(HC) Jimenez v. Campbell

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 DAVID JIMENEZ, No. 1:24-cv-00840-KES-SKO (HC)

12 Petitioner, FINDINGS AND RECOMMENDATION

TO DENY PETITION FOR WRIT OF

13 v. HABEAS CORPUS

14 TAMMY CAMPBELL, Warden, [21-DAY OBJECTION DEADLINE]

15 Respondent.

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17 Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant

18 to 28 U.S.C. § 2254. He is represented in this action by Aaron Spolin, Esq. This matter was

19 referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. As

20 discussed below, the Court finds the petition to be without merit and recommends it be DENIED.

21 I. PROCEDURAL HISTORY

22 On December 23, 2020, a Madera County jury found Petitioner guilty of four counts of

23 sexual acts with a child ten years old or younger (Cal. Penal Code § 288.7(b)); two counts of lewd

24 and lascivious acts with a child under the age of fourteen (Cal. Penal Code § 288(a)). People v.

25 Jimenez, 2022 WL 17334691 (Cal. Ct. App. 2022); (Doc. 12-1 at 2461). On January 25, 2021,

26 Petitioner was sentenced to an indeterminate prison term of 90 years to life. Id.

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28 1 Docket citations are to ECF-imposed pagination.

1 Petitioner appealed to the California Court of Appeal, Fifth Appellate District (hereinafter

2 “Fifth DCA”). On November 30, 2022, the Fifth DCA, inter alia, reduced the convictions for two

3 counts of Cal. Penal Code § 288.7(b) to the lesser included offense of sexual penetration of a

4 minor in violation of Cal. Penal Code § 289(h). Jimenez, 2022 WL 17334691, at *9. The

5 appellate court remanded the matter to the sentencing court for resentencing. Id. Petitioner did

6 not petition for review of the appellate court’s decision.

7 On March 20, 2023, the Madera County Superior Court resentenced Petitioner to an

8 indeterminate term of sixty years to life plus a consecutive five-year term. (Doc. 12-13 at 1-4.)

9 On July 22, 2024, Petitioner filed a petition for writ of habeas corpus in this Court. (Doc.

10 1.) Respondent filed an answer on March 20, 2025. (Doc. 13.) Petitioner filed a traverse on April

11 7, 2025. (Doc. 14.)

12 II. FACTUAL BACKGROUND2

13 A. Jimenez’s offenses against Kassandra Doe (counts 1 and 2)

14 Kassandra Doe was born in October 2001. It appears that Jimenez is the former husband

15 of Kassandra’s aunt.

16 On one occasion when Kassandra was between the ages of seven and 10, she and her

17 family visited Jimenez’s home. At one point during the visit, Jimenez put his hands into

18 Kassandra’s pants and touched her clitoris for approximately one minute.

19 On more than one occasion after this incident, Jimenez picked Kassandra up and rubbed

20 her vagina over her clothing in a circular motion. Jimenez concedes the trial evidence showed that

21 “[o]n at least one occasion, Kassandra tried to push [him] away.”

22 B. Jimenez’s offenses against Maryann Doe (counts 4 and 5)

23 Maryann Doe was born in October 2003. On the date of the incident described below,

24 Jimenez was Maryann’s godfather.

25 In 2008, Maryann was at Jimenez’s home for a family gathering. After Maryann started to

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27 2 The Fifth DCA’s summary of facts in its unpublished opinion is presumed correct. 28 U.S.C. §§

2254(d)(2), (e)(1). Therefore, the Court will rely on the Fifth DCA’s summary of the facts in Jimenez,

28 2022 WL 17334691, at *2). See Moses v. Payne, 555 F.3d 742, 746 (9th Cir. 2009).

1 fall asleep on a couch in the living room, Jimenez offered to let Maryann sleep in his room.

2 Jimenez then led Maryann to his room. Next, Maryann laid down, and Jimenez pulled her pants

3 and underwear down. Jimenez admits that evidence introduced at trial showed “he rubbed her

4 vagina with one hand and then kissed her vagina’s exterior . . . .”

5 C. Jimenez’s offenses against Maria Doe (counts 6 and 7)

6 Maria Doe was born in October 1996. It appears that Jimenez is the former husband of

7 Maria’s aunt.

8 When Maria was four or five years old, she was playing outside in the backyard of her

9 family’s home. Jimenez called out to Maria. Maria approached Jimenez, and Jimenez lifted her

10 off the ground. Jimenez concedes the trial evidence shows that, “[w]ith the fingers of his right

11 hand, [Jimenez] touched [Maria’s] vagina skin to skin for one to two minutes.” Jimenez then put

12 Maria back down, and she continued to play.

13 The next incident occurred at Jimenez’s home when Maria was approximately six years

14 old. On that occasion, Maria was playing outside with her sister and cousins. Jimenez picked

15 Maria up and rubbed her vagina for several minutes. Jimenez put Maria back down, and she

16 continued to play.

17 On each of these two occasions, Jimenez touched the inner lips of Maria’s vagina.

18 III. DISCUSSION

19 A. Jurisdiction

20 Relief by way of a petition for writ of habeas corpus extends to a person in custody

21 pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or

22 treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor,

23 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as

24 guaranteed by the United States Constitution. The challenged conviction arises out of the Madera

25 County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. §

26 2254(a); 28 U.S.C.§ 2241(d).

27 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of

28 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its

1 enactment. Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases

2 filed after statute’s enactment). The instant petition was filed after the enactment of the AEDPA

3 and is therefore governed by its provisions.

4 B. Legal Standard of Review

5 A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless

6 the petitioner can show that the state court’s adjudication of his claim: (1) resulted in a decision

7 that was contrary to, or involved an unreasonable application of, clearly established Federal law,

8 as determined by the Supreme Court of the United States; or (2) resulted in a decision that “was

9 based on an unreasonable determination of the facts in light of the evidence presented in the State

10 court proceeding.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003);

11 Williams, 529 U.S. at 412-413.

12 Under Section 2254(d)(1), a state court decision is “contrary to” clearly established

13 federal law “if it applies a rule that contradicts the governing law set forth in [the Supreme

14 Court’s] cases, or “if it confronts a set of facts that is materially indistinguishable from a

15 [Supreme Court] decision but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141

16 (2005) (citing Williams, 529 U.S. at 405-406). This court looks to “Supreme Court holdings at

17 the time of the state court’s last reasoned decision” as “the source of clearly established Federal

18 law for the purposes of AEDPA.” Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005). A

19 Supreme Court precedent is not clearly established law under section 2254(d)(1) unless the Court

20 “squarely addresses the issue” in the case before the state court. Wright v. Van Patten, 552 U.S.

21 120, 125–26 (2008) (per curiam) (concluding that a state court had not unreasonably applied

22 federal law to a claim of prejudice under Strickland where the logic of petitioner’s argument

23 would have required the extension of the Supreme Court’s inherent prejudice doctrine to a new

24 context); Carey v. Musladin, 549 U.S. 70, 76–77 (2006) (same). While “[c]ertain principles are

25 fundamental enough that when new factual permutations arise, the necessity to apply the earlier

26 rule will be beyond doubt,” Yarborough v. Alvarado, 541 U.S. 652, 666 (2004), “when a state

27 court may draw a principled distinction between the case before it and Supreme Court caselaw,

28 the law is not clearly established for the state-court case.” Murdoch v. Castro, 609 F.3d 983, 991

1 (9th Cir. 2010). “‘[I]f a habeas court must extend a rationale before it can apply to the facts at

2 hand,’ then by definition the rationale was not ‘clearly established at the time of the state court

3 decision.’” White v. Woodall, 572 U.S. 415, 426 (2014) (quoting Yarborough, 541 U.S. at 666).

4 In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that

5 an “unreasonable application” of federal law is an objective test that turns on “whether it is

6 possible that fairminded jurists could disagree” that the state court decision meets the standards

7 set forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable

8 application of federal law is different from an incorrect application of federal law.’” Cullen v.

9 Pinholster, 563 U.S. 170, 203 (2011). The petitioner “must show far more than that the state

10 court’s decision was ‘merely wrong’ or ‘even clear error.’” Shinn v. Kayer, 592 U.S. 111, 118

11 (2020) (quoting Virginia v. LeBlanc, 582 U. S. 91, 93 (2017) (per curiam)). Rather, a state

12 prisoner seeking a writ of habeas corpus from a federal court “must show that the state court’s

13 ruling on the claim being presented in federal court was so lacking in justification that there was

14 an error well understood and comprehended in existing law beyond any possibility of fairminded

15 disagreement.” Richter, 562 U.S. at 103 (emphasis added); see also Kayer, 592 U.S. at 118. In

16 other words, so long as fairminded jurists could disagree with each other as to whether the state

17 court was correct, the state court decision is not unreasonable under AEDPA. Congress “meant”

18 this standard to be “difficult to meet.” Richter, 562 U.S. at 102.

19 Section 2254(d)(2) pertains to state court decisions based on factual findings. Davis v.

20 Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)).

21 Under § 2254(d)(2), a federal court may grant habeas relief if a state court’s adjudication of the

22 petitioner’s claims “resulted in a decision that was based on an unreasonable determination of the

23 facts in light of the evidence presented in the State court proceeding.” Wiggins v. Smith, 539

24 U.S. 510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). The federal habeas

25 court must give “substantial deference” to the state court. Brumfield v. Cain, 576 U.S. 305, 314

26 (2015). “Factual determinations by state courts are presumed correct” and the petitioner bears the

27 burden of overcoming the presumption with “clear and convincing evidence to the contrary.”

28 Miller-El, 537 U.S. at 340; 28 U.S.C. § 2254(e)(1). A state court’s factual finding is unreasonable

1 when it is “so clearly incorrect that it would not be debatable among reasonable jurists.” Jeffries,

2 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied,

3 Maddox v. Taylor, 543 U.S. 1038 (2004). If “‘[r]easonable minds reviewing the record might

4 disagree’ about the finding in question, ‘. . . that does not suffice’” to prove the lower court’s

5 factual determination was unreasonable. Wood v. Allen, 558 U.S. 290, 301 (2010) (alteration in

6 original) (quoting Williams v. Taylor, 529 U.S. 362, 410 (2000)).

7 To determine whether habeas relief is available under § 2254(d), the federal court looks to

8 the last reasoned state court decision as the basis of the state court’s decision. See Ylst v.

9 Nunnemaker, 501 U.S. 979, 803 (1991); Andrews v. Davis, 994 F.3d 1042, 1107 (9th Cir. 2019)

10 (en banc). “[A]lthough we independently review the record, we still defer to the state court’s

11 ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

12 The prejudicial impact of any constitutional error is assessed by asking whether the error

13 had “a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v.

14 Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007)

15 (holding that the Brecht standard applies whether or not the state court recognized the error and

16 reviewed it for harmlessness).

17 In a case where the state court decided the petitioner’s claims on the merits but provided

18 no reasoning for its decision, the federal habeas court conducts “an independent review of the

19 record . . . to determine whether the state court [was objectively unreasonable] in its application

20 of controlling federal law.” Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2002). “[A]lthough

21 we independently review the record, we still defer to the state court’s ultimate decisions.” Pirtle

22 v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

23 C. Review of Petition

24 Petitioner contends he was denied his federal due process rights under the Fifth, Sixth and

25 Fourteenth Amendments because of trial counsel’s ineffectiveness in the following instances: 1)

26 Counsel failed to investigate, consult with, and adduce testimony of a criminal psychologist, a

27 child sex crimes expert, and a child witness expert; 2) Counsel failed to call witnesses Hector

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1 Carranza, Jose Tafoya, and Gloria Tafoya; 3) Counsel failed to file a Pitchess3 motion; 4) Counsel

2 failed to hire a competent private investigator; and 5) Counsel failed to meaningfully

3 communicate with Petitioner and ensure there was an interpreter present for meetings and

4 relevant events.

5 1. Legal Standard

6 Effective assistance of counsel is guaranteed by the Due Process Clause of the Fourteenth

7 Amendment. Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of

8 counsel are reviewed according to Strickland's two-pronged test. Strickland v. Washington, 466

9 U.S. 668, 687-88 (1984); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989); United States v.

10 Birtle, 792 F.2d 846, 847 (9th Cir.1986); see also Penson v. Ohio, 488 U.S. 75 (1988) (holding

11 that where a defendant has been actually or constructively denied the assistance of counsel

12 altogether, the Strickland standard does not apply and prejudice is presumed; the implication is

13 that Strickland does apply where counsel is present but ineffective).

14 To prevail, Petitioner must show two things. First, he must establish that counsel’s

15 deficient performance fell below an objective standard of reasonableness under prevailing

16 professional norms. Strickland, 466 U.S. at 687-88. Second, Petitioner must establish that he

17 suffered prejudice in that there was a reasonable probability that, but for counsel’s unprofessional

18 errors, he would have prevailed at trial. Id. at 694. A “reasonable probability” is a probability

19 sufficient to undermine confidence in the outcome of the trial. Id. The relevant inquiry is not what

20 counsel could have done; rather, it is whether the choices made by counsel were reasonable.

21 Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998).

22 With the passage of the AEDPA, habeas relief may only be granted if the state-court

23 decision unreasonably applied this general Strickland standard for ineffective assistance.

24 Knowles v. Mirzayance, 556 U.S. 111, 122 (2009). Accordingly, the question “is not whether a

25 federal court believes the state court’s determination under the Strickland standard “was incorrect

26 but whether that determination was unreasonable–a substantially higher threshold.” Schriro v.

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28 3 Pitchess v. Superior Court, 11 Cal.3d 531 (1974).

1 Landrigan, 550 U.S. 465, 473 (2007); Knowles, 556 U.S. at 123. In effect, the AEDPA standard

2 is “doubly deferential” because it requires that it be shown not only that the state court

3 determination was erroneous, but also that it was objectively unreasonable. Yarborough v.

4 Gentry, 540 U.S. 1, 5 (2003). Moreover, because the Strickland standard is a general standard, a

5 state court has even more latitude to reasonably determine that a defendant has not satisfied that

6 standard. See Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“[E]valuating whether a rule

7 application was unreasonable requires considering the rule’s specificity. The more general the

8 rule, the more leeway courts have in reaching outcomes in case-by-case determinations.”)

9 2. Analysis – Failure to Investigate and Obtain Experts

10 Petitioner claims defense counsel failed to investigate, consult with, and adduce testimony

11 of a criminal psychologist, a child sex crimes expert, a child witness expert, and a DNA expert. It

12 is unknown whether defense counsel consulted with potential expert witnesses, and if so, what his

13 investigation revealed and why he did not seek to introduce testimonial evidence from such

14 experts. Petitioner’s allegation that defense counsel did not consult with any such expert is purely

15 speculative. Moreover, Petitioner proffers no evidence in the form of an affidavit or declaration

16 from an expert who would have testified, what that testimony would have been, and how it would

17 have affected the outcome. This is fatal to Petitioner’s claim. See Grisby v. Blodgett, 130 F.3d

18 365, 373 (9th Cir.1997) (“[s]peculation about what an expert could have said is not enough to

19 establish prejudice”); Hendricks v. Calderon, 70 F.3d 1032, 1042 (9th Cir. 1995) (citing James v.

20 Borg, 24 F.3d 20, 26 (9th Cir.1994)) (“Absent an account of what beneficial evidence

21 investigation into any of these issues would have turned up, [the petitioner] cannot meet the

22 prejudice prong of the Strickland test.”); Dows v. Wood, 211 F.3d 480, 486-87 (9th Cir. 2000)

23 (lack of affidavit from “alleged witness” fatal to claim of ineffective assistance for failure to call

24 said witness).

25 3. Analysis – Failure to Call Witnesses

26 Petitioner alleges defense counsel was ineffective in failing to call Hector Carranza, Jose

27 Tafoya, and Gloria Tafoya. Petitioner claims he advised counsel of these potential witnesses and

28 states these witnesses would have testified that Petitioner was never alone with the victims. He

1 claims this divested him of his opportunity to establish a concrete alibi allegation.

2 Again, aside from Petitioner’s self-serving declaration, he presents no evidence that

3 counsel did not investigate these witnesses, or if not, whether he was aware of them. Further, he

4 provides no evidence in the form of affidavit from these alleged alibi witnesses that they would

5 have provided helpful testimony for the defense. Id. There is also no reasonable likelihood these

6 witnesses would have altered the outcome, since Petitioner himself admitted to officers he would

7 play with the victims, and that the playing may have gone too far. (Doc. 12-7 at 73-84, 86-87.)

8 4. Analysis – Failure to File Pitchess Motion

9 Petitioner next claims defense counsel failed to file a Pitchess motion which would have

10 revealed all relevant officer misconduct. This claim is also completely speculative.

11 Petitioner offers no evidence of any misconduct by any officer involved in the case.

12 Petitioner fails to identify any evidence his trial counsel would have gleaned had he filed a

13 Pitchess motion, and his mere speculation regarding evidence possibly contained in the officers’

14 personnel files is manifestly insufficient to demonstrate he was in any manner prejudiced by trial

15 counsel not filing a Pitchess motion.

16 5. Analysis – Failure to Hire Competent Investigator

17 Petitioner contends trial counsel failed to hire a competent private investigator to assist

18 with investigating the following people and things which would have revealed readily available

19 evidence of Petitioner’s innocence: “Gloria Carranza, Dulce Carranza, Edelmire Carranza,

20 Sergeant Alicia Keiser, Officer Marcy Noriega, John Rosel, Officer Mike Chamberlain, Josie

21 Roderick, and Maria’s residence on Road 29 in Madera.” (Doc. 1-1 at 21; citations omitted.)

22 The claim fails for the same reasons previously stated. Petitioner’s claim is pure

23 speculation. There is no evidence in the record that counsel did not investigate these individuals,

24 and Petitioner fails to offer proof of any exculpatory evidence that would have been discovered.

25 Petitioner thus fails to demonstrate any prejudice. See Wood v. Bartholomew, 516 U.S. 1 at 6

26 (1995) (habeas relief is unavailable for claims based on mere speculation).

27 6. Analysis – Failure to Meaningfully Communicate with Petitioner

28 Petitioner states his first language is Spanish and he comprehends and speaks little

1 English. He claims defense counsel was ineffective in failing to meaningfully communicate with

2 him, depriving him of the opportunity to participate in the formulation of a viable defense. He

3 claims counsel should have ensured an interpreter was present at all meetings and relevant events.

4 Respondent points out that Petitioner’s contention is contradicted by his own declaration.

5 Petitioner states he “asked [his] attorney to investigate, interview, and call Hector ‘Teto’ Carranza

6 and Jose and Gloria Tafoya who would have testified that I was never alone with the

7 complainants.” (Doc. 1-2 at 2.) He further states, “Trial counsel failed to honor any of my above

8 requests or investigate any of the evidence I presented.” (Doc. 1-2 at 3.) Moreover, Petitioner fails

9 to show any prejudice. As discussed above, Petitioner’s claims are completely speculative; he

10 proffers no evidence that could have been presented at trial or show how the evidence would have

11 altered the outcome.

12 In sum, Petitioner fails to show counsel’s performance fell below an objective standard of

13 reasonableness or that there was a reasonable probability that, but for counsel’s unprofessional

14 errors, he would have prevailed at trial. Strickland, 466 U.S. at 687-88, 694. He also fails to show

15 that the state court rejection of his ineffective assistance of counsel claims were contrary to, or an

16 unreasonable application of, Supreme Court precedent, or that the state court based its decision on

17 an unreasonable determination of the facts. The petition should be denied.

18 IV. RECOMMENDATION

19 Based on the foregoing, the Court RECOMMENDS that the Petition for Writ of Habeas

20 Corpus be DENIED with prejudice on the merits.

21 This Findings and Recommendation is submitted to the United States District Court Judge

22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the

23 Local Rules of Practice for the United States District Court, Eastern District of California. Within

24 twenty-one (21) days after being served with a copy of this Findings and Recommendation, a

25 party may file written objections with the Court and serve a copy on all parties. Id. The document

26 should be captioned, “Objections to Magistrate Judge’s Findings and Recommendation” and shall

27 not exceed fifteen (15) pages, except by leave of court with good cause shown. The Court will not

28 consider exhibits attached to the Objections. To the extent a party wishes to refer to any

1 exhibit(s), the party should reference the exhibit in the record by its CM/ECF document and page

2 number, when possible, or otherwise reference the exhibit with specificity. Any pages filed in

3 excess of the fifteen (15) page limitation may be disregarded by the District Judge when

4 reviewing these Findings and Recommendations pursuant to 28 U.S.C. § 636 (b)(1)(C). The

5 parties are advised that failure to file objections within the specified time may result in the waiver

6 of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014). This

7 recommendation is not an order that is immediately appealable to the Ninth Circuit Court of

8 Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure,

9 should not be filed until entry of the District Court's judgment.

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IT IS SO ORDERED.

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12 Dated: May 2, 2025 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE

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