Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Dale S. Fischer, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on October 25, 2013. The Petition contains a single claim for relief alleging that the trial court erred by failing to sever charges of failing to register as a sex offender from charges of sexually abusing children. Respondent filed an Answer on January 21, 2014. Petitioner filed a Traverse on March 7, 2014.
BACKGROUND
A Second Amended Information charged Petitioner with: (a) three counts of rape of a child under the age of 14 years (Jane Doe 1), in violation of California Penal Code section 269(a)(1) (Counts 1, 2, 3); (b) two counts of rape of a child under the age of 14 years (Jane Doe 2), in violation of California Penal Code section 269(a)(1) (Counts 4 and 5); (c) three counts of forcible oral copulation on a child under the age of 14 years (Jane Doe 2), in violation of California Penal Code section 269(a)(4) (Counts 6, 7 and 8); (d) two counts of provision or transportation of a child under the age of 16 years for the purpose of a lewd act in violation of California Penal Code section 266j (Counts 9 and 10); and (e) two counts of failing to register as a sex offender in violation of former California Penal Code section 290(a)(1)(A) (Counts 11 and 12) (Clerk's Transcript ["C.T."] 357-61). The Second Amended Information further alleged that Petitioner had committed rape and forcible oral copulation offenses against more than one victim within the meaning of California Penal Code section 667.61(e)(5), and that Petitioner was an habitual sexual offender within the meaning of California Penal Code section 667.71 (C.T. 357-61). The Second Amended Information also alleged that Petitioner had suffered four prior convictions: for robbery, forcible oral copulation, attempted forcible rape and bank robbery (C.T. 362).
The California Legislature subsequently amended section 667.61 in ways immaterial to the issues presented here. The multiple victim enhancement is now contained in section 667.61(e)(4).
A jury found Petitioner guilty of the offenses alleged in Counts 1 through 11 (Reporter's Transcript ["R.T."] 974-76; C.T. 508-20). The Court found true the robbery, attempted forcible rape and forcible oral copulation prior conviction allegations (R.T. 979; C.T. 509). The Court found true the allegation that Petitioner was an habitual sexual offender, but found not true the multiple victim allegations (R.T. 979; C.T. 509). Petitioner received a sentence of 485 years to life (R.T. 989; C.T. 535-36).
At the request of the prosecution, the court dismissed Count 12 in the interest of justice (R.T. 790; C.T. 455).
The court ruled, with "some reluctance, " that because Penal Code section 667.61(c) did not list a violation of Penal Code section 269 as one of the offenses to which section 667.61(c) applied, the court could not impose multiple victim enhancements pursuant to section 667.61(e)(5) (R.T. 979).
The Court of Appeal remanded for correction of an error in the sentence on Count 11, but otherwise affirmed the judgment (Petition, Ex. B; see People v. Cagnolatti, 2012 WL 3568598 (Cal.App. Aug. 20, 2012)). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 8).
SUMMARY OF TRIAL EVIDENCE
The following summary is taken from the opinion of the California Court of Appeal in People v. Cagnolatti, 2012 WL 3568598 (Cal.App. Aug. 20, 2012). See Runningeagle v. Ryan , 686 F.3d 758, 763 n.1 (9th Cir. 2012), cert. denied, 133 S.Ct. 2766 (2013) (presuming correct statement of facts drawn from state court decision); Slovik v. Yates , 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).
A. Prosecution Evidence
The Molestations
The victims, Does 1 and 2, are Cagnolatti's nieces through his marriage to their great aunt, P. Cagnolatti. Doe 1 was born in April 1997, and Doe 2 was born in May 1996.
Cagnolatti first molested Doe 1 around 2005. He touched her "private parts" with his hand and also put his "private part" in her vagina, which hurt her and made her cry. The first time it happened was in his truck, and he also molested her at a house. He also tried to force her to touch his penis with her hand but she pulled away. He told Doe 1 that he had a gun and would kill her and her family if she told anyone. He also told her that, if she told anyone, he would get in trouble and she was afraid she would not be allowed to see him anymore.
Cagnolatti was a truck driver. His truck had a sleeping compartment, which contained a bed, behind the cab of the truck.
Cagnolatti first molested Doe 2 when she was eight years old and continued to molest her until she was 11 years old. The sexual acts included rape and oral copulation, and occurred more than 10 times when she was nine years old and more than 10 times when she was 10 years old. Although Doe 2 first testified she did not recall any threats, she later testified he threatened to kill her if she told anyone. On one occasion, he slapped her when she refused to orally copulate him.
Cagnolatti took Does 1 and 2 on a number of trips with him in his truck. The first time he took the girls on a trip nothing untoward occurred. However, on later trips to places including Bakersfield and Fresno, Cagnolatti molested Does 1 and 2. During some of those trips, Cagnolatti also brought other men to Doe 2, and these other men molested her. The other men gave money to Cagnolatti.
The Investigation
In March 2008 Doe 2 first learned Cagnolatti had molested Doe 1. Doe 2 then told Doe 1 Cagnolatti had done the same to her. They told their grandmother, and she called the Sheriff's Department. She also investigated Cagnolatti's name on the Internet and learned he was a registered sex offender.
San Bernardino County Deputy Sheriff Sodaro took the initial report on March 12, 2008. The sisters told Deputy Sodaro about the molestations and about Cagnolatti's threats if they told anyone. One week later, investigators went to the house at which Cagnolatti was registered. They found it empty and for sale. Over the next several weeks the investigators returned to the address frequently but never found anyone there. Cagnolatti did not change his registration address between August 2007 and June 2008.
Cagnolatti registered as a sex offender and gave an address in Moreno Valley. His registration included the acknowledgment that he had to register a new address within five days and, if he moved out of state, he had to register in the new state within 10 working days.
On May 14, 2008, authorities found Cagnolatti in Texas. When they stopped him, he identified himself as Cleve Benson and gave the arresting officers items of identification for Cleve Benson. However, the officers had his photograph, believed him to be Delano Cagnolatti, and arrested him.
B. Defense Evidence
Cagnolatti's wife, the great aunt of Does 1 and 2, testified she and Cagnolatti lived at the Moreno Valley address (at which he had registered) until June 2008. The house went into foreclosure and they were unsuccessful at trying to work with the bank to prevent foreclosure. Cagnolatti was in Texas trying to get trucking work starting around February 2008 but he was still living at the Moreno Valley address during February and March 2008. Cagnolatti told his wife that Doe 1 stole from him. Brian P., Does 1 and 2's uncle, had custody of the girls at various times from 2003 or 2004 to 2006, and also had custody of Doe 1 for two months in 2010. During the latter period of custody, Doe 1 constantly stole things and lied to him. He finally called the Sheriff to take her away.
A CPS investigator interviewed Does 1 and 2 in 2004 and neither mentioned any inappropriate touchings by Cagnolatti. The parties stipulated a social worker would testify she interviewed the girls in 2005 and both denied Cagnolatti inappropriately touched them. However, when she again interviewed them in 2008, they told her of the inappropriate conduct.
(Petition, Ex. B, pp. 2-5; see People v. Cagnolatti, 2012 WL 3568598 at *1-2).
STANDARD OF REVIEW
Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Woodford v. Visciotti , 537 U.S. 19, 24-26 (2002); Early v. Packer , 537 U.S. 3, 8 (2002); Williams v. Taylor , 529 U.S. 362, 405-09 (2000).
"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher , 132 S.Ct. 38, 44 (2011); Lockyer v. Andrade , 538 U.S. 63, 71-72 (2003). "[C]learly established law signifies the holdings, as opposed to the dicta, of [the United States Supreme] Court's decision." Howes v. Fields , 132 S.Ct. 1181, 1187 (2012) (quoting Williams v. Taylor , 529 U.S. at 412; internal quotations omitted); see Collins v. Runnels , 603 F.3d 1127, 1132 (9th Cir. 2010), cert. denied, 131 S.Ct. 243 (2010). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts... materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer , 537 U.S. at 8 (citation omitted); Williams v. Taylor , 529 U.S. at 405-06.
Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade , 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti , 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts). A state court's decision "involves an unreasonable application of [Supreme Court] precedent if 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." Williams v. Taylor , 529 U.S. at 407 (citation omitted).
"In order for a federal court to find a state court's application of [Supreme Court] precedent unreasonable, ' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith , 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad , 555 U.S. 179, 190 (2009); Davis v. Woodford , 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, ... or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter , 131 S.Ct. 770, 786 (2011). This is "the only question that matters under § 2254(d)(1)." Id . (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. at 786-87 ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement."). "AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Burt v. Titlow , 134 S.Ct. 10, 16 (2013). In applying these standards, the Court looks to the last reasoned state court decision, here the decision of the California Court of Appeal. See Delgadillo v. Woodford , 527 F.3d 919, 925 (9th Cir. 2008).
DISCUSSION
I. Background
The prosecutor requested an in limine order deeming admissible Petitioner's prior convictions for rape and forcible oral copulation (R.T. 21; C.T. 325-29). As a sanction for a discovery violation by the prosecution, the court denied the request (R.T. 23; C.T. 321). Pursuant to stipulation, the court instructed the jury that Petitioner previously had been convicted of an offense requiring registration under California Penal Code section 290, but did not describe the offense (R.T. 600).
The defense requested an order severing the charges of failing to register (R.T. 26-27; C.T. 330-43). The court denied the request, reasoning that evidence of Petitioner's failure to register was relevant to show consciousness of guilt of the other charges, because registration would have made it easier for law enforcement to find Petitioner (R.T. 28-29; C.T. 321).
The Court of Appeal upheld the trial court's denial of the motion to sever, ruling that the counts alleging failure to register were properly joined and that denial of severance was not an abuse of discretion (Petition, Ex. B, pp. 8-11; People v. Cagnolatti, 2012 WL 3568598 at *3-4). The Court of Appeal reasoned that the failure to register counts shared a common element with the other counts because Petitioner left the state at or about the same time the molestations came to the attention of authorities, and evidence that Petitioner left the state without registering was admissible to show consciousness of guilt (Petition, Ex. B, pp. 8-11; People v. Cagnolatti, 2012 WL 3568598 at *3-4).
II. Discussion
To the extent Petitioner claims that the denial of the motion to sever violated state law, federal habeas relief is unavailable. 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). Habeas relief is not available for an alleged error in the interpretation or application of state law. Id. at 67-68; see also Swarthout v. Cooke , 131 S.Ct. 859, 861 (2011); Jammal v. Van de Kamp , 926 F.2d 918, 919 (9th Cir. 1991).
To the extent Petitioner claims that the denial of the motion to sever violated the Constitution, federal habeas relief is also unavailable in the present case. As the Ninth Circuit has recognized, there exists no "clearly established Federal law, as determined by the Supreme Court of United States" mandating the severance of joined charges. See Grajeda v. Scribner, 541 Fed.App'x 776, 778 (9th Cir. 2013) ("The Supreme Court has not held that a state or federal trial court's denial of a motion to sever can, in itself, violate the Constitution.") (citations omitted); accord Hollie v. Hedgpeth, 456 Fed.App'x 685, 685 (9th Cir. 2011) (joinder of charges); see also Collins v. Runnels , 603 F.3d at 1132-33 (joinder of defendants asserting mutually antagonistic defenses did not violate any clearly established Supreme Court law).
Indeed, the United States Supreme Court has held that "improper joinder does not, in itself, violate the Constitution." United States v. Lane , 474 U.S. 438, 446 n.8 (1986). The Supreme Court did state in United States v. Lane that misjoinder could violate the Constitution if misjoinder resulted in prejudice so great as to deny the defendant the constitutional right to a fair trial. See United States v. Lane , 474 U.S. at 446 n.8. However, in Collins v. Runnels the Ninth Circuit characterized this statement as dictum. See Collins v. Runnels , 603 F.3d at 1132. As indicated above, Supreme Court dictum does not constitute "clearly established" law for purposes of the AEDPA standard of review. See Howes v. Fields , 132 S.Ct. at 1187.
United States v. Lane concerned the joinder standards under the Federal Rules of Criminal Procedure, and "no constitutional issue was before the court." Collins v. Runnels , 603 F.3d at 1132.
Furthermore, to the extent Petitioner claims that the failure to sever allowed the jury to consider allegedly improper propensity evidence, any such claim cannot warrant federal habeas relief. The United States Supreme Court has never ruled that the admission of propensity evidence violates the Constitution. See Estelle v. McGuire , 502 U.S. at 75 n.5 ("we express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of prior crimes' evidence to show propensity to commit a charged crime"); Mejia v. Garcia , 534 F.3d 1036, 1046 (9th Cir. 2008), cert. denied, 555 U.S. 1117 (2009) (rejecting habeas petitioner's challenge to introduction of propensity evidence, where petitioner could point to no Supreme Court precedent establishing that admission of otherwise relevant propensity evidence violated the Constitution); Alberni v. McDaniel , 458 F.3d 860, 864 (9th Cir. 2006), cert. denied, 549 U.S. 1287 (2007) (rejecting challenge to admission of propensity evidence in light of Supreme Court's express refusal to consider the issue in Estelle v. McGuire ); see generally Moses v. Payne , 555 F.3d 742, 758-59 (9th Cir. 2009) (habeas relief unavailable where the Supreme Court had articulated no "controlling legal standard" on the issue); Larson v. Palmateer , 515 F.3d 1057, 1066 (9th Cir.), cert. denied, 555 U.S. 871 (2008) (where Supreme Court "expressly left [the] issue an open question, '" habeas relief unavailable).
In any event, the trial court's refusal to sever the failure to register charges was not so prejudicial as to deny Petitioner a fair trial. The jury knew from the stipulation that Petitioner had committed an unidentified offense obligating him to register as a sex offender. Evidence that Petitioner had failed to register as a sex offender after having committed an unidentified offense was only mildly prejudicial in comparison to the evidence of Petitioner's multiple and forcible sexual assaults of the child victims.
For the foregoing reasons, the Court of Appeal's rejection of Petitioner's challenge to the trial court's denial of his motion to sever was not contrary to, or an unreasonably application of, any "clearly established Federal law as determined by the Supreme Court of the United States." See 28 U.S.C. § 2254(d); Harrington v. Richter , 131 S.Ct. at 770. Petitioner is not entitled to federal habeas relief.
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.
In light of this recommended disposition, Petitioner's request for an evidentiary hearing is denied. Where, as here, the state court adjudicated the claims on the merits and such adjudication was not "unreasonable" under section 2254(d), habeas relief is unavailable regardless of the nature of any additional evidence Petitioner might present in federal court. See Cullen v. Pinholster , 131 S.Ct. 1388, 1400 (2011) ("if a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before the state court, " even where the state court denied the petition summarily) (footnote omitted); Gulbrandson v. Ryan , 738 F.3d 976, 994 n.6 (9th Cir. 2013) (Pinholster's preclusion of a federal evidentiary hearing applies to section 2254(d)(2) claims as well as to section 2254(d)(1) claims). Moreover, Petitioner has failed to demonstrate that an evidentiary hearing would reveal anything material to the claim adjudicated herein.