Sosa v. Bird

1 UNITED STATES DISTRICT COURT

2 SOUTHERN DISTRICT OF CALIFORNIA

3

4 Jorge Luis SOSA, Case No.: 22-cv-1022-AGS-BLM

5 Petitioner,

ORDER ACCEPTING REPORT AND

6 v. RECOMMENDATION (ECF 7) AND

DENYING HABEAS PETITION

7 O’Brian BAILEY, Warden, et al.,

(ECF 1)

8 Respondents.

9

10 In this petition for a writ of habeas corpus, petitioner seeks relief from his state

11 child-molestation convictions.

12 BACKGROUND

13 After a California state-court trial, petitioner Jorge Sosa was convicted of 26 counts

14 of molestation-related felonies involving two boys. People v. Sosa, No. D076457, 2021

15 WL 220109, at *2, *4 (Cal. Ct. App. Jan. 22, 2021). The specific crimes involved “oral

16 copulation with a child 10 years or younger,” “forcible lewd or lascivious acts on a child

17 under 14 years,” and “aggravated sexual assault of a child under 14 years.” Id. The

18 California Court of Appeal affirmed those convictions, id. at *11, and the state Supreme

19 Court declined further review (ECF 5-6, at 1). Sosa now requests federal habeas relief.

20 The state appellate court’s recitation of the facts—which is “presumed to be correct”

21 absent “clear and convincing evidence” to the contrary, see 28 U.S.C. § 2254(e)(1)—is

22 straightforward. In early 2011, “Sosa’s niece Ivon” moved in with Sosa, along with her

23 five children, including the alleged minor victims, her “two sons, IP and LS.” Sosa,

24 2021 WL 220109, at *1. “At some point after they moved into the house, Sosa began

25 molesting IP.” Id. at *2. “IP generally remembered that it happened throughout middle

26 school, but he also recalled incidents from the period when his family lived with Sosa and

27 after they moved out” in 2013. Id. at *1–2. IP “could have been as young as eight when the

28 abuse started.” Id. at *2. “It continued until mid-2016[] and was only disrupted because IP

1 moved to Los Angeles to live with his father.” Id. “After that, Sosa turned his attention to

2 LS,” who was “about twelve years old at the time.” Id.

3 In his habeas petition, Sosa advances three arguments: (1) his due-process rights

4 were violated by the “wide-ranging time periods alleged by the prosecution” in the

5 charging document, (2) the evidence is “insufficient” to sustain his conviction, and (3) the

6 cumulative effect of the errors violated due process. (ECF 1, at 7–17.) The magistrate judge

7 recommended rejecting each of these claims. (See generally ECF 7.) Sosa objected to this

8 recommendation in its entirety (see ECF 9), so this Court considers the matter “de novo.”

9 See 28 U.S.C. § 636(b)(1). In particular, this Court must examine the California Court of

10 Appeal’s opinion, as it is “the state’s last reasoned decision.” See Avila v. Galaza, 297 F.3d

11 911, 918 (9th Cir. 2002).

12 DISCUSSION

13 A. Due Process

14 In his state-court appeal, Sosa raised a constitutional challenge to the “broad time

15 periods associated with his convictions.” Sosa, 2021 WL 220109, at *4. Sosa argued that

16 the date ranges of the alleged abuse, “some of which exceed[ed] five years,” “denied him

17 due process because they prevented him from mounting an effective defense.” Id. The

18 Court of Appeal noted that “the primary authority on this point . . . suggests a contrary

19 conclusion,” but ultimately did not reach that question, holding that “Sosa forfeited this

20 claim” by failing to timely raise it in the trial court. Id. at *4–5.

21 Federal courts “will not review a question of federal law by a state court,” such as

22 Sosa’s due-process claim, “if the decision of that court rests on a state law ground that is

23 independent of the federal question and adequate to support the judgment.” Coleman v.

24 Thompson, 501 U.S. 722, 729 (1991). This doctrine “ensures that the States’ interest in

25 correcting their own mistakes is respected in all federal habeas cases.” Id. at 732. The

26 Ninth Circuit has “repeatedly recognized California’s contemporaneous objection rule as

27 ‘an adequate and independent state ground’ that forecloses [habeas] review.” Fauber v.

28 Davis, 43 F.4th 987, 1002 (9th Cir. 2022).

1 The California Court of Appeal squarely rejected Sosa’s due-process claim due to

2 his failure to contemporaneously object to the revised charges in his case. At his

3 preliminary hearing, Sosa “raised a due process concern about the length of the charging

4 periods,” and the trial court “acknowledged the due process implications.” Sosa, 2021 WL

5 220109, at *5. “When the hearing concluded, the court allowed the prosecution to amend

6 the timeframes in the complaint” and “Sosa was arraigned on an information filed two

7 weeks later.” Id. The Court of Appeal held that Sosa’s objection to the date ranges “should

8 have been pursued after the pleading changes that followed the preliminary hearing.” Id.

9 “Yet there were no objections or even concerns raised on these grounds either at the

10 conclusion of the preliminary hearing or in the intervening period of about a year before

11 the trial began.” Id. “Because [Sosa] did not take any steps to challenge the broad time

12 ranges on due process grounds at any point after the preliminary hearing,” the appellate

13 court held that his “attempt to revive this argument fails.” Id. In other words, the Court of

14 Appeal dismissed Sosa’s claim for failure to contemporaneously object—an independent

15 and adequate state ground precluding federal habeas review. Sosa makes several arguments

16 in an attempt to avoid this result.

17 1. Initial Forfeiture of the Claim

18 Sosa first maintains that he never “forfeit[ed] his claim.” (ECF 1, at 8.) He contends

19 that “to preserve an issue for appeal, it is sufficient for the objection to be raised in a manner

20 that alerts the trial court of the nature of the issue and affords the opposing counsel an

21 opportunity to respond,” or “even when there is no objection” the issue is preserved “if the

22 trial court rules on the issue.” (ECF 1, at 8; ECF 6, at 3.) Sosa says his claim is preserved

23 under this rule because “trial counsel clearly stated she had an issue with the date ranges”

24 and the court “understood” the objection to “implicate concerns of fair notice . . . [and] due

25 process.” (ECF 1, at 8; see also ECF 6, at 3.) And “even if trial counsel had said nothing

26 about date ranges . . . the trial court engaged in a somewhat lengthy discussion about how

27 the date ranges implicate due process concerns, and then made a ruling on the issue.”

28 (ECF 1, at 8; see also ECF 6, at 3.) Sosa also says that “nothing substantively changed after

1 the preliminary hearing regarding the date ranges,” and “[w]hile the prosecution may have

2 modified the length of the date ranges for existing counts, and added some new counts,”

3 his objection “remained apropos.” (ECF 6, at 3.)

4 Even if the Court agreed with Sosa on any of these points, “[f]ederal habeas courts

5 lack jurisdiction . . . to review state court applications of state procedural rules.” Poland v.

6 Stewart, 169 F.3d 573, 584 (9th Cir. 1999); see also Quintero v. Stewart, 121 F. App’x

7 203, 206 (9th Cir. 2005) (“While [petitioner] asserts that he did not waive his claim, as it

8 was raised before the trial court, this issue is beyond our reach.”). Since “it is not the

9 province” of this Court “to reexamine state-court determinations on state-law questions,”

10 the Court must reject Sosa’s argument that he did not forfeit his due-process claim. See

11 Estelle v. McGuire, 502 U.S. 62, 68–69 (1991).

12 To be clear, however, this Court does not agree with Sosa’s characterization of the

13 proceedings. If this Court were to reach the merits, it would agree that he forfeited his claim

14 by failing to object to the charging language. It is worth returning to the relevant facts here.

15 At the preliminary hearing, Sosa’s trial attorney raised “some concerns regarding the

16 complaint, noting that although she had no problem with the prosecutor charging date

17 ranges in general, she could not easily determine which conduct aligned with which dates.”

18 Sosa, 2021 WL 220109, at *5 (emphasis added). Yet Sosa proceeded to trial not on that

19 complaint, but on a new charging document: an amended information that altered the

20 allegations in salient respects. Sosa never objected to that amended information—the

21 operative charging document for his trial—nor did he ever “take any steps to challenge the

22 broad time ranges on due process grounds at any point after the preliminary hearing.” Id.

23 Consider the stark differences between the earlier and later charging documents. In

24 the 15-count complaint, the first 13 charges are lewd acts upon “I.S. [IP],” Cal. Penal Code

25 § 288(a). (ECF 5-12, at 10–14.) None of those charges were realleged in the 27-count

26 amended information. The amended information has only two counts of lewd acts, but they

27 both involve a new and different victim, “LS.” (See id. at 55 (counts 26–27).) Turning to

28 the last two counts of the complaint, they charge forcible lewd acts upon “I.S. [IP],”

1 Cal. Penal Code § 288(b)(1), occurring sometime in the full year between “July 29, 2015,”

2 and “July 28, 2016.” (Id. at 14 (count 14: “touch I.S. penis”; count 15: “touch I.S. anus”).)

3 The prosecutor explained that she amended these counts and charged them in counts 21

4 and 23 of the amended information as “a sexual penetration and an oral copulation” (and

5 during a tighter three-month time frame of “May 1, 2016,” to “July 26, 2016”). (See

6 ECF 5-7, at 11; see also ECF 5-12, at 53–54 (count 21: “oral copulation” upon IP the “day

7 before the fair”; count 23: “sexual penetration” upon IP the “day before the fair”).) The

8 amended information also charges some counts that have a longer date range than anything

9 in the complaint, but each of these new counts involve more serious crimes. (See, e.g.,

10 ECF 5-12, at 52 (count 18: aggravated sexual assault of a child by sodomy [“last time”],

11 occurring sometime between “January 1, 2011,” and “April 30, 2016”).)

12 In the absence of specific objections to the new charging document, a trial court

13 could reasonably assume that Sosa’s confusion about “which conduct aligned with which

14 dates” had been resolved by the revised date ranges, new charges, and more precise

15 language. See Sosa, 2021 WL 220109, at *5. After all, one purpose of California’s

16 contemporaneous-objection rule is “to bring the alleged federal error to the attention of the

17 trial court and enable it to take appropriate corrective action.” See Osborne v. Ohio,

18 495 U.S. 103, 125 (1990). Sosa did not do so. His claim is thus forfeited.

19 2. Fundamental Miscarriage of Justice

20 In his objection to the report and recommendation, Sosa changes course slightly,

21 recharacterizing his due-process argument as a claim based on “a fundamental miscarriage

22 of justice.” (ECF 9, at 3.) Sosa is on firmer footing here, as the Court may review the merits

23 of a procedurally defaulted claim if the petitioner demonstrates “cause for the default and

24 actual prejudice as a result of the alleged violation of federal law,” or “that failure to

25 consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S.

26 at 750. The “existence of cause for a procedural default ‘must ordinarily turn on whether

27 the prisoner can show that some objective factor external to the defense impeded counsel’s

28 efforts to comply with the State’s procedural rule.’” Vansickel v. White, 166 F.3d 953, 958

1 (9th Cir. 1999). In some circumstances, “counsel’s ineffectiveness in failing properly to

2 preserve [a] claim for review in state court will suffice.” Edwards v. Carpenter, 529 U.S.

3 446, 451 (2000). But a “claim of ineffective assistance” “must be presented to the state

4 courts as an independent claim before it may be used to establish cause for a procedural

5 default.” Id. at 452. Since Sosa did not raise an ineffective-assistance-of-counsel claim at

6 the state court, he cannot show cause for the default.

7 Alternatively, “a petitioner must produce sufficient proof of his actual innocence to

8 bring him within the narrow class of cases implicating a fundamental miscarriage of

9 justice.” Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011). Sosa only argues that a

10 miscarriage of justice will result because “it was practically impossible for [him] to

11 effectively present, or even investigate,” other defenses. (ECF 9, at 3.) Because Sosa does

12 not argue actual innocence, his miscarriage-of-justice argument also fails.

13 3. Exceptional Case

14 Next, Sosa suggests that his circumstances fit within the “exceptional cases” in

15 which the Supreme Court has held that an apparent state procedural bar was “inadequate

16 to stop consideration of a federal question.” (ECF 6, at 2.) Yet none of Sosa’s proffered

17 Supreme Court cases address the procedural posture here: the defendant (arguably)

18 objected to an earlier charging document, but not to the comprehensively revised and

19 operative charging document at trial. See supra section A.1. Nor do Sosa’s proffered

20 authorities suggest that his case merits some sort of exceptional procedural dispensation.

21 For example, the state rules at issue in two cases Sosa relies upon—Osborne v. Ohio,

22 495 U.S. 103 (1990), and Lee v. Kemna, 534 U.S. 362 (2002)—amounted to “meaningless

23 formalisms.” Hart v. Broomfield, No. 20-99011, 2024 WL 1332715, at *3 (9th Cir.

24 Mar. 28, 2024). The Lee Court excused noncompliance “with a rule requiring motions to

25 be made in writing where the motion was made orally and the trial court’s resolution of the

26 motion had nothing to do with this requirement.” Hart, 2024 WL 1332715, at *3 (citing

27 Lee, 534 U.S. at 381–83). Similarly, the Osborne Court forgave “a failure to object to jury

28 instructions after the jury was instructed when the trial court had just rejected identical

1 motions challenging those instructions.” Id. (citing Osborne, 495 U.S. at 124). In both, the

2 legal objection was squarely and fully before the trial court. Not so here. Sosa never

3 objected to the new charging document.

4 Sosa’s reliance on James v. Kentucky, 466 U.S. 341 (1984), is similarly unavailing.

5 In James, the criminal defendant asked that the jury be told “not to draw an adverse

6 inference from his failure to testify.” Id. at 344. Although such an instruction would have

7 been proper, the judge refused to give it because it was framed as a request for “an

8 admonition rather than an instruction,” and the two are treated differently under state law.

9 Id. (emphasis added). The Supreme Court noted that the state’s “substantive distinction

10 between admonitions and instructions is not always clear or closely hewn to.” Id. at 346.

11 Given this “state-law background,” it concluded that the “distinction between admonitions

12 and instructions is not the sort of firmly established and regularly followed state practice

13 that can prevent implementation of federal constitutional rights.” Id. at 348–49. Unlike the

14 state rule in James, there is no evidence here that California’s contemporaneous-objection

15 rule is inconsistently applied. See infra section A.4.

16 In short, Sosa has not shown that his case is deserving of the exception rather than

17 the rule. The trial judge here could have reasonably interpreted Sosa’s silence regarding

18 the new charging document as satisfaction with the amended language. Unlike Osborne,

19 Lee, and James, it was not a meaningless formalism to require that any objections be lodged

20 contemporaneously against the revised charging language here.

21 4. Inconsistent, Novel, or Unforeseen Application

22 Sosa also argues in passing that a court may hear “federal claims despite a seeming[]

23 procedural bar when a state inconsistently applies a procedural rule or applies the rule in a

24 novel or unforeseen way.” (ECF 6, at 2–3.) “A state ground, no doubt, may be found

25 inadequate when discretion has been exercised to impose novel and unforeseeable

26 requirements without fair or substantial support in prior state law.” Walker v. Martin,

27 562 U.S. 307, 320 (2011) (cleaned up).

28

1 Because the government adequately “pleaded the existence of an independent and

2 adequate state procedural ground,” the burden was on Sosa to “assert[] specific factual

3 allegations that demonstrate the inadequacy of the state procedure, including citation to

4 authority demonstrating inconsistent application of the rule.” See King v. LaMarque,

5 464 F.3d 963, 966–67 (9th Cir. 2006). Sosa does not cite to a single case demonstrating

6 that the contemporaneous-objection rule was applied to him in an inconsistent, novel, or

7 unforeseen manner. Meanwhile, there is caselaw to the contrary, suggesting the rule is

8 consistently applied. See Melendez v. Pliler, 288 F.3d 1120, 1125 (9th Cir. 2002) (noting

9 that the Ninth Circuit “held more than twenty years ago that the [California

10 contemporaneous-objection] rule is consistently applied”). Sosa has not satisfied his

11 burden. His habeas petition is denied as to his due-process claim.

12 B. Sufficiency of the Evidence

13 On appeal, Sosa claimed there was “insufficient evidence presented at trial to sustain

14 his convictions.” Sosa, 2021 WL 220109, at *5. The Court of Appeal rejected this argument

15 across the board. Id. at *5–10. Sosa now recycles this argument before this Court.

16 “An application for a writ of habeas corpus . . . shall not be granted . . . unless the

17 adjudication of the claim resulted in a decision that was contrary to, or involved an

18 unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). Sosa

19 contends that the Court of Appeal’s denial was an “unreasonable application” of Jackson

20 v. Virginia, 443 U.S. 307 (1974), and In re Winship, 397 U.S. 358 (1970). (ECF 1, at 9.)

21 Winship held that due process “protects the accused against conviction except upon proof

22 beyond a reasonable doubt of every fact necessary to constitute the crime.” Winship,

23 397 U.S. at 364. And Jackson affords relief “if it is found that upon the record evidence

24 adduced at the trial no rational trier of fact could have found proof of guilt beyond a

25 reasonable doubt.” Jackson, 443 U.S. at 324.

26 “Jackson claims face a high bar in federal habeas proceedings because they are

27 subject to two layers of judicial deference.” Coleman v. Johnson, 566 U.S. 650, 651 (2012).

28 First, the Court of Appeal “may set aside the jury’s verdict on the ground of insufficient

1 evidence only if no rational trier of fact could have agreed with the jury.” Id. Second, the

2 habeas court may “overturn a state court decision rejecting a sufficiency of the evidence

3 challenge . . . . only if the state court decision was ‘objectively unreasonable.’” Id. So “the

4 only question under Jackson is whether [the Court of Appeal’s] finding was so

5 insupportable as to fall below the threshold of bare rationality.” Johnson, 566 U.S. at 656.

6 Critically, “federal habeas courts” do not have “license to redetermine credibility of

7 witnesses.” Marshall v. Lonberger, 459 U.S. 422, 434 (1983).

8 Although the government argues that some of Sosa’s Jackson claims are

9 procedurally defaulted (ECF 4-1, at 17), the Court need not reach that issue. As discussed

10 below, Sosa’s claims are “clearly not meritorious,” so it makes sense to “proceed to the

11 merits [since] the result will be the same.” See Franklin v. Johnson, 290 F.3d 1223, 1232

12 (9th Cir. 2002).

13 1. Counts 1–4 & 8–11

14 Counts 1–4 and 8–11 all charge Sosa with various forms of oral copulation against

15 IP during two distinct time periods. Counts 1–4 involve conduct between about “January 1,

16 2011,” and “July 7, 2013” (ECF 5-12, at 46–47), that is, “when IP lived with Sosa,” Sosa,

17 2021 WL 220109, at *6. Counts 1–2 charge oral copulation with a child 10 years old or

18 younger, Cal. Penal Code § 288.7(b), with count 1 being the “first time” and count 2 the

19 “last time” within that timeframe. (ECF 5-12, at 46–47.) Similarly, counts 3–4 charge

20 forcible lewd acts upon a child under the age of 14 (“touched [IP’s] penis with mouth”),

21 Cal. Penal Code § 288(b)(1), with count 3 the “first time” and count 4 the “last time.”

22 (ECF 5-12, at 47.)

23 Counts 8–11 cover the next three years, addressing conduct between about “July 8,

24 2013,” and “April 30, 2016” (ECF 5-12, at 49–50), that is, “when IP lived in a nearby

25 apartment,” Sosa, 2021 WL 220109, at *6. Counts 8–9 allege aggravated sexual assault of

26 a child under the age of 14 (“oral copulation”), Cal. Penal Code § 269(a), including again

27 the “first time” (count 8) and “last time” (count 9). (ECF 5-12, at 49.) Counts 10–11 charge

28 forcible lewd acts upon a child under the age of 14 (“touched [IP’s] penis with mouth”),

1 Cal. Penal Code § 288(b)(1), in the same “first time” / “last time” pattern. (ECF 5-12,

2 at 49–50.)

3 Sosa doesn’t directly challenge any of the elements of the crimes, such as the

4 victim’s age or the nature of the sexual acts. Instead, he contends that the “conduct

5 underlying counts 1–4 and 8–11 is not alleged to have occurred on a specific date, or on a

6 specific occasion, or in a specific place.” (ECF 1, at 10.) First, Sosa argues that IP’s

7 testimony “is entirely void of any cognizable quantity of acts committed,” and such

8 “generic testimony fails the Jones test, which requires that the victim describe ‘the number

9 of acts committed with sufficient certainty to support each of the counts.’” (ECF 1, at 11

10 (quoting People v. Jones, 792 P.2d 643, 655 (Cal. 1990)).) Second, Sosa contends that such

11 “generic evidence cannot adequately differentiate counts 1–4 and 8–11” “from the counts

12 supported by specific evidence.” (Id. at 10.)

13 a. Cognizable Quantity of Acts

14 A federal habeas court assessing the sufficiency of a claim looks to the “substantive

15 elements of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n.16.

16 So, this Court “is bound by People v. Jones, to the extent that Jones defines the elements

17 of a state offense.” Thompson v. Cates, No. 2:22-cv-02966-FMO-BFM, 2023 WL

18 8872048, at *11 (C.D. Cal. Sept. 1, 2023). Under Jones, “the particular details surrounding

19 a child molestation charge are not elements of the offense and are unnecessary to sustain a

20 conviction.” 792 P.2d at 655. A victim need not “specify precise date, time, place or

21 circumstance.” Id. Indeed, “even generic testimony (e.g., an act of intercourse ‘once a

22 month for three years’) outlines a series of specific, albeit undifferentiated,

23 incidents . . . each of which could support a separate criminal sanction.” Id. at 654.

24 Examples of permissible testimony under Jones include “twice a month” or “every time

25 we went camping.” Id. at 655.

26 Under this nongranular test, the California Court of Appeal reasonably determined

27 that IP’s testimony satisfied the elements of the crimes charged in counts 1–4 and 8–11.

28 Recounting the “general testimony” supporting these convictions, the Court of Appeal

1 noted that “IP explained that Sosa would orally copulate him ‘the most,’ and that this

2 conduct happened both while they lived together and afterward.” Sosa, 2021 WL 220109,

3 at *6. IP “also answered affirmatively when asked if Sosa orally copulated him ‘often,’ and

4 if there were ‘multiple’ incidents of this kind that spanned the first and second periods.”

5 Id. “Taken as a whole,” the Court of Appeal found that “IP’s testimony indicates

6 Sosa . . . orally copulated him at least twice in both the first and second periods.” Id.

7 The trial transcripts support the Court of Appeal’s conclusion. IP affirmed that “there

8 were multiple times that [Sosa] put his mouth on [IP’s] penis”; that it “happened while [he

9 was] living with [Sosa]” and “after [IP] moved out”; and that it “happened often.”

10 (ECF 5-9, at 272–73.) When the prosecutor asked IP “what touching happened most,” IP

11 answered, “his mouth to my penis.” (Id. at 273.) A reasonable jury could have found, based

12 on this testimony, that Sosa orally copulated IP multiple times within each time period. So,

13 it was reasonable for the Court of Appeal to find the evidence sufficient to support charges

14 based on a first and last time in each period. See, e.g., Cates, 2023 WL 8872048, at *11

15 (upholding state appellate court’s determination that victim’s testimony “provided the

16 requisite level of detail regarding the frequency and time period in which she suffered

17 abuse,” when she testified that it occurred “whenever [defendant] was alone with her, about

18 every other day,” from “from the age of eleven until she was around sixteen years old”),

19 report and recommendation adopted, No. 2:22-cv-02966-FMO-BFM, 2024 WL 733516

20 (C.D. Cal. Feb. 22, 2024); Nuno v. Davey, No. 11–02446 SBA (PR), 2014 WL 3725332,

21 at *11, *13 (N.D. Cal. July 21, 2014) (upholding state appellate court’s sufficiency finding

22 when molestation victim “stated that defendant touched her more than one time on more

23 than one day,” “again and again” over a three-year period).

24 b. Overlap Between Generic and Specific Counts

25 In addition to the incidents charged generally as first and last times, there were four

26 specific acts that gave rise to four separate counts: (1) Sosa “touched [IP’s] penis in the

27 shower” (count 7); (2) IP “touched defendant’s penis with his mouth, the day before the

28 fair” (count 12); (3) Sosa “touched [IP’s] penis with [his] mouth in the garage” (count 15);

1 and (4) Sosa “touched [IP’s] penis in [IP’s sister, IH’s] room” (count 16). (ECF 5-12,

2 at 48–51.) Sosa argued on appeal that the prosecution “fail[ed] to distinguish” the “generic

3 testimony” from the “specific counts,” but the Court of Appeal found “there were

4 significant factors setting the specific incidents apart that could lead a reasonable jury to

5 conclude they were additional abuse events.” (ECF 1, at 12); Sosa, 2021 WL 220109, at *7.

6 Since the garage and fair incidents involve oral copulation, the Court must determine

7 whether the evidence was sufficient to support convictions on the generic oral copulation

8 charges and these two specific acts. In regard to the garage incident, the Court of Appeal

9 found that event was “distinguished by [its] unusual setting[], and this difference provided

10 enough grounds for a reasonable jury to conclude [it was] distinct from the more routine

11 abuse IP described as taking place in Sosa’s room.” Sosa, 2021 WL 220109, at *7.

12 At trial, after IP testified generally about the continued oral copulation that happened

13 “often,” IP was asked whether he “remember[ed] any other specific times.” (ECF 5-9,

14 at 213.) IP described a time, “a little bit before Halloween,” when he went to Sosa’s house

15 because he “needed costumes.” (Id.) IP stated that when he and Sosa “went into the

16 garage,” Sosa “pulled out a box of costumes” and then “started taking [IP’s] clothes off,

17 and [Sosa] started to put his mouth on [IP’s] penis.” (Id.) Later, IP confirmed that was “the

18 only time that touching happened in the garage.” (Id. at 217.) The garage conduct was

19 explicitly linked to a specific count when the prosecutor stated “[IP], this time in the garage

20 that you’re telling us about would be count 15.” (Id. at 213.) Based on IP’s detailed recall

21 of the garage event, confirmation that it was the only time it happened there, and the

22 prosecutor’s dot-connecting at trial, a reasonable jury could have found that this conduct

23 was sufficient to convict Sosa on a separate count.

24 The Court of Appeal found that a “similar logic applies to the abuse that occurred

25 the night before the fair.” Sosa, 2021 WL 220109, at *7. The court held that the fair incident

26 was “distinguished by the activity” and “set off temporally” from the general abuse since

27 it took place “in a distinct third charging period during the summer before IP moved to

28 Los Angeles.” Id. The Court of Appeal also underscored the “prosecution’s treatment of

1 these as independent events throughout the trial” as well as the prosecutor’s closing

2 argument, which “ specifically distinguished the incidents in the garage, the shower, IH’s

3 room and the night before the fair from the other charges.” Id.

4 IP gave distinct testimony about “the day before the fair.” (ECF 5-9, at 224.)

5 Notably, IP stated that this time IP “put [his] mouth on [Sosa’s] penis,” instead of the other

6 way around, and that this type of conduct only happened “one time.” (Id. at 223–24.) Thus,

7 a rational jury could have convicted Sosa on separate counts because the fair incident—

8 carefully distinguished at trial—was based on different conduct than the general abuse. The

9 Court finds nothing unreasonable about the Court of Appeal’s holding. Sosa’s petition is

10 denied as to counts 1–4 and 8–11.

11 2. Counts 5, 6, 13, & 14

12 The conduct underlying counts 5, 6, 13, and 14 is manual touching, and each count

13 charges forcible lewd act upon a child under age 14, Cal. Penal Code § 288(b)(1). (See

14 ECF 5-12, at 48, 50–51.) Just like the oral copulation charges, counts 5 and 6 account for

15 the first and last time Sosa manually touched IP in the earlier period when they lived

16 together, while counts 13 and 14 are the first and last times it happened in the later period

17 when they lived apart. (See id.) Sosa makes the same “generic testimony” arguments as he

18 did above, arguing these counts are insufficient under Jones and indistinguishable from

19 other specific-act counts. (ECF 1, at 12–13.)

20 a. Lack of Cognizable Quantity of Acts

21 As for the Jones argument, the Court of Appeal relied on “IP’s general

22 testimony . . . that Sosa abused him ‘whenever we would be alone.’” Sosa, 2021 WL

23 220109, at *6. Importantly, the Court of Appeal “link[ed] the copulation with manual

24 touching,” noting that “IP explained that Sosa usually touched his penis with his hand at

25 some point during episodes of oral copulation.” Id. IP also “affirmed that Sosa touched him

26 this way more than once both when he lived with Sosa and after his family moved out.” Id.

27 The transcripts support this conclusion. IP was asked “whenever [Sosa] did touching

28 with his mouth to your penis, did he also generally use his hand to touch your penis?”

1 (ECF 5-9, at 273.) IP answered “yes.” (Id.) So, for the same reasons IP’s testimony

2 concerning the frequency of the oral copulation was sufficient under Jones, IP’s testimony

3 that Sosa manually touched him with the same frequency was also sufficient.

4 b. Overlap Between Generic and Specific Counts

5 Sosa also contends “there is no way to distinguish” the general touching that

6 supported the first- and last-time charges “from the other more specific counts . . . for

7 which the convictions are also based on [Sosa] touching [IP’s] penis with his hand.”

8 (ECF 1, at 13.) The two specific acts that involve manual touching are when Sosa “touched

9 [IP’s] penis in the shower” and when Sosa “touched [IP’s] penis in [IH’s] room.”

10 (ECF 5-12, at 48, 51.)

11 “As to the shower incident,” according to the Court of Appeal, “IP specifically

12 testified that he could not really remember the first time that Sosa touched his penis with

13 his hand, but he had a distinct memory of an incident in the shower,” which indicated “it

14 was not the first time.” Sosa, 2021 WL 220109, at *7. “At other points, IP expressed

15 difficulty in recalling last incidents of abuse, and affirmed that it happened so often he

16 could not remember every time.” Id. Thus, the court held, “this is enough for the jury to

17 reasonably conclude the specific shower incident did not overlap with the first or last time

18 Sosa touched IP’s penis while they lived together.” Id. This conclusion is reasonable and

19 supported by the trial record.

20 IP made clear that, “because it happened so often,” he could not “remember every

21 time” that Sosa touched IP’s “penis with his hand.” (ECF 5-9, at 274.) Yet IP detailed the

22 shower incident, saying he “went to go take a shower in [Sosa’s] room . . . [and] then

23 [Sosa] came in the bathroom, and he . . . opened the curtain and the sliding door and

24 reached down for . . . [IP’s] penis.” (Id. at 211–12.) Sosa proceeded to use “his hand” to

25 “touch [IP’s] penis.” (Id.) This evidence supports an additional, distinguishable conviction

26 based on the specific shower testimony. And the prosecutor clarified that this conduct was

27 connected to a distinct count. When IP affirmed that he “remember[ed] a time

28 when . . . touching happened in the shower,” the prosecutor noted, “[T]hat would be

1 count 7.” (Id. at 211.) There was sufficient evidence to support the specific shower count

2 (count 7) in addition to the general counts.

3 Turning to the incident in IH’s room, the Court of Appeal found that it, like the

4 garage incident, was “distinguished by [its] unusual setting.” Sosa, 2021 WL 220109, at *7.

5 When IP was asked about “something that happened in [IH’s] room,” IP recalled that Sosa

6 “was in the room with” IP and IH until IH “left the room to go shower.” (ECF 5-9, at 219.)

7 IP then said he “did not remember how,” but he was “on the floor, and [Sosa] was holding

8 [him] down.” (Id.) Sosa then “started to take [IP’s] clothes off” and “touch [his] private

9 parts” with “his hand.” (Id. at 219–20.) Just like the garage incident, the details unique to

10 this incident—that is, the location, circumstances, and Sosa holding IP down on the floor—

11 distinguish this conduct from the other manual touching incidents. Plus, the prosecutor

12 made the point during IP’s testimony that “something happened in [IH’s] room . . . which

13 would be count 16.” (Id. at 218–19.) A rational jury could have made the distinction

14 between the generic counts and this specific incident. The Court of Appeal was therefore

15 reasonable in finding as much. Sosa’s petition is denied as to counts 5, 6, 13, and 14.

16 3. Count 7

17 Count 7 charges that Sosa “touched [IP’s] penis in the shower” and thereby

18 committed a forcible lewd act upon a child under age 14, Cal. Penal Code § 288(b)(1).

19 (ECF 5-12, at 48.) Among other things, this crime requires proof that Sosa “willfully

20 touched any part of [IP’s] body” “with the intent of arousing, appealing to, or gratifying

21 the lust, passions, or sexual desires of himself or [IP],” see People v. Valenti,

22 197 Cal. Rptr. 3d 317, 332 (Ct. App. 2016), and that the act was committed “by use of

23 force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the

24 victim or another person,” Cal. Penal Code § 288(b)(1). Sosa contends the “evidence is

25 insufficient to establish that the charged act was completed” nor that Sosa “used force,

26 violence, duress, menace, or fear to accomplish the act.” (ECF 1, at 13.) For similar reasons,

27 he also contests the “substantial sexual conduct” enhancement based on the masturbation.

28 See Cal. Penal Code § 1203.066(a)(8) & (b). The “term ‘masturbation’ includes any

1 touching or contact of the genitals of either the victim or the offender . . . with the requisite

2 intent.” People v. Lopez, 20 Cal. Rptr. 3d 801, 805 (2004).

3 Specifically, Sosa homes in on when the prosecutor asked IP, “[W]ere you standing

4 in the shower when [Sosa] used his hand to touch your penis?” And IP responded, “Yes.”

5 (ECF 5-9, at 212.) Sosa claims this question was “compound and leading,” and “[i]t would

6 be entirely speculative to say whether the testimony meant anything other than: ‘yes, I was

7 standing in the shower.’” (ECF 1, at 14.) Therefore, claims Sosa, the “evidence fails to

8 sufficiently establish” “that any touching occurred” or “that the act was substantial sexual

9 conduct.” (Id.)

10 The Court of Appeal held that “a reasonable jury could easily conclude [IP]

11 answered yes to both parts of the question.” Sosa, 2021 WL 220109, at *9. In discounting

12 Sosa’s “thin argument,” the court itself determined that “IP answered affirmatively because

13 the question was an accurate description of how this incident took place.” Id. This Court

14 agrees.

15 A federal habeas court must assume “that the jury resolved all conflicts in a manner

16 that supports the verdict,” which dooms Sosa’s dubious compound-question argument. See

17 Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). Even if this were not so, however,

18 the evidence supports the verdict. Sosa omits the colloquy leading up to the question at

19 issue, including IP’s testimony that Sosa “came in the bathroom” while IP was in the

20 shower, “opened the curtain and the sliding door and reached down for [IP’s] . . . penis, to

21 touch me.” (ECF 5-9, at 212.) The prosecutor asked, “what did he use to touch your penis

22 with?” and IP replied, “his hand.” (Id.) IP then stated he “tried to scoot away from [Sosa],

23 but he kept trying to reach for my penis.” (Id.) Only after this unequivocal testimony did

24 the prosecutor ask the question that Sosa protests. Even if the trial court had struck the

25 disputed question and answer entirely, a rational jury would still have had enough evidence

26 to find that Sosa touched IP’s genitals in the shower. Thus, Sosa’s claim that the

27 prosecution failed to prove the charged act was completed is meritless.

28

1 Sosa offers little argument about the deficiencies in the evidence of force, violence,

2 duress, menace, or fear. (See ECF 1, at 14.) Nevertheless, the Court of Appeal noted that

3 “duress . . . best fits this fact pattern,” and this Court agrees. See Sosa, 2021 WL 220109,

4 at *8. “Duress, as used in section 288(b)(1)” and applied by the Court of Appeal, “means

5 a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to

6 coerce a reasonable person of ordinary susceptibilities to (1) perform an act which

7 otherwise would not have been performed or, (2) acquiesce in an act to which one

8 otherwise would not have submitted.” People v. Soto, 245 P.3d 410, 421 (Cal. 2011)

9 (cleaned up); Sosa, 2021 WL 220109, at *8.

10 In evaluating duress, juries “consider all the circumstances . . . including the age of

11 the child and the child’s relationship with the defendant.” Sosa, 2021 WL 220109, at *8

12 (citing People v. Cochran, 126 Cal. Rptr. 2d 416, 422 (Ct. App. 2002)). As the Court of

13 Appeal observed, although “Sosa was not IP’s biological father, he was seen by many

14 family members in this light.” Id. “Considering Sosa’s fatherly role, IP’s young age when

15 the abuse began (likely eight or nine), and the fact that they lived together, there is no

16 reason to distinguish this case from others that find duress when a father molests a child in

17 the family.” Id. “Taken as a whole,” the court opined, “the record tells the story of a young

18 boy who was singled out and preyed on by a beloved uncle who supported his mother in

19 multiple ways.” Id. at *9. These circumstances, combined with the “degree of force” Sosa

20 employed to “hold [IP] down or grab his arms,” provided the context for “a reasonable jury

21 [to] find beyond a reasonable doubt that the abuse was accomplished by means of duress.”

22 Id.

23 The record amply supports the court’s conclusion. IP testified that he “lived with

24 [Sosa]” and that Sosa “was like a father to [him].” (ECF 5-9, at 172.) IP “loved [Sosa] very

25 much” and “trusted him.” (Id.) And Sosa supported IP’s family. They moved in with Sosa

26 because IP’s mother was laid off and she “had just [had] her daughter,” so living with Sosa

27 “would be a new beginning for [her] and the kids.” (Id. at 288–89.) IP was about nine years

28 old when the abuse began and “significantly smaller” than Sosa, a man 40 years his senior.

1 (See ECF 5-9, at 168; ECF 5-10, at 171; ECF 5-12, at 44.) And IP testified that on multiple

2 occasions Sosa held him down during the abuse. (See, e.g., ECF 5-9, at 179 (“He would

3 hold me down and he wouldn’t let me . . . push him off of me.”); id. at 216 (“He was

4 holding me . . . by my arms.”); id. at 227 (“I tried to push him away . . . I wasn’t strong

5 enough to push him away from me.”).)

6 Based on these facts, a rational jury could find that Sosa made an implied threat of

7 “force” or “hardship” “sufficient to coerce” IP “to perform an act which otherwise would

8 not have been performed” or “acquiesce in an act to which [he] otherwise would not have

9 submitted.” See Soto, 245 P.3d at 421. In fact, courts routinely find evidence of duress

10 sufficient based on circumstances like we have here—IP’s family situation and age, Sosa’s

11 role as a father figure, the physical disparity between them, and evidence Sosa restrained

12 IP. See, e.g., Carranza v. Long, No. CV 13-1555-R JPR, 2014 WL 580240, at *8 (C.D.

13 Cal. Feb. 12, 2014) (“The California Court of Appeal was not objectively unreasonable in

14 finding that the nine-year-old victim would not have submitted to sexual penetration by

15 Petitioner had he not been significantly older, larger, and in a position of authority over

16 her.”), aff’d sub nom. Carranza v. Martel, 722 F. App’x 612 (9th Cir. 2018); Cabrera v.

17 Cates, No. 20-CV-01256-JST, 2023 WL 5111981, at *14, *16 (N.D. Cal. Aug. 9, 2023)

18 (upholding state appellate court’s determination that evidence of duress was sufficient

19 when the victim “was much younger, as well as physically much smaller, than defendant,

20 who, as a father figure, held a position of parental authority over her”).

21 Sosa’s habeas petition is denied as to count 7.

22 4. Count 12

23 Count 12 charged Sosa with aggravated sexual assault of a child, Cal. Penal Code

24 § 269(a), when IP “touched [Sosa’s] penis with his mouth, the day before the fair.”

25 (ECF 5-12, at 50.) Sosa claims the prosecution failed to prove that IP “did not consent to

26 the act,” nor that “the defendant accomplished the act by force, violence, duress, menace,

27 or fear,” as required. (ECF 1, at 14–15.) In a footnote, the Court of Appeal dismissed the

28 consent argument, noting that this “factor is irrelevant in a child abuse case.” Sosa,

1 2021 WL 220109, at *10 n.8. As that court pointed out—and this Court reiterates—

2 “children cannot consent to sex acts with adults as a matter of law.” Id. (citing Soto,

3 245 P.3d at 415).

4 For the same reasons mentioned earlier, there is enough evidence to prove that these

5 crimes were committed by duress during the periods of abuse. See, supra, section B.3. As

6 to count 12, IP’s testimony is consistent with the other evidence of duress. IP testified that

7 he engaged in the sex act because he “trusted [Sosa].” (ECF 5-9, at 223.) Sosa’s habeas

8 petition is denied as to count 12.

9 5. Counts 17, 18, & 23

10 Sosa next maintains that the evidence is too “imprecise” to “establish the requisite

11 penetration for counts 17, 18, and 23,” which each allege aggravated sexual assault of a

12 child under age 14, Cal. Penal Code § 269(a). (See ECF 1, at 17; ECF 5-12, at 52, 54.)

13 Specifically, count 17 (“first time”) and count 18 (“last time”) each specify the crime was

14 committed by “sodomy,” while count 23 was committed by “sexual penetration.”

15 (ECF 5-12, at 52, 54.) As Sosa correctly points out, “all three counts require sufficient

16 evidence of anal penetration.” (ECF 1, at 15.)

17 According to the Court of Appeal, “penetration” in this context means “penetration

18 past the buttocks and of, at a minimum, the perianal folds or anal margin.” Sosa, 2021 WL

19 220109, at *10 (citing People v. Paz, 217 Cal. Rptr. 3d 212, 223 (Ct. App. 2017)). The

20 court reasoned that since “IP distinguished between touching that occurred to the ‘outside

21 of the butt’ and the ‘butthole,’” a “jury could reasonably have inferred ‘outside of the butt’

22 meant buttocks and ‘butthole’ meant anus.” Id. “As such, a reasonable jury that credited

23 his testimony could have found there was penetration on all three counts.” Id. “[A] state

24 court’s interpretation of state law . . . binds a federal court sitting in habeas corpus.”

25 Bradshaw v. Richey, 546 U.S. 74, 76 (2005). So, this Court is bound by the Court of

26 Appeal’s interpretation of “penetration” and “anus.”

27 Starting with the sodomy counts, IP testified that he and Sosa “would be in [Sosa’s]

28 room,” and Sosa “would put lotion on [IP’s] privates.” (ECF 5-9, at 225.) Sosa would then

1 “grab[] [IP’s] penis” and “try to put [IP’s] penis in his butt.” (Id. at 226.) IP said this

2 happened “like, twice.” (Id.) When asked how far his penis got, IP replied “it touched

3 [Sosa’s] butt.” (Id.) When asked if his penis “ever touch[ed] [Sosa’s] butthole,” IP replied,

4 “Yes.” (Id.) Apart from this evidence of compelled sodomy—that is, Sosa forcing IP’s

5 penis into Sosa’s “butthole”—the prosecutor asked what IP was “able to remember” about

6 the reverse situation: Sosa’s “penis going to [IP’s] butt.” (Id. at 229.) IP stated, “it touched

7 my butthole and the outside of my butt.” (Id.) IP confirmed that the “touching [of Sosa’s]

8 penis to [his] butthole” only happened “one time.” (Id.)

9 This evidence is sufficient to support the sodomy counts. IP’s statements distinguish

10 between the “outside” of the butt and the “butthole.” Testimony that there was contact

11 between a penis and “butthole”—which the Court of Appeal found constitutes

12 penetration—would allow a rational jury to find that penetration occurred. And IP’s

13 testimony that there were (at least) two separate incidents supports convictions on both the

14 first- and last-time sodomy charges.

15 Count 23 is based on the incident that took place the “day before the fair.” (See

16 ECF 5-12, at 54.) In addition to the oral copulation discussed above, IP also recounted that

17 Sosa used his hand to try to “touch [IP’s] butt.” (ECF 5-9, at 180.) When the prosecutor

18 first asked IP whether Sosa “touch[ed] [his] butthole,” IP responded, “kind of.” (Id.) But

19 then the prosecutor asked IP, “did [Sosa] touch your actual butthole but didn’t go any

20 further?” to which IP answered, “yes.” (Id.) IP followed this up by telling the prosecutor

21 that he “push[ed] [Sosa’s] hand away” “when it got to [IP’s] butthole.” (Id.) Despite any

22 initial confusion about this incident, a jury crediting IP’s testimony could have determined

23 that Sosa touched IP’s butthole with his hand before IP pushed him away, amounting to

24 penetration.

25 None of the Court of Appeal’s sufficiency rulings on these counts were objectively

26 unreasonable. Sosa’s petition is denied as to counts 17, 18, and 23.

27

28

1 C. Cumulative Error

2 Finally, Sosa argues that even if none of his individual arguments “amount[] to a due

3 process violation, when taken together, these errors produced a trial that was fundamentally

4 unfair.” (ECF 1, at 17.) “[T]he combined effect of multiple trial errors may give rise to a

5 due process violation if it renders a trial fundamentally unfair.” Parle v. Runnels, 505 F.3d

6 922, 928 (9th Cir. 2007). The problem is that Sosa alleges many errors concerning the

7 sufficiency of the evidence, but only one trial error: the broad time periods set forth in the

8 charging document. (See generally ECF 1.) “There can be no cumulative error when a

9 defendant fails to identify more than one error.” United States v. Solorio, 669 F.3d 943,

10 956 (9th Cir. 2012). So, Sosa’s cumulative-error argument fails.

11 D. Evidentiary Hearing

12 Sosa “alternatively” requests “an evidentiary hearing to address any facts still in

13 dispute.” (ECF 6, at 4.) But when a petitioner “has failed to demonstrate that the

14 adjudication of his claim based on the state-court record resulted in a decision ‘contrary to’

15 or ‘involving an unreasonable application’ of federal law, a writ of habeas corpus ‘shall

16 not be granted’ and our analysis is at an end.” Cullen v. Pinholster, 563 U.S. 170, 203 n.20

17 (2011) (quoting 28 U.S.C. § 2254(d)). In other words, “an evidentiary hearing is pointless

18 once the district court has determined that § 2254(d) precludes habeas relief.” Sully v.

19 Ayers, 725 F.3d 1057, 1075 (9th Cir. 2013). Because Sosa “failed to surmount § 2254(d)’s

20 limitation on habeas relief,” he is “not entitled to an evidentiary hearing.” See id. at 1076.

21 E. Certificate of Appealability

22 In the event his petition is denied, Sosa requests “the Court issue a certificate of

23 appealability on the constitutional issues raised.” (ECF 9, at 5.) “[A]n appeal may not be

24 taken to the court of appeals” unless the judge “issues a certificate of appealability,”

25 28 U.S.C. § 2253(c)(1), which is only available when “the applicant has made a substantial

26 showing of the denial of a constitutional right,” id. § 2253(c)(2). A petitioner “satisfies this

27 standard by demonstrating that jurists of reason could disagree with the district court’s

28 resolution of his case or that the issues presented were adequate to deserve encouragement

1 to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 323 (2003). Importantly, Sosa is

2 not required to show “that some jurists would grant the petition,” since “a claim can be

3 debatable even though every jurist of reason might agree . . . that [he] will not prevail.” Id.

4 The Court is satisfied, based on the extensive evidence supporting Sosa’s conviction,

5 that its sufficiency findings are indisputable. Sosa is therefore denied a certificate of

6 appealability on his sufficiency-of-the-evidence claims.

7 As for Sosa’s due-process claim, the Court must “evaluat[e] both the procedural

8 ground and the underlying constitutional claim to determine if they are ‘debatable’ among

9 ‘jurists of reason.’” Valerio v. Crawford, 306 F.3d 742, 774 (9th Cir. 2002) (quoting Slack

10 v. McDaniel, 529 U.S. 473, 484 (2000)). In an abundance of caution for Sosa’s

11 constitutional rights—and given the lack of case law addressing these exact

12 circumstances—this Court concludes that the due-process claim is “adequate to deserve

13 encouragement to proceed further,” even if “every jurist of reason might agree” that Sosa

14 will not prevail. See Miller-El, 537 U.S. at 323. It is conceivable that a higher court might

15 one day hold that date-range objections to an earlier charging document preserve similar

16 objections to a new charging document with different language, different crimes, and

17 different (and sometimes shorter) date ranges.

18 Moreover, Sosa makes a substantial showing of the denial of a constitutional right.

19 Sosa argues that the “sixty-four-month date ranges alleged” in some counts of the amended

20 information “violated [his] rights to due process” by “[f]oreclosing the possibility of”

21 presenting “potentially viable defenses” such as an “alibi or lack of opportunity.” (ECF 1,

22 at 8–9.) The Ninth Circuit has affirmed that “due process is not violated by the absence in

23 the charging document of precise dates,” particularly in cases like here when the

24 perpetrator “resides in the same home with the minor child or has recurring access to the

25 child.” Brodit v. Cambra, 350 F.3d 985, 988 (9th Cir. 2003). But the challenged date range

26 in Brodit was only about 18 months. Id. (noting that petitioner was charged “with three or

27 more acts of sexual abuse occurring on unspecified dates between June 12, 1992, and

28 December 31, 1994”). The Court of Appeal did not cite to, nor is this Court aware of, any

1 || precedent that expands the Brodit holding to date ranges exceeding 18 months, let alone

2 years. So, reasonable jurists could find Sosa’s due-process claim debatable, and a

3 || certificate of appealability is granted as to this claim.

4 CONCLUSION

5 The Court accepts the report and recommendation, and Sosa’s habeas corpus petition

6 DENIED. The Clerk will enter judgment accordingly. Sosa is granted a certificate of

7 appealability on his due-process claim only.

8 ||Dated: April 2, 2025

9

10 Hon. ndrew G. Schopler

United States District Judge

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

23