FINDINGS AND RECOMMENDATIONS

GREGORY G. HOLLOWS, Magistrate Judge.

Introduction and Summary

Perhaps the most difficult claim in federal habeas is an assertion that a petitioner received ineffective assistance of counsel regarding strategic decisions. Not only are such decisions almost unassailable, but even what might be a favorable de novo decision in this area is further filtered through AEDPA deference—here, the ineffective assistance determination of the California Court of Appeal after evidentiary hearing on the ineffective assistance issues in the state trial court. However, petitioner does not claim ineffectiveness of counsel here simply on the choice of a defense strategy chosen by trial counsel; rather the "wrong" or "incomplete" defense was chosen because of an alleged lack of investigation. The overall mistrial verdict in the first trial "demonstrates" that counsel should have investigated and utilized a "peer contamination" defense in the second trial. Claiming that an alternative to the defense strategy chosen is the one which should have been employed is also particularly difficult from the prejudice standpoint— how does one really show a probable, different outcome on an argument that the unchosen defense would probably have changed the outcome, or was so much better, that "confidence in the outcome [in the second trial] is undermined." Petitioner's counsel argues that finding prejudice is easy here because the unchosen defense in the second trial was the one which "worked" in the first trial; at least it led to a mistrial.

Respondent rejoins that the charging circumstances were different in the second trial; hence one should not fault the defense counsel's strategy in the second trial, and finding prejudice is the proverbial equivalent of comparing apples and oranges.

After thorough review of the well written submissions by both sides, the undersigned recommends the petition be denied.

Procedural Background

People v. Vicars, No. C075022, 2017 WL 5712592, at *1 (Cal. Ct. App. Nov. 28, 2017) (cited hereafter as Vicars).1

In his first trial, petitioner was represented by Shannon Baker. However, petitioner's (and his family's) finances had fell on hard times on account of the first trial, and he could not continue with Baker. Petitioner retained Michael Chastaine for the second trial on a "flat fee" basis, i.e., Chastaine received a particular amount no matter how short or long it took to represent petitioner in the second trial. The ins and outs of the conflicting strategies utilized by the two counsel are set forth at length herein but suffice it to say that the strategies involved were quite different in important respects.

After conviction in the second trial, petitioner fired Chastaine, and re-hired Baker for purposes of a motion for new trial. Petitioner received an evidentiary hearing in the state trial court on the motion for new trial concerning ineffective assistance of counsel (Chastaine). Petitioner's motion for new trial was denied. He then filed an appeal raising numerous ineffective assistance grounds, and this appeal was denied on November 28, 2017. The petition for review before the California Supreme Court was denied on March 14, 2018.

Without further exhaustion in the state courts, petitioner filed this federal petition through counsel on November 20, 2018.

Issue Presented

Petitioner makes one overarching issue: Counsel at Petitioner's Retrial Rendered Ineffective Assistance Under [The Sixth] Amendment By Selecting a Defense That Required Little Preparation And Failing to Review The Material and Transcripts from the Original Trial That Would Have Allowed Him to Present the Stronger Defense. ECF No. 1 at 6.

The omitted defense in this child molestation retrial centered around a "peer contamination" theory, i.e., the two children at issue in the retrial had their memories of the events influenced, even created by, rumors of petitioner's sexual misconduct spread by their schoolmate peers. This defense is asserted to be one which would have required nearly complete review of the pretrial transcripts, and a presentation in some form of the retributive accusations of some molested victims at retrial who were not formally part of the retrial charges but had been at the first trial. The defense at retrial actually employed was termed "false memory," i.e., the children's memories of the alleged molestations were falsely created by outside parental or authority figure suggestions, elapsed time, and a desire to conform their memories to "what they had heard." However as noted above, this defense expressly rejected basing the false memory defense on the accusations of the children's-at-issue peers—the alleged molest victims in the first case not expressly part of the charging document counts in the retrial.2

Petitioner argues that the decision not to introduce evidence concerning rumor creation by the non-charged molested victims was born of counsel's desire to save time, and hence preserve the economic viability of his "flat fee" arrangement. Alternatively, respondent and trial counsel posited the dangers in introducing more molestation incidents to the jury.

At the end of the Points and Authorities, petitioner raises "Trial counsel's other mistakes at retrial." These mistakes include the failure to impeach the "charged children's"3 association with each other, a failure to object to prosecutorial misconduct in closing argument, and a failure to challenge a jury instruction. It was unclear whether these additional accusations of ineffectiveness were supposed to stand on their own, or were added merely as "ineffectiveness flavor" designed to buttress the overarching charge. At hearing, counsel for petitioner indicated that these issues were additive to the main issue. The undersigned will address these sub-issues as they impact the main issue of failure to investigate.

Factual Background

The facts pertinent to the issue in this case are taken from the opinion of the Third District Court of Appeal:

On the occasion when D. had asked for the game from the office, defendant stopped rubbing D.'s stomach and told D. to "get his wallet out." D. testified that "every single time I'd first rub it from the outside, every time. I would never start rubbing it from the inside." 6. A subsequent time when D. put his hand on defendant's penis underneath defendant's clothing while in the office.

On that last occasion, D. also shook the wallet from inside defendant's pants for about a minute. Defendant's wallet felt slimy. The wallet fell out and D. was rewarded with "the gold or soldier." After they went inside, defendant told D. not to tell any of the other children "`cause it wouldn't be fair.'" Defendant stopped asking D. to help find his wallet when D. was in second grade.

1. The first-time victim J. put his hand on defendant's groin area.

J. testified he had been trying to forget incidents with defendant and his recollection was better during an earlier Sexual Assault Forensic Evaluation (SAFE) interview.

Vicars, at *2-4.

The defense case was not lengthy. It consisted of one witness, Dr. O'Donohue, who testified generally about the creation of false memories; there were no specifics given from the record concerning the potential for a technique/question to give rise to false memory. Indeed, the expert did not even relate what in the record he had reviewed. This testimony took about half a day of the trial.4 See ECF No. 14-14 at 181-253 (including cross-examination). The expert did make some general allusions to examples which might have been applicable to the case, but he did not specifically relate the examples to the case.

In fairness, a part of the defense case was the cross-examination of the two boys. This cross-examination brought out some inconsistencies between the SAFE interviews taken before the first trial, and a video made by D's father prior to the SAFE interview, and the testimony in the second trial.

With respect to child D (ECF No. 14-13 at 210-234), the cross-examination primarily focused on the video that D's father made regarding the alleged molestation incidents, especially where D had been told that petitioner "had broken the law." See, e.g., ECF 14-13 at 215. D was also questioned regarding his prior statements that the molestations (wallet game) occurred about five times, and his present testimony regarding 20-30 times (Id. at 214)5; his confusion as to which pocket the wallet was located; possible inconsistency about the shape of the wallet; the problematic fact that some molestations occurred in an indoor closet while all the other children were in the classroom; and various other possible inconsistencies.

J's cross-examination was relatively short. ECF No. 14-14 at 4-13. Curiously, like D, J had stated in an earlier interview that the molestations occurred 6 times, but testified at trial 20-30 was the correct number. J ultimately testified that he did not know how many times it happened, and that he was making a "guess." Id. at 7.6 Also, J was questioned on the fact that he had previously related that a cell phone was involved and not a wallet. Id. at 9. Counsel also focused upon the fact that J had been told before interviewing that petitioner was in jail for the things he had done, and he would never teach again. See id. at 8, 10. The cross-examination of J ended shortly after it began, and it appeared that J would be called for further testimony, but that never happened for unexplained reasons. See id. at 11, 12, 13.

Factual and Legal Findings of the State Courts

1. Motion for New Trial/Evidentiary Hearing

As referenced above, after the guilty verdicts in the second trial, petitioner's second trial counsel was replaced by trial counsel who had represented petitioner in the first trial (Shannon Baker). She brought a motion for new trial based on second counsel's ineffectiveness. The motion was quite comprehensive. See ECF No. 14-7 at 110 et seq. (The filings cover several volumes of the CT). In support, Baker filed, inter alia, the first trial transcripts of the children, the charges for whom had been dropped by the prosecutor in the second trial. At least one statement was filed from an aide at the school where petitioner worked which cast doubt on the logistical ability of petitioner to molest the children. An exhibit was filed showing the relative infrequent times J had attended the "Discovery Club," with an assertion that J was not present at the times alleged for the molestations. A declaration from a lawyer expert, Quin Denvir, was also submitted who opined, in part, that reasonable counsel would have reviewed all the available transcripts (including those which could have been transcribed) and material from the first trial. Neither the motion nor the expert's declaration opined that the prejudice standard for ineffective assistance claims were met; the subject was not discussed.

The opposition countered each point set forth in the motion for new trial.

The trial judge (Hon. Emily Vasquez) held an evidentiary hearing on the motion for new trial. Quin Denvir was the first witness called. He had only reviewed the motion and a few declarations; he did not review the exhibits attached to the motion. His testimony focused upon the non-attempt by trial counsel to demonstrate a connection between the two children, J and D, and the likelihood that they had associated to some degree "got their stories straight." Denvir also opined that the asserted failure to bring into evidence the "rumors" of petitioner's misconduct; again, this evidence would have tended to substantiate the basis for petitioner's false memory defense and/or the fact that the entire misconduct had been fabricated by other children who had a bias against petitioner and then circulated as the facts of the case. Finally, a possibly defective jury instruction, which is not a direct claim at issue in this petition, was discussed. On cross-examination, the deputy district attorney stressed that to the extent the other children had been discussed at trial, she would have then been free to develop the facts that these children had testified (in the first trial) that they were abused by petitioner as well. Some other matters were discussed such as the "failure" of trial counsel to bring into evidence that the parents (who inferentially coached their children) had a financial interest in the outcome of the criminal case due to pending civil lawsuits.

Trial attorney in the second case (Chastaine) then testified. Although he had filed a barebones declaration on behalf of petitioner, succinctly stating only what he had not investigated), he was called by the deputy district attorney. Trial counsel was defensive (not in a bad sense) on what he had not done or done, and why those actions had been performed. Counsel developed that he had quite a bit of experience handling sexual crimes defense. He charged petitioner (and his family) a "flat rate" for taking the case—expert expenses were additional. Counsel related that he had spoken to Ms. Baker, and other attorneys with respect to general questions or issues. Importantly, counsel related that he had thought quite a bit of whether to bring into evidence the non-charged children's rumor creation/dissemination at risk of exposing the jury to testimony that these children had been abused as well with the "wallet game." In finally deciding to go with the "slimmed down" version of the defense as outline previously (a difficult decision), he thought there was enough impeachment material of the children involved in the criminal charges for the second trial, and that the risks of having additional children testify had too great a tendency to poison the jury. He did not, however, prior to making his strategy decision, do any substantial investigation of the record of the first trial (aside from the testimony of the children pertinent to the second trial charges), including obtaining/reviewing transcripts of the children who had testified in the larger first trial. The record from the first trial comprised approximately 17,000 to 18,000 pages. He thought about introducing evidence of the potential financial bias of the parents of the charged children but thought the settlement of that case against the school overly complicated the matter. With respect to calling other teacher personnel to show that it would have been difficult for petitioner to have the opportunity to perform the molestations, counsel testified that he did not call these personnel because the "lack-of-opportunity" strategy was not what his defense focused upon. Counsel believed that he did not have sufficient information on the charged children's association to attempt bring that out as a possible basis for the false memory defense. Finally, counsel thought that he had "dropped the ball" in not objecting to the jury instruction which could have made it appear that the jury did not have to be unanimous for each of the separate charges—just that petitioner had been found to have performed one of the acts pertinent to the charges.

Because the factual findings of the trial judge are critical in an AEDPA analysis, the undersigned sets forth here the entirety of the trial judge's ruling:

ECF No. 14-15 at 232 (to end); 14-16 at 1-13.

An appeal was taken. Again, at the risk of making these Findings and Recommendations very lengthy, it is important to set forth the entire reasoning of the Court of Appeal, at least with respect to the overarching issue:

Vicars, at *7-8.

Ineffective Assistance of Counsel Legal Standards in an AEDPA Case

The Supreme Court has clearly spoken of the AEDPA standards in reviewing an ineffective assistance of counsel claim pursuant to Strickland v. Washington, 466 U.S. 684 (1984) in Harrington v. Richter, 562 U.S. 86 (2011); and Cullen v. Pinholster, 563 U.S. 170 (2011). It is not necessary to go further than quoting from those three cases:

Harrington v. Richter, 562 U.S. 86, 104-105 (2011) (emphasis added).

Nor is the AEDPA reasonableness finding limited to express legal holdings of the state courts in the case:

Cullen v. Pinholster, 563 U.S. 170, 187-188 (2011) (emphasis added)

In speaking directly to the issue here, and remembering the above injunction on the double deference given to AEDPA cases:

Strickland v. Washington, 466 U.S. 668, 691 (1984) (emphasis added).7

The ultimate questions of effectiveness of counsel are issues of law. Strickland, at 698; Thompson v. Keohane, 516 U.S. 99, 111 (1995). However, there may be subsidiary factual findings, e.g., just how extensive was an investigation, subject to section 2254(e) [then subsection [d]. Strickland, at 698.

Discussion

A. Counsel's Decision Not to Introduce Evidence From "Uncharged Children" To Buttress the "False Memory" Theory, and the Investigation Pertinent Thereto

Again, use of the term "uncharged children" is simply a shorthand to reference those children whose abuse accusations were part of the charged counts in the first trial, but whose accusations had been dropped by the prosecution in the second trial. The "charged children" in the second trial were D and J.

Both the trial court and especially the Court of Appeal, referenced trial counsel's "extensive investigation." This is a finding of fact that must be found AEDPA unreasonable by "clear and convincing" evidence. That is, could any reasonable argument be made that this finding is true. The answer is "yes," if one considers the primary part of the investigation to be an extensive thought process as opposed to an encyclopedic review of records.

It is undisputed that counsel did not make an investigation of the entirety of the first trial. Indeed, he did relatively little looking into the transcripts and other evidence of the first trial— 17,000 pages or so. Even trial counsel conclusively determined that he did not think such investigation was necessary when he testified that he would have looked at everything if the four children dismissed from being named in charges in the second case had been part of the charged counts against petitioner. Trial counsel essentially reviewed what he would need to impeach the two "charged children" and expert testimony. The argument made by petitioner herein is essentially that counsel made a strategic decision first, which then governed his investigative decision with respect to not investigating all of the children's testimony. Petitioner strongly argues that this is a backwards, unreasonable way of proceeding, and that if counsel had proceeded with full investigative efforts first, he would have inexorably come to the conclusion to reference/introduce the uncharged children's abuse claims bias in the second trial.

Thus, petitioner's argument about an unreasonable finding of the facts is largely inconsequential. The investigative facts are not really in significant dispute. Clearly, trial counsel did not testify that he had reviewed the entire files; indeed, he testified (and declared) that he had investigated relatively few documents of the first trial. So too the opinion of Quin Denvir. The role of this very learned expert was not to find facts, but to opine on the larger question of whether the lack of a full investigation first before making a strategic decision, fell far below the standards of reasonable counsel. This is a legal question. This opinion was reviewed (and rejected) by the equally learned trial judge and justices on the Court of Appeal. Moreover, it is undisputed that trial counsel sought out the opinions of other lawyers with respect to issues in the case, although the precise issues discussed were not recollected with any specificity—no dispute here.8 The real issue here is whether making a strategic decision without having done a complete investigation of the files of the first trial was ineffective assistance, and hence the decisions of the trial court and Court of Appeal were AEDPA unreasonable.

Petitioner relies strongly on Weeden v. Johnson, 854 F.3d 1063, 1070 (9th Cir. 2017), for the proposition that investigation must precede strategy decisions. While such is a good general rule, the case cannot be read as one forbidding any determination of strategy before a full investigation of facts which lead to the ineluctable conclusion that the strategy could not be employed. As footnote 7 points out, such a mandatory rule would be contrary to the very words of Strickland. Surely, at times, some strategy decisions can be made without factual investigation because of a palpable, unacceptable risk in the risk-benefit analysis, no matter the ins and outs of all the facts which might be discovered through investigation. As referenced by respondent, even the Ninth Circuit agrees. "However, it has never explained what amount of investigation is sufficient. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments. Matylinsky v. Budge, 577 F.3d 1083, 1093 (9th Cir. 2009) (citations and internal quotation marks omitted); see also Miles v. Ryan, 713 F.3d 477, 491 (9th Cir. 2013).

However, in reaching the overall legal issue of ineffectiveness, petitioner's argument has some color to it. There is no other way of looking at the fact that the choice made not to reference the uncharged children made the "false memory" case actually presented rather thin. It consisted of cross-examination of two children on a few points of inconsistency, and a generalized, inferential suggestion by the defense expert that inconsistencies such as these could be explained by false memory creation.9 And there were troubling-to-the-undersigned conforming aspects of D and J's testimony which might have been aided by further examples of potential falsity in the abuse allegations from others—incidents which D and J might have heard from others—the "rumors"—which were then transformed into memorable events. Both D and J testified to about 5 or 6 abuse occasions in interviews, and then each boy increased the abuse incidents involving themselves to approximately 20-30 in their trial testimony.10 While one similarity in number might be coincidental, taken collectively, the fact that both the pre-trial and increased trial accusations conformed nearly identically is suggestive of memory contamination. Moreover, the sheer number of abuse allegations if taken collectively, i.e., with the uncharged boys' allegations being included, began to stretch credulity. That is, abuse incidents would nearly have had to have been a daily occurrence, even perhaps multiple times a day.11

On the other hand, as found by the trial court and Court of Appeal, no matter how trial counsel tip-toed around the "uncharged children's abuse claims," i.e., just trying to introduce rumors of other abuse allegations, it is undoubtedly true that the prosecution could have sought to introduce, probably successfully, the actual abused claims of the uncharged children to counteract any implied falsity/inaccuracy of the other allegations Any reasonable person could predict the possibility of disastrous consequences here—petitioner would be viewed a pervert of the highest magnitude drowning out any false memory defense. Moreover, the defense involving allegations from two children might well be obscured by mini-trials on the abuse allegations of all children. It is one thing to be forced to defend the allegations of six children, as petitioner's skilled first counsel was so faced, and develop a strategy to deal with that situation; it is another to be faced with a situation where only two of the numerous children are left germane to the actual charges.

It is clear from the context of the facts that trial counsel thought extensively of the latter scenario. He concluded that having the claims of others introduced would be snatching defeat from the jaws of the previous "victory,"—the dropping of the majority of the children's charges against petitioner. There was at this point, counsel had to have reasoned, no necessity in reviewing the other children's facts in any depth no matter how enticing to a false memory defense they might appear; he wasn't going to use them in any event. Apparent to counsel was the choice of a rather thin reed of defense to wave before the jury, versus a possible, crushing hammer blow from having all the allegations aired. As counsel testified at evidentiary hearing, he "agonized" over this decision.

Petitioner's counsel insists that the "terrifically good" verdict in the first trial proves that the appropriate defense was the peer contamination defense, and not the false memory defense without evidence of peer contamination. However, counsel's argument proves too much. The appropriate perspective of the mistrial in the first trial is not the overall result, but the viewing of the mistrial verdicts only vis-a-vis the children in the first trial who were also the named victims (the "charged children") in the retrial. At hearing, counsel related that the verdict count in the case of the charged children revealed that a large majority, or at least a majority, of first trial jurors voted to convict petitioner.12 This was so despite the fact that the peer contamination theory was front and center in the first trial. In other words, the jurors, for the most part, believed D and J even though the jurors in the first trial were less sure of the credibility of the children who were dropped as named victims in the second trial. Reasonable counsel would have taken this into account in determining whether the peer contamination theory was worth the candle in the second trial given the serious potential damage to be done, and the confusion to be sown in the second trial, by the very probable introduction of other acts of sexual misconduct by petitioner. The risks of the peer contamination theory did outweigh the potential benefits.

Thus, coming to the bottom line, the issue is: could any reasonable jurist believe that counsel's making the strategic decision first, and obviating the remainder of the investigation, be viewed as reasonable. Again, Strickland itself understood there were occasions where a defense could be chosen without full investigation of other options. While there can be disagreement on the topic of the ultimate strategy chosen, or whether as a matter of good practice it is better to err on the side of investigation to better inform the decision, the undersigned finds that a strategy to keep the case confined to the two charged children, one that permitted counsel to truncate the investigation and not waste time, is a strategy reasonable jurists could accept as reasonable.

This is so even though an inference could be drawn that counsel who enlist clients with a "flat fee" arrangement might be unduly tempted to truncate an investigation so that the monetary aspects of the client's representation would not be diluted. Regardless, the specter of the crushing blow would be present in any event.

In terms of prejudice, the concept of unreasonable behavior and prejudice merge to a large degree. The less reasonable counsel's decision to not buttress the chosen defense, the more likely that the evidence foregone would have made a difference. It is simply not prejudicial to fail to marshal very problematic evidence. It becomes more prejudicial to fail to present available-by-investigation, strong, probative and relatively risk-free evidence. Because counsel's risk-benefit analysis cannot be declared AEDPA unreasonable, it would be difficult to label it unduly prejudicial.

B. Other Ineffectiveness

1. Failure to Produce Through Cross-Examination Impeachment Evidence of the Charged Children's "Relationship"

Petitioner asserts that it was unreasonable not to impeach the charged children's inconsistencies in testimony and interview statements about their relationship. Showing a close relationship between the children could raise an arguable inference to show that their memories of abuse events were feeding off each other and perhaps were created, but not accurate, memories. The Court of Appeal held:

Vicars, at *9-10.

The undersigned has some issues with the reasonableness of trial counsel's non-impeachment of the charged children's potential relationship. Again, the "false memories" had to be created by something, and inferential, possible discussions of the children might show a basis for such created memories. The undersigned reiterates that it was troubling that the children had nearly identical testimony about the number of abuse incidents involved—both at first in interviews, and later in the increase of incidents during trial testimony. Moreover, if cross-examination of children is so problematic, why do it all. Counsel was not deemed ineffective for the cross-examination he did perform even if it was "dangerous;" rather he was adept at his cross-examination of the children, and there is no reason to believe he could not have been adept in this area. Finally, whether correctly or incorrectly suppressed, petitioner's expert was not permitted even to testify to any case related basis for the possibility that false memories were created in this case.13 The more fact-based inferences he could argue, the better as the defense case was, as stated previously—thin. Ultimately, however, the undersigned cannot find that both state courts were AEDPA unreasonable in finding that counsel's "failure to impeach" was a matter of non-actionable tactics.

In addition, the undersigned cannot find that the required demonstration of ineffectiveness prejudice exists in this case, i.e., that confidence in the outcome should be undermined. As pointed out by the trial judge and the appellate court, the matter of "friendship" was subjective as many children could believe that they were friends with all classmates, while others might deem friends to be only closely held relationships. The difference in age of the two children would be important in this respect as well as differences in maturation and development are starker in the younger years leading to a more doubtful "friendship" relationship. The lack of any direct evidence that the charged children spoke to each other about the made impeachment on the matter of friendship is not the "case-breaker,'" petitioner would have the court believe.

2. Counsel's Decision to Forego Some Investigation of Discovery Club Employees and Failure to Present "Lack of Opportunity" Defense/Evidence

The prosecution presented some witnesses who related, in essence, that petitioner might have had the opportunity to perform the alleged misconduct even though there were a myriad of staff (and sometimes students) in the areas where the misconduct occurred. One particular damaging piece of testimony was one employee's recollection that she had walked into a location where she found petitioner and a child in a potentially compromising position. This evidence was somewhat mitigated by effective cross-examination. Petitioner argued in the state courts that it was ineffective assistance not to bring in available, better witnesses on petitioner's behalf to show the lack of opportunity.

This issue, not referenced directly in the Petition or Traverse, was argued strongly before the Court of Appeal. However, it must be deemed waived here in that the lack of reference or argument usually ends at that result. It is beyond dispute that the absence of argument on an issue in a brief establishes waiver of that issue. Jones v. Wood, 207 F.3d 557, 562 n.2 (9th Cir. 2000) (failure to argue an issue in an opening brief). Issues raised in a party's brief but not specifically argued are likewise deemed abandoned. Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1992).

In the alternative, if the issue is reached, the Court of Appeal found:

Vicars, at *11.

The Court of Appeal went on to recount that the prosecution employee witnesses were not all helpful to a "no opportunity" defense, and that it was reasonable for counsel to reject an "opportunity" defense because the additional witnesses would have essentially been a "wash" rendering the defense not very good. If the ineffectiveness issue were presently an "opportunity defense in lieu of a false memory defense, or as one distinct and separate from the memory defense, the undersigned can find no fault with this analysis. However, with due respect, the analysis of the usefulness of the good-for-petitioner employee testimony was not relegated to an all-or-nothing opportunity defense.

It is common sense that the less logistical opportunity for abuse incidents to have taken place, the stronger the inference can be argued (along with other evidence) that the children's memories must have been contaminated with situations not actually taking place in reality. That is, a reasonable juror would begin to question the plausibility of the children's recollections if they seemed logistically far-fetched. Another way of phrasing it is: how did the children remember what seems to be countered by the logistical difficulty associated with their recollections—perhaps by the creation of a false memory—maybe there was some merit to the expert's general false memory testimony. This is especially true in questioning the logistical viability of upwards of 60 incidents for the two charged children alone. As has been stated on several occasions already, petitioner needed evidence from whatever source to substantiate the potential for false memory creation. Thus, the question is not whether the opportunity defense was strong enough as a stand-alone defense; the question is whether such evidence would have been additive in the mind of a reasonable juror who was being asked by the defense to find (at least to a reasonable doubt) that the children had somehow had their memories "falsely created."

As also has been stated previously, the request by the defense to reject children's testimony about abuse incidents is a tall order. This is especially so in a case involving an assertion that the children's testimony to memories actually had no basis in fact—the whole abuse thing was a complete, unfortunate fiction. We all have been subject to constant, repetitive examples involving horrible child abuse. Despite admonitions that the defense starts out without any burden, indeed a presumption of innocence, it is difficult for any person to find after a child's testimony that innocent children, for whatever reason, have testified to completely false memories about the gist of abuse allegations. That is why defense counsel are required to perform necessary investigations, and to present what they can to raise reasonable doubts as to the accuracy of a child's abuse testimony. While the burden of proof always remains on the prosecution, the practically of the matter is that child abuse testimony calls out loudly for a production of rebuttal evidence—if it is available and not problematic in itself. The defense in this case was tasked with marshalling such evidence.

The undersigned cannot find any real downside for counsel to have supplemented his case with testimony which contradicted the attempt by the prosecution to show that petitioner did have chances to do the alleged deeds without being found out, and more importantly, the assistance of employee witnesses could have been argued as a reason to believe that a false memory must have been created. After all, the defense-in-chief consisted of exactly one witness who was not allowed to address the specifics of the case. While these aforementioned favorable, employee defense witnesses would not have won the case with their testimony alone, the testimony would have assisted in allowing counsel to argue that his expert was correct in raising the specter of false memories, and the children's memories had to be inaccurate or "false," because.... For the above reasons, counsel was AEDPA unreasonable in this regard with respect to his investigation and presentation of witnesses.

The question then becomes was the failure to present these witnesses prejudicial in the ineffective assistance sense, i.e., does it undermine confidence in the verdict. The undersigned cannot find that this omission rises to the level of prejudice required. Firstly, counsel did do a sufficient job on cross-examination of the prosecution witnesses to raise some questions about petitioner's "opportunity." While the omitted witnesses would have helped further, it cannot be said that it was probable that a juror would disbelieve the children in their entirety about any abuse incident taking place per se. The children's testimony was simply too specific and graphic for these employee witnesses to have probably won the day with any juror.

3. Miscellaneous Arguments

Petitioner references two other examples of petitioner's ineffectiveness: a failure to object to the prosecutor's undisputedly improper argument, and failure to object to or supplement an ambiguous unanimity jury instruction. The undersigned does not have much to add to the discussion of these issues in addition to what was set forth by the trial court and the Court of Appeal; the analysis of the appellate court follows:

Vicars, at *15-18.

It is questionable that reasonable jurors need an instruction to determine the impropriety of such argument. While many times it is appropriate strategy to officially call attention to such tactics, thereby disrupting the offender's final argument and thereby taming it down, the improper argument largely speaks for itself. In any event, the California Court of Appeal's determination is one that reasonable jurists could accept.

Finally, with respect to the asserted, errant jury instruction, counsel testified at evidentiary hearing that he had "dropped the ball" in not objecting to the following instruction:

Vicars, at * 22.

Each count had multiple acts alleged. ECF No 14-6 at 94-101 (Second Amended Information). Generally, the counts alleged that petitioner's body was touched and/or the children's body was touched, all for the purpose of sexual excitement. It stands to reason, given the other instructions set forth above, that a reasonable juror would understand that the jurors collectively would have to agree which act was committed for a specific count. Moreover, no party points to any prosecutorial argument which indicated that the jury could find any act true, and such would stand in place of individual count determinations. While the instruction is ambiguous in the abstract, perhaps even improper, it was not so in reality. If the "ball was dropped," it was not dropped very far, and it was quickly caught again by virtue of the additional instructions and lack of any error in arguing such.

Conclusion

Although petitioner has the right to be concerned that his defense was unduly truncated in this case, the undersigned cannot find the assertions of trial counsel deficiency to be AEDPA actionable. The petition should be denied.

However, the undersigned recommends that a Certificate of Appealability be issued as petitioner has raised a colorable issue with respect to the lack of investigation and presentation of a peer contamination theory which could have been used to support a false memory defense.

Accordingly, IT IS HEREBY RECOMMENDED that:

1. Petitioner's application for a writ of habeas corpus be denied; and

2. The District Court issue a certificate of appealability as to petitioner's issue with respect to the lack of investigation and presentation of a peer contamination theory which could have been used to support a false memory defense.

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." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).