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 For purposes of “custody,” petitioner just barely satisfies federal requirements. He was

sentenced to three years probation with conditions on March 29, 2001. The federal petition was

not commenced until March 26, 2004.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JOHN FRANCIS HILDEBRAND,

Petitioner, No. CIV S-04-0607 FCD GGH P

vs.

VERNE SPEIRS, et al., 

Respondent. FINDINGS AND RECOMMENDATIONS

 /

I. Introduction

Petitioner is proceeding through counsel with a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2001 conviction1 for the following

misdemeanors: one count of sexual battery (Cal. Penal Code § 243.4(d)), two counts of battery

(Cal. Penal Code § 242)) and one count of sexual battery by a physician (Cal. Penal Code §

729)). Petitioner was sentenced to three years of probation which included the following terms:

ninety days of community service, sixty days in county jail, counseling, and compliance with the

orders of the Board of Medical Quality Assurance.

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2A California defendant has a right to appeal a misdemeanor conviction only to the

appellate department of the Superior Court. See Cal. Penal Code § 1466; Cal. Rule of Court

180(b), 182. See also Witkin, Cal. Criminal Law, 3rd ed. (2000), Criminal Appeal, § 1.

2

 This action is proceeding on the original petition filed March 26, 2004. 

Petitioner alleges that he was denied the effective assistance of counsel (3 claims) and that the

trial court improperly admitted evidence of uncharged conduct.

Also pending before the court is respondent’s motion to dismiss filed April 28,

2004. After carefully reviewing the record, the court recommends that respondent’s motion be

denied and that the petition be denied.

II. Motion to Dismiss

Respondent argues that petitioner’s claim challenging admission of uncharged

conduct is not exhausted because it was not presented to the California Supreme Court. 

Petitioner raised this claim in his direct appeal to the Sacramento Superior Court appellate

department.2 The Sacramento County Superior Court denied the appeal on June 27, 2002. 

Answer, Exhibit B. Petitioner claims, and respondent does not dispute, that he filed a timely

petition for hearing and application for certification to the California Court of Appeal, which was

denied by the appellate department on July 26, 2002. 

Former Rule 62 of the California Rules of Court provided that the California

Court of Appeal could transfer an appellate department proceeding to itself on its own motion,

but there was no provision for such an application by a misdemeanant directly to the California

Court of Appeal. Therefore, after the Superior Court denied petitioner’s appeal, there was no

mechanism for him to apply for relief to either the California Court of Appeal or the California

Supreme Court. See Whittaker v. Superior Court, 68 Cal. 2d 357, 365, 66 Cal. Rptr. 710, 717

(1968).

Had petitioner raised his claim challenging the admission of uncharged conduct in

a habeas corpus petition filed in the California Supreme Court, it would have been denied

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3

 The failure of respondent’s counsel to appear at the June 3, 2004, hearing regarding this

motion arguably waives respondent’s right to object to this finding. 

3

pursuant to In re Waltreus, 62 Cal. 2d 218, 42 Cal. Rptr. 9 (1965) (claims already raised on

appeal in state court cannot be presented again in state habeas). Requiring petitioner to exhaust

this claim in a habeas corpus petition under these circumstances would be perverse.

Because petitioner could not have sought further review of this claim, the court

recommends that respondent’s motion to dismiss be denied. Swoopes v. Sublett, 196 F.3d 1008

(9th Cir. 1999) (pursuant to O’Sullivan v. Boerckel, 526 U.S. 838, 119 S. Ct. 1728 (1999)

exhaustion to the highest state court is not required when a state declares certain remedies are not

available at the state supreme court level).3 

III. Anti-Terrorism and Effective Death Penalty Act (AEDPA)

The AEDPA applies to this petition for habeas corpus which was filed after the

AEDPA became effective. Neelley v. Nagle, 138 F.3d 917 (11th Cir.), citing Lindh v. Murphy,

117 S. Ct. 2059 (1997). The AEDPA “worked substantial changes to the law of habeas corpus,”

establishing more deferential standards of review to be used by a federal habeas court in

assessing a state court’s adjudication of a criminal defendant’s claims of constitutional error. 

Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997). 

In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000), the Supreme

Court defined the operative review standard set forth in § 2254(d). Justice O’Connor’s opinion

for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy

between “contrary to” clearly established law as enunciated by the Supreme Court, and an

“unreasonable application of” that law. Id. at 1519. “Contrary to” clearly established law applies

to two situations: (1) where the state court legal conclusion is opposite that of the Supreme

Court on a point of law, or (2) if the state court case is materially indistinguishable from a

Supreme Court case, i.e., on point factually, yet the legal result is opposite.

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“Unreasonable application” of established law, on the other hand, applies to

mixed questions of law and fact, that is, the application of law to fact where there are no factually

on point Supreme Court cases which mandate the result for the precise factual scenario at issue. 

Williams (Terry), 529 U.S. at 407-08, 120 S. Ct. at 1520-1521 (2000). It is this prong of the

AEDPA standard of review which directs deference to be paid to state court decisions. While the

deference is not blindly automatic, “the most important point is that an unreasonable application

of federal law is different from an incorrect application of law....[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. Rather,

that application must also be unreasonable.” Williams (Terry), 529 U.S. at 410-11, 120 S. Ct. at

1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the

objectively unreasonable nature of the state court decision in light of controlling Supreme Court

authority. Woodford v. Viscotti, 537 U.S. 19, 123 S. Ct. 357 (2002).

The state courts need not have cited to federal authority, or even have indicated

awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.

Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is

contrary to, or an unreasonable application of, established Supreme Court authority. Id. An

unreasonable error is one in excess of even a reviewing court’s perception that “clear error” has

occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S. Ct. 1166, 1175 (2003). Moreover, the

established Supreme Court authority reviewed must be a pronouncement on constitutional

principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules

binding only on federal courts. Early v. Packer, 123 S. Ct. at 366.

However, where the state courts have not addressed the constitutional issue in

dispute in any reasoned opinion, the federal court will independently review the record in

adjudication of that issue. “Independent review of the record is not de novo review of the

constitutional issue, but rather, the only method by which we can determine whether a silent state

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court decision is objectively unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.

2003).

IV. Background

The first amended complaint contained ten charges against petitioner, a medical

doctor, based on misconduct. Respondent’s Answer, Exhibit A. Six of the counts alleged

Kathleen Lederman, a former patient, as the victim. Id. The remaining four alleged Mary

Rodriguez, a former employee, as the victim. Id. Petitioner was found guilty of four of the

counts alleging Lederman as the victim, counts 1-4. RT at 1448-1451. Petitioner was acquitted

of four of the counts alleging Rodriguez as the victim, counts 7-10. Id. It is unclear to the court

why no verdict was rendered as to the other two counts, but that is not material to the court’s

consideration of the petition. 

At trial, Lederman and Rodriguez testified regarding petitioner’s conduct. In

addition, three other women testified regarding misconduct by petitioner toward them (Candice

Walker, Shannon Green and Yolanda Villanueva). These women came forward to law

enforcement after hearing about the case against petitioner in the media. The court will not

discuss Rodriguez’s testimony because petitioner was acquitted of the charges against her. The

court will discuss the testimony of Walker, Green and Villanueva in the section below addressing

petitioner’s claim challenging admission of the uncharged conduct. 

Kathleen Lederman was one of petitioner’s patients. RT at 650-651. In July 2000

an incident occurred in petitioner’s office. RT at 651. She went to see petitioner because she

thought she had the flu. RT at 651. When petitioner walked into the examination room, he told

Lederman that she looked like shit. RT at 655. He told her to sit up and then gave her a hug. RT

at 655. He had given her a hug one other time during the previous ten years he had been her

physician. RT at 656. 

After the hug, petitioner listened to her back with a stethoscope. RT at 657. He

then lifted the front of her shirt and listened to her breathing with the stethoscope. RT at 657. 

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After he moved the stethoscope around a couple of times, he stuck his hand underneath

Lederman’s bra and touched her breast. RT at 657. Lederman became nervous and told

petitioner that she felt hot. RT at 659. Petitioner stepped back and said, “You feel hot. You

always feel hot to me.” RT at 660. He may have said, “You look hot to me.” RT at 660. 

Petitioner then grabbed her and hugged her again. RT at 661. He then began grinding her leg

with his erect penis. RT at 662-663. He then took her right hand and started rubbing it on his

crotch. RT at 663. Lederman then told petitioner that he was her doctor, he was married, he

can’t do this. RT at 665. Petitioner then turned and put his mouth on her neck. RT at 665. 

After thirty seconds or so, she began pulling away. RT at 666. Petitioner then said to her that he

felt that she needed some really good sex. RT at 666. At this point, Lederman hopped off the

table and left the room. RT at 666-667. 

Lederman later contacted the Sheriff’s Department. RT at 670. A deputy sheriff

asked her to call petitioner and talk to him about what happened. RT at 670. Lederman made

this phone call, which was recorded and played to the jury. RT at 670-671. The tape recording

was not transcribed in the reporter’s transcript. However, the opinion of the Sacramento County

Superior Court denying petitioner’s habeas corpus petition contains a transcription of the

conversation. Petitioner does not dispute the Superior Court’s transcription so the court adopts it

here:

Kathleen: I, I kind of wanted to talk to you about like what happened.

Petitioner: Uh-huh.

Kathleen: Last week.

Petitioner: Yeah.

Kathleen: What was that about?

Petitioner: I don’t know.

Kathleen: I’m like em–this is like a little embarrassing.

Petitioner: I’m sorry.

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Kathleen: You’ve been my doctor for like ten years.

Petitioner: Yeah, yeah. Well, I don’t know. I thought you put your arms around 

me so I put my arms around you.

Kathleen: I don’t know. Um, I don’t know. I just–I’m just trying to understand 

like–I don’t know. Like why you grabbed my hand and placed it in your pants and

stuff.

Petitioner: Oh, come on. Well, um,–well, again, I misinterpreted your–your 

behavior, so–

Kathleen: I mean, like do you like–is it cuz like you find me attractive or—

Petitioner: Uh, (laughs) yeah. I mean, If I didn’t find you attractive I would have

been pushing you away, right?

Kathleen: Well, I don’t know. I’m not sure. I was just–I mean, I was just 

shocked. You know, I mean, I just was sick and like tired and whatever. And the 

next thing I know it was like I’m sitting there and like you’re grinding up against 

my leg and my hand–you know, you put my hand down in your thing. And I was 

just like, okay. And it’s like when I left the office I’m just like, “Oh, my God, 

what was this about?” So I don’t know. I just felt weird like I was just like–I 

wanted to talk to you about it cuz I was like, “Okay, like I feel like weird going 

back to him without like talking about this.” 

Petitioner: Yeah, I know. I appreciate that. Well, again, I apologize. I 

misinterpreted your–your behavior, I guess...

“.....

Kathleen: But then, I don’t know, it was like I gave you a hug, but then the next 

thing I know it was like, okay, you’re like kissing my neck and rubbing against me

and my hand’s getting pushed down on your thing. And I was like, “Okay. 

Where is this coming from?” Like, “He’s never come onto me before.” 

Petitioner: Uh-huh.

Kathleen: I don’t know. I mean, I just–I don’t know. Like I just kind of think it 

was inappropriate in a way.

Petitioner: Yeah, I know. I agree. I agree. 

“.....

Petitioner: ....I develop, I think, a certain amount of affection for people, you 

know, I’ve seen for a long time and stuff. And, um, I admit I was probably–was 

unprofessional.

Respondent’s Answer, Exhibit D, pp. 11-14.

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V. Discussion

A. Ineffective Assistance of Counsel: Claims 1, 2, 3

Petitioner raised his ineffective assistance of counsel claims in his state habeas

petitions. These claims center about petitioner’s allegations that trial counsel had specific reason

to seek available impeachment evidence against one of the complainants (Kathleen). The

Sacramento County Superior Court issued a reasoned opinion denying these claims. Answer,

Exhibit D. The California Court of Appeal and California Supreme Court denied petitioner’s

habeas petitions without comment or citation. Answer, Exhibits F, G. Accordingly, the court

“looks through” the summary dispositions to the last reasoned decision, i.e. the opinion of the

Superior Court, in determining whether the state courts reasonably applied clearly established

Supreme Court authority. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000)

(citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S. Ct. 2590 (1991)). 

Legal Standard

1. Ineffective Assistance

The test for demonstrating ineffective assistance of counsel is set forth in 

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). First, a petitioner must show

that, considering all the circumstances, counsel’s performance fell below an objective standard of

reasonableness. Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. To this end, the petitioner must

identify the acts or omissions that are alleged not to have been the result of reasonable

professional judgment. Id. at 690, 104 S. Ct. at 2066. The federal court must then determine

whether in light of all the circumstances, the identified acts or omissions were outside the wide

range of professional competent assistance. Id., 104 S. Ct. at 2066. “We strongly presume that

counsel’s conduct was within the wide range of reasonable assistance, and that he exercised 

acceptable professional judgment in all significant decisions made.” Hughes v. Borg, 898 F.2d

695, 702 (9th Cir. 1990) (citing Strickland at 466 U.S. at 689, 104 S. Ct. at 2065). 

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Second, a petitioner must affirmatively prove prejudice. Strickland, 466 U.S. at

693, 104 S. Ct. at 2067. Prejudice is found where “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at

694, 104 S. Ct. at 2068. A reasonable probability is “a probability sufficient to undermine

confidence in the outcome.” Id., 104 S. Ct. at 2068.

In extraordinary cases, ineffective assistance of counsel claims are evaluated

based on a fundamental fairness standard. Williams v. Taylor , 529 U.S. 362, 391-93, 120 S. Ct.

1495, 1512-13 (2000) (citing Lockhart v. Fretwell, 113 S. Ct. 838, 506 U.S. 364 (1993)).

The Supreme Court has recently emphasized the importance of giving deference 

to trial counsel’s decisions, especially in the AEDPA context:

In Strickland we said that “[j]udicial scrutiny of a counsel’s

performance must be highly deferential” and that “every effort

[must] be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct, and

to evaluate the conduct from counsel’s perspective at the time.”

466 U.S., at 689, 104 S.Ct. 2052. Thus, even when a court is

presented with an ineffective-assistance claim not subject to §

2254(d)(1) deference, a [petitioner] must overcome the

“presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Ibid. (quoting Michel

v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)).

For [petitioner] to succeed, however, he must do more than show

that he would have satisfied Strickland’s test if his claim were

being analyzed in the first instance, because under § 2254(d)(1), it

is not enough to convince a federal habeas court that, in its

independent judgment, the state-court decision applied Strickland

incorrectly. See Williams, supra, at 411, 65 S. Ct. 363. Rather, he

must show that the [ ]Court of Appeals applied Strickland to the

facts of his case in an objectively unreasonable manner. 

Bell v. Cone, 535 U.S. 685, 698-699, 122 S. Ct. 1843,1852 (2002).

Counsel can be ineffective for performing, or not performing, an act permitted or

precluded by state law. In cases of ineffective assistance of counsel involving not acquiring and

presenting evidence, petitioner will have to show that his counsel acted unreasonably in not

acquiring the evidence, that the evidence was probably admissible, and that the evidence would

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have caused this federal court to lose confidence in the outcome of the underlying case. The first 

criteria is generally directed to the reasonableness of counsel’s actions, the second straddles

reasonableness and prejudice, while the last criteria is a pure prejudice inquiry.

2. Evidentiary Hearing

Generally:

To obtain an evidentiary hearing on an ineffective assistance of

counsel claim, a habeas petitioner must establish that (1) his

allegations, if proven, would constitute a colorable claim, thereby

entitling him to relief and (2) the state court trier of fact has not,

after a full and fair hearing, reliably found the relevant facts. 

Correll v Stewart, 137 F.3d 1404, 1413 (9th Cir. 1998). If, of course, petitioner’s facts cannot

stand as the basis for a federal claim, e.g., the alleged error is not prejudicial as a matter of law,

no evidentiary hearing is required.

Since the passage of AEDPA, a petitioner who has “failed to develop” a claim,

i.e., had an opportunity to develop a claim, but did not do so, is not entitled to an evidentiary

hearing unless that petitioner demonstrates diligence to discover the factual predicate for his

claim despite his “failure,” and that he is actually innocent of the crime for which he was

convicted. 28 U.S.C. § 2254(e)(2); Williams (Michael) v. Taylor, 529 U.S. 420, 120 S. Ct. 1479

(2000). A petitioner has not neglected his or her rights in state court if diligent in efforts to

search for evidence. Williams, 529 U.S. at 435-437, 120 S. Ct. at 1490. “Diligence ... depends

upon whether the prisoner made a reasonable attempt, in light of the information available at the

time, to investigate and pursue claims in state court.” Id. “Diligence require[s] in the usual case

that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner

prescribed by state law.” Id.; see also Bragg v. Galaza, 242 F.3d 1082, 1090 (9th Cir. 2001), as

amended 252 F.3d 1150 (9th Cir. 2001).

A petitioner must do more than simply allege a general conclusion, e.g., counsel

could have acquired evidence that would have made a difference, see Williams v. Woodford ,

384 F.3d 567, 588 (9th Cir. 2004); on the other hand, petitioner need not prove his case with

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submission of all evidence before a hearing is permitted. 

Failure to Investigate Lederman’s Record of Making False Statements/Charges

Petitioner contends that on September 15, 2000, his counsel obtained the services

of an investigator who prepared a report indicating Lederman’s involvement in four lawsuits plus

her bankruptcy petition. On September 28, 2000, defense counsel asked the investigator to

obtain the file relating to Lederman’s 1990 divorce and review it for information regarding her

former husband’s allegations about her conduct with other men while married. Counsel also

instructed the investigator to investigate an organization mentioned in Lederman’s medical

records obtained in connection with a personal injury claim against Thrifty/Rite Aid. Petitioner

contends that on October 18, 2000, the investigator provided defense counsel with a copy of

Lederman’s bankruptcy file, but none of the other court files. 

Petitioner argues that the records from these other lawsuits demonstrated that

Lederman had a pattern and practice of making false statements in court proceedings under oath

for her benefit and would have provided the defense with enormous impeaching evidence that

was otherwise lacking. In particular, petitioner claims that in 1996 Lederman filed a lawsuit

against Dr. Bernstein alleging negligence when he performed cosmetic surgery on her. Petitioner

contends that the complaint was false because no one was aware of any untoward effect of the

surgery. Petitioner admits that Lederman voluntarily dismissed this lawsuit three months after it

was filed and the complaint was never served.

Petitioner also contends that Lederman filed a lawsuit against Thrifty/Rite Aid

after she fell in the store. Petitioner contends that Lederman made false statements during her

deposition in this case. In particular, petitioner claims that Lederman falsely testified that she

had lived with no one other than her daughter since 1997. In fact, petitioner claims, Joe

Liashenko lived in Lederman’s residence from August 1995 through February 1999. Petitioner

cites the following deposition testimony in support of this claim:

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Q: Okay. Any other members of your household since about 1997?

A: What do you mean by that?

Q: I mean people that live with you.

Lederman’s counsel (Mr. Kreeger): No.

A: No.

Q: Excuse me, counsel, is there some reason that you feel the need to answer the 

question rather than your client?

Lederman’s counsel: Objection, it’s not relevant. How is that? Not likely to lead 

to the discovery of admissible evidence.

Q: Yes, it is. But your client has already answered the question. 

Petitioner also claims that Lederman lied during this deposition when she denied

that her boyfriend, Robert Neuman, had moved into her home in the summer of 1996 and lived

there continuously through the time of the deposition. Petitioner claims that, in fact, Neuman

lived in her home during this time. Petitioner also claims that Lederman did not disclose her

lawsuit about Dr. Bernstein when asked about other lawsuits she had filed. 

Petitioner claims that Lederman lied during the 1999 criminal trial against Mr.

Liashenko, who was accused of molesting her daughter. At this trial, Lederman testified to living

with Neuman and Liashenko, which she had denied in her Thrifty/Rite Aid lawsuit. She also

falsely denied a prior sexual relationship with Liashenko. 

Petitioner also claims that Lederman made false statements in a 1999 bankruptcy

petition. In particular, she under-valued her property, falsely claimed a $75,000 residential

exemption under Cal. Code Civil Pro. § 704,730(a)(2), made a false claim of an auto lien held by

her boyfriend, failed to declare Liashenko’s rent as part of her income, understated the proceeds

from her Thrifty/Rite Aid lawsuit, and failed to list the auto lien transaction on the Statement of

Financial Affairs. 

In reviewing these claims, the Sacramento County Superior Court found that

several of the statements either were not false or else that petitioner had not presented sufficient

evidence of their falsity. Assuming the falsity of all the statement described above, the Superior

Court found that the tape-recorded conversation between petitioner and Lederman “sealed his

fate.” 

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As to Lederman’s lawsuit against Dr. Bernstein, the Superior Court found that the

malpractice lawsuit which was never served and was dismissed with prejudice a few months later

had little or no impeachment value. Respondent’s Answer, Exhibit E, p. 9. 

It is mere speculation on petitioner’s part as to why Kathleen L. requested the 

dismissal of the lawsuit, and whether she had actually incurred scarring and 

disfigurement from her surgery would have been a collateral issue that probably 

would have been subject to Evid. Code § 352 exclusion. Nor does a declaration 

from Liashenko, whom Kathleen L. had accused of molesting her daughter, carry 

any significant credibility, nor does his failure to observe any scarring on Kathleen

L.’s face or scalp mean that it was not there. The matter had little or no 

impeachment value.

Id., p. 9.

The Superior Court found that Lederman’s testimony during the Thrifty/Rite Aid

lawsuit deposition did not have impeachment value. Her answering “no” to a question about

who else lived with her at the same time her attorney answered no and objected to the line of

questioning, did not have much probative value because the contemporaneous objection by her

attorney called into question whether her “no” was a response to the objection rather than a

substantive answer the question. Id. 

With regard to petitioner’s claim that Lederman lied when she denied having had

a sexual relationship with Liashenko, the Superior Court stated that he failed to attach any

documentary or other evidence to support such a claim. Id., p. 3. The Superior Court observed

that the Liashenko affidavit submitted in support of the petition did not mention any sexual

relationship with Liashenko. Id.

The Superior Court also found that petitioner had not demonstrated that several of

the alleged lies by Lederman in her bankruptcy petition were false. The Superior Court

addressed petitioner’s claim that Lederman lied about the $75,000 residential exemption:

Petitioner claims that Kathleen L. claimed an exemption of $75,000 for her 

residence pursuant to Code Civ. Proc. § 704.730(a)(2). Petitioner claims this was 

false, because on December 28, 1999, when Kathleen L. filed the bankruptcy 

petition, there was no other family member who owned no interest in the 

homestead or had only a community property interest, who resided in the home 

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with the debtor, because Kathleen L.’s daughter had gone to college and only 

Kathleen L.’s boyfriend Robert Neuman remained residing in the home with her. 

In support, petitioner points to Kathleen L.’s testimony in the Liashenko trial, in 

September 1999, that Kathleen L. had gone through her daughter’s clothing “just 

a couple weeks ago before she left,” when Kathleen L. helped her “pack up to 

leave for college” (RT-218–RT-219 of Liashenko trial testimony of Kathleen L.). 

The testimony is no more specific than that, and does not indicate that Kathleen 

L.’s daughter did not come back home during the Christmas holidays, during 

which time Kathleen L. actually filed the petition, or that the daughter did not

consider Kathleen L.’s home to be her residence even though she was temporarily 

staying at a college. Nor does petitioner properly quote the exact language of 

Code Civ. Proc. § 704.730(a)(2), which provides: “(2) Seventy-five thousand 

dollars ($75,000) if the judgment debtor or spouse of the judgment debtor who 

resides in the homestead is at the time of the attempted sale of the homestead a

member of a family unit, and there is at least one member of the family unit who 

owns no interest in the homestead or whose only interest in the homestead is a 

community property interest with the judgment debtor.” The statute requires only 

that there be one member of the family unit who owns no interest, not that the 

member of the family unit reside in the home; the statute technically requires only 

that the judgment debtor reside in the home. Indeed, “family unit” is defined in 

Code Civ. Proc. § 704.710(b)(2) as: “The judgment debtor and at least one of the 

following persons who the judgment debtor cares for or maintains in the 

homestead: (A) The minor child of the judgment debtor...(D) An unmarried 

relative described in this paragraph who has attained the age of majority and is 

unable to take care of or support himself or herself.” That Kathleen L.’s daughter,

who Kathleen L. listed as age 18 on her bankruptcy petition, had just started 

college and may have been living on campus did not necessarily mean that she did

not depend on Kathleen L. for support. There is no reason to believe that 

Kathleen L.’s daughter, therefore, was not a member of the family unit who 

owned no interest in the homestead; again, it is not required by the statute that the 

daughter actually “reside” in the home, whatever meaning that word has in the 

bankruptcy context, but just that she is one member of the family unit who owns

no interest in the homestead. Indeed, even the judgment debtor need not reside at 

all times in the home for the exception to apply: “Although the Legislature, in 

setting forth the amount of the monetary exemption, makes references to the 

debtor ‘who resides in the homestead’ (see [Code Civ. Proc.] § 703.730, subd. 

(a)), we do not read this language to mandate actual or continuous residence” 

(Webb v. Trippet (1991) 235 Cal.App.3d 647, 651). Claiming this exemption, 

therefore, is not shown by petitioner to be a falsity. Nor does petitioner show that 

the bankruptcy court ever rejected Kathleen L.’s claim of exemption under Code 

Civ. Proc. § 704.730(a).

Answer, Exhibit D, pp. 4-5.

The Superior Court rejected the claim that Lederman made a false claim of an

auto lien held by her boyfriend:

Petitioner claims that Kathleen L. Falsely claimed on Schedule D that the 

boyfriend Robert Neuman had a $7000 lien secured by Kathleen L.’s vehicle, a

1990 351 BMW, that was incurred in November 1999. Petitioner claims this 

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shows a fraudulent transaction between Kathleen L. and Robert Neuman, to 

insulate the car from creditors, because the lien was created one month before 

Kathleen L. filed for bankruptcy, and in October 1999, one month before the lien 

was created, DMV records show that the First Interstate Bank was the actual lien 

holder and legal owner as of October 1999. Petitioner, however, does not supply 

any documentation of the latter claim regarding DMV records. Petitioner claims 

that it makes no sense that Kathleen L. had the note paid off and then reencumbered the car to Robert Neuman. Petitioner also refers to a separate 

bankruptcy document signed on December 23, 1999, that petitioner does not 

attach to this petition.

Petitioner also refers to Schedule J of the bankruptcy filing that is attached to the 

petition, showing that she is making no installment payments for an automobile. 

Petitioner claims this showed a phantom transaction between Kathleen L. and 

Neuman, to protect her vehicle from creditors and that she did not intend to pay 

on it as an actual encumbrance. Petitioner, however, does not attach any further 

documentation from the bankruptcy proceeding to show that it was in fact later 

found to be a fraudulent transaction that was voided by the bankruptcy court. 

Without that, petitioner is engaging in pure speculation.

*****

(3) As for Kathleen L.’s bankruptcy proceeding, that Kathleen L. claimed on her 

Schedule D that her boyfriend Robert Neuman had a $7000 lien secured by 

Kathleen L.’s vehicle, that was incurred in November 1999, could have served as 

impeachment evidence to show that Kathleen L. had intended to defraud the 

creditors by insulating the car from them in this manner. However, this is 

speculation on petitioner’s part as to why Kathleen L. had had a lien secured on 

the car by her boyfriend. Kathleen L. might had had some explanation for doing 

this, one month before she decided to file for bankruptcy; it could be that at that 

time she had not intended to file for bankruptcy, and needed some cash, which her

boyfriend lent her in exchange for securing the lien in that amount, then thereafter 

when she found she could not pay it back she filed for bankruptcy. Admitting this

at trial might have caused litigation over this collateral issue, which might well 

have subjected it to exclusion under Evid. Code § 352. As for Kathleen L.’s 

failure to list the Neuman auto lien on the Statement of Financial Affairs, this 

could well have been a mistake on her attorney’s part, in omitting this in preparing

the documents for Kathleen L. to sign, and is not particularly probative on 

whether Kathleen L. is dishonest.

Id., pp. 5-4, 10.

The Superior Court made the following findings regarding Lederman’s failure to

disclose Liashenko’s rent as part of her income:

Petitioner claims that on the Statement of Financial Affiairs, Kathleen L. failed to 

report her income from the rent that Liashenko was paying to her, even though 

paragraph two of the statement requires a listing of the amount of income received

by the debtor other than from employment, trade, profession, or operation of the 

debtor’s business during the two years immediately preceding the commencement 

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of the case. Petitioner has filed an affidavit from Liashenko, stating that 

Liashenko paid $200 per month rent to Kathleen L. from August 1997 through 

February 1999, at which time he moved out. Petitioner also attaches a copy of the

transcript of Kathleen L.’s testimony at Liashenko’s trial, in which she testified 

that Liashenko at some point began paying her rent but she could not remember 

when (RT-34, RT-167 of transcript from Liashenko trial). Thus, at the time that 

Kathleen L. filed her bankruptcy petition, although Liashenko had long since 

ceased living in her home and paying her rent, according to Liashenko he 

nevertheless had paid rent for part of the two-year period that preceded that 

December 28, 1999 filing of the bankruptcy petition.

*****

...[T]his might have been impeachment evidence. However, Liashenko had been 

accused by Kathleen L. of having molested her daughter, thus could be shown to 

have bias against her, casting doubt on his credibility. His statement in the 

affidavit is the only proof petitioner has that he paid Kathleen L. rent during the 

time period in question. Kathleen L. stated elsewhere that he did pay her rent 

“eventually” but that she did not know when that was. It could be that she didn’t 

remember him paying her rent in the two years before filing the bankruptcy 

petition; his claim was that he had stopped paying her rent 10 months before she 

filed the petition, and it is possible that she had no recollection of his paying rent 

during the prior year. If she had no recollection, it would not have been an 

intentional lie on her part, to not list the rent as part of her income. Thus, this also 

could have been subject to Evid. Code §352 exclusion, as it would have involved 

a mini-trial on what Kathleen L. remembered or should have remembered with 

regard to the rent issue. 

Id., pp. 6, 10-11. 

With respect to Lederman’s alleged undervaluation of her home, the Superior

Court stated that while petitioner claimed that the assessed value of her property was $197,155

rather than the $170,000 she claimed, he failed to attach any evidence to show that at the time of

the filing of the bankruptcy petitioner her property was worth $197,155. Id., 4. The court found

that this claim was based on mere speculation. Id.

The Superior Court also noted that petitioner submitted no documentation

demonstrating that Lederman’s lawsuit against Thrifty/Rite Aid ended with a settlement of

$16,000, in support of his claim that Lederman lied about this amount in her bankruptcy petition. 

Id., p. 2.

As indicated above, the Superior Court found that even if petitioner had been

permitted to impeach Lederman with the evidence discussed above, the outcome of the trial

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would not have been different:

The above-quoted conversation quite simply sealed petitioner’s fate in this trial. 

In his own words, he admitted he was unprofessional and adopted admissions that 

he had, in fact, committed the acts. Even if the impeachment evidence described 

above had been introduced at trial, the outcome of the trial would not have been 

different. The matters were fairly trivial, and in comparison to petitioner’s

admissions and adoptive admissions from his own mouth, in the telephone call, 

would not have affected the jury’s conclusion that petitioner had in fact 

committed the acts. There being no prejudice from any failure on defense 

counsel’s part in presenting the impeaching evidence, the claims against petitioner

are denied. (Strickland v. Washington (1984) 466 U.S. 668.)

Id., pp. 13-14. 

It is true, as petitioner contends, that the Superior Court engaged in a blending of

accepting petitioner’s allegations, but also finding some allegations insufficiently proven. 

Generally, it is the allegations that give rise to the need for an evidentiary hearing in state court; a

petitioner does not have to prove his case ahead of that hearing except insofar as the specific

allegations must establish prejudice. If respondent does not dispute the asserted facts, the court

may assume the truth of the facts. See In re Fields, 51 Cal. 3d 1063, 1070 (n.2), 275 Cal. Rptr.

384, 388 (1990). As far as gauging the need for a federal evidentiary hearing, the court is not

bound by the state habeas procedural rulings of the sufficiency of the facts alleged in state court;

rather, this court reviews such pronouncements on the question of petitioner’s diligence in

seeking to present the facts at evidentiary hearing at the earliest opportunity. 

Insofar as the Superior Court found that some of petitioner’s allegations were

insufficiently proved, the undersigned finds the Superior Court’s ruling as too harsh in

connection with the federal evidentiary hearing diligence inquiry, except as specifically found

below. The allegations were specific, and although it behooves petitioner to attach as much

evidence as he can as early as he can, if the Superior Court had any questions about the

allegations, or believed that the allegations required further development, the Superior Court had

the opportunity to order an evidentiary hearing. Therefore, with respect to the proffered

impeachment of the victim evidence, and for purposes of assessing the need for a federal

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evidentiary hearing, the undersigned will not find that petitioner has insufficiently alleged

specific facts. For the purposes of these Findings and Recommendations, the undersigned will

assume those as true, and move to the prejudice inquiry.

However, where the Superior Court found that petitioner’s impeachment evidence

would probably not have been admitted, a quasi-prejudice finding, the undersigned does not

dispute such findings pursuant to state evidence law. With the exception of the victim collusion

allegations, which the undersigned will discuss below, petitioner fails to recognize that allowing

impeachment on a collateral matter is highly discretionary with the court. And misrepresenting

facts in a bankruptcy petition, or not being completely truthful in a deposition on an unrelated

civil matter are collateral matters. “Although a criminal defendant is constitutionally entitled to

present all relevant evidence of significant probative value in his favor, this does not mean the

court must allow an unlimited inquiry into collateral matters; the proffered evidence must have

more than slight relevancy.” People v. Marshall ,13 Cal. 4th 799, 836, 55 Cal. Rptr. 2d 347

(1996). Presentation of impeachment evidence by the defense is subject to restriction under Cal.

Evid. Code § 352 if it is cumulative or if it constitutes impeachment on collateral issues. People

v. Mincey , 2 Cal. 4th 408, 439-440, 6 Cal. Rptr. 2d 822 (1992); People v. Morse , 2 Cal. App.

4th 620, 641-642, 3 Cal. Rptr. 2d 620 (1992). And, the trial court has wide discretion in

determining the admission of such impeachment evidence “to prevent criminal trials from

degenerating into nitpicking wars of attrition over collateral credibility issues.” People v.

Wheeler , 4 Cal. 4th 284, 296, 14 Cal. Rptr. 2d 418 (1992). It is nearly impossible for a federal

habeas petitioner to successfully present a federal issue involving state courts’ interpretation and

application of their law. See Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475 (1991). 

Assuming for the moment, however, that the state trial court would have abused

its discretion in a federal Confrontation Clause sense, or “right to present a defense” sense, in not

permitting impeachment on the collateral matters highlighted in these habeas corpus proceedings,

if such matters had been presented to it for admission by defense counsel, and assuming further

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that the trial at issue was simply a swearing contest between the victim and the defendant, the

court might well find that failure to acquire and present the impeachment evidence undermined

confidence in the outcome of the proceedings. A defendant in a sex offense case is not to be so

hamstrung that he not be permitted to present evidence demonstrating the victim’s propensity to

be untruthful in other matters. And, it is not dispositive in favor of respondent that the

impeachment might have been mitigated when all the facts were learned—that is what an

evidentiary hearing may have shown.

But even assuming that the state trial court would have committed constitutional

error in not permitting the collateral impeachment, had such been presented to it, petitioner’s

insurmountable hurdle is the damning tape recorded call, and the other victims’ testimony about

similar conduct directed at them. Combined, this evidence makes the impeachment evidence

insignificant. Despite petitioner’s protestations, the tape recording has “guilty” written all over

it. The undersigned agrees with the Superior Court that the tape recording “sealed” petitioner’s

fate. Petitioner’s argument that he was just admitting the hug, and ignoring the real criminal

conduct allegations, without ever explaining that he was rejecting the serious allegations, does

not work. Giving a sympathetic hug when the situation calls for it is not being unprofessional. 

Commencing activities of a clearly sexual nature is. That is what petitioner was apologizing for,

and admitting to. Moreover, the prosecution presented the testimony of three women who had

experiences with petitioner similar to the complainant in this case. The outcome of the trial

would not have been different had the alleged impeachment evidence been admitted. 

Because the court has assumed that petitioner could prove his impeachment if

given the opportunity at an evidentiary hearing, but that such hearing could not produce facts

sufficient to constitute prejudice in light of the evidence as a whole, petitioner is not entitled to

an evidentiary hearing. The holding of such a hearing would be an idle act.

For the reasons discussed above, this claim should be denied.

/////

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Failure to Investigate Lederman’s Poor Reputation and Character for

Untruthfulness

Petitioner argues that his counsel failed to investigate or offer testimony of

persons who held adverse opinions of Lederman’s reputation and character for truthfulness and

veracity. Petitioner claims that those witnesses would have been her former husbands, Ron

Lederman and Greg Cook, as well as Joe Liashenko. Petitioner concedes that his counsel made

efforts to locate Ron Lederman, who refused to get involved. Based on this admission, the court

does not find counsel ineffective for failing to investigate this witness. Petitioner admits that

counsel attempted to find Mr. Liashenko, but abandoned this effort after the trial court ruled that

Liashenko would not be permitted to testify as to his sexual relationship with Lederman. 

Other than his conclusory assertion, petitioner provides nothing suggesting that

Cook actually had an opinion regarding the truthfulness of Lederman and would have been

willing to testify to this. For these reasons, the court finds that petitioner has not demonstrated

that counsel was unreasonable for failing to investigate Cook nor that he was prejudiced by

counsel’s failure to call Cook as a witness.

As for Liashenko, Lederman had previously accused him of molesting her

daughter. These accusations would have put Liashenko’s credibilty regarding Lederman at issue. 

His opinion regarding Lederman’s character would have had little value. For these reasons, the

court finds that petitioner was not prejudiced by counsel’s failure to call Liashenko as a witness

regarding Lederman’s poor reputation and character for untruthfulness.

The denial of this claim by the Superior Court was not an unreasonable

application of Supreme Court authority. Accordingly, this claim should be denied.

In the traverse, petitioner argues that he is entitled to an evidentiary hearing to

prove his claims. Petitioner is not entitled to an evidentiary hearing as to this claim because his

conclusory allegations unsupported by specific allegations. Williams v. Woodford, 384 F.3d

567, 588 (9th Cir. 2004). Moreover, in any event, the tape recording and unimpeached witnesses

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testifying to petitioner’s misconduct mitigates this impeachment to unimpressive status.

Failure to Investigate Likelihood of Collusion of Complaining Witnesses

Petitioner claims that he informed defense counsel prior to trial that he suspected

collusion in the office between Mary Rodriguez, his former employee, and Lederman, in an

attempt to attain a financial settlement. Petitioner observed that Rodriguez quit her job in

petitioner’s medical office on the same day that Lederman made the pretext telephone call. 

Petitioner argues that Rodriguez would not have known about the call taking place on this date

unless she had a private channel of communication with Lederman. Petitioner argues that his

counsel should have subpoenaed telephone records of Rodriguez and Lederman and investigated

their collusion.

Other than his conclusory assertions, petitioner has provided nothing to support

his claim of collusion. For this reason, the court finds that petitioner has failed to demonstrate

prejudice as a result of counsel’s failure to investigate the alleged collusion. Because the denial

of this claim by the Superior Court was not an unreasonable application of clearly established

Supreme Court authority, this claim should be denied.

In the traverse, petitioner argues that he is entitled to an evidentiary hearing to

prove his claims. Petitioner is not entitled to an evidentiary hearing as to this claim because his

conclusory allegations are unsupported by any probative, specific allegations. Williams v.

Woodford, 384 F.3d 567, 588 (9th Cir. 2004). And again, this impeachment, even if proven,

would not outweigh the tape recording and independent witnesses.

B. Improper Admission of Uncharged Conduct

The Superior Court was the last court to issue a reasoned opinion as to this claim. 

Answer, Exhibit B. Accordingly, the court considers whether the denial of this claim by the

Superior Court was an unreasonable application of clearly established Supreme Court authority. 

Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000) (citing Ylst v. Nunnemaker,

501 U.S. 797, 803-04, 111 S. Ct. 2590 (1991)). 

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The trial court permitted three women to testify regarding petitioner’s sexual

misconduct toward them. In particular, Candice Walker testified that she worked as a medical

assistant in training in petitioner’s office in 1997. RT at 486-487. One evening, petitioner asked

her to stay late to discuss her future employment. RT at 488. As she tried to leave petitioner’s

office after this conversation, petitioner forcefully kissed her, grabbed and groped her. RT at

489. 

Shannon Green testified that she was one of petitioner’s former patients. RT at

544-545. She saw him when she was pregnant nine years before the trial. RT at 544. He saw

her after a surgical procedure to remove staples from an incision. RT at 549. After the

procedure, he hugged her and she could feel his erection. RT at 549. He also moved his face

toward her and attempted to kiss her. RT at 552. 

Yolanda Villanueva testified that she was one of petitioner’s former patients. RT

at 585. She began seeing petitioner about seven or eight years before the trial, and continued to

see him for the next six or seven years. RT at 585. One of the last times she saw petitioner, he

stood between her legs, grabbed her arm and told her that she dressed sexy. RT at 586, 587. 

Cal. Evid. Code § 1101(b) permits admission of evidence that a person committed

a crime, civil wrong or other act when relevant to prove some fact (such as motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake or accident, etc.) other than his

disposition to commit such an act. In a criminal action in which the defendant is accused of a

sexual offense, Cal. Evid. Code § 1108 permits admission of the defendant’s commission of

another sexual offense to prove his disposition to commit the offense so long as the evidence is

not inadmissible pursuant to Cal. Evid. Code § 352. Section 352 provides: “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.”

\\\\\

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Evidence of other sexual offenses pursuant to § 1108 cannot be used in cases

where its probative value is substantially outweighed by the possibility that it will consume an

undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or

mislead the jury. People v. Falsetta, 21 Cal. 4th 903, 916-920, 89 Cal. Rptr. 2d 847, 855-858

(1999). In evaluating the admission of such evidence, California courts consider such factors as

its nature, relevance and possible remoteness, the degree of certainty of its commission and the

likelihood of confusing, misleading or distracting the jurors from their main inquiry, its similarity

to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in

defending against the uncharged offense, and availability of less prejudicial alternatives to its

outright admission, such as admitting some but not all of the defendant’s other sex offenses, or

excluding irrelevant though inflammatory details surrounding the offense. Id. at 916-917, 89

Cal. Rptr. 2d at 855-856. The probative value of other crimes offenses is increased by the

relative similarity between the charged and uncharged offenses, the close proximity in time of the

offenses, and the independent sources of evidence (the victims) in each offense. Id. at 917, 89

Cal. Rptr. 2d at 856.

Evidence of the uncharged acts was admitted in petitioner’s trial pursuant to §

1108 to prove disposition and pursuant to § 1101(b) to prove common scheme or plan. RT at

1405-1406. The instant claim only challenges admission of this evidence pursuant to § 1108.

Petitioner argues that “in the absence of a demonstration of relevance, and given

the inherently prejudicial nature of other crimes, Evidence Code section 1108 violates due

process.” Points and Authorities, p. 32. To the extent petitioner argues that Evid. Code § 1108 is

unconstitutional because it allows admission of evidence of prior sexual crimes solely for the

purpose of proving disposition to commit the present offense, the Supreme Court has explicitly

left open the question of whether the admission of evidence of other crimes to prove propensity

violates due process. See Estelle v. McGuire, 502 U.S. 62, 75 n. 5, 112 S. Ct. 475 (1991) (“[W]e

express no opinion on whether a state law would violate the Due Process Clause if it permitted

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the use of ‘prior crimes’ evidence to show propensity to commit a charged crime.”). Because

petitioner cannot identify any holding of the Supreme Court that supports this clam, the court

finds that the Superior Court’s decision denying this claim was not contrary to any clearly

established Supreme Court authority. See also United States v. LeMay, 260 F.3d 1018 (9th Cir.

2001) (permitting propensity evidence in a sex offense case pursuant to federal law).

Petitioner may also be arguing that the uncharged acts evidence was inadmissible

under § 1108. For a state law violation to rise to a constitutional violation, there must be a

violation of fundamental fairness. Estelle v. McGuire, 502 U.S. 62, 73, 112 S. Ct. 475, 482

(1991). No violation of fundamental fairness occurred because the evidence of the uncharged

acts was admissible under state law. First, admission of uncharged offenses (as opposed to

convictions) is proper under § 1108. People v. Reliford, 29 Cal. 4th 1007, 1009, 130 Cal. Rptr.

2d 254 (2003). In addition, the uncharged acts in the instant case were not too remote and were

similar to the present offense. 

Petitioner also challenges the jury instruction given in the case, CALJIC No.

2.50.01. Petitioner argues that this instruction unconstitutionally reduced the prosecution’s

burden of proof by allowing the jury to infer from a preponderance of evidence that petitioner’s

past offenses disposed him to commit similar offenses and made him likely to commit the

charged crimes. The jury was instructed in relevant part:

If you find that the defendant committed a prior sexual offense, you may, but are 

not required to, infer that the defendant had a disposition to commit the same or 

similar type of sexual offenses.

If you find the defendant had the–this disposition, you may, but are not required 

to, infer that he was likely to commit and did commit the crime for crimes of 

which he is accused. However, if you find by a preponderance of the evidence 

that the defendant committed prior sexual offenses, that is not sufficient by itself 

to prove beyond a reasonable doubt that he committed the crimes–the charged 

crimes. The weight and significance of the evidence, if any, is for you to decide.

RT at 1406.

The instruction was derived from the 1999 version of CALJIC 2.50.01 and 2.50.2.

The improvement in the 1999 instruction added: “However, if you find by a preponderance of the

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4

 Gibson itself was an AEDPA habeas case and found that clearly established Supreme

Court law concerning lessening the burden of proof permitted it to grant the petition in its

CALJIC 2.50.01 context. The undersigned is bound by that interpretation of the status of the

law, and thus, does not discuss it at length. That is, if the prosecution burden of proof was

lessened in Gibson, and we were dealing with the instruction at issue in Gibson, the undersigned

could not find on his own that the Ninth Circuit wrongly interpreted Supreme Court precedent. 

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evidence that the defendant committed [a prior crime or crimes involving domestic violence],

that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged

crimes.” See Gibson v. Ortiz, 387 F.3d 812, 919 (9th Cir. 2004); See generally People v.

Reliford, 29 Cal. 4th 1007, 130 Cal. Rptr. 2d 254 (2003); People v. Falsetta, 21 Cal. 4th 903, 89

Cal. Rptr. 2d 847 (1999).

Gibson v. Ortiz, supra, found a due process “lessening of the burden of proof”

problem with the combination of CALJIC 2.50.01 and 2.50.1, both of which are contained in the

quoted language above.4 As Gibson found, relating to the jury that they could infer that plaintiff

committed the crime by proof of prior offenses, and immediately relating to the jury that the

requisite proof could be established by only a preponderance, instructed the jury that proof of the

charged offense could be found by a preponderance. Id. 387 F. 3d at 822. The critically

distinguishing feature, however, is the fact that the Gibson instruction did not contain the

“improved” language of the 1999 CALJIC, i.e., the added proviso that finding propensity by a

preponderance was insufficient in and of itself to satisfy the beyond a reasonable doubt standard. 

Gibson, 387 F.3d at 819. The clear implication from Gibson is that this change made all the

difference in the world. And, it does make quite a difference because it solves for the most part

the pre-1999 CALJIC problem. The critical point is that the jury was instructed post-1999 that it

had to find the charged offenses beyond a reasonable doubt. Moreover, the California courts

have blessed the 1999 improvement from a constitutional perspective, and petitioner must show

that such blessing still unreasonably applies Supreme Court precedent—a not so easy task.

Gibson v. Ortiz, supra, decided October 4, 2004, i.e. shortly after petitioner filed

his traverse, forecloses petitioner’s challenge to the jury instruction discussed above. 

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For the reasons discussed above, the court finds that the Superior Court’s denial 

of petitioner’s claims challenging the constitutionality of § 1108, the admission of evidence

under this section and the related jury instruction, was not an unreasonable application of clearly

established Supreme Court authority. Accordingly, these claims should be denied. 

Accordingly, IT IS HEREBY RECOMMENDED that:

1. Respondent’s April 28, 2004, motion to dismiss be denied;

2. Petitioner’s application for a writ of habeas corpus be denied.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

shall be served and filed within ten days after service of the objections. The parties are advised

that failure to file objections within the specified time may waive the right to appeal the District

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: 5/17/05 

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

ggh:kj

hild607.157

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