CHARLENE H. SORRENTINO, Magistrate Judge.
Petitioner, Gary Don Baldwin, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving an aggregate sentence of 126 years, 8 months plus 90 years to life following his 2007 conviction in the Sacramento County Superior Court for 13 counts of sexual abuse against his stepdaughter, and two counts of child abuse against his son and daughter. Here, Petitioner challenges the constitutionality of his convictions.
Petitioner presents two grounds for relief. Specifically, the claims are as follow:
Based on a thorough review of the record and applicable law, it is recommended that both of Petitioner's claims be denied.
The relevant facts of Petitioner's crime were summarized in the unpublished opinion of the California Court of Appeal, Third Appellate District, as follows:
Lodged Doc. 4 at 2.
Petitioner timely appealed his convictions to the California Court of Appeal, Third Appellate District. The court affirmed his convictions with a reasoned opinion on March 2, 2009. He then filed a petition for review of the appellate court's decision in the California Supreme Court. The court denied his petition without comment on May 13, 2009. Petitioner filed his federal petition for writ of habeas corpus on February 26, 2010. Respondent filed its answer on July 26, 2010, and Petitioner filed his traverse on November 1, 2010.
This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:
28 U.S.C. § 2254(d). See also Penry v. Johnson, 531 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). This court looks to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002).
Petitioner claims that the trial court improperly excluded the proffered testimony of Joseph Wardell and Leroy Russ. He alleges that the two men would have testified that Petitioner's wife, Gerilyn, and his stepdaughter, M., had previously fabricated accusations that Wardell and Russ had sexually molested M. Petitioner's theory of defense was that Gerilyn and D. also fabricated the accusations that he sexually molested D. because they wanted to get rid of him, and wanted to do so in a way that would afford Gerilyn sole custody of the children. Petitioner contends that the testimony of Wardell and Russ would have demonstrated that Gerilyn and her children had successfully employed the same technique in the past. Accordingly, the trial court's exclusion of the proposed testimony deprived him of his due process rights to present his theory of defense and to fully confront and cross-examine Gerilyn and M. at trial. The California Court of Appeal, Third Appellate District, considered and rejected Petitioner's claim on direct appeal, explaining as follows:
Defendant's claim centers around the following:
Lodged Doc. 4 at 5-8.
To the extent that Petitioner contends that he is entitled to habeas corpus relief based on an alleged violation of California state evidentiary law, his claim fails because habeas corpus will not lie to correct errors in the interpretation or application of state law. Estelle v. McGuire, 502 U.S. 62, 67 (1991). Absent some federal constitutional violation, a violation of state evidentiary law does not ordinarily provide a basis for federal habeas corpus relief. Estelle, 502 U.S. at 67-68. Accordingly, a state court's evidentiary ruling, even if erroneous, is grounds for federal habeas corpus relief only if it renders the state proceedings so fundamentally unfair as to violate due process. Drayden v. White, 232 F.3d 794, 710 (9th Cir. 2000); Spivey v. Rocha, 194 F.3d 971, 977-78 (9th Cir. 1999); Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991).
Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation of the Sixth Amendment, the United States Constitution guarantees criminal defendants a meaningful opportunity to present a defense and to present relevant evidence in their own defense. Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citing California v. Trombetta, 467 U.S. 479, 485 (1984); Chambers v. Mississippi, 410 U.S. 284, 294 (1973). This right is not unlimited, but rather, is subject to reasonable restrictions. United States v. Scheffer, 523 U.S. 303, 308 (1998). A criminal defendant "must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." Chambers, 410 U.S. at 302. Accordingly, there is no "unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Taylor v. Illinois, 484 U.S. 400, 410 (1988). "[W]ell-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors, such as unfair prejudice, confusion of the issues, or potential to mislead the jury." Holmes v. South Carolina, 547 U.S. 319, 326 (2006). Under the Constitution, states are afforded a "broad latitude" in establishing "rules excluding evidence from criminal trials." Id. at 324 (internal quotations omitted). Evidentiary rules "do not abridge an accused's right to present a defense so long as they are not arbitrary or disproportionate to the purposes they are designed to serve." Scheffer, 523 U.S. at 308 (internal quotations omitted).
In Petitioner's case, the trial court excluded the proffered testimony under section 352 of the California Evidence Code on the grounds that the probative value of the testimony was weak and was outweighed by a substantial likelihood of confusing the jury, would require an undue consumption of time, and may prejudice the defendant. Petitioner has failed to demonstrate how the trial court's exclusion of the proffered testimony was contrary to or an unreasonable application of the clearly established federal principles described above. The relevance of Petitioner's theory that Gerilyn and her daughter had fabricated similar allegations of sexual molestation against Wardell and Russ in the past depended upon the prior allegations being false. The actual falsity of the prior allegations, however, was not clear from the evidence and would have required testimony from a number of witnesses resulting, in essence, in miniature trials on each of the prior allegations. For the reasons stated by the state appellate court, the trial court properly exercised its discretion in excluding the proffered testimony of Joseph Wardell and Leroy Russ
Petitioner is not entitled to federal habeas corpus relief on this claim.
Petitioner claims that the trial court abused its discretion under sections 352 and 1108 of the California Evidence Code by admitting evidence of prior uncharged sexual misconduct committed by him against his stepdaughter, M. The jury was then instructed, pursuant to sections 1101 and 1108 of the California Evidence Code, that the acts or prior uncharged sexual misconduct could be used as evidence of Petitioner's propensity to commit sexual offenses against female minors, and as evidence that he was guilty of the charged offenses. According to Petitioner, the admission of the challenged evidence rendered his trial fundamentally unfair and denied him his federal right to due process of law. The California Court of Appeal, Third Appellate District, considered and rejected Petitioner's claim on direct appeal, explaining as follows:
Lodged Doc. 4 at 2-5.
Once again, to the extent that Petitioner claims that he is entitled to habeas corpus relief based on alleged violations of sections 352 and 1108 of the California Evidence Code, his claim fails because habeas corpus will not lie to correct errors in the interpretation or application of state law. Estelle, 502 U.S. at 67. The central issue, therefore, "is whether the state proceedings satisfied due process; the presence or absence of a state law violation is largely beside the point." Jammal v. VandeKamp, 926 F.2d 918, 919-20 (9th Cir. 1991). "`The admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process.'" Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (quoting Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995) (internal citation omitted)).
With respect to Petitioner's claim that the admission of the challenged testimony violated his federal right to due process of law,
Holley, 568 F.3d at 1101.
The Supreme Court has declined to hold that evidence of other crimes or bad acts "so infused the trial with unfairness as to deny due process of law." Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991) ("[W]e express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of `prior crimes' evidence to show propensity to commit a charged crime."); Alberni v. McDaniel, 458 F.3d 860, 866-67 (9th Cir. 2006) (noting that the Supreme Court has denied certiorari at least four times on the propensity evidence issue reserved in Estelle). Likewise, the Court has yet to rule on whether propensity evidence admitted in a criminal trial pursuant to state evidentiary law violates due process. Id. Accordingly, since the Supreme Court has not clearly established that use of propensity evidence in a criminal trial violates due process, a state court's decision on the matter cannot be contrary to or an unreasonable application of clearly established federal law. See Alberni, 458 F.3d at 867 (denying due process claim based on the use of propensity evidence for lack of a "clearly established" rule from the Supreme Court).
For all of the foregoing reasons, the petition should be denied. Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A certificate of appealability may issue only "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). For the reasons set forth in these findings and recommendations, a substantial showing of the denial of a constitutional right has not been made in this case.
Accordingly, IT IS HEREBY RECOMMENDED that:
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time waives the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Any reply to the objections shall be filed and served within seven days after service of the objections.
Our holding in United States v. LeMay, 260 F.3d 1018 (9th Cir. 2001), supports our conclusion that the admission of the propensity evidence did not violate [the petitioner's] due process rights. In LeMay, on direct appeal rather than collateral review, we upheld the introduction of evidence under Federal Rule of Evidence 414 — which is roughly analogous to California Rule of Evidence 1108, allowing former acts evidence with respect to allegations of child molestation — as being consistent with due process requirements. Id. at 1022. We noted that Rule 414 evidence must pass the requirements of Rules 402 and 403, id. at 1026-27, the federal analogs to California Rule of Evidence 352 under which [the witness'] testimony was admitted. We reasoned that due process requires that admission of prejudicial evidence not render a trial fundamentally unfair, which Rule 402, ensuring relevance, and Rule 403, guarding against overly prejudicial evidence, together guarantee. Id. California Evidence Rule 352 establishes a similar threshold for the propensity evidence introduced at [the petitioner's] trial, suggesting that under LeMay, Rule 352, like Federal Rules 402 and 403, safeguards due process and protected [the petitioner's] trial from fundamental unfairness.
Mejia v. Garcia, 534 F.3d 1036, 1047 n.5 (2008).
