(HC) Cuevas v. Sullivan

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 JOSE LUIS KELLY CUEVAS, Case No. 1:18-cv-01281-NONE-JDP

12 Petitioner, FINDINGS AND RECOMMENDATIONS TO

DENY PETITION FOR A WRIT OF HABEAS

13 v. CORPUS AND TO DECLINE TO ISSUE A

CERTIFICATE OF APPEALABILITY

14 J. SULLIVAN,

OBJECTIONS DUE WITHIN 30 DAYS

15 Respondent.

ECF No. 8

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17 Petitioner Jose Luis Kelly Cuevas, a state prisoner proceeding without counsel, seeks a

18 writ of habeas corpus under 28 U.S.C. § 2254.1 ECF No. 8. Petitioner claims that he received:

19 (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; and (3) a

20 disproportionate sentence. See id. The California Court of Appeal rejected his claim of

21 ineffective assistance of trial counsel on the merits, see People v. Cuevas, No. F071956, 2016

22 Cal. App. Unpub. LEXIS 9031 (Dec. 15, 2016); ECF No. 36-12, and the California Supreme

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1 Respondent moved to dismiss the petition as untimely and unexhausted. ECF No. 19. We

24 denied respondent’s motion, electing to reach the merits of the petition rather than to determine

procedural issues that would have required factual development. ECF Nos. 28, 33; see Franklin

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v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (“Procedural bar issues are not infrequently more

complex than the merits issues . . . so it may well make sense in some instances to proceed to the

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merits if the result will be the same.”). Respondent renewed these arguments in the answer. ECF

27 No. 37 at 2. Petitioner addressed both timeliness and exhaustion in his traverse. ECF No. 41.

Although we are satisfied that petitioner exhausted his claims before the state courts, we will

28 refrain from addressing the timeliness of the petition and instead rule on the merits of his claims.

1 Court denied review of his ineffective assistance of trial and appellate counsel claims in a

2 subsequent habeas petition, see Cuevas on H.C., No. S242714 (Cal. Aug. 23, 2017); ECF No. 36-

3 15 at 1. Petitioner’s disproportionate sentence claim was rejected summarily by the California

4 Supreme Court in response to a habeas petition. ECF No. 41 at 113. For the reasons set forth

5 below, we recommend that the court deny the petition.

6 I. Background

7 In 2015, a jury sitting in Fresno County convicted petitioner of three counts of sexual

8 intercourse or sodomy with a child under ten years of age and two counts of copulation or sexual

9 penetration of a child under ten years of age. ECF No. 36-12 at 2. Petitioner was sentenced to

10 105 years to life in state prison. Id. at 5.

11 The court sets forth below the pertinent facts of the underlying offenses, as summarized

12 by the California Court of Appeal. A presumption of correctness applies to these facts. See 28

13 U.S.C. § 2254(e)(1); Crittenden v. Chappell, 804 F.3d 998, 1010-11 (9th Cir. 2015).

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Defendant’s daughter, N., was eight years old when she testified at

15 trial. N. testified that defendant “put his private in mine.” She was

referring to her “back private,” which she uses to “do the restroom.”

16 N. testified defendant had done this about seven times, beginning

when she was five years old.

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N. testified defendant “usually always does that when he’s drunk”

18 and fights with her mother. N. testified that it “feels hard” and

“hurts” when defendant did this to her, but she did not scream

19 although she was scared. When defendant was done, he would tell

N. to “never tell anybody.”

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N. testified that defendant “put his private one time in my front

21 private.” On another occasion, defendant put his fingers inside her

“front private” and she could feel him “scratching.” This stung and

22 hurt. Defendant also made N. “suck” his “front private” when he

was drunk; it “felt nasty” and made N. feel like she was going to

23 choke.

24 N. never told her mother what was happening because she was

scared her mother would not want to live with her anymore and

25 would run away. N. told her sister and later her three cousins.

The three cousins told their mother, R.R., who became aware of the

26 incidents in 2014 about a year prior to the trial. R.R. recorded a

conversation with N., which was played at trial and a transcript

27 provided. In the tape, N. stated defendant would come to her room

and do “something nasty” to her; that defendant makes her “suck

28 his thing” and “he licks his fingers and puts it in her front butt.” N.

1 described some of the incidents in detail. While defendant was

engaged in these acts against N., he would be watching

2 pornography, which ended up on N.’s iPod.

3 N. did not want defendant to live with her anymore. N. also told

her aunt that defendant told her not to tell anyone or he would hit

4 her with his belt. R.R. described N. as appearing “real scared” that

defendant would find out she had told someone about the abuse and

5 he would hit her with the belt.

6 R.R. told her mother, N.’s grandmother, about what N. stated

defendant had done to her. The day after this taped conversation,

7 they took N. to the hospital.

8 M.R., N.’s mother, testified that when she and defendant fought,

she would not allow him to sleep in their bedroom. M.R. and

9 defendant both worked, but not always the same shift and there

were times defendant was alone with N. M.R. first became aware

10 of what was happening between defendant and N. when her sister,

R.R., told her.

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Tonya Franklin, a hospital social worker, interviewed N. After

12 completing her interview with N., which lasted about 30 minutes,

Franklin contacted the Firebaugh Police Department and a medical

13 doctor at the hospital.

14 Firebaugh Police Officer Brett Miller went to the hospital to

interview N. Once Miller determined N. knew the difference

15 between a lie and the truth, he proceeded to interview her. N.

provided details to Miller of the time, place, and ways in which

16 defendant had touched her inappropriately.

17 Miller and another officer then interviewed defendant. Defendant

initially denied ever getting kicked out of the bedroom he shared

18 with M.R., then later admitted this happened. When he was not

sleeping in the same room as M.R., defendant would sleep in N.’s

19 bed, but denied ever touching N. inappropriately.

20 Jaylene Osena, a nurse practitioner at the hospital, conducted a

physical examination of N. N.’s anus and hymen appeared normal.

21 Osena testified she could not determine medically one way or the

other whether sexual abuse had taken place. Osena also

22 interviewed N. N. told Osena that defendant put his “privates” in

her “behind,” mouth, and “front part of privates.”

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Christina Valencia, another social worker at the hospital, spoke

24 with N. N. told Valencia that “her father had put his privates in her

privates.”

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Firebaugh Police Officer Magda Martinez arranged for an “MDIC

26 interview” of N. The recorded interview was played for the jury

and a transcript of the interview included as an exhibit. N. told the

27 interviewer that defendant put his “private” in her “behind” more

than five times and would watch “nasty videos” on his phone while

28 he did so; put his finger in her “front private;” put his “private” in

1 her “front butt;” and forced her to lick and suck on “his private.”

2 David Love, a licensed therapist, testified as an expert on Child

Sexual Abuse Accommodation Syndrome. Love testified to each of

3 the five components of the syndrome: (1) secrecy; (2) helplessness;

(3) entrapment and accommodation; (4) delayed, conflicting,

4 unconvincing disclosure; and (5) retraction.

5 ECF No. 36-12 at 2-4.

6 II. Discussion

7 A. Federal Habeas Standard of Review

8 A federal court can grant habeas relief when a petitioner shows that his custody violates

9 federal law. See 28 U.S.C. §§ 2241(a), (c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 374-75

10 (2000).2 Section 2254 of Title 28, as amended by the Antiterrorism and Effective Death Penalty

11 Act of 1996 (“AEDPA”), governs a state prisoner’s habeas petition. See Harrington v. Richter,

12 562 U.S. 86, 97 (2011). To decide a § 2254 petition, a federal court examines the decision of the

13 last state court to have issued a reasoned opinion on petitioner’s habeas claims. See Wilson v.

14 Sellers, 138 S. Ct. 1188, 1192 (2018). In general, § 2254 requires deference to the state court

15 system that determined the petitioner’s conviction and sentence.

16 Under AEDPA, a petitioner can obtain relief on federal habeas claims that have been

17 “adjudicated on the merits in state court proceedings” only if he shows that the state court’s

18 adjudication resulted in a decision (1) “contrary to, or involved an unreasonable application of,

19 clearly established Federal law, as determined by the Supreme Court of the United States,” or

20 (2) “based on an unreasonable determination of the facts in light of the evidence presented in the

21 State court proceeding.” 28 U.S.C. § 2254(d). The petitioner’s burden is great. See Harrington

22 v. Richter, 562 U.S. 86, 103 (2011) (“[To gain relief under § 2254(d)(1), the petitioner] must

23 show that the state court’s ruling . . . was so lacking in justification that there was an error well

24 understood and comprehended in existing law beyond any possibility for fairminded

25 disagreement”); see Davis v. Ayala, 576 U.S. 257, 271 (2015) (quoting § 2254(e)(1)) (Under

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2 This court has jurisdiction over the petition pursuant to 28 U.S.C. § 2241(a): “Writs of habeas

27 corpus may be granted by the Supreme Court, any justice thereof, the district courts and any

circuit judge within their respective jurisdictions.”

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1 § 2254(d)(2), “[s]tate-court factual findings . . . are presumed correct; the petitioner has the

2 burden of rebutting the presumption by ‘clear and convincing evidence.’”).

3 If obtaining habeas relief under § 2254 is difficult, “that is because it was meant to be.”

4 Richter, 562 U.S. at 102. As the Supreme Court has put it, federal habeas review “disturbs the

5 State’s significant interest in repose for concluded litigation, denies society the right to punish

6 some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises

7 of federal judicial authority.” Id. at 103 (citation omitted). Our habeas review authority serves as

8 a “guard against extreme malfunctions in the state criminal justice systems, not a substitute for

9 ordinary error correction through appeal.” Id. at 102-103.

10 B. Ineffective Assistance of Counsel

11 a. Standard of Review

12 The two-step inquiry from Strickland v. Washington governs a federal habeas petitioner’s

13 claim of ineffective assistance of counsel. 466 U.S. 668, 687 (1984). First, a criminal defendant

14 must show some deficiency in performance by counsel that is “so serious that counsel was not

15 functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Id. We must ask

16 whether his strategic choices were reasonable under “prevailing professional norms” and “indulge

17 a strong presumption that counsel’s conduct falls within the wide range of reasonable professional

18 assistance.” Id. at 688-89. The entire performance of the attorney must be considered; it is

19 “difficult to establish ineffective assistance when counsel’s overall performance indicates active

20 and capable advocacy.” See Richter, 562 U.S. at 111 (2011). Second, the defendant must show

21 that the deficient performance caused him prejudice. See Strickland, 466 U.S at 687. This

22 requires petitioner to show “that there is a reasonable probability that, but for counsel’s

23 unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

24 On habeas review, when filtered through § 2254(d)’s fairminded-jurist standard, the

25 Strickland requirements become even more deferential, and we must ask “whether there is any

26 reasonable argument that counsel satisfied Strickland’s deferential standard.” Richter, 562 U.S.

27 at 105. If there is even one reasonable argument that counsel did not violate the Strickland

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1 standard—even if the state court has not identified the argument—then the petitioner cannot

2 obtain habeas relief. See id. at 106.

3 b. Trial Counsel

4 Petitioner argues that his trial counsel was ineffective because he failed to: (1) call certain

5 experts; (2) present alibi testimony; and (3) present mitigating evidence at sentencing. See

6 generally ECF No. 8. The Court of Appeal, in the last reasoned decision on this claim, found no

7 evidence of ineffective assistance of counsel, noting that petitioner’s counsel “vigorously cross-

8 examined witnesses; challenged proposed jury instructions; and delivered a thorough closing

9 argument.” ECF No. 36-12 at 5. As a result, the court concluded, “the record does not disclose

10 deficient performance,” and the conviction must be affirmed. Id. We apply the deferential

11 standard of § 2254 to the Court of Appeal’s determination.3

12 i. Expert Testimony

13 Petitioner argues that his trial counsel was ineffective for failure to call a medical expert, a

14 child sexual abuse accommodation syndrome (“CSAAS”) expert, and a child forensic

15 interviewing expert. In general, strategic choices made by counsel are given a “heavy measure of

16 deference.” See Strickland, 466 U.S. at 690-91 (explaining that “strategic choices made after

17 thorough investigation of law and facts relevant to plausible options are virtually

18 unchallengeable; and strategic choices made after less than complete investigation are reasonable

19 precisely to the extent that reasonable professional judgments support the limitations on

20 investigation”). Counsel is “entitled to formulate a strategy that was reasonable at the time and to

21 balance limited resources in accord with effective trial tactics and strategies.” Richter, 562 U.S.

22 at 107. Counsel is not obligated to take futile actions. See Juan H. v. Allen, 408 F.3d 1262, 1273

23 (9th Cir. 2005). In many instances where an attorney has chosen not to call an expert witness at

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3 The Court of Appeal also noted that “the proper way to raise ineffective assistance of counsel is

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by way of a petition for writ of habeas corpus,” ECF No. 36-12 at 5, but nonetheless appears to

have resolved the claim on the merits, citing the California Supreme Court’s merits determination

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in People v. Anderson, 25 Cal. 4th 543, 569 (2001), which itself cites Strickland. In any event,

27 even if we were to apply only the singly deferential standard of Strickland—rather than the

doubly deferential standard of Strickland and § 2254(d)—petitioner’s claim would still fail, and

28 our discussion in the main text covers both.

1 trial, “cross-examination will be sufficient to expose defects in an expert’s presentation.” Id. at

2 111.

3 Here, petitioner has failed to show how his counsel’s decision not to call expert witnesses

4 at trial constituted deficient performance. Although his counsel did not call experts, he

5 vigorously cross-examined the government’s witnesses, exposing weaknesses and inconsistencies

6 in the government’s case. Moreover, petitioner’s counsel raised objections throughout trial—

7 ECF Nos. 36-1 at 45, 36-6 at 136, 36-7 at 33—and moved to exclude petitioner’s statement that

8 he sometimes slept in his daughter’s bed, ECF No. 36-6 at 42.

9 During cross-examination of the nurse practitioner who conducted the medical

10 examination of the daughter, the jury heard that the medical report revealed no abnormalities in

11 the daughter’s rectum or vagina. ECF No. 36-7 at 110-11. The nurse practitioner admitted that

12 she could “neither confirm nor deny” that sexual abuse had occurred and confirmed that the

13 medical exam gave “no indication that sexual intercourse had occurred” and did not “indicate

14 whether or not sexual assault happened.” ECF No. 36-7 at 112-14. Petitioner has failed to show

15 how a rebuttal witness would have cast more doubt on the conclusiveness of the medical

16 examination.

17 Petitioner’s counsel called the relevance and reliability of the government’s CSAAS

18 witness’ testimony into question. See ECF No. 36-7 at 162-86. Petitioner’s counsel referenced

19 research studies conducted over the past 40 years that question the usefulness of CSAAS in

20 courtroom settings. Id. He then elicited testimony from the government’s CSAAS witness that:

21 CSAAS was never meant to be used as a diagnostic tool, id. at 164; researchers of CSAAS warn

22 against relying on signs of CSAAS as proof of abuse, id.; much of the research on CSAAS is

23 unreliable because it was based on interviews that used leading questions, id. at 167; answers

24 elicited from the use of anatomically correct dolls in forensic interviews should not be used to

25 draw conclusions that abuse occurred, id. at 175;4 reliance on CSAAS should be limited to

26 explanations for delays in reporting, id. at 177; and forensic interviews are subject to human

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28 4 Diagrams were used when interviewing the daughter.

1 error, id. at 186. Considering that petitioner’s counsel elicited this testimony from the

2 government’s witness himself—testimony that likely served to weaken the government’s case—

3 petitioner has failed to show what more his counsel could have done to discredit the CSAAS

4 expert.

5 Petitioner’s counsel also cast doubt on the reliability of the forensic interviews of the

6 daughter. He highlighted: discrepancies among the witnesses’ testimony concerning the times

7 and locations of the alleged incidents, ECF No. 36-1 at 50, ECF No. 36-6 at 150, ECF No. 36-7 at

8 237; the briefness of the forensic interviews, ECF No. 36-7 at 13, 30; the possibility that a cousin,

9 not petitioner, exposed the daughter to pornography, ECF No. 36-7 at 80, 85; and the young age

10 of the daughter at the time of the alleged incidents and interviews. ECF No. 36-1 at 58. A police

11 officer testified that the daughter was “going back and forth on the times of the incidents” during

12 one of the interviews. ECF No. 36-1 at 50. Petitioner’s counsel also cast doubt on the credentials

13 of the interviewers—one of the interviewers testified that she was not formally trained in forensic

14 interviewing and stated that she was “not technically a forensic interviewer.” ECF No. 36-7 at

15 14. And the aunt, who recorded her interview with the daughter, testified that she had no training

16 in interviewing children and was “not qualified to be interviewing anyone.” ECF No. 36-7 at 90-

17 91. Combining this with the testimony from the CSAAS expert that cast doubt on the reliability

18 of forensic interviews of children in general, petitioner has failed to show his attorney’s decision

19 not to call an additional expert was deficient performance.

20 Moreover, petitioner has failed to show that he was prejudiced from the lack of experts; he

21 has not shown that there is a “reasonable probability” that the “result of the proceeding would

22 have been different.” Strickland, 466 U.S. at 694. Although the jury was presented with

23 evidence that called the reliability of the daughter’s testimony into question, the jury was also

24 presented with testimony from multiple family members, police officers, and mental health

25 workers that the daughter relayed to them the same general description of the alleged incidents.

26 Indeed, petitioner’s counsel’s choice to forego calling experts may have prevented unfavorable

27 evidence from being presented to the jury; petitioner offers no reason to think otherwise.

28 Lawyers have “no duty to inject evidence likely to open the door to additional evidence that

1 would be harmful.” Stanley v. Schriro, 598 F.3d 612, 636-37 (9th Cir. 2010); see Bell v. Cone,

2 535 U.S. 685 (2002) (holding that counsel made a reasonable strategic decision to waive closing

3 argument because it prevented unfavorable evidence from being presented to the jury). It is

4 possible that petitioner’s counsel feared that any potential experts would have been discredited by

5 the prosecution on cross-examination, damaging his case. Petitioner’s claim should be denied.

6 ii. Alibi Testimony

7 Petitioner argues that his trial counsel was ineffective in failing to present evidence that he

8 worked the same shift as his wife during one of the alleged incidents of abuse. However, this

9 evidence was twice presented to the jury: on cross-examination by petitioner’s counsel, the

10 daughter testified that her mom and dad worked the same shift at the same company, ECF No. 36-

11 6 at 97, and on direct examination by the government, the mother testified that she and petitioner

12 worked the same shift at the same company during the final year in which one of the alleged

13 incidents occurred, id. at 107. Therefore, petitioner’s claim has no merit and should be rejected.5

14 iii. Mitigation Evidence at Sentencing

15 Petitioner argues that his counsel was ineffective for failing to present mitigating evidence

16 at sentencing. As an initial matter, there is no U.S. Supreme Court precedent holding that a

17 criminal defendant has a constitutional right to present mitigating evidence during sentencing in a

18 noncapital case. See Harmelin v. Michigan, 501 U.S. 957, 994-95 (1991) (rejecting a claim that a

19 mandatory life sentence was cruel and unusual because the trial court did not consider mitigating

20 factors); United States v. Gomez, 472 F.3d 671, 674 (9th Cir, 2006) (noting that the U.S. Supreme

21 Court has declined to extend the right to present mitigating evidence in capital cases to non-

22 capital cases).

23 And contrary to petitioner’s assertion, his counsel presented mitigating evidence at

24 sentencing. At sentencing, petitioner’s counsel argued that certain aggravating factors should be

25 5 Even if petitioner’s counsel had failed to elicit this testimony altogether, we could not find

deficient performance or prejudice. Petitioner was convicted of six counts of sexual abuse and

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the omitted testimony would have only provided a potential alibi for one of the incidents. The

27 mother testified that petitioner was home alone with the daughter regularly for much of the time

during which the alleged incidents occurred, ECF No. 36-6 at 108, and that petitioner took

28 showers with the daughter while she was at home, ECF Nos. 36-1 at 50, 36-6 at 118. Petitioner’s

1 removed from petitioner’s probation report, highlighted petitioner’s recidivism score of zero, and

2 noted that his only criminal history was a DUI from 2008. ECF No. 36-4. Petitioner’s counsel

3 presented petitioner’s sister as a character witness, who told the judge that petitioner is “a good

4 person” and that “they believe in him.” ECF No. 36-4 at 23-25. The judge stated that she

5 reviewed the probation report, which revealed that petitioner had a low level of education, seven

6 years of continual work history, no juvenile record, minimal criminal history, and never served

7 time in jail. ECF No. 36-4. The judge also stated that she considered all relevant aggravating and

8 mitigating factors prior to imposing the sentence. And petitioner, as distinct from his attorney,

9 had the opportunity to present mitigating evidence on his own behalf—but did not. Petitioner has

10 failed to show that his counsel’s performance was deficient.

11 Moreover, petitioner has failed to show how he was prejudiced by his counsel’s actions.

12 The probation report recommended the maximum statutory sentence for each of his crimes of

13 conviction and listed no mitigating factors.6 ECF No. 36-4. Petitioner has not identified for the

14 court any mitigating evidence that his counsel could have presented. See Williams v. Taylor, 529

15 U.S. 362, 367 (2000) (finding ineffective assistance of counsel where counsel failed to present

16 “voluminous” evidence favorable to the petitioner). Petitioner has failed to show a reasonable

17 probability that a different outcome would have resulted. His claim should be denied.

18 c. Appellate Counsel

19 Petitioner argues that his appellate counsel was ineffective for failure to file anything

20 other than a Wende brief on his behalf.7 See, e.g., ECF No. 41 at 13. Because the California

21 Supreme Court summarily denied review of petitioner’s claim, id. at 113, we assume that the state

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counsel could have reasonably determined that the evidence in question would have done nothing

23 to help petitioner’s case, or perhaps could have hurt his case by highlighting his lack of an alibi

for the five other incidents.

24 6 The trial judge sentenced petitioner in accordance with the recommendation of the probation

officer.

25 7 On direct appeal, petitioner’s counsel filed a Wende brief. See People v. Wende, 25 Cal. 3d 436

(1979) (directing that, where appellate counsel can find no non-frivolous arguments to present on

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appeal, counsel is not required to make any legal arguments, but must present a brief which

27 assists the court in understanding the facts and legal issues of the case; the court then

independently reviews the entire record). The Court of Appeal invited petitioner to submit a

28 supplemental brief addressing his claims and subsequently affirmed his conviction.

1 court denied the claim on the merits, and accordingly will conduct an independent review of the

2 record to determine whether the state court’s final resolution of the case constituted an

3 unreasonable application of clearly established federal law. See Greene v. Lambert, 288 F.3d

4 1081, 1088-89 (9th Cir. 2002).

5 A defendant’s right to appellate representation does not include a right to present frivolous

6 arguments to the court. See McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429, 436

7 (1988); Morrison v. Estelle, 981 F.2d 425, 429 (9th Cir. 1992) (explaining that appellate counsel

8 cannot be found ineffective for failing to raise an argument that would not have been successful).

9 No U.S. Supreme Court decision holds that a “defendant has a constitutional right to compel

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

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

12 (1983). Here, the Wende brief signaled that appellate counsel was unable to find a non-frivolous

13 legal argument to advance on appeal. See Wende, 25 Cal. 3d 436 (1979). In the brief, petitioner’s

14 appellate counsel outlined the relevant facts and legal issues of the case, as required by Wende.

15 Giving a “heavy measure of deference ” to petitioner’s counsel’s strategic decision to file a

16 Wende brief, Strickland, 466 U.S. at 690-91, and recognizing that counsel had no duty to raise

17 frivolous arguments, Barnes, 463 U.S. at 751, petitioner has failed to show that his appellate

18 counsel’s performance was deficient.

19 And petitioner has failed to show that he was prejudiced by his attorney’s actions. After

20 petitioner’s counsel filed the Wende brief, the Court of Appeal provided petitioner with the

21 opportunity to present his claims in a brief pro per. ECF No. 36-10. Petitioner did so. ECF No.

22 36-11. The Court of Appeal conducted an independent review of the record and considered

23 petitioner’s claims, finding that “that no reasonably arguable factual or legal issues exist[ed].”

24 ECF No. 36-12 at 6. Petitioner then had the opportunity to present his claims before the

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1 California Supreme Court, which summarily denied his claim. Petitioner’s claim should be

2 rejected.

3 C. Disproportionate Sentence

4 Petitioner argues that his sentence is disproportionate to other sentences for similar

5 conduct. Because the California Supreme Court summarily denied review of petitioner’s claim,

6 id. at 113, we assume that the state court denied the claim on the merits, and accordingly will

7 review the claim under the directive of Greene. See Greene, 288 F.3d at 1088-89.

8 The Eighth Amendment prohibits “cruel and unusual punishments,” U.S. Const. amend.

9 VIII, including punishments that are “disproportionate to the crime committed,” Solem v. Helm,

10 463 U.S. 277, 284 (1983). However, “strict proportionality between crime and sentence” is not

11 required. Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring in part and concurring in

12 judgment). “Rather, [the Eighth Amendment] forbids only extreme sentences that are ‘grossly

13 disproportionate’ to the crime.” Id. (quoting Solem, 463 U.S. at 288). “[S]uccessful challenges to

14 the proportionality of particular sentences have been exceedingly rare.” Rummel v. Estelle, 445

15 U.S. 263, 272 (1980); Harmelin, 501 U.S. at 1005 (noting that it is only the “rare case in which a

16 threshold comparison of the crime committed and the sentence imposed leads to an inference of

17 gross disproportionality”).

18 No U.S. Supreme Court case supports petitioner’s disproportionality claim. The Court has

19 repeatedly upheld life sentences for crimes less serious than those at issue here. See, e.g.,

20 Harmelin, 501 U.S. at 961 (upholding a sentence of life without the possibility of parole for a

21 first-time offender convicted of possessing 672 grams of cocaine); Rummel, 445 U.S. at 276

22 (upholding a life sentence imposed under a recidivist statute where the three felonies at issue were

23 passing a forged $28.36 check, fraudulent use of a credit card to obtain $80.00 worth of goods or

24 services, and obtaining $120.75 by false pretenses); Lockyer v. Andrade, 538 U.S. 63, 77 (2003)

25 (upholding a sentence of fifty years to life under California’s three-strikes law for stealing nine

26 videotapes).

27 Moreover, we are to “grant substantial deference to the broad authority that legislatures

28 necessarily possess in determining the types and limits of punishments for crimes, as well as to

1 the discretion that trial courts possess in sentencing.” Solem, 463 U.S. at 290. In general, if “the

2 sentence imposed does not exceed the statutory maximum, it will not be overturned on eighth

3 amendment grounds.” Belgarde v. Montana, 123 F.3d 1210, 1215 (9th Cir. 1997). Petitioner’s

4 sentence does not exceed the statutory maximum set by the California legislature. Petitioner was

5 sentenced to a term of 25 years to life for each of his convictions under California Penal Code

6 288.7(a)—the term set by the legislature. Likewise, petitioner was sentenced to 15 years to life

7 for each of his convictions under California Penal Code 288.7(b)—again, the term set by the

8 legislature. See ECF No. 36-12 at 4-5.

9 Moreover, we decline to entertain petitioner’s request to compare his sentence to other

10 sentences for similar crimes. Where the nature of a petitioner’s crime is serious, “no such

11 comparative analysis is necessary.”8 Harmelin, 501 U.S. at 1004; see United States v. Meiners,

12 485 F.3d 1211, 1213 (9th Cir. 2007) (holding that no “inter- and intra-jurisdictional analysis” of

13 comparative sentences was necessary in a child pornography case because the crime was

14 “significant” and causes “grave harm to society”). Child sexual abuse is a serious crime that

15 causes long-lasting harm. See, e.g., Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244

16 (2002) (“The sexual abuse of a child is a most serious crime and an act repugnant to the moral

17 instincts of a decent people.”); McPherson v. Paramo, No. SACV 16-170-AB (GJS), 2017 U.S.

18 Dist. LEXIS 219009, at *110 (C.D. Cal. Dec. 5, 2017) (noting that “the psychological and

19 emotional injuries caused by child molestation can remain well after any physical injuries have

20 healed and can be life-long”).

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8 Even so, petitioner’s sentence is not disproportionate when compared to other sentences for

23 similar crimes in California. See, e.g., People v. Sierra, No. E0519332012, Cal. App. Unpub.

LEXIS 4221, at *21 (2012) (holding that a sentence of 90 years to life was not disproportionate

24 where defendant was convicted of six counts of child sexual abuse); People v. Meneses, 193 Cal.

App. 4th 1087, 1093-94 (2011) (holding that a sentence of 15 years to life sentence for a

25

defendant convicted of a single lewd act with a 12-year-old who became pregnant not cruel and

unusual); People v. Nichols, 176 Cal. App. 4th 428, 437 (2009) (holding that a sentence of 25

26

years to life for failure to register as a sex offender within five days of moving did not constitute

27 cruel and unusual punishment); People v. Retanan, 154 Cal. App. 4th 1219, 1231 (2007) (holding

that a sentence of 135 years to life for conviction of 17 sexual offenses against a minor was not

28 cruel and unusual).

1 Because petitioner has failed to show that his sentence is grossly disproportionate to his

2 crimes of conviction, he has failed to show that the California Supreme Court’s rejection of his

3 claim is an unreasonable application of clearly established federal law. Therefore, his claim

4 should be denied.

5 III. Certificate of Appealability

6 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district

7 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253;

8 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing § 2254 Cases requires a

9 district court to issue or deny a certificate of appealability when entering a final order adverse to a

10 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th

11 Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a substantial

12 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires

13 the petitioner to show that “jurists of reason could disagree with the district court’s resolution of

14 his constitutional claims or that jurists could conclude the issues presented are adequate to

15 deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord Slack v.

16 McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made a substantial showing of the

17 denial of a constitutional right. Thus, the undersigned recommends that the court not issue a

18 certificate of appealability.

19 IV. Findings and Recommendations

20 The undersigned recommends that the court deny the petition for a writ of habeas corpus,

21 ECF No. 8, and decline to issue a certificate of appealability. These findings and

22 recommendations are submitted to the U.S. District Court judge presiding over this case under 28

23 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District

24 Court, Eastern District of California. Within thirty days of the service of the findings and

25 recommendations, petitioner may file written objections to the findings and recommendations

26 with the court and serve a copy on all parties. That document must be captioned “Objections to

27

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QAow 4.40 UV VLCOULUINVINE VET MMVUUPTTOCTIL to PO Oe PAY tw VI A

1 | Magistrate Judge’s Findings and Recommendations.” The district judge will then review the

2 | findings and recommendations under 28 U.S.C. § 636(b)(1)(C).

3

4 IT IS SO ORDERED.

° p : —N prssann —

Dated: _ September 30, 2020

6 UNI STATE AGISTRATE JUDGE

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