1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RANDY SCOTT KLIPPENSTEIN, No. 2:21-cv-00086 KJM GGH P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 SCOTT FRAUNHEIM, 15 Respondent. 16 17 18 Introduction and Summary 19 Petitioner, a state prisoner proceeding through counsel, has filed an application for a writ 20 of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to the United States 21 Magistrate Judge pursuant to 28 U.S.C. § 626(b)(1) and Local Rule 302. 22 Petitioner was convicted of forcible acts of sexual misconduct, and incest, upon his 23 biological daughter. For purposes of this proceeding, petitioner conceded the incest claims, i.e., 24 he had sexual relations with his daughter before she reached the age of 18, but he denies that 25 these relations were carried out by force. Petitioner asserts two primary, but related, claims: (1) 26 his Sixth Amendment right to cross examine a witness was violated on account of the inability to 27 cross-examine his daughter about her pre-trial denial of sexual activities (both after petitioner’s 28 sexual acts and before); and (2) (assuming his daughter would have remained steadfast at trial in 1 her denial of prior sexual activities) petitioner’s Sixth/Fourteenth/Amendment rights were 2 violated due to the inability to mount a complete defense because of the inability to introduce 3 evidence of his daughter’s sexual activities. Petitioner also disputes the admission of Child Sexual Abuse Accommodation Syndrome (“CSAA”) evidence, and a jury instruction related thereto. 4 In sum, because evidence of the sexual activities of the daughter did not evince bias on her 5 part, or otherwise relate to allegations of petitioner’s coercive actions, only probable 6 embarrassment, or at worst a falsehood to protect her new teacher love interest subsequent-to- 7 petitioner’s-unlawful-actions, in this AEDPA case, the trial court’s preclusion of the cross- 8 examination was not unreasonable. It follows that preclusion of admission of extrinsic evidence 9 of prior sexual activities was also not AEDPA unreasonable either. The CSAA claims should be 10 denied as well as not violative of any established Supreme Court holdings and on the merits 11 Background Facts 12 Prior to trial, petitioner had been charged with lesser unlawful sex with a minor offenses, 13 incest, and more serious forcible sex charges. Perhaps as a method of taking away any potential 14 for a compromise verdict, or because the prosecutor was very confident in the “force” case, the 15 unadorned unlawful sex charges were dropped during trial leaving only the forcible sex charges 16 and incest charges. ECF No. 14-4 at 248-249. The only ultimate contested issue was whether 17 petitioner used force to accomplish the conceded sexual activities. The factual summary of the 18 California Court of Appeal, Third Appellate District (“Court of Appeal”) is set forth below: 19 20 The victim, S., is defendant’s biological daughter. She lived with her mother for most of her childhood. When she was 15 years old, 21 she moved in with defendant and his family. 22 After S. turned 17 years old, defendant started commenting on her appearance and constantly asking her if he could see and touch her 23 breasts. S. repeatedly told him “no.” 24 One morning while S. was asleep, defendant came into her room and began touching and kissing her. S. did not kiss him back; she 25 was scared, confused, and hurt. However, she performed oral sex on defendant after he took off all her clothes and continued to touch 26 her. A couple of days later, defendant had sexual intercourse with S. for the first time. 27 Thereafter, S. and defendant had sexual intercourse more than 100 28 times and she performed oral sex on him numerous times. 1 Defendant also inserted his finger into S.’s vagina more than 100 times, performed oral sex on her more than 50 times, and stimulated 2 her with a vibrator. 3 S. repeatedly told defendant “no” or tried to stop him from engaging in sexual acts with her. According to S., defendant held 4 her down and had sexual intercourse with her more than 20 times. S. explained that she was unable to push defendant away and 5 eventually gave up on trying to stop him because he was too big. S. further explained that she was scared and confused by defendant’s 6 conduct, and feared that he would kill her if she said no to him while he raped her. 7 Defendant told S. that he planned to marry her and move with her 8 to Colorado or Montana and have a child together. He also told S. not to tell anyone about their relationship because he would be very 9 upset and end up in jail. At one point, defendant threatened to take S. away from “society” and keep her in a basement. 10 When S. was 18 years old, she moved out of defendant’s house 11 after he physically attacked her. During the attack, defendant pushed S. into a wall and strangled her. 12 Approximately two months later, S. reported defendant to the 13 police. During a pretext phone call (i.e., a recorded phone call with law enforcement present), defendant admitted to having sex with S. 14 and indicated that he was not going to force himself on her anymore. Defendant also acknowledged that S. had told him 15 multiple times that she did not want to have a sexual relationship with him anymore. 16 When defendant was interviewed at the police station following his 17 arrest, he denied engaging in a sexual relationship with S. However, during recorded jail phone calls with his wife (Cheryl), defendant 18 admitted to having a sexual relationship with S. He also asked Cheryl to get rid of several items, including a sex toy, an outfit, and 19 lotion. 20 After defendant was arrested, Cheryl confronted S. about her allegations of force. According to Cheryl, she told S., “You know 21 as well as I do that the relationship was not forced and it was ... not rape.” In response, S. said, “Yes” and apologized. 22 23 People v. Klippenstein, No. C083373, 2018 WL 3298027, at *1-2 (Cal. Ct. App. July 5, 2018). 24 Issues Presented 25 1. Whether Petitioner Was Denied His Sixth Amendment Right to Fully Confront 26 (Impeach) His Accuser With Her Other Sexual Activities; 27 //// 28 //// 1 2. Whether Petitioner’s Sixth/Fourteenth Amendment Rights Were Violated When 2 Petitioner Was Not Permitted to Introduce Extrinsic Evidence of the Accuser’s Other 3 Sexual Activities; 4 3. Whether the Admission Of Child Sexual Abuse Accommodation Syndrome Evidence 5 Violated Due Process; and 6 4. Whether the Jury Instruction Related to the CSAA Evidence Violated Due Process. 7 The Antiterrorism and Effective Death Penalty Act of 1996 Standards 8 Of course, the issues here are decided not by whether the undersigned believes the state 9 courts to have made an erroneous legal determination, but whether the state courts were 10 unreasonable in their determinations pursuant to 28 U.S.C. § 2254. 11 The statutory limitations of the power of federal courts to issue habeas corpus relief for 12 persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and 13 Effective Death Penalty Act of 1996 (“AEDPA”). The text of § 2254(d) provides: 14 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be 15 granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— 16 (1) resulted in a decision that was contrary to, or involved 17 an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United 18 States; or 19 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented 20 in the State court proceeding. 21 For purposes of applying § 2254(d)(1), clearly established federal law consists of holdings 22 of the United States Supreme Court at the time of the last reasoned state court decision. 23 Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 565 U.S. 34, 24 39 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 25 U.S. 362, 405-406 (2000)). Circuit precedent may not be “used to refine or sharpen a general 26 principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has 27 not announced.” Marshall v. Rodgers, 569 U.S. 58, 63-64 (2013) (citing Parker v. Matthews, 567 28 U.S. 37, 48 (2012)). Nor may it be used to “determine whether a particular rule of law is so 1 widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, 2 be accepted as correct. Id. 3 A state court decision is “contrary to” clearly established federal law if it applies a rule 4 contradicting a holding of the Supreme Court or reaches a result different from Supreme Court 5 precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003). 6 Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the 7 writ if the state court identifies the correct governing legal principle from the Supreme Court’s 8 decisions, but unreasonably applies that principle to the facts of the prisoner’s case. Lockyer v. 9 Andrade, 538 U.S. 63, 75 (2003); Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this 10 regard, a federal habeas court “may not issue the writ simply because that court concludes in its 11 independent judgment that the relevant state-court decision applied clearly established federal law 12 erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams, supra, 13 529 U.S. at 412. See also Lockyer, supra, 538 U.S. at 75 (it is “not enough that a federal habeas 14 court, ‘in its independent review of the legal question,’ is left with a ‘firm conviction’ that the 15 state court was ‘erroneous.’ ”) “A state court’s determination that a claim lacks merit precludes 16 federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state 17 court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. 18 Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus 19 from a federal court, a state prisoner must show that the state court’s ruling on the claim being 20 presented in federal court was so lacking in justification that there was an error well understood 21 and comprehended in existing law beyond any possibility for fairminded disagreement.” 22 Harrington, 562 U.S. at 103. 23 The court looks to the last reasoned state court decision as the basis for the state court 24 judgment. Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). “[Section] 2254(d) does not require a 25 state court to give reasons before its decision can be deemed to have been ‘adjudicated on the 26 merits.’ ” Harrington, 562 U.S. at 100. Rather, “[w]hen a federal claim has been presented to a 27 state court and the state court has denied relief, it may be presumed that the state court 28 adjudicated the claim on the merits in the absence of any indication or state-law procedural 1 principles to the contrary.” Id. at 99. This presumption may be overcome by a showing “there is 2 reason to think some other explanation for the state court’s decision is more likely.” Id. at 99-100. 3 Similarly, when a state court decision on a petitioner’s claims rejects some claims but does not 4 expressly address a federal claim, a “federal habeas court must presume (subject to rebuttal) that 5 the federal claim was adjudicated on the merits.” Johnson v. Williams, 568 U.S. 289, 293 (2013). 6 When it is clear, however, that a state court has not reached the merits of a petitioner’s claim, the 7 deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court 8 must review the claim de novo. Stanley, supra, 633 F.3d at 860. 9 The state court need not have cited to federal authority, or even have indicated awareness 10 of federal authority in arriving at its decision. Early v. Packer, 537 U.S. 3, 8 (2002). Where the 11 state court reaches a decision on the merits but provides no reasoning to support its conclusion, a 12 federal habeas court independently reviews the record to determine whether habeas corpus relief 13 is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 14 (9th Cir. 2003). “Independent review of the record is not de novo review of the constitutional 15 issue, but rather, the only method by which we can determine whether a silent state court decision 16 is objectively unreasonable.” Id. at 853. Where no reasoned decision is available, the habeas 17 petitioner still has the burden of “showing there was no reasonable basis for the state court to 18 deny relief.” Harrington, 562 U.S. at 98. A summary denial is presumed to be a denial on the 19 merits of the petitioner’s claims. Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While 20 the federal court cannot analyze just what the state court did when it issued a summary denial, the 21 federal court must review the state court record to determine whether there was any “reasonable 22 basis for the state court to deny relief.” Harrington, 562 U.S. at 98. This court “must determine 23 what arguments or theories supported or, [...] could have supported, the state court’s decision; and 24 then it must ask whether it is possible fairminded jurists could disagree that those arguments or 25 theories are inconsistent with the holding in a prior decision of this Court.” Id. at 102. 26 “ ‘Evaluating whether a rule application was unreasonable requires considering the rule’s 27 specificity. The more general the rule, the more leeway courts have in reaching outcomes in case- 28 by-case determinations.’ ” Id. at 101 (quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)). 1 Emphasizing the stringency of this standard, which “stops short of imposing a complete bar on 2 federal-court relitigation of claims already rejected in state court proceedings[,]” the Supreme 3 Court has cautioned that “even a strong case for relief does not mean the state court’s contrary 4 conclusion was unreasonable.” Id. at 102. 5 Discussion 6 A. Whether Petitioner Was Denied His Sixth Amendment Right to Fully Confront 7 (Impeach) His Accuser With Her Other Sexual Activities 8 The Court of Appeal set the background for this issue: 9 Prior to trial, the People filed a motion in limine seeking to exclude evidence of S.’s prior sexual conduct, unless the court found that 10 such evidence was admissible under Evidence Code sections 782 and 352. Defendant opposed the People’s motion and filed a motion 11 seeking permission to question S. regarding an alleged extramarital affair she was having with her former high school teacher, Steven 12 Shields. Defendant also requested permission to question S. about lies she told her employer about the affair. In addition, defendant 13 sought permission to question S. regarding a list she purportedly made of her past sexual partners. 14 In support of his motion, defendant argued that evidence of the 15 extramarital affair was relevant because it showed that S. had: “(1) engaged in conduct that constitutes moral turpitude and (2) lied 16 when questioned by [her employer] about whether she was having an affair with Steven Shields.” Defendant asserted that “engaging in 17 an illicit extra marital affair with a former high school teacher demonstrates conduct that reflects on a person’s lack of judgment, 18 general readiness to do evil, bad character, intent to corrupt others and moral depravity. The fact that [S.] lied to [her employer] also 19 demonstrates that [S.] is a person who engages in immoral conduct and lies when confronted about it.” Defendant further argued that 20 the list of S.’s past sexual partners was relevant because it would “directly contradict” S.’s statement to the police that she had not 21 had sex prior to her relationship with defendant. 22 At the hearing on the motions, the trial court treated defendant’s motion as a motion brought under Evidence Code section 782. The 23 court rejected defendant’s moral turpitude argument and ruled that, even if S. had a sexual relationship with Shields and lied about it to 24 her employer as defendant claimed, such conduct was irrelevant and inadmissible under Evidence Code section 782 because there 25 was no evidence the relationship involved allegations of rape, sexual assault, or incest. The court further ruled that, even assuming 26 such evidence was somehow relevant to S.’s honesty or veracity, the probative value of the evidence was substantially outweighed by 27 the fact that its admission would necessitate undue consumption of time and/or would create a substantial danger of undue prejudice by 28 confusing the issues and misleading the jury. With respect to the list 1 of sexual partners S. purportedly made, the court ruled that, even if such a list existed, the evidence was inadmissible under Evidence 2 Code sections 782 and 352. In so ruling, the court noted that the evidence is “distinguishable from what happened in this case.” 3 The rape shield law generally bars questioning a sexual assault 4 victim about specific instances of her prior sexual conduct. (Evid. Code, § 1103, subd. (c); People v. Bautista (2008) 163 Cal.App.4th 5 762, 781.) “Evidence of the sexual conduct of a complaining witness is admissible in a prosecution for a sex-related offense only 6 under very strict conditions. A defendant may not introduce evidence of specific instances of the complaining witness’s sexual 7 conduct, for example, in order to prove consent by the complaining witness.” (People v. Fontana (2010) 49 Cal.4th 351, 362 (Fontana 8 ).) But such evidence may be admissible in prosecutions involving sections 261, 289, and 288a, such as here, when offered to attack 9 the credibility of a complaining witness, provided its probative value outweighs the danger of undue prejudice and the defendant 10 complies with the procedure set forth in Evidence Code section 782. ( Evid. Code, § 782; Fontana, at pp. 354, 362.) 11 12 People v. Klippenstein, 2018 WL 3298027, at *2-3. 13 The California appellate court went on to find that the pertinence of the sex episodes 14 material to be explored with the accuser on cross-examination did not override the purposes of 15 California’s rape shield law because of its minimal relevance. 16 It is important to add here that the evidence regarding the specific instance of sex-with- 17 the-teacher was subsequent to the time the accuser had permanently left petitioner’s home and 18 was living with other persons. The “list of boys” with whom the accuser allegedly had sexual 19 relations (whenever) related nothing specific other than names. 20 First, AEDPA applies to the issue herein. While the focus of the appellate court and 21 parties was specifically dealing with California law, the Court of Appeal found that “[petitioner’s] 22 claim that excluding the evidence violated his constitutional rights is unpersuasive.” People v. 23 Klippenstein, 2018 WL 3298027, at *4. Remembering that there is a presumption in AEDPA that 24 the state court decided the claim on its federal merits, and that the court need not have cited to 25 federal authority, see AEDPA discussion supra, it is clear that AEDPA applies to this issue. 26 Turning to the merits, it is evident that the denial of cross-examination claim is at its 27 strongest when the proffered impeachment demonstrates a bias on the part of the witness not to 28 //// 1 testify truthfully, not simply to show that a witness told an inconsistent story at some time. The 2 Ninth Circuit has explicated the established Supreme Court authority on the subject: 3 Wood argues that excluding the evidence of M.G.'s sexual conduct violated his rights under the Sixth Amendment to confront the 4 witnesses against him and to present a defense. These rights encompass the rights to cross-examination, Davis v. Alaska, 415 5 U.S. 308, 315–16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974), and to present relevant evidence, Michigan v. Lucas, 500 U.S. 145, 111 6 S.Ct. 1743, 1746–47, 114 L.Ed.2d 205, 212 (1991). A defendant has no right, however, to present irrelevant evidence. United States 7 v. Torres, 937 F.2d 1469, 1473 (9th Cir.1991), cert. denied, 502 U.S. 1037, 112 S.Ct. 886, 116 L.Ed.2d 789 (1992). It is within the 8 trial court's discretion to determine which issues are relevant. See id. 9 Even relevant evidence can be excluded in certain circumstances. 10 The right to present relevant testimony “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial 11 process.” Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973). The Supreme Court has 12 recognized that a state has a legitimate interest in protecting rape victims against unwarranted invasions of privacy and harassment 13 regarding their sexual conduct. Lucas, 500 U.S. at ––––, 111 S.Ct. at 1146, 114 L.Ed.2d at 212. Also, “trial judges retain wide latitude 14 insofar as the Confrontation Clause is concerned to impose reasonable limits on ... cross-examination based on concerns about, 15 among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only 16 marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986). 17 18 Wood v. State of Alaska, 957 F.2d 1544, 1549 (9th Cir. 1992). 19 And, as set forth by Olden v. Kentucky, 488 U.S.227, 231-232 (1988) (emphasis added): 20 We emphasized that “the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally 21 protected right of cross-examination.” Id., at 316–317, 94 S.Ct. at 1110, citing Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 22 1413, 3 L.Ed.2d 1377 (1959). Recently, in Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), we 23 reaffirmed Davis, and held that “a criminal defendant states a violation of the Confrontation Clause by showing that he was 24 prohibited from engaging in otherwise appropriate cross- examination designed to show a prototypical form of bias on the 25 part of the witness, and thereby ‘to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the 26 reliability of the witness.’ ” 475 U.S., at 680, 106 S.Ct., at 1436, quoting Davis, supra, 415 U.S., at 318, 94 S.Ct., at 1111. 27 In the instant case, petitioner has consistently asserted that he and 28 Matthews engaged in consensual sexual acts and that Matthews— 1 out of fear of jeopardizing her relationship with Russell—lied when she told Russell she had been raped and has continued to lie since. 2 It is plain to us that “[a] reasonable jury might have received a significantly different impression of [the witness'] credibility had 3 [defense counsel] been permitted to pursue his proposed line of cross-examination.” Delaware v. Van Arsdall, supra, 475 U.S., at 4 680, 106 S.Ct., at 1436. 5 The emphasized quote appears in the seminal case on the right to cross-examination, 6 Davis v. Alaska, 415 U.S. 308, 315–16 (1974). In Davis, the juvenile records were sought to be 7 used as a basis for cross-examination—the witness might be attempting to aid the police and 8 thereby protect his probation status, id. at 311, and as such demonstrated that the witness had a 9 motivation to possibly lie about that defendant’s activities. Thus, not every untruth by a witness 10 has a right to be the subject of cross-examination regardless of its real relevance, especially when 11 the law generally protects such information from exploration at trial. Rather, the cross- 12 examination should materially relate to an issue in the case or evince a material bias on the part of 13 the witness. 14 In this case, the fairly well established sexual relations of a teacher with a former student, 15 after petitioner’s involvement with the accuser had ended, and denied at first by the accuser to her 16 employer and possibly others,1 did not demonstrate bias on the part of the accuser against 17 petitioner which might show that she had a motivation to lie about petitioner’s use of force to 18 accomplished his sexual desires. Rather it showed at most a desire not to embarrass her present 19 love interest because teachers should not have sexual relations with high school students who 20 have just turned 18. Nor was the evidence relevant in itself to draw an inference of lack of 21 petitioner’s coercion. In light of the strong California interest to not permit an accuser’s sexual 22 history to be explored unless necessary, it cannot be legitimately argued that exclusion of the 23 evidence showing the accuser’s unrelated untruth, as affirmed by the appellate court, was AEDPA 24 unreasonable. Cf. United States v. Chang Ru Meng Backman, 817 F.3d 662, 670 (9th Cir. 2016) 25 (“Here, by contrast, to the extent that we can discern the nature of Defendant’s proffered 26 1 ECF No. 14-1 at 170-171 (Rouze—Summers employer—only confirms sex with Shields 27 post-Petitioner abuse); ECF No. 14-1 at 173-174. (Ms. Shields does not relate anything about Summer’s sex with Mr. Shields prior to, or during, petitioner’s abuse—one post-petitioner 28 explicit incident is set forth). 1 evidence, its relevance, if any, is slight. We doubt that evidence that the victim engaged in 2 commercial sex acts after she had been coerced into prostitution has a bearing on whether 3 Defendant earlier took coercive actions.”) Putting the Chang Ru Meng Backman language in the 4 context of this case: “We doubt that evidence that the victim engaged in [consensual] sex acts 5 after she had been coerced into [having illicit sex with her father] has a bearing on whether 6 [petitioner] earlier took coercive actions.” 817 F.3d at 670. 7 Similarly, the fact that a list existed purporting to show past (probably high school) lovers 8 of the accused said little or nothing about the use of force by petitioner, the sole contested issue in 9 petitioner’s case. Again, the apparent purpose of the asserted untruth made to the police by the 10 accuser about not having sexual relations prior to, or along with, petitioner’s, was simply in all 11 probability to protect the identities of former sexual partners. In any event, there was no 12 indication that any of those sexual activities were anything but consensual. 13 The undersigned is not finding that exposing a witness’ expressed untruths per se has no 14 pertinence whatsoever on credibility. The undersigned is finding that when the law protects 15 sensitive information from disclosure, something more than a general impeachment-on-other- 16 matters purpose is necessary to override the law. That “something more” is an indication of bias 17 on the part of the witness, or cross-examination which brings to light an untruth directly relevant 18 to an issue in the case. At least such a finding by the state courts is not AEDPA unreasonable. 19 B. Whether Petitioner’s Sixth/Fourteenth Amendment Rights Were Violated When 20 Petitioner Was Not Permitted to Introduce Extrinsic Evidence of the Accuser’s Other Sexual 21 Activities 22 This claim is bound to fall as the discussion above generally controls the outcome of 23 this issue. But first, it is of some doubt that a cognizable claim exists at all as the Supreme Court 24 has fairly recently held that it has never held the preclusion of extrinsic act impeachment evidence 25 to be violative of the Confrontation Clause. In Nevada v. Jackson, 569 U.S.505, 511-512 (2013) 26 (emphasis added) the court held: 27 In holding that respondent is entitled to habeas relief, the Ninth Circuit pointed to two of its own AEDPA decisions in which it 28 granted habeas relief to state prisoners who were not allowed to 1 conduct a full cross-examination of the witnesses against them. 688 F.3d, at 1098–1101 (discussing Fowler v. Sacramento Cty. Sheriff's 2 Dept., 421 F.3d 1027, 1035–1038 (C.A.9 2005) and Holley v. Yarborough, 568 F.3d 1091, 1098–1101 (C.A.9 2009)). Those 3 cases in turn relied on Supreme Court decisions holding that various restrictions on a defendant's ability to cross-examine 4 witnesses violate the Confrontation Clause of the Sixth Amendment. See, e.g., Olden v. Kentucky, 488 U.S. 227, 231, 109 5 S.Ct. 480, 102 L.Ed.2d 513 (1988) (per curiam ); Delaware v. Van Arsdall, 475 U.S. 673, 678–679, 106 S.Ct. 1431, 89 L.Ed.2d 674 6 (1986); Davis v. Alaska, 415 U.S. 308, 315–316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). But this Court has never held that the 7 Confrontation Clause entitles a criminal defendant to introduce extrinsic evidence for impeachment purposes. See Delaware v. 8 Fensterer, 474 U.S. 15, 22, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam ) (observing that “the Confrontation Clause is generally 9 satisfied when the defense is given a full and fair opportunity to ... expose [testimonial] infirmities through cross-examination”). See 10 also Jordan v. Warden, 675 F.3d 586, 596 (C.A.6 2012); Brown v. Ruane, 630 F.3d 62, 70 (C.A.1 2011). 11 12 However, petitioner points out that he is entitled to present a defense, and the failure to 13 permit such may violate the Fourteenth Amendment Due Process clause. 14 “[S]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal 15 trials.” United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998); see also Crane v. Kentucky, 476 16 U.S. 683, 689–690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986); Marshall v. Lonberger, 459 U.S. 422, 438, n. 6, 103 S.Ct. 843, 74 17 L.Ed.2d 646 (1983); Chambers v. Mississippi, 410 U.S. 284, 302– 303, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Spencer v. Texas, 385 18 U.S. 554, 564, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). This latitude, however, has limits. “Whether rooted directly in the Due Process 19 Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution 20 guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ ” Crane, supra, at 690, 476 U.S. 683, 21 106 S.Ct. 2142, 90 L.Ed.2d 636 (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); 22 citations omitted). This right is abridged by evidence rules that “infring[e] upon a weighty interest of the accused” and are “ 23 ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’ ” Scheffer, supra, at 308, 523 U.S. 303, 118 S.Ct. 1261, 140 24 L.Ed.2d 413 (quoting Rock v. Arkansas, 483 U.S. 44, 58, 56, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)). 25 * * * 26 While the Constitution thus prohibits the exclusion of defense 27 evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well- 28 established rules of evidence permit trial judges to exclude evidence 1 if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the 2 jury. See, e.g., Fed. Rule Evid. 403; Uniform Rule of Evid. 45 (1953); ALI, Model Code of Evidence Rule 303 (1942); 3 J. 3 Wigmore, Evidence §§ 1863, 1904 (1904). Plainly referring to rules of this type, we have stated that the Constitution permits judges “to 4 exclude evidence that is ‘repetitive..., only marginally relevant’ or poses an undue risk of ‘harassment, prejudice, [or] confusion of the 5 issues.’ ” Crane, 476 U.S., at 689–690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 6 S.Ct. 1431, 89 L.Ed.2d 674 (1986); ellipsis and brackets in original). See also Montana v. Egelhoff, 518 U.S. 37, 42, 116 S.Ct. 7 2013, 135 L.Ed.2d 361 (1996) (plurality opinion) (terming such rules “familiar and unquestionably constitutional”). 8 9 Holmes v. South Carolina, 547 U.S. 319, 324, 326-27 (2006); see also LaJoie v. Thompson, 217 10 F.3d 663, 668 (9th Cir. 2000). 11 Holmes did not involve extrinsic impeachment evidence., but rather evidence of third- 12 party guilt. However, assuming that exclusion of impeachment evidence for a witness can impair 13 a defense as much as not permitting evidence of, for example, third-party guilt, the undersigned 14 finds for the reasons set forth in the section above, that the extrinsic evidence to be produced still 15 lacks sufficient relevance to overcome the California Rape Shield law, i.e., the California Court 16 of Appeal was AEDPA reasonable in upholding its exclusion. Again, after-the-fact sexual 17 activities of the accuser per se, when the issue at hand is whether petitioner’s prior acts were 18 coercive, shed little, if any, light on the determinative coercion issue. Moreover, the list of high 19 school boys with whom the accuser purportedly had sexual relations either at the time petitioner 20 engaged in sexual activities with the accuser, or prior to such time, have no bearing on whether 21 petitioner, a father—in a much different context than high school boys—used coercion. The 22 accuser’s falsity in stating that she had not had sexual relations prior to those conceded by 23 petitioner does not evince a bias to lie about petitioner’s coercive activities, nor is it relevant to 24 show the non-existence of forceful or coercive acts in itself. 25 LaJoie, supra, a case involving child abuse, presents an example of when relevant 26 evidence exclusion may run afoul of Sixth Amendment due process rights. In LaJoie, evidence of 27 past sexual abuse was precluded by the trial court because of violation of procedural notice rules. 28 However, the Ninth Circuit determined than the preclusion policy behind the notice rules was 1 overcome by the relevance of the evidence: “(1) to provide an alternate source of VN’s ability to 2 explain sexual acts; (2) to offer an alternative explanation for the medical evidence of abuse that 3 the prosecution would be offering; and (3) to support LaJoie’s argument that VN’s allegations 4 were false and were invited by CSD caseworkers. LaJoie, 217 F.3d at 665-666. In the LaJoie 5 case, the defendant was questioning the existence of the criminal acts altogether, the government 6 conceded its relevance, id. at 671, and this alternative evidence could have persuaded the jury to 7 find that the activities of others caused the abuse attributed to defendant. This type of relevance 8 is lacking in petitioner’s case. 9 Moreover, the conclusion by the Court of Appeal here that the proffered evidence would 10 have taken up undue time, and would have been a distraction on the real issue as a reason not to 11 permit such evidence to overcome the policy of the Rape Shield Law, Klippenstein, 2018 WL 12 3298027, at *4, cannot be considered AEDPA unreasonable. 13 For the reasons set forth above, petitioner has not set forth an AEDPA cognizable Sixth 14 Amendment/Fourteenth Amendment claim, or if he as, it should be denied on the merits. 15 C. Whether the Admission Of Child Sexual Abuse Accommodation Syndrome Evidence 16 Violated Due Process 17 Petitioner claims that the introduction of CSAA evidence was unfairly prejudicial to him. 18 However, the Supreme Court has not announced that the admission of evidence, claimed to be 19 unlawfully prejudicial, violates the Due Process clause. 20 Under AEDPA, even clearly erroneous admissions of evidence that render a trial fundamentally unfair may not permit the grant of 21 federal habeas corpus relief if not forbidden by “clearly established Federal law,” as laid out by the Supreme Court. 28 U.S.C. § 22 2254(d). In cases where the Supreme Court has not adequately addressed a claim, this court cannot use its own precedent to find a 23 state court ruling unreasonable. Musladin, 549 U.S. at 77. 24 The Supreme Court has made very few rulings regarding the admission of evidence as a violation of due process. Although the 25 Court has been clear that a writ should be issued when constitutional errors have rendered the trial fundamentally unfair, 26 see Williams, 529 U.S. at 375, 120 S.Ct. 1495, it has not yet made a clear ruling that admission of irrelevant or overtly prejudicial 27 evidence constitutes a due process violation sufficient to warrant issuance of the writ. Absent such “clearly established Federal law,” 28 we cannot conclude that the state court's ruling was an 1 “unreasonable application.” Musladin, 549 U.S. at 77, 127 S.Ct. 649. Under the strict standards of AEDPA, we are therefore without 2 power to issue the writ on the basis of Holley's additional claims 3 Holley v. Yarborough, 568 F.3d 1091, 1101 fn. 2 (9th Cir. 2009) (emphasis added) (noting that if 4 it were free to rule on the issue, the Ninth Circuit would have found a violation of due process). 5 See also Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008); Alberni v. McDaniel, 458 6 F.3d 860, 866 (9th Cir. 2006); Soojian v. Lizarraga, No. 1:16-cv-00254-AWI-SAB-HC, 2018 WL 7 3155617 (E.D. Cal. June 25, 2018); Jones v. Spearman, No. 16-cv-03627-JD, 2018 WL 424402, 8 at *4 (N.D. Cal. Jan. 16, 2018); Garcia v. Madden, No. EDCV 17-00049-DOC-JDE, 2018 WL 9 910184, at *15 (C.D. Cal. Jan. 5, 2018). 10 Holley and its progeny did not hold that if the court believes a serious due process 11 violation exists, it is free to rule on the issue of admission of prejudicial evidence. “Without 12 power to rule” means just that— it does not mean “sometimes has the power to rule and 13 sometimes not.” Moreover, the mere characterizing of a prejudicial evidence claim as a 14 fundamentally unfair “due process” violation would render the Holley rule useless, i.e., the claim 15 of admission of prejudicial evidence would be reviewed on the merits, regardless, every time 16 since all due process claims in habeas corpus must rise to the level of fundamental unfairness to 17 be actionable. Again, the Ninth Circuit has held otherwise: 18 Zapien also argues that the admission of Perez’s statements was such an egregious violation of California evidentiary law that it 19 constituted a due process violation. It is not at all clear that there was a violation of California law, let alone one so fundamentally 20 unfair that it amounted to a due process violation. In any event, we’ve held that, “[u]nder AEDPA, even clearly erroneous 21 admissions of evidence that render a trial fundamentally unfair may not permit the grant of federal habeas corpus relief if not forbidden 22 by clearly established [Supreme Court precedent].” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (internal 23 quotation marks omitted). 24 Zapien v. Davis, 849 F.3d 787, 794 (9th Cir. 2015).2
25 2 See also Alberni v. McDaniel, 458 F.3d 860, 864 (9th Cir. 2006). The undersigned 26 follows the Holley/Zapien rule. Finally, Kipp v. Davis, 971 F.3d 939, 956 (9th Cir. 2020), is not to the contrary as the court in that case found that AEDPA did not apply. It therefore determined 27 the issue de novo and found that McKinney v. Rees, 993 F.2d 1378, 1381-82, 1385-86 (9th Cir. 1993) (barring improper propensity evidence), stated the applicable rule on propensity evidence. 28 1 Thus, it does not matter whether the evidence analysis of the Court of Appeal was spot on, 2 dubious, or unreasonable. No cognizable federal claim exists. Petitioner cites Gimenez v. Ochoa, 3 821 F.3d 1136, 1145 (9th Cir. 2016), for the proposition that the introduction of flawed expert 4 testimony can rise to the level of a due process violation. The Gimenez court specifically found 5 that other Circuit authority was the basis for the conclusion: “We join the Third Circuit in 6 recognizing that habeas petitioners can allege a constitutional violation from the introduction of 7 flawed expert testimony at trial if they show that the introduction of this evidence ‘undermined 8 the fundamental fairness of the entire trial.’ ” 821 F.3d at 1145 (citation omitted). There is either 9 a rule in AEDPA cases that an established Supreme Court holding has been unreasonably applied, 10 or there is not. See Brodit v. Cambra, 350 F.3d 985, 991 (9th Cir. 2003) (“Once again, Petitioner 11 cites no clear Supreme Court law that the California Court of Appeal violated or unreasonably 12 applied [in affirming the use of CSAA evidence].”) Without addressing the AEDPA issue, the 13 Ninth Circuit in Gimenez simply joined in the determination of the Third Circuit. Previous Ninth 14 Circuit cases cannot be overruled by a later panel unless the clearly established law has changed.3 15 But perhaps the undersigned has misinterpreted Holley et al. as applying to CSAA 16 evidence. If that is the case, the Court of Appeal cannot be found AEDPA unreasonable in 17 allowing its introduction. That is not to say that petitioner does not have a point in the abstract. 18 The CSAA evidence is very much “one way”—according to the testimony, there is little chance a 19 child can ever be found not credible as there is a reason why every seemingly inconsistent act 20 with the charge posited by the prosecution is not a problem. Moreover, the accuser/victim in this 21 case was nearly reaching adulthood at the time of her inconsistencies. But the way to combat that 22 is to introduce and argue evidence to make the defense point, not to make an after-the-fact 23 argument. 24 //// 25 //// 26 3 Moreover, the Ninth Circuit has upheld the use of this evidence against a due process 27 attack in Brodit v. Cambra, supra, 350 F.3d at 991 (citing Ninth Circuit authority). See also Otero v. Diaz, No. 2:19cv00381 MCE KJN P, 2020 WL 7406517 (E.D. Cal. Dec. 17, 2020). 28 1 To make a due process argument, petitioner must show that “ but for” the CSAA 2 evidence, petitioner would not have been found guilty of the forcible aspects of the charges. 3 Gimenez, supra, 821 F.3d at 1145. In this case, the Court of Appeal found: 4 Defendant contends the trial court abused its discretion in admitting expert evidence on CSAAS. CSAAS consists of five emotional 5 behaviors that have been observed in children who have experienced sexual abuse: (1) secrecy; (2) helplessness; (3) 6 entrapment and accommodation; (4) delayed disclosure; and (5) retraction. (See People v. Bowker (1988) 203 Cal.App.3d 385, 7 389.) “[E]xpert testimony on the common reactions of child molestation victims is not admissible to prove that the complaining 8 witness has in fact been sexually abused; it is admissible to rehabilitate such witness’s credibility when the defendant suggests 9 that the child’s conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming 10 molestation. [Citations.] ‘Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child 11 sexual abuse, and to explain the emotional antecedents of abused children’s seemingly self-impeaching behavior. [¶] The great 12 majority of courts approve such expert rebuttal testimony.’ [Citation.]” ( People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301, 13 fn. omitted.) 14 *** 15 We disagree with defendant’s contention that CSAAS evidence regarding delayed disclosure was inadmissible under Evidence 16 Code section 352. Defendant argues that, because S. was 17 years old when the alleged abuse occurred, the CSAAS evidence had 17 minimal relevance regarding her delay in reporting the abuse. Defendant further argues that the minimal relevance of the evidence 18 was outweighed by its prejudicial effect; specifically, the substantial danger that the jury would consider the expert testimony 19 about CSAAS as supporting S.’s claims of abuse. 20 The CSAAS evidence admitted in this case was probative for its limited purpose. It was used to rebut common misperceptions the 21 jury may have held about how children react to being sexually abused. It assisted the jurors in assessing S.’s credibility by placing 22 her behavior in the proper context. At trial, defense counsel attacked S.’s credibility in various ways, including questioning her 23 about her failure to report the assaults earlier. Without the CSAAS evidence on delayed reporting, the jury could have concluded that 24 the abuse did not occur simply because S. failed to report it immediately and continued to have a relationship with defendant. 25 Defendant has made no showing that the probative value of the CSAAS evidence was lessened because S. was 17 years old at the 26 time of the abuse. 27 The evidence’s probative value was not outweighed by its prejudicial impact. The CSAAS evidence in this case was properly 28 limited to the syndrome’s characteristics, including delayed 1 disclosure. Dr. Carmichael testified that he was not familiar with the facts of this case. He did not testify that S. was abused. His 2 testimony was limited to explaining the components of CSAAS. We reject defendant’s suggestion that the expert testimony invited 3 the jury to conclude S. had been sexually abused in the manner she claimed. In our view, no reasonable juror would interpret Dr. 4 Carmichael’s testimony as an expression of opinion on the question whether S. had been sexually abused by force or otherwise. (See 5 People v. Housley (1992) 6 Cal.App.4th 947, 955-956 [expert’s testimony that he had never met victim, and was unfamiliar with 6 particular facts of case, rendered it unlikely that jury would consider CSAAS testimony for improper purpose].) Moreover, the 7 court instructed the jury twice on the limited manner it could use the CSAAS evidence. The jury was specifically told that CSAAS 8 evidence was not evidence that defendant committed any of the crimes charged against him. 9 10 People v. Klippenstein, 2018 WL 3298027, at *5, 7. 11 This was not just a she said-he said case of coercive sexual abuse. Petitioner had on his 12 side testimony from his former wife that the accuser had told her that the sex was not coercive. 13 Klippenstein, 2018 WL 3298027, at *2. The jury simply did not believe petitioner’s testifying 14 witness. Perhaps that was because petitioner had himself admitted in a recorded pretext phone call 15 from the accuser/victim that he had forced himself upon the accuser/victim. Id. It is doubtful that 16 the expert’s CSAA testimony in the abstract made all that much difference. 17 Given this backdrop of legal authority and the facts, the undersigned cannot find that the 18 Court of Appeal was AEDPA unreasonable. 19 D. Whether the Jury Instruction Related to the CSAA Evidence Violated Due Process 20 The Court of Appeal’s decision is provided as follows: 21 Defendant contends the trial court’s limiting instruction concerning CSAAS (CALCRIM No. 1193) was flawed because the instruction 22 allowed jurors to base its verdict on the assumptions inherent in CSAAS; namely, that the molestation occurred if S.’s conduct was 23 not inconsistent with the conduct of someone exhibiting symptoms of CSAAS. Defendant takes issue with the last sentence in the trial 24 court’s instruction that stated the jury could consider CSAAS evidence “only in deciding whether or not S. Doe’s conduct was not 25 inconsistent with the conduct of someone who has been sexually abused, and in evaluating the believability of her testimony.” We 26 find no instructional error. 27 As previously indicated, the trial court instructed the jury at the close of trial pursuant to CALCRIM No. 1193 as follows: “You 28 have heard testimony from Dr. Blake Carmichael regarding child 1 sexual abuse accommodation syndrome. Dr. Blake Carmichael’s testimony about child sexual abuse accommodation syndrome is not 2 evidence that the Defendant committed any of the crimes charged against him. You may consider this evidence only in deciding 3 whether or not [S.] Doe’s conduct was not inconsistent with the conduct of someone who has been sexually abused and in 4 evaluating the believability of her testimony.” (See CALCRIM No. 1193.) 5 6 People v. Klippenstein, 2018 WL 3298027, at *7. 7 Petitioner’s challenge to the fairness of the instruction differs little from his challenge that 8 the evidence itself was unfair. The instruction precisely tracked the purpose of the introduction of 9 the evidence. It simply told the jury that it could consider the CSAA evidence in evaluating the 10 credibility of the accuser/victim. The jury was not instructed in any type of presumption, nor did 11 the instruction have anything to do with a reversal or diminution of the prosecution’s burden of 12 proof. If the evidence was admitted under an AEDPA reasonable rationale, it follows that the 13 jury instruction, limiting the use of the CSAA evidence to evaluating the accuser’s testimony, was 14 AEDPA reasonable as well. 15 Conclusion 16 Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must 17 issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A 18 certificate of appealability may issue only “if the applicant has made a substantial showing of the 19 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the reasons set forth in these 20 findings and recommendations, a substantial showing of the denial of a constitutional right has 21 not been made in this case. 22 Accordingly, IT IS HEREBY RECOMMENDED that: 23 1. Petitioner’s application for a writ of habeas corpus be denied on its merits and 24 dismissed; and 25 2. The District Court decline to issue a certificate of appealability. 26 These findings and recommendations are submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 28 after being served with these findings and recommendations, any party may file written 1 objections with the court and serve a copy on all parties. Such a document should be captioned 2 “Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections 3 shall be served and filed within fourteen days after service of the objections. The parties are 4 advised that failure to file objections within the specified time may waive the right to appeal the 5 District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 6 Dated: March 19, 2021 /s/ Gregory G. Hollows 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28