Medina v. Evans, et al

Filing 30

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus. It is hereby recommended that the Court issue an Order approving and adopting this Report & Recommendation and directing that Judgment be entered denying the Petition. It is ordere d that written Objections to R&R are due by 3/30/2009. The document should be captioned "Objections to Report & Recommendation". Any Replies to the Objections are due by 4/20/2009. Signed by Magistrate Judge William McCurine, Jr on 3/3/2009. (All non-registered users served via U.S. Mail Service).(leh) (jrl).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1I. INTRODUCTION ANTHONY RAMONA MEDINA (hereinafter "Petitioner"), a California prisoner proceeding pro se, has filed a federal Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. This Report and Recommendation is submitted to United States District Judge Sammartino pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule H.C.2 of the United States District Court for the Southern District of California. After reviewing the Petition, Respondent's Answer and Memorandum of Points and Authorities in support thereof, and all the supporting documents submitted by the parties, the Court recommends the Petition be DENIED for the reasons stated below. M.S. EVANS, Warden, Respondent. vs. ANTHONY RAMONA MEDINA, Petitioner, CASE NO. 06cv1122- JLS (WMc) REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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II. STATEMENT OF FACTS The following statement of facts is taken from the state appellate court opinion affirming Petitioner's conviction on direct review. This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. 28 U.S.C.A. §2254(e)(1)(West Supp. 2006); see also Sumner v. Mata, 449 U.S. 539, 545-47 (1981) (stating that deference is owed to factual findings of both state trial and appellate courts). A. The Charged Sexual Assault In September 1993, at approximately 11:00 p.m., the victim, Monica, and a few friends drove together to a bar in Pacific Beach. At around 1:00 a.m., Monica talked with some other friends who were waiting in line outside the bar. When she came back inside the bar about 30 minutes later, she could not find the friends with whom she had come to the bar. Assuming that they had left without her, Monica decided to walk home. As Monica was walking home near the La Jolla Lutheran Church, Medina jumped out from behind some bushes, grabbed her, and pointed a gun at her head. Medina pushed her onto the steps of the church, lifted her skirt, and unsnapped her bodysuit. Medina then penetrated her external vaginal lips with his penis. He was not fully erect and was unable to achieve full penetration. Medina tried again to penetrate Monica's vagina with his penis, but was able still only to penetrate her external vaginal lips. Medina then pushed Monica around the corner of the church, away from the street where cars were passing by. With the gun pointed at Monica's head, Medina penetrated her vagina with his penis for a third time. He ordered Monica to put her fingers inside her vagina and forced his penis inside her mouth. After a short period of time, Medina removed his penis and ejaculated on Monica's stomach area. Medina then fled. Monica was examined at a hospital and various samples of physical evidence were taken from her body and clothing. These specimens were provided to law enforcement. B. The Arizona Incident In February 2001, in Oro Valley, Arizona, Frank P.'s seventh-grade daughter left her house to catch her school bus at a nearby bus stop. A few minutes later she came back inside the house. Frank P. and his daughter then looked out the window and saw a black truck parked in their driveway. Medina was leaning against the rear of the truck facing the school bus stop, masturbating. There were children at the bus stop, which was 100-150 feet from where Medina was standing. Frank P. called the police, who arrived after Medina had left. The police obtained a sample of semen Medina had left on Frank P.'s driveway. Medina was arrested and pled guilty to one count of public sexual indecency. C. The DNA Match In March 2001, the Oro Valley Police Department collected a known sample of DNA from Medina. The DNA from the semen sample from the Frank -206cv1122-JLS (WMc)

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P.'s driveway [sic] was positively matched to the known sample taken from Medina. DNA in both the semen sample and the known sample taken from Medina positively matched the DNA contained in the samples from the 1993 sexual assault of Monica. The chance of someone other than Medina having left the samples gathered from the sexual assault in 1993 was no greater than one in one-half quadrillion. D. The Defense Medina testified that he was living in Pacific Beach in 1993 at the time Monica was sexually assaulted. He denied he had assaulted her. He testified that he had a consensual sexual encounter with a woman on the beach in Pacific Beach in September 1993. He claimed that although he and the woman did not have intercourse, he ejaculated. Medina testified that although he could not recall if this woman was Monica, it was possible his DNA was discovered as a result of this incident. (Lodgment 6 at 3-5.) III. STATE COURT PROCEEDINGS On September 13, 2002, a jury convicted Petitioner of three counts of forcible rape, forcible oral copulation, and rape by a foreign object. (Lodgement 2, CT 236-240.) In addition, the jury found true the allegation that Petitioner had used a firearm during the commission of each of the offenses. (Lodgment 2, CT 236-240.) The trial court sentenced Petitioner to 48 years in state prison. (Lodgment 2, CT 241-242.) Petitioner appealed his conviction to the state appellate court raising claims one, two, and five thru eleven from this petition. (Lodgment 3.) The state appellate court affirmed the conviction in a partially published decision. (Lodgment 6.) The Petitioner subsequently filed a petition for rehearing to the state appellate court. (Lodgment 7.) The state appellate court denied the petition for rehearing on January 16, 2004. (Lodgment 8.) Petitioner then filed a petition for review in the state supreme court raising claims two and three from this petition. The state supreme court denied review on March 24, 2004. (Lodgments 9, 10). Petitioner filed a petition for writ of habeas corpus raising claim four from this petition. The petition was denied by the San Diego County Superior Court on February 24, 2005. (Lodgments 11,12), the state appellate court on April 21, 2005 (Lodgments 13, 14), and the state supreme court on March 15, 2006. (Lodgments 17, 18.) An additional habeas corpus petition raising claims one and five thru eleven was filed on March 18, 2005. The petition was denied by -306cv1122-JLS (WMc)

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the state supreme court on March 15, 2006, with citation to In re Waltreus, 62 Cal. 2d 218, 42 Cal. Rptr 9, 397 P.2d 1001 (1965). (Lodgments 15, 16.) IV. FEDERAL PROCEEDINGS On May 23, 2006, Petitioner filed a federal petition for writ of habeas corpus. On September 7, 2006, Respondent filed an answer, arguing Petitioner's claims were procedurally barred because: they were not presented in a petition for review to the state supreme court, the claims were procedurally defaulted under the contemporaneous objection rule, Petitioner failed to state claims cognizable on federal habeas corpus, and Petitioner's claims failed on the merits. On January 22, 2007, Petitioner filed a Traverse, reasserting his claims, contesting Respondent's position, and claiming the sentencing judge engaged in sentence elevating fact finding in violation of Blakely v. Washington, 542 U.S. 296 (2004). ("Traverse"). On June 27, 2007, Petitioner filed a Supplement to the Traverse raising a claim based on Cunningham v. California, 127 S.Ct. 856 (2007). ("Supplement"). On July 27, 2007, Respondent filed a Response to Petitioner's Supplement contending Petitioner's Blakely and Cunningham claims are procedurally barred, foreclosed by Teague v. Lane, 489 U.S. 288, and that any error was harmless. ("Response"). V. PETITIONER'S CLAIMS Petitioner claims: (1) the trial court erred in admitting evidence of Petitioner's prior uncharged sexual offense because the conduct was not one of the enumerated offenses made admissible by California Evidence Code § 1108; (2) the trial court erred in admitting Petitioner's uncharged sexual offense because it occurred subsequent, rather than prior, to the charged offense; (3) the trial court failed to determine whether Petitioner's uncharged sexual offense constituted one of the enumerated offenses made admissible by California Evidence Code § 1108; (4) ineffective assistance of counsel; (5) the trial court abused its discretion under California Evidence Code § 352 by admitting evidence of Petitioner's uncharged sexual offense; (6) the trial court improperly instructed the jury with CALJIC No. 2.50.01; (7) California Evidence Code § 1108 is unconstitutional; (8) the trial court erred by failing to instruct the jury with the lesser included offense of attempted rape; (9) the trial court -4-

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erred by sentencing Petitioner to the maximum term possible; (10) the trial court erred by failing to state reasons for sentencing on specific counts; and (11) the trial court improperly used dual reasoning in sentencing. VI. STANDARD OF REVIEW Title 28, United States Code, § 2254, sets forth the following scope of review for federal habeas corpus claims1: The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgement of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.[...] (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254. When determining what constitutes "clearly established federal law" under section 2254(d)(1), federal courts look to United States Supreme Court holdings at the time of the state court's decision. Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). Ninth Circuit law may also be considered "for its persuasive authority in applying Supreme Court law." Van Tran v. Lindsey, 212 F.3d 1143, 1150 (9th Cir. 2000), overruled on other grounds by Lockyer, 538 U.S. 63 (2003); Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003), cert. denied, 540 U.S. 968 (2003). A state court's decision is "contrary to" clearly established United States Supreme Court precedent if (1) the state court applies a rule different from the governing law set forth in Supreme

Title 28, United States Code, § 2254 as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to all habeas corpus petitions filed after 1996. See Lindh v. Murphy, 521 U.S. 320 (1997). The current petition was filed on May 23, 2006.

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Court cases or (2) the state court confronts a set of facts that are materially indistinguishable from a Supreme Court case, but still reaches a different result. Williams, 529 U.S. at 405-406, 412 (2000); Bell v. Cone, 535 U.S. 685, 694; Lockyer, 538 U.S. at 73; Clark, 331 F.3d at 1067. A state court decision does not have to cite to or even be aware of clearly established Supreme Court precedent, so long as neither the reasoning nor the result of the state court decision contradicts it. Early v. Packer, 537 U.S. 3, 8 (2002). A state court decision involves an "unreasonable application" of Supreme Court precedent if (1) the state court identifies the correct governing rule, but then applies it to a new set of facts in an unreasonable way, or (2) "the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Wiggins v. Smith, 539 U.S. 510, 520 (2003); Lockyer, 538 U.S. at 76 (citing Williams, 529 U.S. at 407); Clark, 331 F.3d at 1067. An unreasonable application of federal law requires the state court decision to be more than incorrect or erroneous. Lockyer, 538 U.S. at 76. Instead, the state court's application must be "objectively unreasonable." Id. Where there is no reasoned decision from the state's highest court, the Court "looks through to the last reasoned state-court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991); Van Lynn v. Farmon, 347 F.3d 735 (9th Cir. 2003). However, if the dispositive state court order does not "furnish a basis for its reasoning," the federal court considering the habeas petition must conduct an independent review of the record to determine whether the state court unreasonably applied controlling federal law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000); Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). VII. DISCUSSION Respondent first alleges claim one and claims five through eleven are procedurally barred by virtue of the state supreme court's previous rejection with a citation to In re Waltreus, 62 Cal.

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2d 218 (1965)2. (Memorandum of Points and Authorities in Support of Answer ["Ans. Mem."] at 5-8.) This Court will first address the issue of procedural default under In re Waltreus before addressing the merits of the petition. A. Petitioner's claims are not barred by the Waltreus Citation Although claim one and claims five through eleven in the current petition were presented to the state appellate court on direct review, they were not presented to the state supreme court in a petition for review. Rather, these claims were presented to the state supreme court in a habeas petition filed by Petitioner in that court. (Lodgment 15 at 1-20.) That petition was denied; the decision stated in full: "Petition for writ of habeas corpus is DENIED. (See In re Waltreus (1965) 62 Cal.2d 218.))" (Lodgment 16.) Respondent argues the state supreme court's citation to In re Waltreus indicates Petitioner failed to properly present the claims to the state supreme court on direct review, rendering those claims procedurally defaulted. (Ans. Mem. at 7-8.) For the following reasons, the Court finds it must look through the Waltreus citation to the last reasoned state court decision, in this case the state appellate court's partially published opinion on direct review, in order to determine whether the state supreme court actually denied the claim on the basis of a procedural bar. In Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991), the court adopted a presumption which gives no effect to unexplained state court orders but "looks through" them to the last reasoned state court decision. In Ylst, the state appellate court rejected a claim on the basis it was raised for the first time on appeal, and the state supreme court denied the subsequent petition for review without comment or citation of authority. Id. at 799-800. The petitioner in that case then presented the claim in a habeas petition in the state supreme court, which denied the petition with citations to In re Swain, 34 Cal. 2d 300, 304 (1949) and In re Waltreus, 62 Cal. 2d 218, 225 (1965), but without any accompanying explanation or opinion. Ylst, 501 U.S. at 800. The petitioner then filed a second habeas petition in the state supreme court raising the same claim, which was denied without opinion or case citation. Id.
Respondent cites O'Sullivan v. Boerckel, 526 U.S. 838 (1999), in support of the contention that the claims were procedurally defaulted for Petitioner's failure to properly exhaust these eight claims in a petition for review to the state supreme court.
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The Ylst Court held the following rebuttable presumption is appropriate: "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst, 501 U.S. at 803. Since Petitioner presentd numerous claims present by the petitioner in the state habeas petition, the Ylst Court was unable to determine whether the Swain or Waltreus citation applied to the claim in question. Id. at 805. However, because the appellate court had denied the claim on procedural grounds, and no state court had ever reached the merits of the claim in a reasoned opinion, the Ylst Court found, irrespective of whether the Swain or Waltreus citation was intended to apply to the claim in question, neither citation could be read as an intention by the state supreme court to lift the procedural bar imposed by the appellate court or to otherwise reach the merits of the claim; the claim was therefore procedurally defaulted and the court remanded for a determination of cause and prejudice. Id. at 806. With respect to California's Waltreus rule, the court observed,: "Since a later state decision based upon ineligibility for further state review neither rests upon procedural default nor lifts a pre-existing procedural default, its effect upon the availability of federal habeas is nil - which is precisely the effect accorded by the `look-through' presumption." Id. at 804. The Ninth Circuit has also found "[a]n In re Waltreus citation is neither a ruling on the merits nor a denial on procedural grounds and, therefore, has no bearing on a California prisoner's ability to raise a federal constitutional claim in federal court." Hill v. Roe, 321 F.3d 787, 789 (9th Cir. 2003). Ylst therefore requires this Court to look through the state supreme court order here to the state appellate court opinion to determine whether claims one and five through eleven were denied on the basis of a procedural rule by the appellate court. See Ylst, 501 U.S. at 804; Hill, 321 F.3d at 789 (recognizing the decision in Ylst forecloses any argument the Waltreus rule can be considered an independent and adequate state procedural ground). Respondent, however, argues the citation to Waltreus here supports a procedural default even if the appellate court reached the merits of the claim. In this case, Respondent appears to contend the citation to Waltreus (coming as it did after a complete failure by Petitioner to file a petition for review), does not stand for the bar against re-litigation of claims on state habeas which were raised and addressed on direct appeal as characterized by Ylst and Hill, but instead stands for -8-

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a state procedural rule that habeas cannot act as a substitute for appeal, and is therefore distinguishable from the citation to Waltreus in Ylst. A Ninth Circuit case is instructive in resolving this issue: Forrest v. Vasquez, 75 F.3d 562 (9th Cir. 1996). In Forrest, the petitioner's conviction was affirmed by the state court of appeal. Forrest, 75 F.3d at 563. The petitioner failed to comply with Rule 28(b) of the California Rules of Court because he did not file a timely petition for review with the state supreme court; he subsequently filed an application for relief from that default, which was denied. Id. Forrest then filed a habeas petition with the state supreme court; the petition was denied with a citation to Waltreus. The Ninth Circuit looked through the Waltreus citation to the state supreme court order denying Forrest's application for relief from default, but did not look through that order to the lower appellate court opinion. Forrest, 75 F.3d at 564. The order denying relief from default was in fact the last reasoned decision to which the court looked through the Waltreus citation. Id. ("we look through Waltreus to an order that was clearly based on Forrest's failure to comply with a procedural rule."). Forrest's habeas claims were therefore procedurally defaulted by virtue of the order imposing the Rule 28(b) default. Id. Ylst makes clear that a citation to Waltreus is no indication of whether the state supreme court considered the merits of a claim. Ylst, 501 U.S. at 805. Even under Forrest, the Court will refuse to look through a Waltreus citation to the appellate court opinion only when an intervening order or opinion stands in the way. Thus, under Forrest and Ylst, the Court must look through the Waltreus citation to the last reasoned decision of any state court it can find, and apply a rebuttable presumption that the state supreme court disposed of the claim on the same basis as the last reasoned decision. To the extent Respondent urges this Court to impose a procedural default against Petitioner based on his failure to raise his claim in a petition for review, no authority cited by Respondent supports such a finding. It is impossible to say in the instant case what the state supreme court meant to indicate in citing Waltreus. The Waltreus citation could mean Petitioner cannot raise a habeas claim that was rejected on direct review but not presented in a petition for review. Alternatively, the Waltreus citation might mean Petitioner is not entitled to use habeas as a substitute for the complete direct -9-

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appeal process and has procedurally defaulted his claim. Lastly, the Waltreus citation might mean claims rejected on direct appeal are not eligible for further review on habeas. As Respondent has failed to overcome the Ylst presumption, this Court will "look through" the state supreme court's denial of Petitioner's habeas petition to the state appellate court's opinion on direct appeal to evaluate claim one and claims five through eleven. B. Petitioner is not entitled to habeas relief based on claim one and three. In claim one, Petitioner contends the trial court erred in admitting evidence of his prior uncharged sexual offense pursuant to California Evidence Code § 1108. (Pet. at 8-25.) In claim three, Petitioner contends the trial court failed to determine whether Petitioner's Arizona misconduct constituted one of the specifically enumerated offenses listed in California Evidence Code § 1108. (Pet. at 38-48.) Claims one and three are identical and will be analyzed jointly for practical purposes. California Evidence Code section 1108 authorizes the admission of evidence of certain prior sexual offenses to demonstrate a defendant's disposition to commit sexual offenses. Section 1108 provides in pertinent part: (a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352. (d) As used in this section, the following definitions shall apply: (1) "Sexual offense" means a crime under the law of a state or of the United States that involved any of the following: (A) Any conduct proscribed by Section 243.4, 261, 261.5, 262, 264.1, 266c, 269, 286, 288, 288a, 288.2, 288.5, or 289, or subdivision (b), (c), or (d) of Section 311.2 or Section 311.3, 311.4, 311.10, 311.11, 314, or 647.6 of the Penal Code. In particular, Petitioner alleges the evidence of his uncharged sexual offense established his actions as lewd conduct, which is not one of the enumerated offenses made admissible by California Evidence Code § 1108. In support of this contention, Petitioner argues "no consideration at all was given to the possibility petitioner's offense constituted merely lewd conduct, for, as noted, the parties were all working under the erroneous assumption that evidence of any prior sexual offense was admissible." (Pet. at 8.) Petitioner asserts "the facts of petitioner's conduct in Arizona reflects conduct that falls under Penal Code section 647 (lewd conduct), not - 10 06cv1122-JLS (WMc)

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under Penal Code section 314 (indecent exposure)." (Pet. at 9.) In essence, Petitioner argues that, if his Arizona sexual offense had been characterized as lewd conduct rather than indecent exposure, evidence of the uncharged Arizona offense would not have been admitted at trial. Petitioner claims a Sixth Amendment violation. (Pet. at 24.) Respondent argues (1) the claim is procedurally defaulted under the contemporaneous objection rule; (2) Petitioner fails to state a claim which is cognizable on federal habeas corpus; and (3) the claim fails on the merits. (Ans. Mem. at 5-13.) 1. Procedural default under the contemporaneous objection rule

When a state court rejects a federal claim based upon a violation of a state procedural rule which is adequate to support the judgment and independent of federal law, a habeas petitioner has procedurally defaulted his claim in federal court. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). A state procedural rule is "independent" if it is not interwoven with federal law. LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). A state procedural rule is "adequate" if it is "clear, consistently applied, and well-established" at the time of the default. Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996). Nevertheless, "a procedural default does not bar consideration of a federal claim on direct or habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263 (1989) (internal quotation marks omitted). Furthermore, the Court may still reach the merits of a procedurally defaulted claim if the petitioner can demonstrate cause for the procedural default and actual prejudice resulting from the default, or if the failure of the Court to review the claim would result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. Respondent has the initial burden of pleading as an affirmative defense that petitioner's failure to satisfy a state procedural rule forecloses federal habeas review. Bennet v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003). If respondent makes a satisfactory showing, the burden then shifts to petitioner to challenge the independence or adequacy of the procedural bar. Id. If petitioner makes a showing, then the ultimate burden of proof falls on respondent. Id. In this instance, Respondent asserts Petitioner's claim is procedurally defaulted under the - 11 -

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contemporaneous objection rule because Petitioner failed to raise the necessary objection in the trial court. To determine whether Petitioner's claim is procedurally defaulted, this Court must look to the state appellate court's decision because it is the last reasoned state court decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). On direct appeal, the state appellate court denied Petitioner's claim because, at trial, Petitioner failed to raise his claim that the uncharged sexual offense was not within the scope of offenses listed in California Evidence Code § 1108. The state appellate court stated its reasoning as follows: We need not consider the precise nature of the elements of these two offenses or whether the Arizona incident constituted indecent exposure because, as Medina concedes, he did not raise this objection in the trial court. (See Evid. Code, §353 [precluding reversal of a decision based on the erroneous admission of evidence unless there was "an objection to ... the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion"].) At trial, Medina's counsel conceded that the facts of the Arizona offense constituted indecent exposure (§ 314). Medina may not concede in the trial court that masturbating in public is sufficient to establish the offense of indecent exposure, and then claim on appeal that masturbating in public is insufficient to establish the same offense. Even if the facts in the record were insufficient to establish that the Arizona offense constituted indecent exposure - a conclusion we emphasize we do not reach here - the People could have attempted to cure any such evidentiary deficiency if they had been apprised of Medina's objection. The requirement that there be a contemporaneous objection, contained in Evidence Code section 353, is fully applicable under these circumstances. Accordingly, Medina has waived his claim that the Arizona incident was inadmissible because it constituted lewd conduct and not indecent exposure. For the same reasons, Medina has also waived his related claim that the trial court abused its discretion under Evidence Code section 352 by failing to consider whether the offense committed in Arizona was within the scope of those acts deemed admissible under Evidence Code section 1108. (Lodgment 6 at 5-7, footnotes omitted.) The state appellate court determined the "requirement that there be a contemporaneous objection, contained in Evidence Code section 353, is fully applicable under these circumstances" and therefore Petitioner "has waived his claim that the Arizona incident was inadmissible because it constituted lewd conduct and not indecent exposure." (Lodgment 6 at 6.) The Ninth Circuit has explicitly held that California's contemporaneous objection rule is an adequate bar to federal habeas review. See Davis v. Woodford, 384 F.3d 628, 653-54 (9th Cir. 2004); Vansickel v. White, 166 F.3d 953, 957-58 (9th Cir. 1999). The state appellate court's express invocation of the contemporaneous objection rule precludes federal review of Petitioner's claim unless Petitioner - 12 -

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can demonstrate cause for the procedural default and actual prejudice resulting from the default, or if the failure of the Court to review the claim would result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. The Court notes Petitioner asserts his defense counsel "strenuously objected to the admission of petitioner's Arizona sexual offense" at the outset of the trial. (Pet. at 18.) However, Petitioner acknowledges his defense counsel did not object on the grounds the Arizona offense should have been characterized as lewd conduct instead of indecent exposure. (Pet. at 19.) Rather, Petitioner's counsel claimed the evidence of the Arizona offense should be excluded under Evidence Code section 352 on the ground that its probative value would be substantially outweighed by undue prejudice. (Lodgment 6 at 7, n.4.) The issue Petitioner's defense counsel objected to at trial is not the issue referred to in claims one and three of this Petition. Petitioner does not directly address the matter of procedural default in the Petition. However, Petitioner attributes the failure to object to his trial counsel. Petitioner argues "he should not now lose the opportunity of raising this critical issue based on what is, perhaps, an understandable failure by defense counsel to object to the admission of the Arizona offense on this particular basis." (Pet. at 19.) Petitioner appears to assert an ineffective assistance of counsel claim as cause for failing to object at trial to the admission of the Arizona offense. Petitioner contends the trial as a whole was prejudiced by the admission of the Arizona offense. Petitioner argues "the jury could not but have been [sic] strongly influenced by the wrongly admitted evidence of petitioner's Arizona sexual offense." (Pet. at 22.) Although the Supreme Court has not "identified with precision exactly what constitutes `cause' to excuse a procedural default, [it has] acknowledged that in certain circumstances counsel's ineffectiveness in failing properly to preserve the claim for review in state court will suffice." Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Murray v. Carrier, 477 U.S. 478, 488-89 (1986)). The Supreme Court stressed "[n]ot just any deficiency in counsel's performance will do...the assistance must have been so ineffective as to violate the Federal Constitution." Edwards, 529 U.S. at 451. In other words, "ineffective assistance adequate to establish cause for the procedural default of some other constitutional claims is itself an - 13 -

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independent constitutional claim." Id. The clearly established United States Supreme Court law governing ineffective assistance of counsel claims is set forth in Strickland v. Washington, 466 U.S. 668 (1984). Williams v. Taylor, 529 U.S. 362, 391 (2000) (stating it is beyond question that Strickland is the "clearly established" law governing ineffective assistance of counsel claims); Baylor v. Estelle, 94 F.3d 1321, 1323 (9th Cir. 1996) (same); Jones v. Wood, 114 F.3d 1002, 1013 (9th Cir. 1997) (same). To prove a claim of ineffective assistance of counsel, the petitioner must demonstrate two things. First, the petitioner must show counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687. "This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. Second, the petitioner must show counsel's deficient performance prejudiced the defense. Id. To prove prejudice, the petitioner must demonstrate counsel's error rendered the result unreliable or the trial fundamentally unfair. Id. at 694. "The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel can not be shown by a preponderance of the evidence to have determined the outcome." Id. Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1987); Strickland, 466 U.S. at 690; Butcher v. Marquez, 758 F.2d 373, 376 (9th Cir. 1985). Petitioner has set forth an independent claim for ineffective assistance of counsel in claim four of this Petition on the grounds his trial counsel should have objected to the characterization and ultimate admission of the Arizona offense as indecent exposure. The state supreme court rejected Petitioner's independent ineffective assistance claim without citation of authority. (Lodgment 18.) Thus, this Court must "look through" to the state appellate court decision rejecting the claim as the basis for its analysis. Ylst, 501 U.S. at 801-06. In this case, it is the state appellate court's April 21, 2005 rejection of his state habeas petition which provides reasoned analysis of Petitioner's claims of ineffective assistance of counsel. (Lodgment 14.) In response to Petitioner's ineffective assistance of counsel argument, the state appellate - 14 -

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court found Petitioner's position was not supported by the record. The state appellate court rejected the ineffective assistance of counsel claim, stating: Also, the giving of the CALJIC No. 2.50.01 instruction undermines Medina's arguments relating to the use of the Arizona offense. The premise of these arguments is that defense counsel wrongly assumed the Arizona offense constituted indecent exposure and, therefore, wrongfully permitted the admission of evidence of this offense. However, per the CALJIC No. 2.05.01 instruction, whether the Arizona offense constituted indecent exposure was a factual question for the jury to decide. Moreover, while Medina admits in connection with the Arizona offense that he was masturbating in a public place for his own personal sexual gratification, he claims there is no evidence he was trying to draw attention to his conduct. This claim is belied by the fact that, at the time he was engaged in this activity, he was facing a bus stop where children were present. Even if no one actually saw his conduct, his conduct could still amount to indecent exposure. (People v. Carbajal (2003) 114 Cal.App.4th 978, 986.) Therefore, it was proper to submit the issue to the jury to resolve. (Lodgment 14 at 2.) In its explanation, the state appellate court specifically noted, because Petitioner "was masterbating in a public place for his own personal sexual gratification" while "facing a bus stop where children where present," determination of whether "the Arizona offense constituted indecent exposure was a factual question for the jury to decide." (Lodgment 14 at 3.) Petitioner cannot establish his counsel's performance "fell below an objective standard of reasonableness" for failing to object to the admission of the Arizona offense because the characterization of the misconduct was a factual issue for the jury to resolve. Thus, Petitioner's counsel did not render deficient representation under the Strickland test. Without reaching the issue of prejudice, this Court finds Petitioner has not adequately established ineffective assistance of counsel sufficient to show cause for the procedural default. Since Petitioner has not overcome the heavy burden set forth in Coleman, this Court recommends DENYING relief based on claims one and three of the Petition. C. Petitioner is not entitled to habeas relief based on claim two. In claim two Petitioner contends the trial court erred in admitting his Arizona indecent exposure pursuant to California Evidence Code § 1108 because the Arizona offense occurred after, rather than before, the charged offense. (Pet. at 26-37.) The issue Petitioner raises "is whether - 15 -

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committing a sexual offense eight years after the charged offense gives rise to the proposition the accused...had the disposition to commit the charged sexual offenses eight years earlier." (Pet. at 26.) Petitioner claims "section 1108 does not apply to offenses committed after the charged offenses, and certainly not where the time gap between the offense is substantial, as it was in the instant case." (Pet. at 29.) Petitioner argues while "section 1108 may well not violate principles of Due Process or Equal Protection when the prior sexual offenses took place prior to the charged offenses, they do violate those principles when the collateral offenses occur subsequent to the charged offense[.]" (Pet. at 34.) Essentially, Petitioner alleges a Fourteenth Amendment violation.. Petitioner cites a concurring and dissenting opinion in United States v. Wright, 53 M.J. 476 (2000), a United States Court of Appeals for the Armed Forces case, for the proposition that propensity evidence should not be admitted when the uncharged offenses take place after the charged offense. (Pet. at 30.) However, this decision is not clearly established Federal law, as determined by the Supreme Court of the United States or Ninth Circuit case law which may be considered "for its persuasive authority in applying Supreme Court law." Van Tran v. Lindsey, 212 F.3d 1143, 1150 (9th Cir. 2000), overruled on other grounds by Lockyer 538 U.S. 63; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003), cert. denied, 540 U.S. 968 (2003). Consequently, the case law cited by Petitioner is irrelevant for purposes of evaluating claim two of this Petition. Respondent argues (1) Petitioner fails to state a claim; and (2) Petitioner's claim fails on the merits because the state court's decision on appeal was reasonable. (Ans. Mem. at 13.) More specifically, Respondent asserts Petitioner's claim presents only state law issues regarding the admission of evidence pursuant to California Evidence Code § 1108 and therefore fails to state a claim which is cognizable on federal habeas corpus. (Ans. Mem. at 11.) 1. Failure to state a claim which is cognizable on federal habeas corpus

"In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68 (1991); 28 U.S.C. §§ 2241(c))(3), 2254(a). Habeas relief is not available for an alleged error in the interpretation or application of state law. Estelle v. McGuire, 502 U.S. at 67-68; Jammal v. - 16 -

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Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991); O'Bremski v. Maass, 915 F.2d 418, 423 (9th Cir. 1990), Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985). Federal habeas courts do not grant relief, as a state appellate court might, simply based on a violation of state law. See Estelle, 502 U.S. at 72. Furthermore, state evidentiary rulings are not cognizable in a federal habeas proceeding unless the admission of the evidence violated the petitioner's federal due process right to a fair trial. Estelle, 502 U.S. at 70; Gordon v. Duran, 895 F.2d 610, 613 (9th Cir. 1990); Jammal, 926 F.2d at 920. Accordingly, to establish a due process violation, a petitioner must show the trial court's ruling was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. Jammal, 926 F.2d at 919; Kealohapauole v. Shimoda, 800 F.2d 1463, 1466 (9th Cir. 1986). Since Petitioner asserts his Fourteenth Amendment rights were violated by the introduction of the subsequent uncharged offense to prove a propensity to commit sexual crimes, Petitioner has stated a claim which is cognizable on federal habeas corpus. Consequently, the Respondent's argument is rejected and the claim must be evaluated on the merits. 2. Merits

The United States Supreme Court has never held that the use of sexual offenses to show propensity for a similar crime violates due process or equal protection. In fact, the United States Supreme Court has expressly declined to rule on the constitutionality of the use of propensity evidence. See Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991). Thus, the inquiry turns on whether the admission of the evidence violated the Petitioner's due process right to a fair trial. Estelle, 502 U.S. at 68; Spivey v. Rocha, 194 F.3d 971, 977-978 (9th Cir. 1990). In order to prevail, the Petitioner must show that the court's ruling was so prejudicial that it rendered his trial fundamentally unfair. See Estelle, 502 U.S. at 68; Jammal, 926 F.2d at 920. On petition for review, the state supreme court rejected this claim without citation of authority. (Lodgment 10.) Thus, this Court must "look through" to the state appellate court decision rejecting the claim as the basis for its analysis. Ylst, 501 U.S. at 801-06. In this case, it is the state appellate court's partially published opinion on direct review. (Lodgment 6.) The state appellate court denied claim two on the merits. In response to Petitioner's due process and equal protection arguments, the state appellate court stated: - 17 -

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Medina also argues that principles of due process and equal protection are violated by the introduction of evidence of uncharged sex offenses committed after the charged offense. The California Supreme Court has rejected the argument that the use of propensity evidence, as authorized by Evidence Code section 1108, violates principles of due process. (People v. Falsetta, supra, 21 Cal.4th at p.907.) Medina argues that in "after-the-fact circumstances, there is simply no commonsense connection to establishing a predisposition to having committed a prior offense. (Italics added.) What Medina fails to acknowledge is that section 1108 is not limited to evidence that establishes a predisposition on the part of the defendant to commit a sexual offense. Rather, it permits evidence of the defendant's commission of "another sexual offense or offenses" to establish the defendant's propensity to commit sexual offenses. There is no requirement that the other offenses precede in time the charged offense. (See People v. Shoemaker, supra, 135 Cal.App.3d at p.447.) We reject Medina's claim that Evidence Code section 1108 violates due process to the extent it authorizes the admission of evidence of uncharged sexual offenses committed after the charged offense. (Lodgment 6 at 11-12, footnotes omitted.) The state appellate court's decision denying Petitioner's claim was reasonable. The statute at issue allows for the admission of evidence to establish a propensity to commit sexual offenses. To the extent Petitioner presents a generalized due process claim arising from the unfairness of the admission of the propensity evidence, he has not identified a federal constitutional violation. In Jammal v. Van de Kamp, 926 F.2d 918 (9th Cir. 1991), the Ninth Circuit recognized only where there are no permissible inferences to be drawn from evidence improperly admitted at trial can its admission violate federal due process, and even then the evidence must be of such quality as to necessarily prevent a fair trial. Id. at 920. The admission of the evidence of Petitioner's propensity to commit sexual offenses does not satisfy that standard. There was a permissible inference the jury could have drawn from the evidence, namely, that Petitioner had a propensity to commit sexual crimes. Petitioner does challenge how the Arizona conduct should be defined, but he does not deny the conduct occurred. (Pet. at 47-48.) To the extent Petitioner is contending the introduction of the evidence violated his Fourteenth Amendment right to due process and a fair trial, there is no basis for federal habeas relief. Jammal, 926 F.2d at 920. Thus, Petitioner has not sufficiently established a due process violation because the state appellate court's ruling was not "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Based on the foregoing, this Court recommends DENYING relief based on claim two. - 18 -

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D.

Petitioner is not entitled to habeas relief based on claim four. In claim four, Petitioner contends his conviction should be reversed because his attorney

was ineffective for several reasons. (Pet. at 49-77.) In particular, Petitioner claims his counsel rendered ineffective assistance of counsel because she: (1) failed to object to the admissibility of the prior sexual offense in Arizona as indecent exposure and the corresponding jury instructions related to that offense; (2) failed to argue for jury instructions on attempted rape as a lesser included offense; and (3) did not object to the trial court's sentencing errors. (Pet. at 49-77.) The clearly established United States Supreme Court law governing ineffective assistance of counsel claims is set forth in Strickland v. Washington, 466 U.S. 668 (1984). Williams v. Taylor, 529 U.S. 362, 391 (2000) (stating it is beyond question that Strickland is the "clearly established" law governing ineffective assistance of counsel claims); Baylor v. Estelle, 94 F.3d 1321, 1323 (9th Cir. 1996) (same); Jones v. Wood, 114 F.3d 1002, 1013 (9th Cir. 1997) (same). To prove a claim of ineffective assistance of counsel, the petitioner must demonstrate two things. First, the petitioner must show counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687. "This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. Second, the petitioner must show counsel's deficient performance prejudiced the defense. Id. To prove prejudice, the petitioner must demonstrate counsel's error rendered the result unreliable or the trial fundamentally unfair. Id. at 694. "The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel can not be shown by a preponderance of the evidence to have determined the outcome." Id. Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1987); Strickland, 466 U.S. at 690; Butcher v. Marquez, 758 F.2d 373, 376 (9th Cir. 1985). The state supreme court rejected this claim without citation of authority. (Lodgment 18.) Thus, this Court must "look through" to the state appellate court decision rejecting the claim as the basis for its analysis. Ylst, 501 U.S. at 801-06. In this case, it is the state appellate court's April - 19 -

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21, 2005 rejection of his state habeas petition which provides reasoned rejections of Petitioner's claims of ineffective assistance of counsel. (Lodgment 14.) 1. Admissibility of the prior sexual offense in Arizona Petitioner asserts the Arizona offense constituted lewd conduct as opposed to indecent exposure. Since lewd conduct is not one of the enumerated offenses made admissible by Evidence Code § 1108, Petitioner argues his counsel erred by failing to object when this evidence was admitted under Evidence Code § 1108. However, Petitioner notes "defense counsel strenuosly [sic] objected to the admission of petitioner's Arizona sexual offense but only in regards to it's [sic] temporal relevancy 8 years after the charged offenses, and it's [sic] lack of similarity to the instant offense." (Pet. at 51.) Petitioner stresses he was "prejudiced by the introduction of his 2001 sexual offense, for it was introduced by the prosecution for the express purpose of inviting the jury to disbelieve petitioner's version of what probably happened in 1993, and to conclude that since petitioner committed this sexual offense in Arizona he was therefore uncredible [sic] in his testimony." (Pet. at 63.) Petitioner contends reversal is required because "it is also reasonably likely the jury might have had a reasonable doubt as to whether a rape actually took place as claimed[.]" (Pet. at 63.) The Court notes Petitioner presents pages of his personal opinion regarding how his attorney failed to properly represent him. However, Petitioner's personal opinion has no effect on an ineffective assistance of counsel claim and whether his trial counsel's performance fell below the standard set out in Strickland. In response to Petitioner's argument, the state appellate court determined Petitioner's position was not supported by the record. The state appellate court rejected this claim based on the following: Also, the giving of the CALJIC No. 2.50.01 instruction undermines Medina's arguments relating to the use of the Arizona offense. The premise of these arguments is that defense counsel wrongly assumed the Arizona offense constituted indecent exposure and, therefore, wrongfully permitted the admission of evidence of this offense. However, per the CALJIC No. 2.05.01 instruction, whether the Arizona offense constituted indecent exposure was a factual question for the jury to decide. Moreover, while Medina admits in connection with the Arizona offense that he was masturbating in a public place for his own personal sexual gratification, he claims there is no evidence he was trying to draw attention to his conduct. This claim is belied by the fact that, at the time he was engaged in this activity, he was - 20 06cv1122-JLS (WMc)

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facing a bus stop where children were present. Even if no one actually saw his conduct, his conduct could still amount to indecent exposure. (People v. Carbajal (2003) 114 Cal.App.4th 978, 986.) Therefore, it was proper to submit the issue to the jury to resolve. (Lodgment 14 at 2.) In its reasoning, the state appellate court specifically noted because, Petitioner "was masturbating in a public place for his own personal sexual gratification" while "facing a bus stop where children where present," determination of whether "the Arizona offense constituted indecent exposure was a factual question for the jury to decide." (Lodgment 14 at 3.) Petitioner cannot establish his counsel's performance "fell below an objective standard of reasonableness" for failing to object to the admission of the Arizona offense because the characterization of the misconduct was a factual issue for the jury to resolve. Thus, Petitioner's counsel did not render deficient representation under the Strickland test. Additionally, Petitioner fails to set forth sufficient facts showing the outcome of his trial would have been different had the Arizona offense been excluded. Although the Petitioner asserts the jury "might have had a reasonable doubt as to whether a rape actually took place as claimed...," Petitioner's argument that the conviction resulted from the admission of the uncharged sexual offense ignores the DNA evidence and the victim's testimony describing the rape. (Pet. at 63.) Thus, Petitioner has failed to establish it was reasonably probable he would have obtained a more favorable verdict. 2. Jury instructions on the lesser offense of attempted rape Petitioner asserts an ineffective assistance of counsel claim on the basis his trial counsel failed to argue for jury instructions on the lesser-included offense of attempted rape. Petitioner claims the facts of the assault justify an attempt instruction stating in pertinent part "while the court did, in fact, properly instruct as to rape in this regard, the evidence required that the court instruct with attempted rape as well." (Pet. at 57.) Specifically, Petitioner argues the victim's testimony was "less than unequivocal" about whether a rape had taken place. (Pet. at 58) In support of this claim, Petitioner partially includes the victim's testimony on direct examination in the Petition: - 21 -

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Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: (Pet. at 58-59.)

You describe the fact he then tried to penetrate you. Correct. Did he have an erection at that point?" I don't recall. Can you tell us when he attempted to penetrate you, what exactly did he do? He wasn't very successful. What do you mean? I don't believe - I guess he was not fully erect, and he could not penetrate very easily. I'm sorry to ask, but did he penetrate your external vaginal lips? I believe so. Did he go any further than that? No. Where you scared at that point? Yes. Were you terrified? Yes. He attempted to penetrate you once on your external vaginal lips; correct? Correct Did he try again? I believe so. Same way or different way than the previous time? I believe the same way. Was he successful in fully penetrating you? No. De [sic] he penetrate the external lips of your vaginal area on that occasion? I believe so." (RT 99-100)

Petitioner argues the victim's reply "I believe so" constitutes an equivocal answer, raising doubts about whether a rape had taken place. Petitioner declares "[i]t is well established that the trial court has a duty to instruct on a lesser included offense su sponte [sic] where there is `substantial evidence' to support it, i.e., where evidence has been presented that could raise a reasonable doubt concerning whether all of the elements of the greater offense are present." (Pet. at 57.) Petitioner cites California case law in support of this proposition. In sum, Petitioner alleges he was prejudiced from the lack of jury instructions on the lesser included offense of attempted rape. The state appellate court rejected this claim in the Petitioner's state habeas petition, noting: In this case, Medina has failed to include any supporting evidence with his petition and, consequently, has not shown his trial counsel's performance was deficient or prejudicial. In addition, assuming the factual statements in the petition are true, many of Medina's arguments lack merit as a matter of law. For instance, this claim that his trial counsel should have objected to the withdrawal of the jury instruction on the lesser included offense of attempted rape lacks merit because, as - 22 06cv1122-JLS (WMc)

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explained on appeal, the evidence did not warrant this instruction. (People v. Mendoza (2000) 24 Cal.4th 130, 174.) (Lodgment 14 at 2.) The state appellate court found Petitioner's argument lacked merit as a matter of law because "the evidence did not warrant this instruction." (Lodgment 14 at 2.) To support its position, the state appellate court referred to its previous decision on direct appeal where that court addressed the attempted rape instructional claim with the following: Medina places great emphasis on the fact that, with regard to the rape that occurred on the side of the church, when the victim was asked whether Medina had penetrated her external lips, she responded with an unequivocal "yes." Medina claims this unequivocal answer stands in contrast to the victims's "arguably equivocal" answer with regard to the sexual assault that took place on the church steps. However, Medina omits the following testimony from the victim's direct examination regarding the assault on the church steps: "Q. I believe that you described that on the steps when you were located there the man penetrated your external vaginal lips two times; correct? "A. Correct." This testimony was unequivocal. No reasonable jury could conclude on the basis of such testimony that Medina attempted to, but did not, rape the victim on the church steps. Because there was no evidence that the offense occurred was less than that charged, the trial court was not required to instruct the jury on the lesser included offense of attempted rape. (Lodgment 6 at 15-16.) Petitioner's claim that his counsel should have objected to the withdrawal of the jury instructions on the lesser included offense of attempted rape is not supported by the record. There was no requirement for the trial court to instruct on the lesser included offense because there was no evidence which would warrant such an instruction. Therefore, in light of the state appellate court's finding there was insufficient evidence to support the lesser included offense, Petitioner has not shown how counsel's performance prejudiced the defense by failing to argue for attempted rape instructions. Without reaching the issue of whether Petitioner's trial counsel rendered deficient representation, this Court finds Petitioner has not met his burden under Strickland. 3. Trial court's sentencing errors Finally, Petitioner asserts his trial counsel rendered ineffective assistance of counsel for - 23 -

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failing to object to the trial court's sentencing errors. Petitioner alleges the trial court erred when it (1) "subjectively determined to sentence petitioner to the maximum term possible, and then worked backwards to find reasons that would support its intention"; (2) failed to state separate reasons for imposing consecutive "full strength" sentences as to counts one and three; (3) failed to state reasons for imposing consecutive "full strength" sentences as to counts one and three under California Penal Code Section 667.6(c) and; (4) used dual reasons for imposing consecutive upper terms for each individual count. (Pet. at 60-62.) Petitioner argues the trial court incorrectly double-counted the gun use to find Petitioner had threatened the victim with bodily harm. Petitioner alleges "the record makes clear the threat of bodily harm made by the assailant was that he threatened Ms. Kelly with a gun and told her he would not hurt her if she didn't yell[.]" (Pet. at 62.) Petitioner concludes: "[t]he court thus made dual use of the gun use, and this a court may not do, as defense counsel should have been cognizant of." (Pet. at 62.) The state appellate court addressed Petitioner's ineffective assistance of counsel claim with the following: Lastly, regarding Medina's sentencing claims, Medina offers no evidence to show, nor is it readily apparent, that his sentence was improper or that the outcome would have been different if his trial counsel had made the desired objections. (Lodgment 14 at 3.) Petitioner has not demonstrated how his trial counsel rendered ineffective assistance of counsel by failing to make objections at his sentencing hearing. Petitioner fails to address in the Petition what prejudice he suffered stemming from this alleged omission. Furthermore, Petitioner fails to set forth any facts which would establish that his sentence would have been different or reduced had the suggested objections by his trial counsel been made. The state court's adjudication using Strickland to address the merits of Petitioner's ineffective assistance of counsel claims should not be disturbed because its decision was not "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. Accordingly, this Court recommends DENYING relief based on claim four of the Petition. - 24 -

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E.

Petitioner is not entitled to habeas relief based on claim five. In claim five, Petitioner contends the trial court abused its discretion under California

Evidence Code § 352 in ruling Petitioner's Arizona sexual offense admissible pursuant to Evidence Code § 1108. (Pet. at 78-84.) California Evidence Code § 352 states: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Petitioner contends that in "exercising its mandated discretion pursuant to section 352, the court abused its discretion by failing to consider whether the Arizona offense was admissible under section 1108." (Pet. at 80.) Petitioner concedes "the issue petitioner raises in this argument appears similar to that raised in [claim one], ... the court erred in admitting the Arizona offense for it was not made admissible through section 1108." (Pet. at 80.) Essentially, Petitioner argues the trial court should have considered whether the Arizona offense constituted lewd conduct rather than indecent exposure in its section 352 analysis. (Pet. at 81.) Petitioner asserts the court's execution of the section 352 analysis was "fatal to principles of due process" (Pet. at 82) and "resulted in a manifest injustice to petitioner's defense." (Pet. at 84.) Respondent argues (1) the claim is procedurally defaulted under the contemporaneous objection rule; (2) Petitioner fails to state a claim which is cognizable on federal habeas corpus; and (3) the claim fails on the merits because the trial court did not abuse its discretion in assessing the probative value of the evidence. (Ans. Mem. at 19-23.) 1. Procedural default under the contemporaneous objection rule

Federal courts "will not review a question of federal law decided by a state if the decision of that court rests on a state law ground that is independent of the federal ground and adequate to support the judgment." Coleman, 501 U.S. at 729. The Ninth Circuit has held that California's contemporaneous objection rule, which requires objection at the time of trial to preserve an issue for appeal, is an adequate bar to federal habeas review. See Davis, 384 F.3d at 653-54. A procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its - 25 -

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judgment rests on a state procedural bar. Harris v. Reed, 489 U.S. 255, 263 (1989). The Court may still reach the merits of a procedurally defaulted claim if the petitioner can demonstrate cause for the procedural default and actual prejudice resulting from the default, or if the failure of the Court to review the claim would result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. To determine whether Petitioner's claim is procedurally defaulted, this Court must look to the