1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

CARL McCEE FOUNTAIN,

Petitioner, No. CIV S-04-2350 GEB DAD P

vs.

JAMES YATES, Warden,

Respondent. FINDINGS & RECOMMENDATIONS 

 /

Petitioner is a state prisoner proceeding pro se with an application for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 1997 judgment of

conviction entered in the Yuba County Superior Court on charges of lewd and lascivious conduct

with a child under fourteen years of age, first degree burglary, and furnishing alcohol to a minor,

with findings that petitioner engaged in substantial sexual conduct with the victim, that he

befriended the victim for the purpose of conducting lewd and lascivious acts, and that he

committed the lewd and lascivious acts in the course of committing a burglary. Petitioner seeks

relief on the grounds that: (1) his trial and appellate counsel rendered ineffective assistance; (2)

the evidence was insufficient to support his conviction on the charge of burglary because he

mistakenly believed the victim was over eighteen years of age and he was too intoxicated to enter

the victim's house with the intent to commit a felony; and (3) his sentence constitutes cruel and

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 1 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

 The following summary is drawn from the July 12, 2000, opinion by the California 1

Court of Appeal for the Third Appellate District, at pgs. 2-6, lodged on February 24, 2005, as an

exhibit to respondent’s answer (lodged document No. 5).

2

unusual punishment. Upon careful consideration of the record and the applicable law, the

undersigned will recommend that petitioner’s application for habeas corpus relief be denied.

PROCEDURAL AND FACTUAL BACKGROUND1

Defendant Carl McCee Fountain was convicted by a jury of lewd

and lascivious conduct with a child under 14 years of age (Pen.

Code, § 288 (a) – count I [hereafter all section references to an

undesignated code are to the Penal Code]), first degree burglary

(§§ 459, 460 – count II), and furnishing alcohol to a minor (Bus. &

Prof. Code, § 25658a – count III). As to count I, the jury also

found that defendant engaged in substantial sexual conduct with

the victim (§ 1203.066, subd. (a) (8)), that he befriended the victim

for the purpose violating [sic] section 288, and that he committed

the section 288 violation in the course of committing a burglary (§

667.61, subd. (d)(4)).

In a trial by court, defendant was found to have two prior

convictions which constituted strikes (§§ 667, subds. (b) - (I),

1170.12, subds. (a) - (e)), one for battery with serious bodily injury

(§ 243, subd. (d)), incurred in juvenile proceedings, and the other

in adult court for robbery (§ 211).

Sentenced to state prison for 80 years to life, defendant appeals. . . .

* * *

In 1997, 13-year-old LeeAnn lived with her mother in an apartment

next door to a bar where her mother worked. On April 1, LeeAnn

was upset after breaking up with her boyfriend and went to the bar

to talk with her mother. Her mother, who was busy with

customers, spoke with LeeAnn for a few minutes and told her to go

home.

Instead of going home, LeeAnn took a walk. As she walked, a

convertible, driven by defendant, drove up beside her. Defendant

told LeeAnn he thought she was someone else and then asked her

why she was crying. She told him that she had just broken up with

her boyfriend. Defendant told her that his name was “Caro,” that

he was having problems with his girlfriend, that today was his 21st

birthday, and that he drank when he had problems. Defendant

asked LeeAnn her age and she told him she was 13. He said she

looked 17 or 18, but she repeated that she was 13. Defendant told

LeeAnn he needed to someone to have a drink with and she got

into the car with him.

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 2 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

Defendant drove to J&J Liquors where he purchased a half-pint of

vodka for her and a 40-ounce bottle of beer for himself. By

questioning LeeAnn, defendant learned she lived with her mother,

and that no one was at her home. Defendant asked if they could go

to her home and she replied “‘Yes.’”

At LeeAnn’s apartment she drank the vodka and he drank the beer. 

Although not sure, LeeAnn thought she “finished” the bottle of

vodka. Defendant asked if she wanted more and she said she did

not think so. Defendant told her, “‘Yeah, you need another

bottle.’” Defendant helped LeeAnn get off the couch, she felt dizzy

and had some trouble walking. As they again drove to J&J

Liquors, LeeAnn told defendant she was “really feeling the effects

of the vodka.” He told her “that was good.”

Defendant purchased another bottle of vodka and returned with

LeeAnn to her apartment. LeeAnn had difficulty unlocking the

door and defendant had to assist her. Inside the apartment, LeeAnn

told defendant she felt “[v]ery dizzy, very sleepy.” LeeAnn took

one more drink of vodka and the next thing she recalled was

defendant helping her off the couch and suggesting she would be

more comfortable in the bedroom. Defendant guided LeeAnn into

the bedroom where she “fell onto the bed.”

Defendant removed her jeans and underwear. LeeAnn realized she

was too intoxicated to stop defendant and asked if he was using a

condom because “I don’t know this man and because I couldn’t get

him off of me.”

While defendant was with LeeAnn, Jacquelyn Rogers, a coworker

of LeeAnn’s mother and a neighbor, left the bar to go home. 

Rogers saw defendant’s car, with which she was unfamiliar, in

front of LeeAnn’s apartment. Concerned, Rogers tried to call

LeeAnn but received no response. Rogers than called LeeAnn’s

mother and told her of the vehicle. LeeAnn’s mother asked Dennis

Miller, a friend in the bar, to “check on” LeeAnn and gave him a

key.

Miller entered LeeAnn’s apartment and saw defendant, who was

nude, withdraw his penis from LeeAnn’s vagina. Miller

exclaimed, “‘What the hell are you doing?’” and told defendant

that LeeAnn was “‘only a little girl, 13 years old.’” Defendant said,

“‘She told me she was 21.’” Defendant put on his clothes and fled.

Crystal B. testified that in July 1993, when she was 14 years old

and had known defendant approximately two months, he drove to

her home for the purpose of taking her to his mother’s house to

work and spend the night. When Crystal’s younger brother got into

the car with them, defendant told him there was not room enough

because he was picking up other people. Defendant left with

Crystal and drove to J&J Liquors, which was previously Circus

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 3 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

4

Liquors. He asked Crystal if she wanted anything to drink and she

replied, “‘Okay.’” He bought a bottle of wine and then drove to a

location across the street from where Crystal’s cousin lived.

Crystal, who was not an experienced drinker, drank about one-half

of the bottle of wine and became drowsy and light-headed. She

told defendant she did not want any more; however, he told her to

go ahead and drink it all and kept trying to get her to keep drinking. 

Crystal leaned back, “drifted off” and awoke when defendant

began pulling on her clothes. He had his pants down and was

saying, “‘Just give me five minutes.’” Although Crystal did not

want to have sex with defendant, he forced her to engage in sexual

intercourse. Crystal reported the incident to her cousin and then to

the police. However, she and her mother decided going through a

trial would be too stressful, so they declined to pursue the matter.

Defendant testified, admitting having been convicted of robbery in

1994. Defendant claimed he hardly knew Crystal and denied ever

buying her liquor or having sexual intercourse with her, let alone

raping her.

As to the incident with LeeAnn, defendant admitted he stopped his

car near her, but did so because he thought she was someone else. 

He did not drive off because she seemed depressed. She got into

his car because she needed someone to talk with. LeeAnn told him

she drank and he drove to the liquor store where he purchased

vodka for her and beer for himself. LeeAnn suggested they go to

her home and defendant agreed, thinking they were going there to

drink. Inside LeeAnn’s apartment they talked and drank. They

later went back to the liquor store because LeeAnn insisted on

having more alcohol.

After buying more vodka, they returned to LeeAnn’s apartment and

again talked. LeeAnn told him she wanted to show him something

in the bedroom, so they entered and sat on the bed and talked. 

They began kissing and eventually had sexual intercourse. 

Defendant denied intending to have sex with LeeAnn either when

he picked her up or when he want to her apartment.

Petitioner filed a timely appeal of his conviction in the California Court of Appeal

for the Third Appellate District, in which he claimed that the trial court erred by: (1) finding his

prior juvenile adjudication was a strike and using it as such in sentencing; (2) admitting evidence

of an uncharged offense; (3) imposing a term of seventy-five years to life on count I; and (4)

sentencing him under both sections 667.61 and 667 of the California Penal Code. (Opinion at 2.) 

In a partially published opinion, the state appellate court agreed with petitioner’s argument that

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 4 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

5

the trial court erred by finding that his prior juvenile adjudication constituted a strike under

California’s Three Strikes sentencing law and remanded for further sentencing proceedings. 

(Resp’t’s lodged document No. 5 at 6-13.) In all other respects, however, petitioner’s judgment

of conviction was affirmed. (Id. at 2.) 

On August 16, 2000, petitioner filed a petition for review in the California

Supreme Court, claiming that his federal due process rights were violated by the trial court’s

admission of evidence of a prior uncharged crime. (Resp’t’s lodged document No. 6.) That

petition was summarily denied by order dated October 25, 2000. (Resp’t’s lodged document No.

7.) 

On remand, petitioner was re-sentenced to fifty years to life for lewd and

lascivious conduct with a minor and five years for the prior serious felony conviction, for a total

sentence of fifty-five years to life in prison. (Resp’t’s lodged document No. 11 at 3.) On May

30, 2001, petitioner filed another appeal in the California Court of Appeal for the Third

Appellate District, claiming that his sentence was improperly doubled under California’s Three

Strikes law and that his sentence constituted cruel and unusual punishment. (Resp’t’s lodged

document No. 8.) That appeal was rejected in a reasoned decision filed August 28, 2002. 

(Resp’t’s lodged document No. 11.) On October 8, 2002, petitioner filed a petition for review in

the California Supreme Court, raising the same arguments. (Resp’t’s lodged document No. 12.) 

That petition was summarily denied by order dated November 13, 2002. (Resp’t’s lodged

document No. 13.)

On January 6, 2003, petitioner filed a petition for writ of habeas corpus in the

Yuba County Superior Court, claiming that: (1) he received ineffective assistance of trial and

appellate counsel; (2) the evidence admitted at trial was insufficient to support his convictions;

and (3) his sentence of fifty-five years to life constituted cruel and unusual punishment. 

(Resp’t’s lodged document No. 14.) That petition was denied in a reasoned decision dated

January 30, 2003. (Resp’t’s lodged document No. 15.)

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 5 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

6

On April 30, 2003, petitioner raised the same claims in a petition for writ of

habeas corpus filed in the California Court of Appeal. (Resp’t’s lodged document No. 16.) That

petition was summarily denied by order dated June 5, 2003. (Id.) On July 9, 2003, petitioner

raised the same claims again in a petition for writ of habeas corpus filed in the California

Supreme Court. (Resp’t’s lodged document No. 17.) That petition was summarily denied by

order dated March 17, 2004. (Resp’t’s lodged document No. 18.)

ANALYSIS

I. Standards of Review Applicable to Habeas Corpus Claims

A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of

some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860,

861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v.

Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the

interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991);

Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas

corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377

(1972). 

This action is governed by the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”). See Lindh v.Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d

1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting

habeas corpus relief:

An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court shall

not be granted with respect to any claim that was adjudicated on

the merits in State court proceedings unless the adjudication of the

claim -

(1) resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or 

/////

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 6 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

7

(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). See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. 

Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).

The court looks to the last reasoned state court decision as the basis for the state

court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Where the state

court reaches a decision on the merits but provides no reasoning to support its conclusion, a

federal habeas court independently reviews the record to determine whether habeas corpus relief

is available under section 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003);

Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). When it is clear that a state court has not

reached the merits of a petitioner’s claim, or has denied the claim on procedural grounds, the

AEDPA’s deferential standard does not apply and a federal habeas court must review the claim 

de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160,

1167 (9th Cir. 2002).

II. Petitioner’s Claims

A. Insufficient Evidence

Petitioner claims that there was insufficient evidence to support his conviction on

the burglary charge. Specifically, he argues that he did not harbor the intent to commit a felony

at the time he entered the victim’s apartment because of his level of intoxication and his

mistaken belief that the victim was over the age of eighteen. (Supplement to Petition,

Memorandum of Points and Authorities, filed November 2, 2004 (P&A) at 42; Traverse at 14.) 

Petitioner’s claim of insufficient evidence was raised for the first time in an

application for a writ of habeas corpus filed in the Yuba County Superior Court. The Superior

Court rejected the claim, reasoning as follows:

. . . petitioner’s arguments, to have any arguable significance,

would need to be based on intoxication prior to entering into the

premises where he unlawfully had sexual intercourse with his

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 7 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

8

minor victim. Such a fact pattern is not demonstrated by the

materials submitted in support of the petition. While this record

supports the proposition that petitioner had been drinking prior to

the subject incident (Exhibit B, p. 2, para. 11), the submitted record

as a whole suggests that he was not intoxicated until after he and

the minor drank the alcohol he purchased (See, esp. Exhibit B, p. 2,

para. 15; Exhibit D 344:8-14, 20-22, 346: 18-21.) The answer I

was so drunk I – I don’t know as appears in Exhibit D, 347:10,

comes in the narrative after the defendant had already been

drinking with the victim at the scene of the crime and, in fact, after

he had returned with her to the liquor store to buy more alcohol.

(Exhibit D, 345: 5-23.) It may or may not be that the defendant

was intoxicated before he picked up the minor in his automobile,

but such has not been established on the showing made in this

petition. Relief based on the intoxication-related grounds is

therefore denied.

(Resp’t’s lodged document No. 15 at 2-3.)

The Due Process Clause of the Fourteenth Amendment “protects the accused

against conviction except upon proof beyond a reasonable doubt of every fact necessary to

constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). There

is sufficient evidence to support a conviction if, "after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). See also

Prantil v. California, 843 F.2d 314, 316 (9th Cir. 1988) (per curiam). “[T]he dispositive question

under Jackson is ‘whether the record evidence could reasonably support a finding of guilt beyond

a reasonable doubt.’” Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson,

443 U.S. at 318). A petitioner in a federal habeas corpus proceeding “faces a heavy burden when

challenging the sufficiency of the evidence used to obtain a state conviction on federal due

process grounds.” Juan H. v. Allen, 408 F.3d 1262, 1274, 1275 & n.13 (9th Cir. 2005). In order

to grant the writ, the habeas court must find that the decision of the state court reflected an

objectively unreasonable application of Jackson and Winship to the facts of the case. Id.

The court must review the entire record when the sufficiency of the evidence is

challenged in habeas proceedings. Adamson v. Ricketts, 758 F.2d 441, 448 n.11 (9th Cir. 1985),

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 8 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

9

vacated on other grounds, 789 F.2d 722 (9th Cir. 1986) (en banc), rev’d, 483 U.S. 1 (1987). It is

the province of the jury to “resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. If the trier of

fact could draw conflicting inferences from the evidence, the court in its review will assign the

inference that favors conviction. McMillan v. Gomez, 19 F.3d 465, 469 (9th Cir. 1994). The

relevant inquiry is not whether the evidence excludes every hypothesis except guilt, but whether

the jury could reasonably arrive at its verdict. United States v. Mares, 940 F.2d 455, 458 (9th

Cir. 1991). “The question is not whether we are personally convinced beyond a reasonable

doubt. It is whether rational jurors could reach the conclusion that these jurors reached.” 

Roehler v. Borg, 945 F.2d 303, 306 (9th Cir. 1991). The federal habeas court determines the

sufficiency of the evidence in reference to the substantive elements of the criminal offense as

defined by state law. Jackson, 443 U.S. at 324 n.16; Chein, 373 F.3d at 983. 

In order to find petitioner guilty of burglary, the jury had to find that he intended

to commit a felony (in this case, lewd and lascivious conduct with a child under the age of

fourteen in violation of California Penal Code § 288) at the time he entered the victim’s

apartment. Cal. Penal Code § 459. Petitioner’s first argument is that he could not have harbored

such an intent because he believed LeeAnn was over eighteen years of age. However, LeeAnn

testified that she told petitioner several times she was thirteen years old. (Reporter’s Transcript

on Appeal (RT) at 183.) This testimony constituted sufficient evidence from which a reasonable

jury could conclude that petitioner knew the victim was younger than fourteen. In any event, as

discussed below, a mistaken belief in the age of the victim is not a defense to a charge of

violating California Penal Code § 288. 

Petitioner also argues that intoxication prevented him from forming the requisite

intent to commit the underlying felony. He points to evidence in the record that he was

intoxicated both prior to and during the events that occurred in the victim’s apartment. (See

Traverse at 14; RT at 194 (victim testified petitioner was drinking beer in her apartment); RT at

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 9 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

 Petitioner has filed the declaration of this friend, Sharon Copeland, who declares that 2

petitioner was drinking alcohol at her house on the day of the crimes and was “so intoxicated on

the night in question, that it is hard for me to believe that he was even capable of knowing what

he was doing.” (P&A, Ex. B at 2.) Sharon Copeland did not testify at petitioner’s trial and her

declaration was signed in 2003. No such evidence was introduced at petitioner’s trial. 

 Petitioner does not appear to be arguing that the evidence was insufficient to support 3

his conviction on the charge of committing lewd and lascivious conduct with a child under the

age of fourteen. If petitioner is making such a claim, it should also be denied. There is

overwhelming evidence in the record to support petitioner’s conviction on this charge.

10

346-47 (petitioner testified he was too drunk to remember whether he drank any more alcohol

after he and the victim sat on her bed); RT at 340-41 (petitioner testified that earlier in the day he

had consumed alcohol at a friend’s house)). However, as noted by the California Superior 2

Court, there was evidence in the record from which a rational juror could conclude that petitioner

was not excessively intoxicated until after he purchased alcohol and drank it with the victim. 

Evidence that petitioner had consumed some alcohol earlier in the day does not overcome the

jury’s finding that petitioner was still capable of forming the requisite intent prior to entering the

victim’s apartment.

Viewing the evidence in the light most favorable to the verdict, the undersigned

concludes that there was substantial evidence from which a reasonable trier of fact could have

found beyond a reasonable doubt that petitioner harbored the requisite intent to commit a felony

when he entered the victim’s apartment. Because there was substantial evidence presented at

trial to support petitioner’s conviction on this charge, the state court’s analysis of petitioner’s

claim is not “objectively unreasonable.” Woodford v. Visciotti, 537 U.S. 19, 25 (2002). See

also 28 U.S.C. § 2254(d)(1). Accordingly, petitioner is not entitled to relief. 

3

B. Cruel and Unusual Punishment

Petitioner contends that his sentence of fifty-five years to life under California’s

Three Strikes law constitutes cruel and unusual punishment because it is grossly disproportionate

to the crimes of which he was convicted. Petitioner raised this claim for the first time in the

/////

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 10 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

 A “wobbler” is an offense that can be punished as either a misdemeanor or a felony 4

under applicable law. See Ferreira v. Ashcroft, 382 F.3d 1045, 1051 (9th Cir. 2004).

11

California Court of Appeal after he was re-sentenced. The appellate court rejected this argument,

reasoning as follows:

As to defendant’s claim under the federal Constitution, we note

that in Harmelin v. Michigan, the court rejected a

disproportionality argument raised by Harmelin, who with no prior

record, received a sentence of life without possibility of parole for

possession of 672 grams of cocaine. (footnote omitted). If

Harmelin’s sentence was not disproportional under the federal

Constitution, given his lack of a prior record and that his offense

involved no violence, then, a fortiori, the sentence of defendant

herein, who has a prior record of violence and has presently been

convicted of child molestation, cannot be disproportional under the

federal constitution.

(Resp’t’s’ lodged document No. 11 at 11.)

In Lockyer v. Andrade, 538 U.S. 63 (2003), the United States Supreme Court

found that in addressing an Eighth Amendment challenge to a prison sentence, the “only relevant

clearly established law amenable to the ‘contrary to’ or ‘unreasonable application of’ framework

is the gross disproportionality principle, the precise contours of which are unclear and applicable

only in the ‘exceedingly rare’ and ‘extreme’ case.” Id. at 73 (citing Harmelin v. Michigan, 501

U.S. 957, 1001 (1991); Solem v. Helm, 463 U.S. 277, 290 (1983); and Rummel v. Estelle, 445

U.S. 263, 272 (1980)). The Supreme Court in Andrade concluded that two consecutive 

twenty-five years to life sentences with the possibility of parole, imposed under California's

Three Strikes law following two petty theft convictions with priors, did not amount to cruel and

unusual punishment. Id. at 77; see also Ewing v. California, 538 U.S. 11 (2003) (holding that a

sentence of twenty-five years to life imposed for felony grand theft under California's Three

Strikes law did not violate the Eighth Amendment). 

Following the decision in Andrade the United States Court of Appeals for the

Ninth Circuit held that a third strike sentence of twenty-five years to life in prison for a third

shoplifting offense, a “wobbler” under state law , constituted cruel and unusual punishment. 4

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 11 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

12

Ramirez v. Castro, 365 F.3d 755 (9th Cir. 2004). In so holding, the court relied upon the limited

and non-violent nature of the petitioner’s prior criminal history and the fact that the petitioner’s

only prior period of incarceration had been a single one-year jail sentence. Ramirez, 365 F.3d at

768-69. Thereafter, in Rios v. Garcia, 390 F.3d 1082 (9th Cir. 2004), the court distinguished the

holding in Ramirez from the situation it confronted, finding that the petitioner in Rios had a

“lengthy criminal history,” had “been incarcerated several times,” and that the prior strikes used

to enhance the petitioner’s sentence had “involved the threat of violence.” Id. at 1086.

This court finds that in this case petitioner’s sentence does not fall within the type

of “exceedingly rare” circumstance that would support a finding that his sentence violates the

Eighth Amendment. Petitioner’s current offense of conviction involved a crime of violence and

the trial court found that petitioner had suffered prior convictions for battery resulting in serious

bodily injury and robbery. Although petitioner had not previously been sentenced to state prison,

his prior criminal history had resulted in periods of detention at juvenile hall followed by a

county jail term and a return to county jail within four months of his release. Under these

circumstances, the state courts’ rejection of petitioner’s Eighth Amendment claim was neither

contrary to, nor an unreasonable application of clearly established federal law. This claim for

relief should therefore be denied.

C. Ineffective Assistance of Counsel

Petitioner claims that his trial and appellate counsel rendered ineffective

assistance. After setting forth the applicable legal principles, the court will evaluate these claims

in turn below.

1. Legal Standards

The Sixth Amendment guarantees the effective assistance of counsel. The United

States Supreme Court set forth the test for demonstrating ineffective assistance of counsel in

Strickland v. Washington, 466 U.S. 668 (1984). To support a claim of ineffective assistance of

counsel, a petitioner must first show that, considering all the circumstances, counsel’s

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 12 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

13

performance fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 

687-88. After a petitioner identifies the acts or omissions that are alleged not to have been the

result of reasonable professional judgment, the court must determine whether, in light of all the

circumstances, the identified acts or omissions were outside the wide range of professionally

competent assistance. Id. at 690; Wiggins v. Smith, 539 U.S. 510, 521 (2003). Second, a

petitioner must establish that he was prejudiced by counsel’s deficient performance. Strickland,

466 U.S. at 693-94. 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. A reasonable probability is “a probability sufficient to undermine confidence in the

outcome.” Id. See also Williams, 529 U.S. at 391-92; Laboa v. Calderon, 224 F.3d 972, 981

(9th Cir. 2000). A reviewing court “need not determine whether counsel’s performance was

deficient before examining the prejudice suffered by the defendant as a result of the alleged

deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of 

sufficient prejudice . . . that course should be followed.” Pizzuto v. Arave, 280 F.3d 949, 955

(9th Cir. 2002) (quoting Strickland, 466 U.S. at 697).

In assessing an ineffective assistance of counsel claim “[t]here is a strong

presumption that counsel’s performance falls within the ‘wide range of professional assistance.’”

Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strickland, 466 U.S. at 689). There

is in addition a strong presumption that counsel “exercised acceptable professional judgment in

all significant decisions made.” Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing

Strickland, 466 U.S. at 689). However, that deference “is predicated on counsel’s performance

of sufficient investigation and preparation to make reasonably informed, reasonably sound

judgments.” Mayfield v. Woodford, 270 F.3d 915, 927 (9th Cir. 2001) (en banc).

Defense counsel has a “duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at

691. “This includes a duty to . . . investigate and introduce into evidence records that

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 13 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

14

demonstrate factual innocence, or that raise sufficient doubt on that question to undermine

confidence in the verdict.” Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001) (citing Hart v.

Gomez, 174 F.3d 1067, 1070 (9th Cir. 1999)). In this regard, it has been recognized that “the

adversarial process will not function normally unless the defense team has done a proper

investigation.” Siripongs v. Calderon (Siripongs II), 133 F.3d 732, 734 (9th Cir. 1998) (citing

Kimmelman, 477 U.S. at 384). Therefore, counsel must, “at a minimum, conduct a reasonable

investigation enabling him to make informed decisions about how best to represent his client.” 

Hendricks v. Calderon, 70 F.3d 1032, 1035 (9th Cir. 1995) (quoting Sanders v. Ratelle, 21 F.3d

1446, 1456 (9th Cir. 1994) (internal citation and quotations omitted). On the other hand, where

an attorney has consciously decided not to conduct further investigation because of reasonable

tactical evaluations, his or her performance is not constitutionally deficient. See Siripongs II,

133 F.3d at 734; Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998); Hensley v. Crist, 67

F.3d 181, 185 (9th Cir. 1995). “A decision not to investigate thus ‘must be directly assessed for

reasonableness in all the circumstances.’” Wiggins, 539 U.S. at 533 (quoting Strickland, 466

U.S. at 691). See also Kimmelman, 477 U.S. at 385 (counsel “neither investigated, nor made a

reasonable decision not to investigate”); Babbitt, 151 F.3d at 1173-74. A reviewing court must

“examine the reasonableness of counsel’s conduct ‘as of the time of counsel’s conduct.’” United

States v. Chambers, 918 F.2d 1455, 1461 (9th Cir. 1990) (quoting Strickland, 466 U.S. at 690). 

Furthermore, “‘ineffective assistance claims based on a duty to investigate must be considered in

light of the strength of the government’s case.’” Bragg, 242 F.3d at 1088 (quoting Eggleston v.

United States, 798 F.2d 374, 376 (9th Cir. 1986)). See also Hayes v. Woodford, 301 F.3d 1054,

1070 (9th Cir. 2002).

The Strickland standards apply to appellate counsel as well as trial counsel. Smith

v. Murray, 477 U.S. 527, 535-36 (1986); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). 

However, an indigent defendant “does not have a constitutional right to compel appointed

counsel to press nonfrivolous points requested by the client, if counsel, as a matter of

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 14 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

15

professional judgment, decides not to present those points.” Jones v. Barnes, 463 U.S. 745, 751

(1983). Counsel “must be allowed to decide what issues are to be pressed.” Id. Otherwise, the

ability of counsel to present the client’s case in accord with counsel’s professional evaluation

would be “seriously undermined.” Id. See also Smith v. Stewart, 140 F.3d 1263, 1274 n.4 (9th

Cir. 1998) (Counsel is not required to file “kitchen-sink briefs” because it “is not necessary, and

is not even particularly good appellate advocacy.”) There is, of course, no obligation to raise

meritless arguments on a client’s behalf. See Strickland, 466 U.S. at 687-88 (requiring a

showing of deficient performance as well as prejudice). Thus, counsel is not deficient for failing

to raise a weak issue. See Miller, 882 F.2d at 1434. In order to establish prejudice in this

context, petitioner must demonstrate that, but for counsel’s errors, he probably would have

prevailed on appeal. Id. at 1434 n.9. 

2. Trial Counsel

Petitioner claims that his trial counsel rendered ineffective assistance when he: (a)

admitted during his opening statement that petitioner had sexual intercourse with the victim; (b)

failed to adequately investigate a defense of intoxication; (c) failed to object to a jury instruction;

(d) failed to raise the meritorious defenses of mistake of fact and intoxication; and (e) failed to

challenge the jury pool. Petitioner also claims that the cumulative effect of these errors made by

his trial counsel constituted ineffective assistance. 

a. Defense Counsel’s Opening Statement

During his opening statement to the jury, petitioner’s trial counsel conceded that

petitioner had sexual intercourse with the victim and that he was guilty of “count one.” (RT at

142, 144-45.) Petitioner argues that this statement by counsel essentially conceded the

prosecution’s entire case by “allow[ing] the jury to infer that [petitioner] picked [the victim] up

and began drinking with her with the intention of having sex with her.” (P&A at 30.) 

Respondent, on the other hand, argues that defense counsel’s strategy of conceding the “foregone

conclusion” that petitioner had sexual intercourse with the minor victim was a reasonable tactical

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 15 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

16

decision designed to deflect attention from that issue and to focus on the defense theory that

petitioner did not commit a burglary because he did not harbor the requisite intent. (Answer at

10-11.) 

Petitioner raised this claim for the first time in his petition for writ of habeas

corpus filed in the California Superior Court. (Resp’t’s lodged document No. 14.) The Superior

Court rejected the claim, concluding that trial counsel’s concession during his opening statement

was arguably “an appropriate tactic, given the state of the evidence at the trial.” (Resp’t’s lodged

document No. 15 at 4.) This court agrees.

Petitioner’s challenge to his trial counsel’s opening argument is essentially a

disagreement with counsel’s tactical decision as to how to conduct the defense of this difficult

case. A tactical decision by counsel with which the defendant later disagrees is not a basis for a

claim of ineffective assistance of counsel. Raley v. Ylst, 444 F.3d 1085, 1091 (9th Cir. 2006); 

Guam v. Santos, 741 F.2d 1167, 1169 (9th Cir. 1984); United States v. Mayo, 646 F.2d 369, 375

(9th Cir. 1981). Indeed, “[c]ounsel’s tactical decisions are ‘virtually unchallengeable.’” Furman

v. Wood, 190 F.3d 1002, 1007 (9th Cir. 1999) (citing Strickland, 466 U.S. at 687). 

In any event, counsel’s decision to include this concession in his opening

statement was not unreasonable under the facts of this case. Pursuant to California Penal Code §

667.61, a person who is convicted of lewd and lascivious conduct with a minor during the

commission of a burglary shall be punished by imprisonment in state prison for life. The thrust

of defense counsel’s opening statement was that the evidence would show petitioner did not

commit a burglary because he did not harbor the intent to commit a felony at the time he entered

the victim’s apartment. (RT at 146-47.) Counsel’s decision to focus on the burglary count,

which carried a life sentence, and to concede guilt on the charge that was supported by

overwhelming evidence, was an appropriate tactical decision. The prosecution introduced 

eyewitness testimony from Dennis Miller that he discovered petitioner in the act of having sexual

intercourse with the victim. (Id. at 169-72.) A neighbor who followed Mr. Miller into the

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 16 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

 Because this court concludes that counsel's representation did not fall below an 5

objective standard of reasonableness, the prejudice prong of the Strickland analysis need not be

addressed. United States v. Fredman, 390 F.3d 1153, 1158 (9th Cir. 2004).

17

victim’s bedroom saw petitioner naked “down at least to his knees.” (Id. at 166.) Under these

circumstances, counsel’s decision to concede the obvious and focus on that aspect of the case

which might give rise to a reasonable doubt in the minds of the jurors was well within the wide

range of competent professional assistance. 

As noted by the United States Supreme Court, pointing out a client’s obvious

shortcomings and making reasonable concessions “is precisely the sort of calculated risk that lies

at the heart of an advocate's discretion.” Yarborough v. Gentry, 540 U.S. 1, 9 (2003). See also

United States v. Fredman, 390 F.3d 1153, 1154, 1158 (9th Cir. 2004) (defense counsel's decision

to admit in opening statement to some of defendant’s criminal wrongdoing was consistent with

the reasonable and effective defense tactic of conceding weaknesses in defendant’s case in an

attempt to shift the jury's focus from the strong evidence against defendant to an issue more

favorable to defendant, and was a reasonable tactic used by counsel “to avoid diminishing his

credibility by arguing a lost cause”). 

Petitioner has failed to demonstrate that his trial counsel’s reasonable tactical

concession constituted ineffective assistance. Accordingly, petitioner is not entitled to relief on

this claim.5

b. Inadequate Investigation of a Potential Intoxication Defense

Petitioner’s next claim is that his trial counsel rendered ineffective assistance

because he failed to conduct an adequate investigation into an intoxication defense. Petitioner

states that he informed his trial counsel he was “extremely intoxicated on the night of the events”

but counsel responded that “he was not willing to call and pay for expert witnesses to testify at

petitioner’s trial regarding his level of intoxication.” (P&A at 30.) Petitioner contends that

a medical expert at Petitioner’s trial could have testified to the

amount of alcohol in Petitioner’s system and the effects that this

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 17 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

18

alcohol would have on Petitioner’s state of mind. A medical

expert could have testified that Petitioner was so intoxicated that

he could not have formed the intent necessary to be convicted of

the crimes he was charged with.

(Id. at 30-31.) In support of this claim, petitioner has submitted his own declaration, in which he

states that he “had been drinking” prior to meeting the victim. (Traverse, Ex. D at 1, 2.) 

This same claim was raised for the first time in petitioner’s application of a writ of

habeas corpus filed in the California Superior Court. The Superior Court rejected the claim,

noting the lack of specific evidence in the record indicating that petitioner’s trial counsel had

refused to retain an expert witness. (Resp’t’s lodged document No. 15 at 2.) The Superior Court

also concluded that the evidence at trial demonstrated petitioner became significantly intoxicated

only after he and the victim began drinking in the victim’s apartment. (Id. at 2-3.)

This undersigned agrees that petitioner has failed to demonstrate his trial counsel

rendered ineffective assistance by failing to call an expert witness to testify regarding petitioner’s

intoxication. Petitioner has failed to establish either the availability of such an expert or the

substance of any testimony such an expert would have given. See Villafuerte v. Stewart, 111

F.3d 616, 632 (9th Cir. 1997) (petitioner’s ineffective assistance claim denied where he presented

no evidence concerning what counsel would have found had he investigated further, or what

lengthier preparation would have accomplished); United States v. Harden, 846 F.2d 1229, 1231-

32 (9th Cir. 1988) (no ineffective assistance because of counsel’s failure to call a witness where,

among other things, there was no evidence in the record that the witness would have testified);

United States v. Berry, 814 F.2d 1406, 1409 (9th Cir. 1987) (appellant failed to meet prejudice

prong of ineffectiveness claim because he offered no indication of what potential witnesses

would have testified to or how their testimony might have changed the outcome of the hearing). 

Petitioner’s unsupported claim that an expert could have testified that petitioner lacked the

requisite intent and his vague assertion that he “had been drinking” prior to meeting the victim

are insufficient to establish that defense counsel was deficient in failing to investigate an

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 18 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

19

intoxication defense. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“presentation of

conclusory allegations unsupported by specifics is subject to summary dismissal”); Jones v.

Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (“‘[c]onclusory allegations which are not supported by

a statement of specific facts do not warrant habeas relief’”) (quoting James v. Borg, 24 F.3d 20,

26 (9th Cir. 1994)). In this regard, petitioner has failed to demonstrate either substandard

performance by counsel or prejudice. Accordingly, he is not entitled to relief on this claim. 

c. Failure to Assert a Mistake of Fact Defense

Petitioner claims that his trial counsel rendered ineffective assistance in failing to

assert a “mistake of fact” defense to the burglary charge. Petitioner explains the nature of this

claim as follows:

To be convicted of burglary, it must be shown that the defendant

willfully entered a dwelling with the intent to commit a felony. 

However, since Petitioner was under a mistake of fact of the

victim’s age, he did not willfully enter the house to commit a lewd

and lascivious act on a minor under the age of fourteen. Petitioner

asserts that his mistake of fact negated the intent necessary to be

convicted of burglary.

( P&A at 32.) 

This claim fails because mistake of fact is not an available defense to a charge of

lewd and lascivious conduct with a child under the age of fourteen years. People v. Olsen, 36

Cal. 3d 638, 647 (1984) (reasonable mistake of age is not a defense to a California Penal Code §

288 charge of lewd and lascivious conduct with a child under the age of fourteen); see also

Morissette v. United States, 342 U.S. 246 n.8 (1952) (noting that although a finding of intent is

usually required in order for criminal liability to be imposed, exceptions include “sex offenses,

such as rape, in which the victim’s actual age was determinative despite defendant’s reasonable

belief that the girl had reached age of consent”). Accordingly, trial counsel had no viable

argument that petitioner did not intend to commit a felony at the time he entered the victim’s

apartment because he mistakenly believed she was over the age of fourteen. Counsel’s failure to

make a meritless argument does not constitute ineffective assistance. Jones v. Smith, 231 F.3d

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 19 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

 Petitioner’s jury was instructed with CALJIC No. 2.50.1, which provides as follows: 6

Within the meaning of the preceding instruction the prosecution

has the burden of proving by a preponderance of the evidence that

a defendant committed a crime other than that for which he is on

trial. You must not consider this evidence for any purpose unless

you find by a preponderance of the evidence that a defendant

committed such other crime.

(Clerk’s Transcript on Appeal (CT) at 234; RT at 384.) 

20

1227, 1239 n.8 (9th Cir. 2000) (citing Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985)). See

also Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) ("the failure to take a futile action can

never be deficient performance"). 

d. Failure to Object to CALJIC No. 2.50.1

Petitioner next claims that his trial counsel rendered ineffective assistance because

he failed to object to the giving of California Jury Instruction (CALJIC) No. 2.50.1 with respect

to the evidence of his 1993 sexual conduct involving Crystal B. Petitioner argues that there was 6

insufficient evidence introduced at his trial to prove he committed the prior acts because he

“never went to trial on this accusation and never served any time in prison for it.” (P&A at 31.) 

Petitioner contends, in other words, that a conviction was necessary for the evidence of his prior

conduct in 1993 with Crystal B. to be admissible. In the same vein, petitioner objects to the

language contained in CALJIC No. 2.50.1 instructing the jury that in order to be considered, the

prior crimes need be proven only by a preponderance of the evidence as opposed to beyond a

reasonable doubt. Petitioner argues that his trial counsel’s failure to object to CALJIC No. 2.50.1

allowed the jury to consider the prejudicial evidence concerning his contact with Crystal B in

1993. He argues, “it is more likely that the jury convicted Petitioner because of this last alleged

crime that they should have not have even been able to consider.” (Id.)

On appeal of his conviction, petitioner argued that admission of evidence

concerning his 1993 acts involving Crystal B. “was reversible error because there were

insufficient similarities between the charged and uncharged assaults to establish either intent or

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 20 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

 In this regard, the state appellate court explained that: 7

Prior to trial, the prosecutor sought to have Crystal’s testimony

relating defendant’s sexual assault upon her admitted for the

purpose of proving that his intent when he entered LeeAnn’s

apartment was to have sex with her, thereby establishing the

burglary charge and the enhancement under section 667.61. In a

hearing outside the presence of the jury, Crystal testified essentially

as she did at trial. Following argument, the trial court concluded

the evidence’s probative value outweighed its prejudicial effect and

was admissible under Evidence Code sections 1108 and 1101,

subdivision (b).

(Id. at 13.) At trial, the prosecutor “elected to forego the uncharged conduct coming in under

Evidence Code section 1108.” (Id. at 14 n.4.) Accordingly, the evidence of petitioner’s actions

against Crystal B. was admitted solely pursuant to California Evidence Code § 1101(b). 

21

common scheme or plan, and the prejudicial effect substantially outweighed any probative

value.” (Resp’t’s lodged document No. 5 at 13.) The state appellate court concluded that the

evidence relating to the 1993 incident was properly admitted because those prior acts were

substantially similar to the charged acts and were relevant to demonstrate petitioner’s intent in

entering the victim’s apartment. (Id. at 13-16.)7

Petitioner’s claim of ineffective assistance of counsel was raised for the first time

in his application for a writ of habeas corpus filed in the California Superior Court. (Resp’t’s

lodged document No. 14.) The Superior Court rejected the claim on the ground that the

California Court of Appeal had earlier rejected petitioner’s challenges to the admissibility of

Crystal B.’s testimony. (Id. at 4.)

This court also rejects petitioner’s challenges to the admissibility of evidence of

his prior bad acts. As explained by the California Court of Appeal, the testimony of Crystal B.

/////

/////

/////

/////

/////

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 21 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

 California Evidence Code § 1101(b) allows the introduction of evidence 8

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, or whether a defendant in a prosecution for an unlawful

sexual act or attempted unlawful sexual act did not reasonably and

in good faith believe that the victim consented) other than his or

her disposition to commit such an act. (emphasis added.) 

 In Gibson v. Ortiz, 387 F.3d 812 (9th Cir. 2004), the petitioner claimed that the use at

9

his trial of CALJIC Nos. 2.50.01 and 2.50.1 had unconstitutionally permitted the jury to find him

guilty of the charged offenses based on a mere preponderance of the evidence. 387 F.3d at 818. 

The United States Court of Appeals for the Ninth Circuit agreed, holding that CALJIC No.

2.50.01 and CALJIC No. 2.50.1, when given together at a criminal trial, violated the defendant’s

Fourteenth Amendment due process right to be proven guilty beyond a reasonable doubt. Id. at

822 (“the interplay of the two instructions allowed the jury to find that Gibson committed the

uncharged sexual offenses by a preponderance of the evidence and thus to infer that he had

committed the charged acts based upon facts found not beyond a reasonable doubt, but by a

preponderance of the evidence”). Petitioner’s jurors were instructed only with CALJIC No.

2.50.1, and did not receive CALJIC No. 2.50.01. Accordingly, Gibson has no applicability here.

22

was sufficient to support the admissibility of this evidence under California Evidence Code §

1101(b). Contrary to petitioner’s argument, a conviction on proof beyond a reasonable doubt is 8

not required for evidence to be admitted pursuant to this code section. See People v. Carpenter,

15 Cal. 4th 312, 382 (1997) (preponderance of the evidence standard reaffirmed and approved). 

9

Petitioner is also incorrect in asserting that it was his trial counsel’s failure to

challenge the giving of CALJIC No. 2.50.1 that permitted the jury to consider the prior acts

evidence. In fact, as explained by the California Court of Appeal, petitioner’s counsel did object

to the admissibility of evidence of petitioner’s prior acts against Crystal B. (Opinion at 13.) His

objections were overruled by the trial court. (Id.) Under these circumstances, trial counsel’s

failure to challenge the jury instruction itself did not result in the admission of this evidence. 

For the foregoing reasons, the state courts’ rejection of petitioner’s claim that his

trial counsel rendered ineffective assistance in failing to object to the giving of CALJIC No.

2.50.1 is not contrary to or an unreasonable application of federal law. Accordingly, petitioner is

not entitled to relief on this claim.

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 22 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

23

e. Failure to Object to the Jury Pool 

Citing Batson v. Kentucky, 476 U.S. 79 (1986), petitioner claims that his trial

attorney rendered ineffective assistance when he failed to object to the racial composition of the 

jury. (P&A at 24-28, 34.) Petitioner argues, “if the prosecution uses its peremptory strikes

during jury selection in a purposefully race-based discriminatory way, . . . a defendant’s right to

 equal protection is violated.” (Id. at 24.) Petitioner states that, while he is African-American,

the jurors at his trial were all “Caucasian and Asian.” (Id. at 34.) He argues that the absence of

blacks from his jury created a prima facie case of racial discrimination in jury selection and that

his trial counsel should have “object[ed], raise[d] this legal issue, and demand[ed] an explanation

from the prosecution.” (Id. at 28.) In support of this claim, petitioner has filed the declaration of

Michael Gray, a pastor of Trinity Restoration Ministries, who states that: (1) at the time of

petitioner’s trial there was “an ample and abundant supply of Blacks, residing within Yuba

County that were eligible and qualified to serve as jurors;” (2) the trial court and the prosecutor

violated petitioner’s constitutional rights “by removal of all Black venire men from the selected

jury pool;” (3) black persons in Yuba County “were systematically and purposefully excluded

from jury duty;” and (4) the prosecutor and the trial judge used procedures to “exclud[e] all

blacks from acting as jurors.” (Traverse, Ex. F (“corrected copy”).) Petitioner has also filed the

declaration of Mary Acosta, a member of his jury, who states that there were African-Americans

in the jury pool but they were all “dismissed.” (Traverse, Ex. G.) 

Petitioner’s claim in this regard was raised for the first time in his application for

a writ of habeas corpus filed in the California Superior Court. (Resp’t’s lodged document No.

14.) Petitioner argued, as he does here, that the mere fact there were no African-Americans on

his jury gave rise to a prima facie case of racial discrimination in jury selection to which his trial

counsel should have objected. (Id. at 27.) (Resp’t’s lodged document No. 15 at 3-4.) The

Superior Court rejected this argument with the following explanation:

/////

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 23 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

 Petitioner has included a copy of the census report cited by the California Superior 10

Court as Exhibit I to his traverse.

24

The Court takes judicial notice on its own motion of the State of

California, Department of Finance, Race/Ethnic Population

Estimates: Components of Change for California Counties, April,

1990 to July, 1999, Sacramento, California, March, 2001. This

study refers to the relevant ethnic groups as “whites,” “blacks,” and

“Asian/Pacific Islanders,” respectively. Yuba County during the

period of the study had a 74% white population, 4% black, and 8%

Asian/Pacific Islander. Such being the case, there are relatively

few blacks in the jury pool, and the absence of blacks from a given

jury can hardly be surprising, let alone give rise to a prima facie

showing of Fourteenth Amendment violation. Beyond the quoted

passage, the petition and its supporting documentation state

absolutely no facts whatsoever supportive of the notion that there

was is [sic] even an arguable, let alone prima facie, race-based

Fourteenth Amendment violation in defendant’s trial, viz., that 

blacks were “excluded” from the jury. The Court therefore denies

relief based on this ground. 

(Id. at 3-4.)10

In Batson, the United States Supreme Court held that the Equal Protection Clause

prohibits a prosecutor from exercising peremptory challenges to strike a venire person on the

basis of race. In order to prevail on a so-called Batson claim, petitioner must first establish a

prima facie case of purposeful discrimination. 476 U.S. at 96-97; Lewis v. Lewis; 321 F.3d 824,

830 & n.18 (9th Cir. 2003); United States v. DeGross, 960 F.2d 1433, 1442 (9th Cir. 1992) (en

banc). “To establish a prima facie case, the defendant must show that ‘he is a member of a

cognizable racial group,’ Batson, 476 U.S. at 96, and that “the totality of the relevant facts gives

rise to an inference of discriminatory purpose.” Williams v. Runnels, 432 F.3d 1102, 1106 (9th

Cir. 2006) (quoting Batson, 475 U.S. at 93-94). See also McClain v. Prunty, 217 F.3d 1209,

1219-20 (9th Cir. 2000). A defendant may establish a prima facie case “by producing evidence

sufficient to permit the trial judge to draw an inference that discrimination has occurred.”

Runnels, 432 F.3d at 1106. (citation omitted). 

Petitioner has failed to substantiate his claim that his trial counsel rendered

ineffective assistance in failing to raise a Batson challenge. There are no facts in this record that

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 24 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

 Petitioner does not appear to be claiming that he was denied his Sixth and Fourteenth 11

Amendment right to a jury selected from a fair cross-section of the community. Accordingly, the

court will not address any such claim. Even if petitioner had made such a claim, it would be

properly rejected. There is no evidence before this court that the representation of AfricanAmericans in venires from which juries are selected in Yuba County is not fair and reasonable in

relation to the number of such persons in the community, or that any underrepresentation is due

to a systematic exclusion of African-Americans in the jury-selection process. See Duren v.

Missouri, 439 U.S. 357, 364 (1979). 

25

raise any inference that the prosecutor used peremptory challenges to exclude any potential juror

on account of his or her race. Although “a defendant can make a prima facie showing based on a

statistical disparity alone,” Runnels, 432 F.3d at 1107, there is no evidence in this record from

which this court can even make a statistical analysis of the jury selection process at petitioner’s

trial. Neither the vague statements of Mr. Gray and Ms. Acosta, nor the census report lodged by

petitioner and cited by the California Superior Court, support an inference of racial

discrimination in the prosecutor’s exercise of peremptory challenges. Although petitioner claims

that trial counsel “effectively waived” any objection to the composition of the jury, he does not

explain what his trial counsel should have done or what he failed to do. Petitioner’s conclusory

allegations, which are not supported by a statement of specific facts, do not warrant habeas relief. 

James, 24 F.3d at 26. The decision of the California Superior Court that there was no factual

basis in the record to support an inference of purposeful discrimination in jury selection is not

contrary to or an unreasonable application of federal law. Accordingly, petitioner is not entitled

to relief on this claim. 

11

f. Cumulative Effect of Trial Counsel’s Errors

Petitioner claims that the cumulative effect of errors by his trial counsel

constituted ineffective assistance of counsel even if no error rose to the level of a constitutional

violation standing alone. (P&A at 34.) Where the cumulative effect of errors is so prejudicial

that a defendant is denied a fair trial, habeas relief may be warranted. See United States v.

Necoechea, 986 F.2d 1273, 1282-83 (9th Cir. 1993). Petitioner has not established a denial of

due process with respect to any of his individual claims of ineffective assistance of trial counsel. 

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 25 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

26

Likewise, considered in their aggregate, those claims do not compel the finding of a due process

violation. Accordingly, he is not entitled to relief with respect to this claim. 

3. Appellate Counsel

Petitioner claims that his appellate counsel rendered ineffective assistance when

she failed to raise on appeal all of the claims contained in the instant habeas petition. Petitioner

argues that his appellate counsel: 

had many arguable issues before her that she did not present or

argue. Arguably, these issues would have resulted in a reversal of

petitioner’s conviction. Thus, appellate counsel failed abjectly in

her duty to represent her client zealously.

(P&A at 37.) 

Petitioner’s appellate counsel apparently reviewed the trial transcripts and

concluded that petitioner’s claims of ineffective assistance of trial counsel and sufficiency of the

evidence, which were not raised on direct appeal, lacked merit. As described above, this court

has reached the same conclusion. Appellate counsel’s decision to press only claims with

arguably more merit was "within the range of competence demanded of attorneys in criminal

cases." McMann v. Richardson, 397 U.S. 759, 771 (1970). The California Superior Court

denied this claim on the ground that petitioner had failed to demonstrate prejudice stemming

from any of appellate counsel’s alleged errors. (Resp’t’s lodged document No. 14 at 4.) This

determination is not contrary to, or an unreasonable application of Strickland. Accordingly,

petitioner is not entitled to relief on this claim.

For the foregoing reasons, IT IS HEREBY RECOMMENDED that 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

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 26 of 27
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

“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: June 8, 2006.

DAD:8

fountain2350.hc

Case 2:04-cv-02350-GEB-DAD Document 37 Filed 06/08/06 Page 27 of 27