7 Evidence introduced by the prosecution will often raise more than one inference, some permissible, some
8 not, and it is up to the jury to sort out the inferences in light of the court’s instructions. Jammal, 926 F.2d
9 at 920. “Only if there are no permissible inferences the jury may draw from the evidence can its
United States District Court
For the Northern District of California

10 admission violate due process.” Id. (emphasis in original).
11

AEDPA further restricts this already stringent standard. The Ninth Circuit has explained that,

12 “[u]nder AEDPA, even clearly erroneous admissions of evidence that render a trial fundamentally unfair
13 may not permit the grant of federal habeas corpus relief if not forbidden by ‘clearly established federal
14 law,’ as laid out by the Supreme Court.” Holley, 568 F.3d at 1101. Where the Supreme Court has not
15 adequately addressed a claim, a court cannot use precedent from a lower court to find a state court ruling
16 unreasonable. Musladin, 549 U.S. at 77.
17

Contrary to petitioner’s assertions, the Ninth Circuit has found that the admission of CSAAS

18 evidence in child-sexual-abuse cases is proper when “the testimony concerns general characteristics of
19 the victims and is not used to opine that a specific child is telling the truth.” Brodit v. Cambra, 350 F.3d
20 985, 991 (9th Cir. 2003) (citing United States v. Bighead, 128 F.3d 1329 (9th Cir. 1997) (per curiam);
21 United States v. Antone, 981 F.2d 1059 (9th Cir. 1992)). Further, the Ninth Circuit has also rejected the
22 contention that CSAAS testimony improperly bolsters the credibility of child witnesses and precludes
23 effective challenges to the truthfulness of their testimony – the very arguments that Petitioner advances
24 here.” Id. Therefore, petitioner’s claim is foreclosed by the Ninth Circuit’s decision in Brodit. The trial
25 court only allowed the CSAAS expert to testify about the general nature of the syndrome. See
26 Lodgement, Ex. 2, Vol. 7 RT at 735-763. The expert explained to the jury that he did not interview any
27 of the witnesses nor did he know the specific details of the case. Id. at 744. The trial court also gave
28 specific limiting instructions that the testimony was not evidence that petitioner committed the crimes
charged against him. Id. at 33. Thus, the CSAAS testimony complied with the limits set out by the Ninth
16

1 Circuit in Brodit, and the admission of the testimony did not violate petitioner’s due process rights. See
2 Nuno v. Davey, No. 11-02446 SBA (PR), 2014 U.S. Dist. LEXIS 98945, at *30-32 (N.D. Cal. Jul. 21,
3 2014) (rejecting petitioner’s challenge to the admission of CSAAS evidence as foreclosed by Brodit).
4 In addition, petitioner cites to no Supreme Court authority to support his claim that the trial court’s
5 decision to admit the CSAAS evidence violated his right to due process. Id. at *31.
6

Accordingly, the state court’s rejection of this claim was not contrary to, or an unreasonable

7 application of, clearly established Federal law, as determined by the Supreme Court. Therefore,
8 petitioner is not entitled to habeas relief on this claim.
9
United States District Court
For the Northern District of California

10 V.

Impeachment Evidence

11

Petitioner contends that the trial court violated his right to present a defense under the

12 Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment
13 by precluding him from establishing that the victim’s mother had a financial motive for pursuing a
14 criminal case against him. Petition at 9-10. Specifically, petitioner argues that he was not able to
15 impeach the victim’s mother with her statement to the defense investigator that she was aware that other
16 molestation victims obtained financial judgements against petitioner. Id. The California Court of Appeal
17 held that the trial court did not abuse it discretion in excluding the evidence and that no constitutional
18 violation occurred. Lodgement, Ex. 6 at 34.
19

“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the

20 Compulsory Process or Confrontation Clauses of the Sixth Amendment,5 the Constitution guarantees
21 criminal defendants ‘a meaningful opportunity to present a complete defense.’” Holmes v. South
22 Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986). Due process
23 is violated only where the excluded evidence had “persuasive assurances of trustworthiness” and was
24 “critical” to the defense. Chambers v. Mississippi, 410 U.S. 284, 302 (1973); accord Green v. Georgia,
25 442 U.S. 95, 97 (1979). A trial court retains wide latitude to exclude evidence that is repetitive or only
26
5

27
28

In regard to petitioner’s Confrontation Clause argument, the Supreme Court has expressly
stated that it “has never held that the Confrontation Clause entitles a criminal defendant to introduce
extrinsic evidence for impeachment purposes.” Nevada v. Jackson, 133 S. Ct. 1990, 1994 (2013).
(emphasis in original). Thus, there was no violation of clearly established federal law as set out by the
Supreme Court. Therefore, the Court will limit its analysis to petitioner’s due process argument.
17

1 marginally relevant. See Crane, 476 U.S. at 689-90; Holmes, 547 U.S. at 326-27. “Only rarely has [the
2 Supreme Court] held that the right to present a complete defense was violated by the exclusion of defense
3 evidence under a state rule of evidence.” Jackson, 133 S. Ct. at 1992. Moreover, even if this Court
4 found a violation of petitioner’s constitutional rights, the error would only provide grounds to grant a writ
5 of habeas corpus if it had a “substantial and injurious effect or influence in determining the jury’s
6 verdict.” Brecht, 507 U.S. at 637.
7

The trial court precluded the impeachment testimony under California Evidence Code § 352.

8 Lodgement, Exhibit 2, Vol. 7 RT at 927. Evidence Code § 352 gives the trial court discretion to exclude
9 evidence if its probative value is substantially outweighed by the probability that its admission will
United States District Court
For the Northern District of California

10 necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing the
11 issues, or of misleading the jury. Cal. Evid. Code § 352. Here, petitioner’s motivation for impeaching
12 the victim’s mother was to establish that she pursued the case for her family’s financial gain. Petition
13 at 9. However, as the trial court noted, the victim’s mother had already testified that she had not, and did
14 not, intend to pursue a civil action for damages. Lodgement, Ex. 2, Vol. 7 RT at 927. The trial court
15 further explained that the value of the testimony was diminished because the defense attorney intended
16 to impeach the victim’s mother, rather than the victim himself. Id. Moreover, as the Court of Appeal
17 noted, the victim’s mother ultimately impeached herself by testifying on direct examination that she was
18 not aware of anyone receiving any monetary compensation because petitioner had molested them, but
19 then on cross-examination she admitted she had “heard something about it.” Lodgement, Ex. 6 at 33.
20 Therefore, the record shows that the purported impeachment evidence was repetitive and was only
21 marginally relevant, not critical, to petitioner’s defense. Thus, the trial court’s decision to exclude this
22 evidence from the trial did not violate petitioner’s due process rights. See Crane, 476 U.S. at 689-90;
23 Holmes, 547 U.S. at 326-27. In addition, petitioner has failed to show that the exclusion of this evidence
24 had a substantial or injurious effect or influence in determining the jury’s verdict. See Brecht, 507 U.S.
25 at 637.
26

Accordingly, the state court’s rejection of this claim was not contrary to, or an unreasonable

27 application of, clearly established Federal law, as determined by the Supreme Court. Therefore,
28 petitioner is not entitled to habeas relief on this claim.
18

1 VI.

Sentencing

2

Petitioner contends that the trial court violated his right to due process and his right to a jury trial

3 under the Sixth and Fourteenth Amendments by sentencing him to an upper term. Petition at 10.
4 Specifically, he contends that the trial court violated the Supreme Court’s holding in Cunningham v.
5 California, 549 U.S. 270 (2006), by sentencing him to an upper term based on facts not found true by
6 the jury. Petition at 10. The California Court of Appeal rejected petitioner’s claim, citing People v.
7 Sandoval, 41 Cal. 4th 825, 845-57 (2007). Lodgement, Ex. 6 at 36-37.
8

In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme Court held that “any fact that

9 increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.”
United States District Court
For the Northern District of California

10 The statutory maximum is the maximum sentence a judge can impose based solely on the facts reflected
11 in the jury verdict or admitted by the defendant, “[it] is the maximum he could impose without any
12 additional findings.” Blakely v. Washington, 542 U.S. 296, 303-04 (2004) (emphasis in original).
13

In Cunningham v. California, the United States Supreme Court held that California’s determinate

14 sentencing law violated the Sixth Amendment because it authorized judges, not the jury, to find facts
15 permitting a sentence above the statutory maximum. 549 U.S. at 273. Following Cunningham, the
16 California Legislature amended the determinate sentencing law to change the statutory maximum from
17 a middle-term sentence to the upper term by granting the judge full discretion between imposing the
18 lower, middle or upper term based solely on the facts reflected in the jury verdict or admitted by the
19 defendant. See Cal. Penal Code § 1170. Since the amendment, the California Supreme Court has upheld
20 the law as constitutional. See Sandoval, 41 Cal. 4th at 857. However, neither the Ninth Circuit nor the
21 United States Supreme Court has explicitly ruled on its constitutionality.
22

The trial court sentenced petitioner to the upper term of sixteen years for his conviction as to

23 count two, continuous sexual abuse of a child under fourteen years. Lodgement, Ex. 6 at 1-2. The trial
24 court cited four factors, which were not found true by a jury, as the reasons for imposing the upper-term
25 sentence: (1) petitioner took advantage of a position of trust; (2) the manner in which the crimes were
26 carried out indicated planning and sophistication; (3) the victim was particularly vulnerable; and (4) the
27 petitioner’s “sexually assaultive behavior” presented a serious danger to society. Id.
28
19

When the Legislature enacted section 1170 it changed the statutory maximum, the maximum

1

2 sentence a judge can impose based solely on the facts reflected in the jury verdict or admitted by the
3 defendant, from the middle term to the upper term. See Cal. Penal Code § 1170; Sandoval, 41 Cal. 4th
4 at 843-45. Thus, when the trial court sentenced defendant to the upper term, it sentenced petitioner to
5 the statutory maximum, which according to the United States Supreme Court, does not require a separate
6 finding of fact by a jury. See Blakely, 542 U.S. at 303-04; see also United States v. Booker, 543 U.S. 220,
7 233 (2005) (“[W]hen a trial judge exercises his discretion to select a specific sentence within a defined
8 range, the defendant has no right to a jury determination of the facts that the judge deems relevant.”).
9 Therefore, the trial court’s decision to impose an upper-term sentence based on the factors cited above
United States District Court
For the Northern District of California

10 did not violate petitioner’s right to due process or his right to a jury trial. See Creech v. Trimble, No. CV
11 11-03670 CRB, 2013 U.S. Dist. LEXIS 97188, at *23-25 (N.D. Cal. Jul. 11, 2013); Neri v. Allison, No.
12 C 10-2867 RMW (PR), 2012 U.S. Dist. LEXIS 43157, at *30-35 (N.D. Cal. Mar. 28, 2012). Further, as
13 discussed above, the United States Supreme Court has not explicitly ruled on the constitutionality of the
14 amended section 1170.
15

Accordingly, the state court’s rejection of this claim was not contrary to, or an unreasonable

16 application of, clearly established Federal law, as determined by the Supreme Court. Therefore,
17 petitioner is not entitled to habeas relief on this claim.6
18
19
20 ///
21
22
23
24
25
26
27
28

6

In the Traverse, petitioner seeks leave to amend the petition to include a claim that his upper
term sentence violated the Due Process Clause and the Ex Post Facto Clause. Docket No. 24, Traverse
at 17. Petitioner argued that the imposition of an upper term sentence violated his due process rights
in his original petition and that contention has been addressed above. With respect to his claim that the
sentence violates the Ex Post Facto Clause, petitioner argues that he was sentenced on the basis of laws
that were not in effect at the time of his conviction. Id. However, the Ninth Circuit has held there are
no ex post facto concerns if the sentencing court follows the California Supreme Court’s instructions
in Sandoval and resentences a defendant under the amended § 1170. See Chioino v. Kernan, 581 F.3d
1182, 1185-86 (9th Cir. 2009) (“resentencing under the Sandoval procedure raises no ex post facto
concerns”); Butler v. Curry, 528 F.3d 624, 652 n.20 (9th Cir. 2008). Therefore, petitioner’s sentence
does not violate the Ex Post Facto Clause. Accordingly, petitioner’s proposed claim is futile, and, thus,
the Court denies petitioner’s request for leave to amend the petition. See Bonin v. Calderon, 59 F.3d
815, 845 (9th Cir. 1995) (“Futility of amendment can, by itself, justify the denial of a motion for leave
to amend.”).
20

1
2

CONCLUSION
For the foregoing reasons, the petition for the writ of habeas corpus is DENIED. A certificate

3 of appealability will not issue. Reasonable jurists would not “find the district court’s assessment of the
4 constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). King may seek
5 a certificate of appealability from the Ninth Circuit Court of Appeals. The clerk shall enter judgement
6 in favor of respondent and close the file.
7
8

IT IS SO ORDERED.

9
Dated: August 26, 2014
United States District Court
For the Northern District of California

10

SUSAN ILLSTON
United States District Judge

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