Duncan v. Adams

Full title: DAVID DUNCAN, Petitioner, v. DERREL ADAMS, et al., Respondent

Court: United States District Court, E.D. California

Date published: Aug 24, 2006

Case No. CV-F-04-5435 WMW HC (E.D. Cal. Aug. 24, 2006)

Opinion

Case No. CV-F-04-5435 WMW HC.

August 24, 2006

MEMORANDUM OPINION AND ORDER RE PETITION FOR WRIT OF HABEAS CORPUS

WILLIAM WUNDERLICH, Magistrate Judge

Petitioner is a state prisoner represented by counsel in a petition for writ of habeas corpus pursuant to 28 U.S.C. Section 2254. Pursuant to Title 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge.

PROCEDURAL HISTORY

Petitioner was convicted by a jury in Kern County Superior Court of one count of committing a lewd and lascivious act upon a child who was 14 or 15 years old, three counts of sexual penetration of a person under 18 years of age, two counts of oral copulation of a person under 18 years of age, and one count of annoying or molesting a child under 18 years of age. He was sentenced to two years and eight months in state prison.

Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate District ("Court of Appeal"). The Court of Appeal affirmed Petitioner's conviction and sentence in an unpublished opinion filed January 7, 2003. Petitioner filed a petition for review with the California Supreme Court, which the court denied on March 19, 2003.

Petitioner filed the present petition on March 16, 2004. Respondent opposes the petition.

STANDARD OF REVIEW

JURISDICTION

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 120 S.Ct. 1495, 1504 fn.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. In addition, the conviction challenged arises out of the Kern County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 2241(d). Accordingly, the court has jurisdiction over the action.

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997);Jeffries v. Wood, 114 F.3d 1484, 1499 (9^th Cir. 1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5^th Cir. 1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed on March 16, 2004, after the enactment of the AEDPA, thus it is governed by its provisions.

STANDARD OF REVIEW

This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment 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." 28 U.S.C. § 2254(a).

The AEDPA altered the standard of review that a federal habeas court must apply with respect to a state prisoner's claim that was adjudicated on the merits in state court. Williams v. Taylor, 120 S.Ct. 1495, 1518-23 (2000). Under the AEDPA, an application for habeas corpus will not be granted unless the adjudication of the claim "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 "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);Lockyer v. Andrade, 123 S.Ct. 1166, 1173 (2003) (disapproving of the Ninth Circuit's approach in Van Tran v. Lindsey, 212 F.3d 1143 (9^th Cir. 2000)); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). "A federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, at 1174 (citations omitted). "Rather, that application must be objectively unreasonable." Id. (citations omitted).

While habeas corpus relief is an important instrument to assure that individuals are constitutionally protected, Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391-3392 (1983);Harris v. Nelson, 394 U.S. 286, 290, 89 S.Ct. 1082, 1086 (1969), direct review of a criminal conviction is the primary method for a petitioner to challenge that conviction. Brecht v. Abrahamson, 507 U.S. 619, 633, 113 S.Ct. 1710, 1719 (1993). In addition, the state court's factual determinations must be presumed correct, and the federal court must accept all factual findings made by the state court unless the petitioner can rebut "the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769 (1995); Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457 (1995); Langford v. Day, 110 F.3d 1380, 1388 (9^th Cir. 1997).

A petitioner who is in state custody and wishes to collaterally challenge his conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 2554-55 (1991);Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203 (1982);Buffalo v. Sunn, 854 F.2d 1158, 1163 (9^th Cir. 1988).

A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9^th Cir. 1996). A federal court will find that the highest state court was given a full and fair opportunity to hear a claim if the petitioner has presented the highest state court with the claim's factual and legal basis. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). Additionally, the petitioner must have specifically told the state court that he was raising a federal constitutional claim. Duncan, 513 U.S. at 365-66, 115 S.Ct. at 888; Keating v. Hood, 133 F.3d 1240, 1241 (9^th Cir. 1998).

Where, as here, the California Supreme Court's opinion is summary in nature, this court "looks through" that decision and presumes it adopted the reasoning of the California Court of Appeal, the last state court to have issued a reasoned opinion.See Ylst v. Nunnemaker, 501 U.S. 797, 804-05 n. 3, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (establishing, on habeas review, "look through" presumption that higher court agrees with lower court's reasoning where former affirms latter without discussion); see also LaJoie v. Thompson, 217 F.3d 663, 669 n. 7 (9^th Cir. 2000) (holding federal courts look to last reasoned state court opinion in determining whether state court's rejection of petitioner's claims was contrary to or an unreasonable application of federal law under § 2254(d)(1)).

FACTUAL BACKGROUND

In its unpublished opinion, the Court of Appeal explained the factual background concerning Petitioner's claim as follows:

Dr. Michael Musacco, a clinical psychologist, testified regarding child sexual abuse accommodation syndrome. He described common behaviors child victims engage in that might not be what people expect. In particular, he stated it is not uncommon for there to be a delay in reporting the abuse.

. . . .

Prior to trial, defendant filed a motion to exclude all evidence regarding child sexual abuse accommodation syndrome. The trial court discussed the motion. The court requested that counsel ask the prospective jurors whether they had any opinions regarding the credibility of teenagers. The court delayed its ruling until after voir dire. The trial court noted that there was no need for a Kelly-Frye [footnote omitted] hearing because the syndrome was generally recognized according to case law.

. . . .

After the court ruled that the evidence could be admitted, defense counsel requested that the trial court preinstruct the jury on the syndrome evidence with an instruction he had drafted. The trial court agreed to instruct the jury before the testimony of Dr. Musacco and again during the general instructions to the jury.

. . . .

Unpublished Opinion in Case No. F038280, 5-7.

DISCUSSION

ADMISSION OF CHILD SEXUAL ABUSE ACCOMMODATION SYNDROM EVIDENCE

Petitioner contends that the admission of the child sexual abuse accommodation syndrome ("CSAAS") evidence violated his right to due process. Petitioner makes two interrelated claims. First, that the admission of the evidence invaded the province of the jury, and second, that the probative value of the evidence was outweighed by its prejudice to the defense.

After reviewing Petitioner's arguments, this court findings that Petitioner has failed to carry his burden of showing that the state courts' adjudication of Petitioner's claims regarding CSAAS "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 "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). In his petition, Petitioner cites a wide variety of cases, from various state and federal jurisdictions. Petitioner does not, however, provide a citation to controlling federal authority that meets the above standard.

While it is not the Respondent's duty to do so, Respondent in this case has provided citations to two Ninth Circuit cases which demonstrate that the trial court's decision to admit the evidence was in compliance with Federal law. In United States v. Bighead, 128 F.3d 1329, 1330-1331 (9^th Cir. 1997), the Ninth Circuit held that an expert's rebuttal testimony about typical characteristics of child sexual abuse victims was admissible. The court stated:

Bighead also argues that Boychuk's testimony did not assist the trier of fact, and was more prejudicial than probative, because it infringed on the jury's province to determine credibility. We see no improper buttressing, as Boychuk testified only about "a class of victims generally," and not the particular testimony of the child victim in this case. Hadley, 918 F.2d at 852; see also United States v. Antone, 981 F.2d 1059, 1062 (9th Cir. 1992). By the same token, Boychuk's testimony had significant probative value in that it rehabilitated (without vouching for) the victim's credibility after she was cross-examined about the reasons she delayed reporting and about the inconsistencies in her testimony. The district court did not abuse its discretion in permitting the expert to testify, even though two other witnesses testified about actual disclosures as early as 1984 and 1990, since Boychuk's testimony went to disclosure for the purpose of assistance. Regardless, the jury was free to determine whether the victim delayed disclosure or simply fabricated the incidents.

Id. at 1330-31. Petitioner claims in his traverse thatBighead was decided on grounds unrelated to the constitutional issues raised in the present case. The court disagrees, as the basis of Petitioner's due process claim is the very claim addressed by the Ninth Circuit, i.e., that the evidence was more prejudicial than probative, because it invaded the province of the jury.

In United States v. Antone, 981 F.2d 1059, 1062 (9^th Cir. 1992), the Ninth Circuit rejected the argument that the district court erred in allowing the Government to introduce the testimony of a child psychiatrist who testified to general behavioral characteristics exhibited by victims of child sexual abuse. The court held:

Antone's argument is strikingly similar to the argument advanced by the appellant in Hadley, an elementary school teacher convicted of sexually abusing a student at the Bureau of Indian Affairs school where he taught. See Hadley, 918 F.2d at 850. Like Antone, Hadley appealed his conviction on the ground that the same Dr. Rosenzweig's expert testimony should have been excluded because it improperly bolstered the testimony of the minor victims of sexual abuse. Id. at 852. Also like Antone, Hadley looked for support to this court's decision in Binder. Id.

In Binder, this court assigned error to the district court's decision to admit expert testimony concerning the credibility of the abused children. 769 F.2d at 602. Of critical importance to the decision was the fact that [t]he testimony of the experts was not limited to references to psychological literature or experience or to a discussion of a class of victims generally. Rather the experts testified that these particular children in this particular case could be believed. The jury in effect was impermissibly being asked to accept an expert's determination that these particular witnesses were truthful. Id.

No such finding can be made in this case. As he did in Hadley, Dr. Rosenzweig "testified about general behavior characteristics that may be exhibited in children who have been sexually abused, and the testimony was therefore limited `to a discussion of a class of victims generally.'" Hadley, 918 F.2d at 852 (quoting Binder, 769 F.2d at 602). As in Hadley, this general testimony merely assisted the trier of fact in understanding the evidence; it did not improperly bolster the particular testimony of the child victim in this case. See id. at 852-83.

Antone, 981 F.2d at 1062. Although Petitioner argues to the contrary, this holding is applicable to the present case on the point that testimony about general behavioral characteristics does not bolster the particular testimony of a child victim, a claim made by Petitioner.

Based on the foregoing, the court concludes that Petitioner's contention provides no basis for habeas corpus relief. Accordingly, IT IS HEREBY ORDERED that the petition for writ of habeas corpus is DENIED. The Clerk of the Court is DIRECTED to enter judgment for Respondent and to close this case.

IT IS SO ORDERED.