Feiger
v.
Ryan

This case is not covered by Casetext's citator
United States District Court, S.D. CaliforniaMar 10, 2006
Case No. 05CV1754 L (PCL). (S.D. Cal. Mar. 10, 2006)

Case No. 05CV1754 L (PCL).

March 10, 2006


REPORT RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS


I. FEDERAL PROCEEDINGS

On September 9, 2005, Robert Jeffry Feiger ("Petitioner"), a state prisoner currently incarcerated at Corcoran State Prison, proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1) Stuart Ryan, et al. ("Respondents") filed an Answer to the Petition along with a Memorandum of Points and Authorities in support thereof ("Ans. Mem."), and lodged portions of the state court record. (Doc. Nos. 6-8) Finally, Petitioner filed a Traverse. (Doc. No. 12)

II. STATE PROCEEDINGS

On May 29, 2002, in the Superior Court of San Diego County, Petitioner was convicted of six counts of lewd acts upon a child under the age of 14 years (Cal. Penal Code § 288(a) and one count of a forcible lewd act involving substantial sexual conduct (Cal. Penal Code §§ 288(b)(1), 1203.066(a)(8)). (Lodgment 1 at 333-334) On May 30, 2002, in the second part of a bifurcated trial, true findings were made that Feiger's prior lewd act convictions in 1984 and 1986 constituted prisons priors (Cal. Penal Code § 667.71(a)) and strike convictions(Cal. Penal Code § 667(b)-(i)). (Id. at 335-336) Accordingly, on August 30, 2006, Feiger was sentenced to a total term of 385 years to life. (Id. at 338-339)

Petitioner filed a direct appeal of his conviction and sentence with the California Court of Appeal, Fourth Appellate District, Division One, in case number D041022. (Lodgment 5) On April 9, 2004, the Court of Appeal AFFIRMED Petitioner's conviction and sentence. (Id. at 1, 20-21) Thereafter, Petitioner filed a Petition for Review in the California Supreme Court. The Petition was denied on July 14, 2004. (Lodgment 7)

III. UNDERLYING FACTS

The following statement of facts is taken from the California Court of Appeal's opinion affirming Petitioner's conviction on direct review. This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. 28 U.S.C.A. § 2254(e)(1) (West Supp. 2004); see alsoSumner v. Mata, 449 U.S. 539, 545-47 (1981) (stating that deference is owed to factual findings of both state trial and appellate courts).

In 1983, Kirk H., then about 13 years old, started working for Feiger in a surf shop in Palos Verdes. Kirk spent the night at Feiger's house. Feiger massaged Kirk's back, told him to roll over, rubbed his chest and stomach and then his penis under his underwear. When Kirk asked Feiger to stop, Feiger kept saying, "Just a little longer." Feiger touched kirk several additional times during the night. This incident was admitted pursuant to Evidence Code section 1108. In the 1980's Feiger was convicted of child molest, sentenced to prison for five years and was on parole for an additional three years. The terms of his parole prohibited him from being around minors without an adult guardian or parent being present. His parole ended January 1994.
While Fieger was on parole, he started Luna Bay, a company that designed, manufactured and sold boy's beachwear, sportswear, and swimsuits. Feiger hired boys to model his clothing. In exchange for their modeling, Feiger gave the boys clothing, invited them to parties at his house, and took them to the beach, movies and theme parks and to Las Vegas. Often, the boys would spend the night at Feiger's house. Over the course of the years, about 50 boys spent the night at his home, Feiger testified between 1993 and 2000 he spent "many" nights alone with the boy models.
When the boys spent the night at Feiger's house, he would give them "fancy pants" and "nighties" to wear. At trial, the boys described the fancy pants as being silky, like "speedos," and having a bow in the middle. The nightshirts were described as being flannel and looking like a girl's nightgown. Feiger testified they were Luna Bay nightshirts intended for young boys.

Count 1 — Matthew N.

Count 2, 3, and 7 — Stephen C.

Matthew modeled for Luna Bay about one year when he was 12 or 13 years old during the year 2000. At one point, Matthew spend one or two nights per week at Feiger's residence, sometimes when other boys were also present. Feiger would give the boys fancy pants and nighties to wear. While the boys watched movies, Feiger massaged their backs and shoulders. When Feiger was alone with Matthew, he rubbed Matthew's feet and legs. Feiger pulled up Matthew's nightshirt, touched his lower back, and on "the sides and stuff." One time when he was along with Matthew, Feiger asked if Matthew wanted his thighs rubbed. On one occasion Feiger put his hands on the sides of Matthew's underwear and pulled them up for Matthew.
Stephen met Feiger when he was about four years old while Stephen's stepbrother was modeling for Luna Bay. When Stephen was about six years old, he began modeling for Luna Bay. Between the time of six and 12 years old, Stephen spent at least a hundred nights at Feiger's house. About 75 percent of the time Stephen spent the night at Feiger's house, Feiger gave him a back rub.
Sometimes when Stephen was alone in the house with Feiger, Feiger would rub his lower back or his "butt" under the fancy pants and sometimes Feiger would become angry if Stephen said no. (Count 2.) Sometimes, Feiger, rubbed Stephen from his shoulder to the small of his back and from his upper thighs to his ankles. (Count 3.) As Stephen got older, he sometimes felt uncomfortable about the backrubs.
On one occasion when Stephen was 11 years old, Feiger promised to buy a new shirt for Stephen if he could buy Stephen a pair of fancy pants. They were in a department store. Feiger picked out a pair of girl's underwear and said he was going to buy them for Stephen. When Feiger paid for the underwear, he lied to the sales clerk, telling her he had a daughter.
Toward the end of the spring or the end of the summer of 2000, as Stephen came out of the shower at Feiger's home, Feiger, wearing only boxers, entered the bathroom, grabbed a towel and asked if could dry Stephen. When Feiger dropped the towel and Stephen bent to pick it up, Feiger put his penis "in" Stephen. It was painful. When Stephen tried to get away, Feiger grabbed him, held his arms behind his back, angrily told Stephen to hold still and called him a "little Fu____er." Stephen escaped from Feiger, grabbed his clothes and walked three hours from Feiger's home in Oceanside to his own home in Vista. (Count 7.)
When Feiger called Stephen's home the next day, Stephen told his mother he did not want to go anywhere then. For the next three days, Stephen felt "really bad" burning pain whenever he sat down or "went to the restroom." He did not immediately tell anyone about the sodomy incident because he was upset and afraid that people would call him "gay." He finally told his mother in November 2001, after he was expelled from school for getting into fights. Stephen was always angry, wanting to prove that he could still be a man.
Jordan A. modeled for Luna Bay about a year when he was ten years old. He spent the night at Feiger's house every weekend. Other boys were there. He wore nightshirts and underwear with bows. Feiger rubbed Jordan's back while Jordan was wearing fancy pants, touching Jordan's upper and lower back. Jordan felt uncomfortable.
Donovan first met Feiger when he was about 12 years old in approximately 1993, modeled for him and spent the night at Feiger's house. Feiger had Donovan wear a nightshirt and panties. They watched television in Feiger's bedroom while Feiger rubbed Donovan's back. Feiger then rubbed Donovan's penis. (Count 5.) A month later, Donovan again spent the night and Feiger again fondled Donovan's penis. (Count 6.)
Donovan testified that bout two months later, he spent the night at the house of Luna Bay's photographer. They watched pornography in the living room after which the photographer touched Donovan's penis.
Feiger denied touching any of the boys in a sexual way. He massaged only their upper backs, shoulders and lower legs. He could only recall giving backrubs to six or seven boys. Feiger testified that after he had been convicted and released from prison, he was well aware of how much trouble he would be in if he sexually touched a child. He denied having a sexual interest with boys. He claimed he never felt tempted to touch his models improperly.
Feiger testified the "fancy pants" described by the witnesses were not all girl's underwear; they also included silky boy's underwear. He gave the boys Luna Bay nightshirts to sleep in and whatever underwear was available and clean. The girl's underwear were samples from Luna Bay's project to develop a line of girl's underwear (which never occurred) and he gave them to the boys to wear if they were the only clean available underwear. He testified Stephen was with him when he went to a department store and bought a pair of girl's underwear but, denied telling the sales clerk that he had a daughter or niece; he was buying the underwear "for samples."

(Lodgment 5 at 2-7)

IV. PETITIONER'S CLAIMS

Seven issues are raised in the current habeas petition:

(1) Whether there was sufficient evidence to support counts two and three.

(2) Whether the failure of the state trial court to hold a hearing on whether there was juror misconduct denied Petitioner his Sixth Amendment right to an impartial jury.

(3) Whether the admission of evidence of prior lewd acts to show propensity or disposition to commit sex offenses denied Petitioner due process of law.

(4) Whether the instruction on prior lewd acts violated due process.

(5) Whether the admission of prior lewd acts violated the ex post facto prohibition with respect to counts 5 and 6.

(6) Whether the extension of the statute of limitations for counts 5 and 6 violated the ex post facto prohibition.

(7) Whether the sentence violates the prohibition against "cruel and usual(sic) punishment."

(Pet. at 6-9.5).

V. DISCUSSION

Respondent contends that Petitioner is not entitled to habeas relief on claims one, three, four, five, or six, "because the state court's merits determinations were neither contrary to, nor did they involve unreasonable applications of, controlling authority. (Answer at 2) On claim two and seven, Respondent asserts Petitioner does not merit habeas relief, "because the claim[s] [fail] to present a federal constitutional question, and to the extent [they do], the state court's rejection of the claim[s] was neither contrary to, nor an unreasonable application of, controlling precedent." (Id.)

A. Standard of Review

Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
28 U.S.C.A. § 2254(a) (West 1994) (emphasis added).

The present Petition was filed after the President signed into law the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214. Under 28 U.S.C. § 2254(d), as amended by AEDPA:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C.A. § 2254(d) (West Supp. 2002).

A state court's decision may be found to be "contrary to" clearly established United States Supreme Court ("Supreme Court") precedent: (1) "if the state court applies a rule that contradicts the governing law set forth in [the Court's] cases" or (2) "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision may involve an "unreasonable application" of clearly established federal law, "if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or, "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407.

"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly . . . Rather, that application must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175 (2003) (internal quotation marks and citations omitted). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the United States Supreme] Court's decisions." Williams, 529 U.S. at 412.

Finally, habeas relief is also available if the state court's adjudication of a claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court." 28 U.S.C.A. § 2254(d)(2) (West Supp. 2004). In order to satisfy this provision, Petitioner must demonstrate that the factual findings upon which the state court's adjudication of his claim rests are objectively unreasonable, assuming it rests on a factual determination.Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). This Court will presume the state court's factual findings are correct, and Petitioner may overcome that presumption only by clear and convincing evidence. 28 U.S.C.A. § 2254(e)(1) (West Supp. 2004).

B. Petitioner is NOT Entitled to Habeas Relief on the Basis of Claim One

1. The Evidence in Support of Counts Two Three

Petitioner argues generally, that "the evidence was insufficient to support appellant's conviction for committing lewd and lascivious acts upon Stephen C. during the year 2000 as charged in counts two and three." (Lodgment 3 at 27) Adding some specificity, Petitioner complains, that the testimony in the trial court referred to lewd acts upon Stephen C. that occurred over a period of years, but an act was never pinpointed to the year 2000 (the year charged in the amended information). (See Id. at 27, 31-38)

Respondents maintain, "the evidence showed Petitioner has a well established history of rubbing young boys for his own sexual pleasure." (Ans. Mem. at 14) As such, "the jury was entitled to believe Petitioner was sexually aroused by dressing boys in "fancy pants" and touching them, and therefore the backrubs were initiated for Petitioner's sexual pleasure." (Id.) Respondents continue, "Stephen testified he spent the night at Petitioner's house over 100 times between 1994 and 2000, and that on approximately 75 percent of those occasions Petitioner gave him a backrub." (Id.) The state court, Respondents note, "found [Stephen's] testimony sufficient to support the jury's determination . . ." (Id.) 2. Analysis

The clearly established Federal law concerning sufficiency-of-the-evidence claims is set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). A defendant alleging the evidence was insufficient to support his conviction must demonstrate, "upon the record of evidence adduced at the trial[,] no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Id. at 324. Reviewing courts, such as this Court, must consider the evidence in the light most favorable to the state-court judgment and after considering all reasonable inferences in support of that judgment. Id. at 319. Moreover, as the Respondents correctly point out, "the Ninth Circuit has held that the AEDPA adds an additional layer of deference to theJackson standard, so that a habeas petitioner may obtain relief only be demonstrating that the state court's adjudication on the merits of the claim involved an unreasonable application ofJackson's `no rational trier of fact' standard. See Juan H.V. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005)." (Resp'ts P. A. at 13) In this case, California, too, expressly follows the standard articulated in Jackson for sufficiency-of-evidence disputes. People v. Johnson, 26 Cal.3d 557, 575-578 (1980).

The California Court of Appeal ("Court of Appeal") was the last court to issue a reasoned decision, so Plaintiff must show their's was an unreasonable application of Jackson. The Court of Appeal wrote:

A person is guilty of violating section 288, subdivision (a) if he or she touches a child under the age of 14 years "with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person of the child." (§ 288, subd. (a), People v. Martinez (1995) 11 Cal.4th 434, 444.) In order to sustain a conviction, it is not necessary that the child testify to the specific date of the act. (See People v. Jones (1990) 51 Cal.3d 294, 305, 322-323.) . . .
Stephen testified he started spending the night at Feiger's house in 1994 or 1995. He spent the night there over 100 times and about 75 percent of those times Feiger gave him a backrub. He last spent the night there at the end of summer 2000. This evidence was sufficient to support a conclusion Feiger touched Stephen on his back, buttocks, and legs during 2000.
There was also substantial evidence to support a finding that the touching was sexual in nature. The jury was entitled to reject Feiger's testimony that he never touched the models in a sexual manner. They were entitled to believe the Feiger was sexually aroused by dressing the boys in "fancy pants" and touching them while they were at his house and to conclude the backrubs were not merely "innocent" massages requested by the boys but were initiated by Feiger for his sexual pleasure. This conclusion is enforced by evidence that Feiger's molestations of Kirk and Donovan began with backrubs and graduated to touching their penises."

(Lodgment 5 at 8-9).

The Court of Appeal aptly reviewed the evidence provided for the time of the incident, the actus reus, and the mens rea. (Id. at 7-9) The Court of Appeal, applying the appropriate standard (rationale trier of fact), then determined that a rationale trier of fact could have found Petitioner guilty beyond a reasonable doubt. (Id.) The Court is satisfied, as demonstrated by their opinion, that the Court of Appeal appliedJackson correctly: there is ample evidence for each element of the crime for each count.

More importantly, it is Petitioner who carries the burden of demonstrating the Court of Appeal applied an unreasonable application of Jackson. Petitioner has offered this Court nothing more than a naked assertion that the evidence was insufficient, that the alleged acts were not shown to take place in the year 2000. (Lodgment 3 at 27) Petitioner can not rebut the California Court of Appeal which convincingly rejected his assertions as false. (Lodgment 5 at 7-9) Accordingly, the Court finds that habeas relief is not available with respect to claim one.

C. Petitioner is NOT Entitled to Habeas Relief on the Basis of Claim Two

1. Petitioner's Sixth Amendment Right to a Fair and Impartial Jury

Petitioner asserts in claim two that his Sixth Amendment right to a fair and impartial jury was violated when the state trial court "declined to conduct a hearing as to potential jury misconduct." (Pet. at 7) Petitioner elaborates, "[t]rial counsel declared that at the conclusion of trial, certain jurors stated that they had considered evidence that was not introduced at trial. Since the prosecutor disputed the statements were made as represented by trial counsel, the trial court erred in failing to permit an inquiry into the potential misconduct of the jury." (Lodgment 6 at 13) Specifically, Petitioner argues one or more jurors believed a witness's son had been molested by Feiger and then committed suicide, evidence that was not introduced at trial. (Lodgment 5 at 15)

Respondents counter that Petitioner — regardless of his citations to the Sixth Amendment — is truly disputing a possible error of state law and thus federal habeas relief is not available. (Ans. Mem. at 20) Moreover, even if Petitioner has successfully invoked a Constitutional right, Respondents continue, "the prosecution's unrefuted declaration established that one of the jurors was understandably curious as to how [the witness's son] died, yet no one suggested that said curiosity was a factor in the deliberations, or that curiosity in and of itself constitutes misconduct." (Id. at 20-21) In short, "nothing about the state court's rejection of Petitioner's claim was contrary to, or involved an unreasonable application, of controlling precedent." (Id. at 21)

2. Analysis

To repeat, under AEDPA, "state court findings of fact are presumed correct unless rebutted by clear and convincing evidence" or "based on an unreasonable evidentiary foundation." 28 U.S.C. § 2254(e)(1); Gonzalez v. Pliler, 341 F.3d 897, 903 (9th Cir. 2003). AEDPA requires this Court to "defer to the state court's determination of the federal issues unless that determination is `contrary to, or involved an unreasonable application of, clearly established Federal law." Lockyer, 538 U.S. at 75-76 (emphasis added).

The Respondents argue, and the Court agrees, that the true issue presented by Petitioner is whether the state trial court correctly applied California Code of Civil Procedure section 237 (governing the release of a juror's personal information). To restate, Petitioner requests this Court grant a Federal Habeas Petition based on a misapplication of state civil procedure; this the Court can not do. While the Sixth Amendment guarantee to an impartial jury is clearly established Federal law, Petitioner's whole argument is based around California Code of Civil Procedure section 237. Even should the Court suspend disbelief — that California civil procedure is the crux of Petitioner's claim — there is scant evidence of juror misconduct. The California Court of Appeal sums up Petitioner's case:

Here, Feiger showed only that after the verdicts were rendered a juror asked how [the witness's] son had died, apparently after learning that it was a suicide, and the juror and/or jurors commented, "we knew that would have happened." Nothing in these facts show any juror had known how [the witness's] son had died or had discussed this matter during deliberations. Rather all these facts show is a curiosity about the death of a witness's son and a comment upon learning how the son had died. Notably, defense counsel at the time the statement was made, did not interpret the statement as reflecting any jury misconduct since he did not then question any of the jurors. Nor did counsel later contact the juror at the previously scheduled sentencing hearing. . . . Defense counsel's conduct supports an inference the juror(s) question and comment did not reflect discussion during the deliberation but only a post-trial curiosity and a comment upon learning information.

The Court of Appeal writes, "[t]he [state trial] court denied Feiger's motion for release of the juror's personal identifying information, finding Feiger had failed to make a prima facie showing of good cause as required by Code of Civil Procedure section 237. The court also found a compelling state reason in not releasing the names, i.e., if the names were released, it would mean that every juror who expressed concerns or raised a question about something that came up during trial would be subject to being questioned." (Lodgment 5 at 16)

Petitioner's Complaint attaches his Opening Brief to the Court of Appeal while his Traverse references, at length, Petitioner's Reply Brief to the Court of Appeal. (Compl. at 7; Traverse at 3) Both these documents focus almost exclusively on California Code of Civil Procedure, which is understandable as a misapplication would be appealable in state court. However, the documents are ineffective at making the case for a misapplication of clearly established Federal law: once again, the documents focus on state civil procedure.

(Lodgment 5 at 16-17).

Accordingly, the Court finds that habeas relief is not available with respect to claim two.

D. Petitioner is NOT Entitled to Habeas Relief on the Basis of Claim Three

1. Evidence of Prior Lewd Acts and Due Process of Law

Petitioner implores the Court, that "review is necessary because the trial court violated [Petitioner's] federal Constitutional rights under the Fourteenth Amendment by admitting evidence of his other sexual conduct for the sole purpose of proving his disposition to commit the instant offenses." (Lodgment 6 at 17) Petitioner's promising introduction, however, is undermined two paragraphs later when he acknowledges, "the United States Supreme Court has declined to decide whether due process permits the admission of uncharged crimes solely to show a propensity of the accused to commit the charged offense . . ." (Id. at 17) (citing Estelle v. McGuire, 502 U.S. 62, fn. 5 (1991))

The issue, then, is decided. The Court has no choice but to agree with Respondents: "the Supreme Court expressly left open the question of whether the admission of evidence of other crimes solely to prove propensity violates due process. Accordingly, there is no clearly-established Supreme Court precedent on this issue. And when there is no firmly-established rule, there is no viable claim under the AEDPA. Penry-Johnson, 532 U.S. 782, 794-795 (2001)." (Ans. Mem. at 22) To conclude, the Court finds that habeas relief is not available with respect to claim three.

E. Petitioner is NOT Entitled to Habeas Relief on the Basis of Claim Four

1. Jury Instructions for Prior Lewd Acts and Due Process of Law

The jury instruction, CALJIC 2.50.01, which allows the use of prior lewd acts as evidence, requires the prior lewd acts be proved by a preponderance of evidence. Petitioner contends, "[t]he instruction allowed the jury to base a conviction on this evidence. In doing so, the instruction undermined the requirement that a crime be proved beyond a reasonable doubt." (Pet. at 9) Petitioner adds weight to his argument citing the Ninth Circuit's decision in Gibson v. Ortiz, 387 F.3d 812 (2004). (Id.)

Respondents' respond, that Gibson v. Ortiz concerned an earlier, different version of the jury instruction and "does not avail the Petitioner." (Ans. Mem. at 24) To the contrary, Respondents argue, the California Supreme Court has held that the disputed jury instruction did not lessen the burden on the prosecution. (Id. at 23) (citing People v. Reliford, 29 Cal.4th 1007 (2003)) Moreover, the same analysis applied by the California Supreme Court — the "reasonable likelihood" test ofEstelle — is the same test this Court must apply, and thus the Court should come to the same conclusion as did the California Supreme Court. (Ans. Mem. at 23) (citing Estelle v. McGuire, 502 U.S. 62, 72 (1991))

2. Analysis

The United States Court of Appeals for the Ninth Circuit does an admirable job setting out the relevant law:

The Due Process Clause of the Fourteenth Amendment requires the prosecution to prove every element charged in a criminal offense beyond a reasonable doubt . . . See [In re Winship, 397 U.S. 358, 364]. If the jury is not properly instructed that a defendant is presumed innocent until proven guilty beyond a reasonable doubt, the defendant has been deprived of due process. See Middleton v. McNeil, 541 U.S. 433 (2004); Taylor v. Kentucky, 436 U.S. 478, 485-486 (1978). Any jury instruction that "reduce[s] the level of proof necessary for the Government to carry its burden . . . is plainly inconsistent with the constitutionally rooted presumption of innocence. Cool v. United States, 409 U.S. 100, 104 (1972).
Although the Constitution does not require jury instructions to contain any specific language, the instructions must convey both that a defendant is presumed innocent until proven guilty and that he may only be convicted upon a showing of proof beyond a reasonable doubt. See Victor v. Nebraska, 511 U.S. 1, 5 (1994). "The essential connection to a `beyond a reasonable doubt' factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury's findings." [Sullivan v. Louisiana, 508 U.S. 275, 281 (1993)](emphasis in original). Where such an error exists, it is considered structural and thus is not subject to harmless error review. See id. at 280-82. However, if a jury instruction is deemed "ambiguous," it will violate due process only when a reasonable likelihood exists that the jury has applied the challenged instruction in a manner that violates the Constitution. Estelle, 502 U.S. at 72. Any challenged instruction must be considered in light of the full set of jury instructions and the trial record as a whole. See Cupp v. Naughten, 414 U.S. 141, 146-47 (1973).
Gibson, 387 F.3d at 820-821 (emphasis in original).

The jury instruction in question, a 2001 version of CALJIC NO. 2.50.1, reads:

Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense other than that charged in this case. . . .
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 sexual offenses. If you find that the defendant had this disposition, you may, but are not required to infer that he was likely to commit and did commit the crime of which he is accused.
However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes. The weight and significance of the evidence, if any, are for you to decide.

(Lodgment 2 at 853-854).

In Petitioner's trial, more jury instructions followed CALJIC No. 2.50.1, including language clarifying the burden of proof:

A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he's entitled to a verdict of not guilty. This presumption places upon the people the burden of proving him guilty beyond a reasonable doubt.
Reasonable doubt is defined as follows: it is not a mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.

(Lodgment 2 at 854)

In Gibson, the reasonable doubt standard was given first followed by a different version of CALJIC No. 2.50.1. Gibson, 387 F.3d at 820-821. Notably, the Gibson version did not include the dictate, that "if you find by a preponderance of the evidence that the defendant committed a prior sexual offense, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes." Id. In contrast, the jury which convicted Petitioner received this explicit, easy-to-follow instruction. (Lodgment 2 at 854) Further, to make the exact burden of proof perfectly clear, the reasonable doubt standard followed CALJIC No. 2.50.1. (Id. at 854-855) The unconstitutional route to a conviction, which so worried the Ninth Circuit in Gibson, has been cutoff. Gibson, 387 F.3d at 820-823. For the reasons discussed, the Court finds a reasonable likelihood does not exist that Petitioner's jury applied the challenged instruction in a manner that violates the Constitution. See Estelle, 502 U.S. at 72.

Accordingly, the Court finds that habeas relief is not available with respect to claim four.

F. Petitioner is NOT Entitled to Habeas Relief on the Basis of Claim Five

1. Prior Lewd Acts and the Ex Post Facto Prohibition

Petitioner succinctly argues, "[c]ount 5 and 6 were alleged to have occurred in 1993. After this, the [California legislature] enacted Evidence Code § 1108, which permits the admission of evidence of prior sex offenses to prove propensity or disposition to commit such offenses. The application of section 1108 to offenses that took place before its enactment makes it easier for the prosecution to obtain a conviction and is ex post facto underCamell v. Texas, 529 U.S. 513 (2000)." (Pet. At 9.5)

Respondents claim, "the enactment of § 1108 did not eliminate or ease the elements of Penal Code § 288(a) violation." (Ans. Mem. at 25) As such, Respondents continue, § 1108 does not violate the Constitutional ex post facto clause. (Id.)

2. Analysis

Respondents have a provided a suitable survey of the current state of Constitutional ex post facto jurisprudence:

A statute is prohibited as ex post facto if it punishes as a crime an act that was not a crime when it was committed, if it increases the punishment for a crime after its commission, or if it deprives a defendant of a defense available according to law at the time the act was committed. Collins v. Youngblood, 497 U.S. 37, 43 (1990). In Carmell v. Texas, 529 U.S. 513, the Supreme Court held that the ex post facto clause also extends to laws that alter the legal rules of evidence such that the defendant can be convicted on less or different testimony than the law required at the time of the commission of the offense. Carmell, 529 U.S. at 522 (citing Calder v. Bull, 3 U.S. 386 (1798)).

The United States Constitution provides, "No Bill of Attainder or ex post facto Law shall be passed." U.S. CONST. art. I, § 9.
Also, "No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility." U.S. CONST. art. I, § 10.

The seminal case and starting point for all ex post facto inquiries is Beazell v. Ohio, 269 U.S. 167, 169-170 (1925).Collins v. Youngblood, 497 U.S. 37, 43 (1990), here, is referencing Beazell.

(Ans. Mem. at 24-25).

At first blush, Petitioner's argument appears to meet the ex post facto requirements: different testimony — to be exact, testimony of prior crimes to show propensity to commit similar offenses — was authorized after Petitioner's crimes and used as evidence to help convict him. However, the United States Supreme Court, "makes clear, this language was not intended to prohibit the application of new evidentiary rules in trials for crimes committed before the changes. Collins, supra, at p. 43, fn. 3."People v. Fitch, 55 Cal.App.4th 172, 185-186 (1997) (California Court of Appeal discussing the application of the ex post facto clause on similar facts). A new evidentiary rule is exactly the law Petitioner challenges here, and thus, was not barred as ex post facto for Petitioner's 1993 crimes.

The California Court of Appeal offered a similar analysis; thus, it can not be said a unreasonable application of established federal law occurred. (Lodgement 5 at 12-13) Accordingly, the Court finds that habeas relief is not available with respect to claim five.

G. Petitioner is NOT Entitled to Habeas Relief on the Basis of Claim Six

1. Extension of the Statute of Limitations and the Ex Post Facto Prohibition

Petitioner's second attempt to invoke the ex post facto prohibition concerns statutes of limitations. He was convicted on count 5 and 6, both offenses that occurred in 1993. In 1993 the statute of limitations for his crimes was six years; however, in 1996, an exception to the general limitations statute was created that extended the period of limitations. Cal. Penal Code § 803(g). Petitioner was not indicted within the six years prescribed by the original statute of limitations. Instead, California invoked the 1994 exception created by section 803(g). Petitioner contends, that the extension of the statute of limitations violates the ex post facto prohibition, citing Stogner v. California, 539 U.S. 607 (2003). (Pet. at 9.5)

2. Analysis

The holding in Stogner, however, is more nuanced than Petitioner admits. The Supreme Court did hold that § 803(g) violated the ex post facto prohibition for crimes that were already time-barred when the law was enacted. However, the Supreme Court's ruling did not apply to the extension ofunexpired statutes of limitations. Put another way, the Supreme Court's ruling was limited to laws that revived a statute of limitations after the original period of limitations had already run. Petitioner's statute of limitations never did run out. In 1996, when the section 803(g) extension was passed, Petitioner's crimes at issue were less than three years old — the limitations period was six years. Stogner, then, does not help Petitioner.

The California Court of Appeals came to the same conclusion: "[t]he prohibition against ex post facto laws is not offended when applied to an offense that was committed prior to the expiration of the original limitations period. [cites]" (Lodgment 5 at 14) The Court agrees, the statute of limitations extension is not contrary to the federal law as established by the Supreme Court. Accordingly, the Court finds that habeas relief is not available with respect to claim six.

H. Petitioner is NOT Entitled to Habeas Relief on the Basis of Claim Seven

1. Petitioner's Sentence and Cruel Unusual Punishment

Finally, Petitioner insists his sentence violates the Constitutional prohibition on cruel and unusual punishment. (Pet at 9.5) "Although one of the convictions is for a forcible lewd act," Petitioner points out, "the six other convictions involve no force." (Id.) He continues, "[f]ive of those convictions are based on rubbing a minor's back or leg. The sentence is 385 years to life. It consists of five sentences of 75 years to life for five offenses and ten years for two other offenses." (Id.)

Respondents counter: 1) Petitioner is arguing the feasability of the sentence which is not a federal claim; and 2) Even if Petitioner is arguing proportionality, the Supreme Court has not laid out firmly established federal law for term-of-year sentences, and thus, Petitioner still fails. (Ans. Mem. at 27-28) 2. Analysis

The controlling Supreme Court case setting the law for habeas petitions based on cruel and unusual punishment is Lockyer v. Andrade, 538 U.S. 63 (2003). Lockyer held that, "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, applicable only in the `exceedingly rare' and `extreme' case." Lockyer, 538 U.S. at 73.

First, the Court notes that feasability of serving one's sentence does not raise a federal question. To the extent that Petitioner's argument relies on feasability it fails. Second, Petitioner's case simply is not an "exceedingly rare" or an "extreme case" as envisioned by the Supreme Court; Petitioner has plenty of history recommending his long sentence. See id. at 71-77. As Respondents' convincing make the case, "Petitioner's record includes two previous convictions for molesting children under the age of 14 years. Moreover, he served prison time on both convictions. Nevertheless, instead of being deterred from further criminal conduct, he resumed his pattern of molestation, this time victimizing four young boys. Making matters worse, he apparently shared some of his victims with other molesters." (Ans. Mem. at 28)

To conclude, the Supreme Court in Lockyer wrote, "the governing legal principle gives legislatures broad discretion to fashion a sentence that fits within the scope of the proportionality principle — the `precise contours' of which `are unclear.' Harmelin v. Michigan, 501 U.S., at 998 (KENNEDY, J., concurring in part and concurring in judgment). And it was not objectively unreasonable for the California Court of Appeal to conclude that these `contours' permitted an affirmance of Andrade's sentence." Lockyer, 538 U.S. at 77. Here too, it was not objectively unreasonable for the California Court of Appeal to affirm Petitioner's sentence. The Court finds that habeas relief is not available with respect to claim seven.

VI. CONCLUSION

For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation; and (2) directing that Judgement be entered DENYING the Petition.

IT IS ORDERED that, no later than April 7, 2006, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation." Any reply to Objections shall be filed on or before April 19, 2006. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).