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Case 2:08-cv-02527-GEB-GGH Document 27 Filed 02/02/10 Page 1 of 53 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 BRANDON LEE WOLCOTT, 10 Petitioner, No. CIV S-08-2527 GEB GGH P 11 vs. 12 KEN CLARK, 13 Respondent. FINDINGS AND RECOMMENDATIONS 14 / 15 I. Introduction 16 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas 17 corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2005 conviction for rape in 18 violation of Cal. Penal Code § 261(a)(2). Pursuant to the Three Strikes Law, petitioner is serving 19 a sentence of fifty years to life. 20 The petition raises the following claims: 1) prosecutorial misconduct; 2) 21 ineffective assistance of counsel (5 claims); 3) evidentiary errors (5 claims); 4) jury instruction 22 error; 5) Cal. Evid. Code § 1108 is unconstitutional; 6) cumulative error. 23 After carefully considering the record, the court recommends the petition be 24 denied. Also pending is petitioner’s motion to stay this action pending exhaustion of additional 25 claims. For the reasons discussed below, this motion should be denied as well. 26 ///// 1 Case 2:08-cv-02527-GEB-GGH Document 27 Filed 02/02/10 Page 2 of 53 1 II. Exhaustion 2 The exhaustion of state court remedies is a prerequisite to the granting of a 3 petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must 4 be waived explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion, 5 thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by 6 providing the highest state court with a full and fair opportunity to consider all claims before 7 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276, 92 S. Ct. 509, 512 8 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021, 102 S. 9 Ct. 1198 (1986). 10 In the answer, respondent argues that several of the claims raised in the petition 11 are unexhausted but that they should be denied anyway as they have no merit. 28 U.S.C. § 12 2254(a)(2) (an application for writ of habeas corpus may be denied on the merits, 13 notwithstanding the failure of the applicant to exhaust the remedies available in the state courts).1 14 On June 24, 2009, petitioner filed a motion to stay proceedings so that he may 15 return to state court and exhaust the unexhausted claims. In Rhines v. Weber, 544 U.S. 269, 125 16 S.Ct. 1528 (2005) the United States Supreme Court found that a stay and abeyance of a mixed 17 federal petition should be available only in the limited circumstance that good cause is shown for 18 a failure to have first exhausted the claims in state court, that the claim or claims at issue 19 potentially have merit and that there has been no indication that petitioner has been intentionally 20 dilatory in pursuing the litigation. Rhines, supra, at 277-78, 125 S.Ct at 1535. 21 A district court may avoid ruling on exhaustion if the unexhausted claims can be 22 denied on their merits. 28 U.S.C. § 2254(2)(b). Because the undersigned finds that all of the 23 claims raised in the petition are without merit, the motion to stay should be denied. No further 24 exhaustion analysis will be made. 25 1 The petition raises fourteen claims. Only five of those claims, i.e. those raised in the 26 petition for review, are exhausted. 2 Case 2:08-cv-02527-GEB-GGH Document 27 Filed 02/02/10 Page 3 of 53 1 III. Anti-Terrorism and Effective Death Penalty Act (AEDPA) 2 The AEDPA “worked substantial changes to the law of habeas corpus,” 3 establishing more deferential standards of review to be used by a federal habeas court in 4 assessing a state court’s adjudication of a criminal defendant’s claims of constitutional error. 5 Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997). 6 In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000), the Supreme 7 Court defined the operative review standard set forth in § 2254(d). Justice O’Connor’s opinion 8 for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy 9 between “contrary to” clearly established law as enunciated by the Supreme Court, and an 10 “unreasonable application of” that law. Id. at 1519. “Contrary to” clearly established law applies 11 to two situations: (1) where the state court legal conclusion is opposite that of the Supreme 12 Court on a point of law, or (2) if the state court case is materially indistinguishable from a 13 Supreme Court case, i.e., on point factually, yet the legal result is opposite. 14 “Unreasonable application” of established law, on the other hand, applies to 15 mixed questions of law and fact, that is, the application of law to fact where there are no factually 16 on point Supreme Court cases which mandate the result for the precise factual scenario at issue. 17 Williams (Terry), 529 U.S. at 407-08, 120 S. Ct. at 1520-1521 (2000). It is this prong of the 18 AEDPA standard of review which directs deference to be paid to state court decisions. While the 19 deference is not blindly automatic, “the most important point is that an unreasonable application 20 of federal law is different from an incorrect application of law....[A] federal habeas court may not 21 issue the writ simply because that court concludes in its independent judgment that the relevant 22 state-court decision applied clearly established federal law erroneously or incorrectly. Rather, 23 that application must also be unreasonable.” Williams (Terry), 529 U.S. at 410-11, 120 S. Ct. at 24 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the 25 objectively unreasonable nature of the state court decision in light of controlling Supreme Court 26 authority. Woodford v. Viscotti, 537 U.S. 19, 123 S. Ct. 357 (2002). 3 Case 2:08-cv-02527-GEB-GGH Document 27 Filed 02/02/10 Page 4 of 53 1 “Clearly established” law is law that has been “squarely addressed” by the United 2 States Supreme Court. Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 746 (2008). 3 Thus, extrapolations of settled law to unique situations will not qualify as clearly established. 4 See e.g., Carey v. Musladin, 549 U.S. 70, 76, 127 S.Ct. 649, 653-54 (2006) (established law not 5 permitting state sponsored practices to inject bias into a criminal proceeding by compelling a 6 defendant to wear prison clothing or by unnecessary showing of uniformed guards does not 7 qualify as clearly established law when spectators’ conduct is the alleged cause of bias injection). 8 The state courts need not have cited to federal authority, or even have indicated 9 awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S. 10 Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is 11 contrary to, or an unreasonable application of, established Supreme Court authority. Id. An 12 unreasonable error is one in excess of even a reviewing court’s perception that “clear error” has 13 occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S. Ct. 1166, 1175 (2003). Moreover, the 14 established Supreme Court authority reviewed must be a pronouncement on constitutional 15 principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules 16 binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S. Ct. at 366. 17 However, where the state courts have not addressed the constitutional issue in 18 dispute in any reasoned opinion, the federal court will independently review the record in 19 adjudication of that issue. “Independent review of the record is not de novo review of the 20 constitutional issue, but rather, the only method by which we can determine whether a silent state 21 court decision is objectively unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 22 2003). 23 When reviewing a state court’s summary denial of a claim, the court “looks 24 through” the summary disposition to the last reasoned decision. Shackleford v. Hubbard, 234 25 F.3d 1072, 1079 n. 2 (9th Cir. 2000) 26 \\\\\ 4 Case 2:08-cv-02527-GEB-GGH Document 27 Filed 02/02/10 Page 5 of 53 1 In the instant case, the California Court of Appeal was the last state court to issue 2 a reasoned decision addressing several of petitioner’s claims. See Respondent’s Lodged 3 Documents 4, 6. Accordingly, the undersigned considers whether the denial of these claims by 4 the California Court of Appeal was an unreasonable application of clearly established Supreme 5 Court authority. 6 Petitioner’s claim alleging that counsel was ineffective for failing to challenge the 7 prosecutor’s motion in limine to exclude testimony from the victim’s ex-boyfriend regarding her 8 promiscuity was raised only in a habeas corpus petition filed in the Butte County Superior Court. 9 The Butte County Superior Court issued an opinion denying this petition, which raised several 10 additional claims, on the following grounds.

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