ORDER: (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS; and (2) DENYING CERTIFICATE OF APPEALABILITY

LARRY ALAN BURNS, District Judge.

I. INTRODUCTION

Petitioner Robert Andrew Poizner, a state prisoner represented by counsel, has filed a First Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition") challenging his convictions in San Diego County Superior Court Case No. SCD230891 for committing lewd and lascivious acts with a child, committing lewd acts on a child, sexual battery, exhibiting harmful matter to a minor, distributing or exhibiting harmful matter to a child, contributing to the delinquency of a minor, dissuading a witness, and disobeying a court order. (Pet., ECF No. 12.)1 Poizner raises fourteen claims in the petition he has filed in this Court.

The Court has read and considered the Petition [ECF No. 12], the Answer and Memorandum of Points and Authorities in Support of the Answer [ECF No. 19], Petitioner's Traverse [ECF No. 22], the Supplemental Answer [ECF No. 28], the Supplemental Traverse [ECF No. 29], the lodgments and other documents filed in this case, and the legal arguments presented by both parties. For the reasons discussed below, the Court DENIES the petition and DENIES a Certificate of Appealability.

II. FACTUAL BACKGROUND

This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); see also Parle v. Fraley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from these facts, are entitled to statutory presumption of correctness). The following facts are taken from the California Court of Appeal opinion:

(Lodgment No. 6 at 3-10.)

III. PROCEDURAL BACKGROUND

On November 19, 2010, the San Diego County District Attorney's Office filed a consolidated amended information charging Robert Andrew Poizner with ten counts of lewd acts on a child, a violation of California Penal Code (Penal Code) § 288(a) (counts one through six, nine through ten, and twenty-two through twenty-three), three counts of distributing harmful matter to a minor with the intent to seduce, a violation of Penal Code § 288.2(a) (counts seven, eight, and fifteen), four counts of lewd acts on a child of fourteen or fifteen years, a violation of Penal Code § 288(c)(1) (counts eleven through fourteen), three counts of distributing or exhibiting harmful matter to a minor, a violation of Penal Code § 313.1(a) (counts sixteen, nineteen, and twenty-seven), four counts of contributing to the delinquency of a minor, a violation of Penal Code § 272(a)(1) (counts seventeen, twenty, twenty-one, and twenty-four), two counts of attempting to dissuade a witness, a violation of Penal Code § 136.1(a)(2) (counts eighteen and twenty-five), and two counts of disobeying a court order, a violation of Penal Code § 166(a)(4) (counts twenty-six and twenty-eight). (Lodgment No. 1, vol. 1 at 0024-35.) As to counts one through six, nine, ten, twenty-two, and twenty-three, the information also alleged the offenses were committed against more than one victim, within the meaning of Penal Code §§ 667.61(b)(c)(e) and 1203.066(a)(7). (Id.) The information also alleged as to counts two, five, twenty-two, and twenty-three, that Poizner had substantial sexual contact with two of his victims, within the meaning of Penal Code § 1203.066(a)(8), and as to counts two and five, that Poizner "used matter depicting sexual conduct," within the meaning of Penal Code § 1203.066(a)(9). (Id.) Finally, the information alleged that Poizner had attempted to dissuade a witness, counts eighteen and twenty-five, while out of custody on bail, within the meaning of Penal Code § 12022.1(b). (Id.) The Penal Code § 1203.066(a)(8) allegation associated with counts twenty-three and twenty-four were dismissed after trial had begun.2 (See id. at 0034.)

Following a jury trial, Poizner was convicted of counts one through eight, count twelve, and counts fourteen through twenty-eight. (Lodgment No. 1, vol. 2 at 0307-46.) The jury also found all the allegations associated with those counts to be true. (Id.) The jury found Poizner not guilty of counts nine through eleven and thirteen. (Id. at 0319-23, 0321.) He was sentenced to seventy-five years-to-life plus seven years in prison. (Lodgment No. 1, vol. 2 at 0264.)

Poizner appealed his convictions to the California Court of Appeal for the Fourth Appellate District, Division One. (Lodgment Nos. 3-5.) The state appellate court affirmed his convictions in a written opinion.3 (Lodgment No. 6.) Poizner then filed a petition for review in the California Supreme Court. (Lodgment No. 7.) The California Supreme Court denied the petition for review without citation of authority. (Lodgment No. 8.)

Next, Poizner filed a petition for writ of habeas corpus in the San Diego Superior Court. (Lodgment No. 9.) The superior court denied the petition without prejudice in a written opinion. (Lodgment No. 10.) A subsequent habeas corpus petition filed in the California Court of Appeal was denied in a written opinion as well. (Lodgment No. 11.) Finally, Poizner filed a petition for review of the appellate court's denial of his writ of habeas corpus in the California Supreme Court. (Lodgment No. 12.) That petition was denied without citation of authority. (Lodgment No. 13.)

Poizner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court on July 7, 2014, and a First Amended Petition on November 13, 2014. (ECF Nos. 1, 12.) Respondent filed an Answer and Memorandum in Support of the Answer on February 11, 2015. (ECF No. 19.) Poizner filed a Traverse on February 25, 2015. (ECF No. 12.) Pursuant to an Order by this Court, Respondent filed a Supplemental Answer on September 17, 2015, and Poizner filed a Supplemental Traverse on September 24, 2015. (ECF Nos. 28-29.)

IV. DISCUSSION

Poizner raises fourteen claims in his Petition. First, he claims newly discovered evidence proves his factual innocence. (Pet. at 36-47.) Second, Poizner contends there was insufficient evidence to support his convictions in counts twelve and fourteen because the prosecution did not prove Poizner's age. (Id. at 48-50.) Third, Poizner argues the trial court improperly prevented him from admitting character evidence, violating his federal constitutional right to present a defense. (Id. at 51-64.) Fourth, Poizner contends the trial court's jury instructions on the allegations lowered the burden of proof on the prosecution. (Id. at65-72.) Fifth, Poizner claims his sentence amounts to cruel and unusual punishment. (Id. at73-78.) Sixth, Poizner argues the admission of uncharged acts violated his due process and fair trial rights. (Id. at 79-95.) Seventh, Poizner contends the trial court should have instructed the jury on California's corpus delicti rule. (Id. 96-97.) Eighth, Poizner claims the trial court improperly admitted evidence of spanking as propensity evidence. (Id. 98-99.) Ninth, Poizner argues the trial court erroneously permitted the charged crimes to be admitted as propensity evidence. (Id. 100-01.) In claims ten and eleven, Poizner contends the trial court improperly admitted evidence of his sexual orientation, consensual homosexual activity, and possession of homosexual pornography. (Id. at 102-10.) In claim twelve, Poizner argues the cumulative effect of the errors committed at his trial violated his federal constitutional right to a fair trial. (Id. at 111-13.) Poizner also contends that trial counsel rendered ineffective assistance when he failed to obtain victim Brandon's psychiatric records, and failed to present character witnesses (claim thirteen). (Id. at 46-47, 62-63, 94-95, 97.) In addition, Poizner claims appellate counsel was ineffective for failing to raise the following issues on appeal: (1) trial counsel's failure to present character witnesses; (2) the trial court's improper reasonable doubt instructions; and (3) Poizner's sentence violates the Eighth Amendment's prohibition against cruel and unusual punishments (claim fourteen). (Id. at 63-64, 72, 78.)

Respondent contends claims two, three, four and five are procedurally defaulted. Respondent also contends that there is no cognizable freestanding claim of actual innocence, and, in any event, Poizner has failed to show he is actually innocent. (Mem. of P. & A. Supp. Answer at 21-26.) As to the remaining claims, Respondent contends they fail on the merits. (Id. at 26-50.)

A. Procedural Default

Respondent contends that claims two, three, four and five are procedurally defaulted because the state appellate court imposed the procedural bars of In re Dixon, 41 Cal.2d 756, 759 (1953) and In re Lindley, 29 Cal.2d 709, 723 (1947) on those claims in its opinion denying the habeas corpus petition Poizner filed in the California Court of Appeal. The state appellate court imposed Dixon and Lindley because the claims could have been raised on appeal but were not. (Mem. of P. & A. Supp. Answer at 27, 31, 35, 38; Lodgment No. 11 at 2-4.) The California Supreme Court denied the petition for review Poizner filed seeking to challenge the state appellate court's denial of the claims without citation of authority, and thus this Court must presume the California Supreme Court's denial rests upon the same ground as the appellate court's. Ylst, 501 U.S. at 803.

The Ninth Circuit has held that because procedural default is an affirmative defense, Respondent must first "adequately [plead] the existence of an independent and adequate state procedural ground . . . ." Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003). In order to place the defense at issue, Poizner must then "assert[] specific factual allegations that demonstrate the inadequacy of the state procedure . . . ." Id. The "ultimate burden" of proving procedural default, however, belongs to the state. Id. If the state meets its burden under Bennett, federal review of the claim is foreclosed unless Poizner can "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991).

1. Independence and Adequacy

A state procedural rule is "independent" if the state law basis for the decision is not interwoven with federal law. Michigan v. Long, 463 U.S. 1032, 1040-41 (1983); Harris v. Reed, 489 U.S. 255, 265 (1989). A ground is "interwoven" with federal law if the state has made application of the procedural bar depend on an antecedent ruling on federal law such as the determination of whether federal constitutional error has been committed. See Ake v. Oklahoma, 470 U.S. 68, 75 (1985). "To qualify as an `adequate' procedural ground, a state rule must be `firmly established and regularly followed'." Walker v. Martin, 562 U.S. 307, 316 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 60, 130 S.Ct. 612, 618 (2009).) All cases cited by a state court must be independent and adequate to bar federal review of the claims. Washington v. Cambra, 208 F.3d 832, 834 (9th Cir. 2000).

The Ninth Circuit has found Lindley to be an independent and adequate state procedural bar. Carter v. Giurbino, 385 F.3d 1184, 1197-98 (9th Cir. 2004). The analysis for the Dixon procedural bar, however, is more complex.

In In re Robbins, 18 Cal.4th 770 (1998) the California Supreme Court stated that it would no longer consider federal law when denying a habeas claim as procedurally barred under In re Clark, 855 P.2d 729 (1993) or Dixon. Robbins, 18 Cal. 4th at 815, fn. 34. Clark embodies California's untimeliness bar, while Dixon stands for the proposition that "habeas corpus cannot serve as a substitute for appeal," and thus habeas corpus relief is not available in California for claims that could have been but were not raised on appeal. Dixon, 41 Cal. 2d at 759. Bennett, 322 F.3d at 582-82; see also Park v. California, 202 F.3d 1146, 1156 (9th Cir. 2000). The Ninth Circuit has not specifically concluded that a post-Robbins application of the Dixon rule is independent of federal law. The Bennett court's analysis of the independence of Clark, however, compels the same result for claims barred pursuant to Dixon. The pre-Robbins application of the two procedural bars was similar in that the invocation of either Dixon or Clark required the state court to determine if there existed fundamental constitutional error that would excuse the petitioner's default, and such an analysis necessarily involved the consideration of federal law. Bennett, 322 F.3d at 581-82; see also LaCrosse v. Kernan, 244 F.3d 702, 707 (9th Cir. 2001) (observing that consideration of federal law in barring claims as pretermitted is "analogous" to consideration of federal law in barring claims as untimely). Furthermore, in Protsman v. Pliler, 318 F.Supp.2d 1004, 1007-08 (S.D. Cal. 2004), a Judge of this Court found a post-Robbins application of Dixon to be independent of federal law, and this Court agrees with the reasoning of that conclusion.

The Ninth Circuit has also not specifically found Dixon to be adequate. But Bennett only requires Respondent at the initial stage to "affirmatively [plead] that [the Dixon] bar is independent and adequate. Bennett, 322 F.3d at 586. Respondent has done so. (See Mem. of P. & A. Supp. Answer at 20.) Further, the page of Dixon cited by the state appellate court in its opinion denying Poizner's petition refers to California's rule that claims that "habeas corpus cannot serve as a substitute for appeal," and thus habeas corpus relief is not available in California for claims that could have been but were not raised on appeal. Dixon, 41 Cal. 2d at 759. Given that the Ninth Circuit has determined that Lindley, which stands for the proposition that "habeas corpus is [not] an available remedy to review the rulings of the trial court with respect to the admission or exclusion of evidence, or to correct other errors of procedure occurring [during] the trial," Lindley, 29 Cal. 2d at 723, Respondent has met his initial burden under Bennett to establish that Dixon is an independent state procedural bar. Bennett, 322 F.3d at 586.

2. Petitioner's Burden

The burden now shifts to Poizner to "assert[] specific factual allegations that demonstrate the inadequacy of the state procedure . . . ." Bennett, 322 F.3d at 586. Poizner did not address the independence or adequacy of the Dixon bar in his Traverse. (See Traverse.) After the Traverse was filed, the Ninth Circuit decided Lee v. Jacquez, 788 F.3d 1124 (9th Cir. 2014) (Lee III), and the Court directed the parties to file supplemental briefs addressing the application of Lee III to this case. (See Order dated July 10, 2015, ECF No. 24.)

In the Supplemental Answer, filed before Poizner filed his Supplemental Traverse, Respondent argues Poizner has not satisfied his burden at the second stage of Bennett, and because Lee III addresses only the third stage of Bennett, Lee III is inapposite. (See Supp. Answer at 3-6.) Respondent also notes that under Ninth Circuit authority, the Court may choose to address the merits of Poizner's claims if it is in the interests of judicial economy. (Id. at 6.)

In his Supplemental Traverse, Poizner alleges the Dixon bar is not adequate because at the time the California Court of Appeal denied Poizner's direct appeal in 2012, the California Supreme Court cited Dixon in about ten percent of its denials of habeas corpus petitions during a week-long period between February 24, 2012 and March 9, 2012. (Supp. Traverse at 5, Ex. B.) Poizner contends that "[b]ecause a much, much larger percentage of primarily non-capital habeas petitions would likely have included record-based claims, the sparsity of citation to Dixon reveals clear lack of consistency and regularity in the application of the bar." (Supp. Traverse at 5.)

In Lee v. Jacquez, 406 Fed. Appx. 148 (9th Cir. 2011) (Lee I), Lee appealed the district court's conclusion that several of her claims were procedurally defaulted under Dixon. The district court's ruling was based on its erroneous belief the Ninth Circuit had determined Dixon was an independent and adequate state procedural bar. Id. at *150. After Lee presented evidence challenging the independence and adequacy of Dixon on appeal, the Ninth Circuit remanded the case back to the district court for consideration of Lee's evidence, which consisted of a list of 210 habeas corpus cases denied by the California Supreme Court on December 21, 1999, six months after Lee's default, only ten percent of which were denied by invoking Dixon. Id.; Lee v. Mitchell, 2012 WL 2194471 (Lee II) at *13-*14 (C.D. Cal. May 1, 2012). Lee contended that "[b]ecause a much, much larger percentage of primarily non-capital habeas petitions would likely have included record-based claims, the sparsity of citation to Dixon reveals clear lack of consistency and regularity in the application of the bar." Lee II at *13. The petitioner in Lee II also cited federal cases in which the federal court had found Dixon to be inadequate. On remand, the district court again concluded Dixon was independent and adequate and rejected the petitioner's evidence to the contrary. Id. at *19-*20.

Lee appealed again. The Ninth Circuit found that Lee had met her burden of putting the adequacy of Dixon at issue, and the burden had shifted to the Respondent to establish Dixon's adequacy. Lee III, 788 F.3d at 1129. The Court first rejected Respondent's argument that Walker was dispositive of Dixon's adequacy. Id. at 1129-31. Respondent also presented evidence that Dixon was adequate because it had been applied in approximately twelve percent of all habeas denials, which Respondent characterized as "a `predicable' application." Id. at 1133. The Court ultimately rejected as "entirely insufficient" Respondent's evidence because it showed only the number of times the Dixon was actually applied as opposed to the number of times it should have been applied. Id. "Logic dictates that in order to know if invoking Dixon in twelve percent of all cases shows consistent application, we need to know `the number of times that claims to which the Dixon rule could apply were instead rejected on the merits.' [Citation omitted]." Id.

The evidence presented by Poizner establishing the inadequacy of Dixon is essentially the same as that presented to the district court in Lee II. The Ninth Circuit concluded the petitioner in Lee II had met her burden under Bennett. See Lee III, 788 F.3d at 1129 (stating "our previous remand in this case suggests that Lee has met her burden of putting the adequacy of the Dixon rule at issue"). Accordingly, this Court concludes Poizner has met his burden at the second stage of Bennett. The burden shifts back to the Respondent. Bennett, 322 F.3d at 586.

3. Respondent's Burden

Respondent has not presented this Court with any further evidence of Dixon's adequacy, and thus Poizner's claims are not procedurally defaulted. Bennett, 522 F.3d at 586. The Court will address the merits of Poizner's claims.

B. Merits — Standard of Review

In addition to imposing procedural bars on Poizner's claims, the state appellate court addressed the merits of those claims. Respondent also briefed the merits of Poizner's claims, and, as discussed below, Poizner is not entitled to relief as to any claims.

This Petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320 (1997). Under AEDPA, a habeas petition will not be granted with respect to any claim adjudicated on the merits by the state court unless that adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002). In deciding a state prisoner's habeas petition, a federal court is not called upon to decide whether it agrees with the state court's determination; rather, the court applies an extraordinarily deferential review, inquiring only whether the state court's decision was objectively unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004).

A federal habeas court may grant relief under the "contrary to" clause if the state court applied a rule different from the governing law set forth in Supreme Court cases, or if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. See Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant relief under the "unreasonable application" clause if the state court correctly identified the governing legal principle from Supreme Court decisions but unreasonably applied those decisions to the facts of a particular case. Id. Additionally, the "unreasonable application" clause requires that the state court decision be more than incorrect or erroneous; to warrant habeas relief, the state court's application of clearly established federal law must be "objectively unreasonable." See Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The Court may also grant relief if the state court's decision was based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2).

Where there is no reasoned decision from the state's highest court, the Court "looks through" to last reasoned state court decision and presumes it provides the basis for the higher court's denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991). If the dispositive state court order does not "furnish a basis for its reasoning," federal habeas courts must conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by Andrade, 538 U.S. at 75-76); accord Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). However, a state court need not cite Supreme Court precedent when resolving a habeas corpus claim. See Early, 537 U.S. at 8. "[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent,]" id., the state court decision will not be "contrary to" clearly established federal law. Id. Clearly established federal law, for purposes of § 2254(d), means "the governing principle or principles set forth by the Supreme Court at the time the state court renders its decision." Andrade, 538 U.S. at 72.

C. Newly Discovered Evidence/Factual Innocence (Ground One)

In his first claim, Poizner contends that newly discovered evidence establishes he is actually and factually innocent of the crimes of which he was convicted. (Pet at 35-46; Traverse at 3-10.) As support for this claim, Poizner contends that the filing of a civil lawsuit by Austin and Brandon against Pacific Health Systems shows they had a financial motive for lying at trial. Poizner also claims that in depositions related to the civil lawsuit, two of Brandon's therapists testified Brandon denied Poizner molested him, Brandon admitted sexually assaulting a girl, stealing a car, and having a troubled relationship with his father before meeting Poizner. (Pet. at 35-46; Traverse at 3-10.) Had this information been presented at trial, Poizner contends, he would not have been convicted.

Poizner raised this claim in the petition for review he filed in the California Supreme Court challenging the state appellate courts' denial of his state habeas corpus petition. (Lodgment No. 12.) The California Supreme Court denied the petition without citation of authority. (Lodgment No. 13.) Thus, this Court must "look through" to the state appellate court opinion denying the claim. Ylst, 501 U.S. at 805-06. The state appellate court analyzed the claim as follows:

(Lodgment No. 11 at 2.)

As Respondent correctly notes, whether a freestanding "actual innocence" claim is cognizable under federal habeas law is an open question. See District Att'ys Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 71-72 (2009); House v. Bell, 547 U.S. 518, 554-55 (2006); Herrera v. Collins, 506 U.S. 390, 400-17 (1993). If such a claim does exist, the Supreme Court has noted a petitioner would have to meet an "extraordinarily high" and "truly persuasive" showing in order to establish he was actually innocent of the charges of which he was convicted. Herrera, 506 U.S. at 417. The Ninth Circuit has interpreted this "extraordinarily high" showing to mean a petitioner must do more than raise doubt about the conviction, but rather must show affirmative proof of innocence. Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997).

Given the state of the law, Poizner has not established a claim for relief for two reasons. First, because the Supreme Court has never squarely held that a free-standing actual innocence claim exists, the state court's denial of such a claim cannot be contrary to, or an unreasonable application of, clearly established Supreme Court law. See Carey v. Musladin, 549 U.S. 70, 77 (2006); see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009); Alberni v. McDaniel, 458 F.3d 860, 866 (9th Cir. 2006) (finding that when the Supreme Court has expressly stated that whether a particular claim exists is an open question, the state court cannot be said to have acted in an objectively unreasonable manner by denying that claim). Thus, Petitioner would be limited to showing the state court's adjudication of this claim involved an unreasonable determination of the facts in light of the evidence presented in state court in order to satisfy 28 U.S.C. § 2254(d).

Second, even assuming a freestanding actual innocence claim exists, Poizner's showing falls well short of establishing affirmative proof of innocence or satisfying 28 U.S.C. § 2254(d)(2). Poizner asserts Austin's and Brandon's joint lawsuit against Pacific Health Systems establishes a "monetary motive to insure Poizner's conviction," and depositions taken of Brandon's therapists during the course of the lawsuit establish Brandon lied at trial about Poizner's molestation. (Pet. at 38.) These two pieces of "new evidence," contends Poizner, deprived him of the ability to thoroughly cross examine Brandon and Austin at trial, thus casting doubt on the verdicts. In addition, Poizner contends that evidence of his poor relationship with his father and evidence he participated in a rape should have been admitted, and that this evidence also establishes the verdicts in Poizner's case are unreliable.

1. The Civil Lawsuit

It is pure speculation that Austin and Brandon, along with their families, hatched a plan or scheme to falsely accuse Poizner of molestation for financial gain, committed perjury to further that plan or scheme, and managed to convince other boys to accuse Poizner of sexual misconduct and commit perjury as well. It is much more probable that Austin and Brandon, through their parents, sought compensation for the damage inflicted upon them by Poizner via the civil action against Pacific Health Systems. It is a reasonable legal tactic for an attorney to wait until criminal proceedings are concluded before filing a civil action in order to ensure any guilty verdict can be used as evidence in the civil lawsuit or a bargaining tool in settlement talks. Moreover, the facts do not support a conclusion that Brandon and Austin conspired to falsely accuse Poizner of molestation for financial gain. Brandon testified Austin was "just another student at the rehab," and that he was not a close friend of Austin's. (Lodgment No. 2, vol. 4 at 524.) Brandon also testified he never discussed his own molestation by Poizner with Austin and Austin never told Brandon that Poizner had molested him as well. (Id. at 562.) Brandon's father testified that after finding out about the molestation allegations against Poizner, he did not suggest anything to the parents of Brandon's friends. (Id. at 639.) Moreover, any effect that knowledge of the lawsuit would have had on the jury's decision is far from clear. It is possible the jury would have viewed the lawsuit as evidence the boys fabricated the accusations against Poizner for financial gain, as Poizner suggests. But it is much more likely the jury would have viewed the lawsuit as further evidence of the crimes Poizner committed and the victims' desire for compensation.

In addition, Austin's pretext phone call with Poizner also undermines Poizner's claim. During the phone call, Austin confronted Poizner about Poizner's actions. Poizner replied that "that's shit's never happened again," and that "if you ever said anything like, like, fuck dude, I'll fucking go to prison forever." (Lodgment No. 1, vol. 1 at 0136, 0138.) In another exchange, Poizner again reassured Austin that he would not molest him again:

(Id. at 0138.)

Poizner also again told Austin that "if you were ever to say something about it, it would be like, like it would be horrible [so] . . . you would never say anything?" (Id. at 0140.) Austin assured that he would not. (Id.)

In sum, the idea that the accusations against Poizner were fabricated by Brandon and Austin for financial gain finds no support in the record or in the materials submitted by Poizner. Accordingly, they do not support a conclusion that Poizner is actually innocent of the crimes of which he was convicted.

2. Brandon's Denial of Molestation

Poizner also claims Brandon's statements to his therapist establish he lied at trial about Poizner's acts. In support of this claim, Poizner provides two depositions taken during the course of the civil lawsuit filed against Pacific Health Systems, one from psychotherapist Bryan Lepinske, LCSW, who treated Brandon in 2010 while Brandon was at Second Nature, a "multidisciplinary therapeutic wilderness program," and one from Dr. Quinten Harvey, who performed a psychological exam on Brandon in 2010 while he was at Second Nature. (Pet'rs Exs. B-C, ECF No. 12.) During the deposition, Lepinske identified a letter written by Brandon to his father in 2010 in which Brandon stated his father had unfairly blamed Poizner, and that "all [Poizner] had ever did for me was care for me." (Pet'rs Ex. B at 18.) When Lepinske was asked whether Brandon had denied Poizner had exhibited any "inappropriate behavior" toward Brandon, Lepinske testified as follows:

(Id at 17.)

Lepinske also testified that he had explained the concept of "grooming" to Brandon. (Id. at 18.) The United States Department of Justice's National Sex Offender Public Website defines "grooming" as follows:

The purpose of grooming is:

(See https://www.nsopw.gov/en.)

Brandon acknowledged Poizner had played pornographic movies for him and had engaged in other grooming behavior with him, but he denied that Poizner had ever touched him in a sexually inappropriately way. (Pet's Ex. B at 19, 27.) Lepinske also testified at the deposition that Brandon told Lepinske he was concerned Poizner had molested a friend of his, Colten (another of Poizner's victims). (Id. at 27) Lepinske suspected that despite Brandon's denials it was likely Brandon had been molested by Poizner. (Id. at 26.)

Dr. Harvey testified that at his initial meeting with Brandon, he denied Poizner had sexually molested him. (Pet'rs Ex. C at 37, 42.) Like Lepinske, Harvey considered the relationship between Poizner and Brandon "a concern that should be continued to be focused on." (Id. at 45.) When asked to explain, Harvey stated as follows:

(Id. at 46.)

Thus, even though Brandon denied during his therapy sessions that Poizner had molested him, when viewed in context with the therapists' expert opinion, evidence of Brandon's denials would not have assisted Poizner in his defense. Both therapists felt the relationship between Poizner and Brandon was inappropriate and concerned them. If evidence of Brandon's denials had been admitted, the prosecution would have presented expert testimony characterizing Poizner's behavior as "grooming" and explaining the reasons why victims of molestation sometimes deny the molestation occurred. Moreover, contrary to Poizner's claim that none of this evidence was before the jury, Brandon was asked about his time at Second Nature at trial. When he was told about Poizner's arrest while at Second Nature, Brandon told his father and employees of Pacific Health that Poizner had never touched him. (Lodgment No. 2, vol. 4 at 594-95.) When asked why he had done so, Brandon testified he "wanted it to be that Rob would be safe and that he would be able to see me still and that I wouldn't have to see my dad." (Id. at 605-06.) He told his dad that nothing had happened between him and Poizner because he "wanted to get [his dad] in trouble for the — for making false accusations." (Id. at 606.) He denied that his therapists at Second Nature suggested to him that Poizner had molested him and admitted that when his therapists asked "Did anything honestly ever happen with you [and Poizner]?" he told them "`Well, a few touchings, that's it, but like nothing big.' That's what I told them at the time." (Id.)

Evidence of Brandon's denial that Poizner molested him would not have assisted Poizner in his defense, nor does it establish he is actually innocent of the charges of which he was convicted. Further, evidence that Brandon had denied Poizner had molested him during his contact with his therapists at Second Nature was before the jury. Any further evidence about Brandon's denials would not have changed the outcome of the trial in the face of testimony by Brandon and other victims of Poizner.

3. Brandon's Relationship With His Father

Next, Poizner contends that evidence he had a troubled relationship with his father prior to meeting Poizner is "new evidence" gleaned from the depositions of Brandon's Second Nature therapists. Poizner contends this evidence would have helped establish Poizner's actual innocence because Brandon's father testified Brandon pulled away from him and started bonding with Poizner, and because the prosecutor argued Poizner pitted Brandon against his father. (Pet. at 42.) Whether Brandon's poor relationship with his father began before or after Brandon met Poizner is a collateral issue that likely had very little effect on the jury's decision whether Poizner committed the acts against Brandon and the other victims. In any event, it was clear from the evidence presented at trial that Brandon and his father had longstanding difficulties in their relationship. Brandon testified he got along better with his mother than his father because his father was stricter and his mother let him do what he wanted. (Lodgment No. 2, vol. 4 at 519-20.) Brandon's father testified that prior to Brandon's entry into the Pacific Health Systems program, his divorce from Brandon's mother "had done a number on [Brandon]," that the divorce "had been difficult for [Brandon]," and that his relationship with Brandon was strained before Brandon entered the Pacific Health Systems program. (Id. at 611, 620.) Brandon's father also testified that Brandon was acting out and using drugs before the program, and that he was the "tough guy" parent who convinced Brandon's mother to enter Brandon into the rehab program at Pacific Health Systems. (Id. at 620-21.)

4. Brandon's Commission of Crimes of Moral Turpitude

Finally, Poizner contends that evidence Brandon committed a rape and had stolen a car is also "new evidence" supporting his innocence.4 Poizner argues this evidence would have helped establish his actual innocence because rape is a crime of moral turpitude and the case turned on credibility. Poizner contends that had evidence of Brandon's commission of a rape and stealing a car been admitted at trial, he would have been able to show Brandon lied.5 (Pet. at 43-44.)

It is true that such information may have served to undermine Brandon's credibility. But that is not the standard for overturning a conviction on federal habeas corpus review for actual innocence. As stated above, even if a free standing actual innocence claim a petitioner would have to make an "extraordinarily high" showing, meaning a petitioner must do more than raise doubt about the conviction, but rather must show affirmative proof of innocence. Herrera, 506 U.S. at 417; Carriger, 132 F.3d at 476. Poizner's showing does not meet that standard. He only presents evidence that may or may not have cast sufficient doubt on Brandon's testimony.

5. Poizner Has Made An Insufficient Showing of Actual Innocence

Assuming there exists a free standing actual innocence claim under the Federal Constitution, none of the "new evidence" presented by Poizner establishes "affirmative proof" of his innocence to satisfy the Herrera standard. Poizner presents only speculation and possible additional impeachment material that could have been presented at trial. See Herrera, 506 U.S. at 417; Carriger, 132 F.3d at 476. Accordingly, the state court's adjudication of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law, and was not based on an unreasonable determination of the facts. As such, this claim is DENIED.

D. Sufficiency of the Evidence of Poizner's Age (Ground Two)

Poizner next contends there was insufficient evidence to establish the age difference requirement for his convictions of Penal Code §288(c)(1) in counts twelve and thirteen. (Pet. at 49-50; Traverse at 18-21.) Respondent contends the claim is procedurally defaulted, and, in any event, lacks merit because Brandon's opinion of Poizner's age, coupled with the jury's perception of Poizner's appearance, is sufficient under California law to support the jury's verdict. (Mem. of P. & A. Supp. Answer at 26-29.)

Poizner raised this claim in the petition for review from the denial of his state habeas corpus petition, which he filed in the California Supreme Court. (Lodgment No. 12.) The state supreme court denied the petition without citation of authority. Accordingly, this Court must "look through" to the state appellate court opinion denying this claim as the basis for its analysis. The state appellate court addressed the claim as follows:

(Lodgment No. 11 at 2-3.)

In assessing a sufficiency of the evidence claim on federal habeas review, the Supreme Court has stated that "`the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Juan H. v. Allen, 408 F.3d 1262, 1275 (9th Cir. 2005) (quoting Jackson, 443 U.S. at 319). In determining whether sufficient evidence has been presented, the Court must accept the elements of the crime as defined by state law. See Jackson, 443 U.S. at 324, n. 16. Penal Code § 288(c)(1) states:

Cal. Penal Code § 288(c)(1) (West 2010).

Under California law, the jury was permitted to find Poizner's age based on circumstantial evidence. See People v. Castaneda, 31 Cal.App.4th 197, 203-04 (1994) (stating that proof of age need not be in documentary form and that testimony about a defendant's age, coupled with the jury's observation of the defendant, is sufficient for the trier of fact to infer age) (citing People v. Montalvo, 4 Cal.3d 328, 335 (1971).) In Poizner's case, Nanette Konopacky, Poizner's roommate, testified Poizner was in his late thirties. (Lodgment No. 2, vol. 4 at 510.) Brandon testified Poizner was 39 or 40 years old. (Id. at 519, 582.) Under California law, the jury was permitted to use their observation of Poizner and the testimony of Konopacky and Brandon to determine whether Poizner was ten years older than the 12-14 year old children he was accused of molesting. A reasonable trier of fact could have found the ten-year age difference element of Penal Code § 288(c)(1) beyond a reasonable doubt. See Juan H., 408 F.3d 1262, 1275.

The state court's resolution of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law, and was not based on an unreasonable determination of the fact. Thus, the Court DENIES relief as to this claim.

E. Exclusion of Character Evidence (Ground Three)

In ground three, Poizner contends the trial court violated his right to present a defense by ruling that, should Poizner present character evidence in the form of testimony regarding his lack of propensity to commit the offenses, it would open up the door for the prosecution to present several pieces of evidence the court had excluded, including evidence the Poizner had snuck into people's homes and molested other children. (Pet. at 51-64; Traverse at 22-25; Lodgment No. 2, vol. 2 at 113-14.) Respondent counters that the trial court applied California evidentiary law correctly, and, in any event, there is no Supreme Court precedent directly addressing the question whether a defendant's federal constitutional due process rights are violated by a trial court's error in applying its own evidentiary rules. (Mem. of P. & A. Supp. Answer at 32.)

Poizner raised this claim in the petition for review from the denial of his state habeas corpus petition, which he filed in the California Supreme Court. (Lodgment No. 12.) The state supreme court denied the petition without citation of authority. Accordingly, this Court must "look through" to the state appellate court opinion denying this claim as the basis for its analysis. The state appellate court denied the claim, as follows:

(Lodgment No. 12 at 3.)

During trial, counsel explained to the trial court who he proposed to have testify and what those witnesses would say as follows:

The problem here, your honor, is that I think the jury may be led to believe that —

(Lodgment No. 2, vol. 5 at 833-41.)

To the extent Poizner is attacking the state court's interpretation and application of its own rules of evidence, he is not entitled to relief. Estelle, 502 U.S. at 67-68; see also 28 U.S.C. § 2254(a). Simply claiming that a state court's improper application of state law violated a petitioner's due process rights does not transform the claim into a federal one. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). Moreover, the state trial judge's ruling was correct under state law. See People v. Hinton, 37 Cal.4th 839, 902 (2006) (stating that "[w]hen a defense witness gives character testimony, the prosecutor may inquire of the witness whether he or she has heard of acts or conduct by the defendant inconsistent with that testimony, so long as the prosecutor has a good faith belief that such acts or conduct actually took place") citing People v. Barnett, 17 Cal.4th 1044, 1170 (1998).

Contrary to Poizner's claim, no evidence was actually excluded by the trial judge and he was not prevented from presenting any evidence in his defense. Clearly established federal law holds that the right to present evidence and witnesses is essential to due process and is guaranteed by the compulsory process clause of the Sixth Amendment. Taylor v. Illinois, 484 U.S. 400, 409 (1988); Chambers v. Mississippi, 410 U.S. 294 (1973); Washington v. Texas, 388 U.S. 14, 19 (1967); Dunham v. Deeds, 954 F.2d 1501, 1503 (9th Cir. 1992). But "[t]he defendant's right to present evidence . . . is not absolute." Perry v. Rushen, 713 F.2d 1447, 1450 (9th Cir. 1983). A 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. The exclusion of defense evidence is error only if it renders the state proceeding so fundamentally unfair as to violate due process. Estelle, 502 U.S. at 67; Bueno v. Hallahan, 988 F.2d 86, 87 (9th Cir. 1993). Here, no such fundamentally unfair proceeding occurred. Rather, counsel made a strategic decision not to present character witnesses because, had he done so, the prosecutor would have been able to ask those witnesses about the accusations leveled against him by the victims as well as evidence from Poizner's journals, which the judge had previously excluded, establishing he had broken into houses and touched or looked at young boys. (Lodgment No. 2, vol. 5 at 839.) The trial judge simply properly applied a standard rule of the California Evidence Code in Poizner's case.

Poizner claims the trial judge's ruling was improper because had defense counsel presented character witnesses on behalf of Poizner, the trial judge would have permitted the prosecutor to cross examine them with "guilt assuming hypotheticals," which Poizner contends violates due process. (Pet. at 34-36.) The case law Poizner cites as support for this claim are circuit court cases. Poizner had not cited any clearly established Supreme Court law holding that "guilt assuming hypotheticals" violate due process, nor has this Court located any. Without such authority, this Court cannot conclude the state court's denial of the claim was contrary to, or an unreasonable application of, clearly established Supreme Court law. See Musladin, 549 U.S. at 77.

Moreover, the cases Poizner cites are distinguishable. In United States v. Shwyader, 169 F.3d 1109, 1114-15 (9th Cir. 2002), the prosecutor improperly asked the defendant's character witnesses whether their opinion would change if the defendant had committed the acts alleged in the indictment. In United States v. Candelaria-Gonzalez, 547 F.2d 291, 294 (5th Cir. 1977), the prosecutor improperly asked character witnesses whether their opinion of the defendant would change if he were convicted of the crimes for which he was being prosecuted. In United States v. Barta, 888 F.2d 1220, 1224-25 (8th Cir. 1989), the court condemned the prosecutor when he asked whether the defendant's character witness's opinion would change if he knew the defendant "had lied on his income tax return," the charge for which he was on trial. In United States v. Polsinelli, 649 F.2d 793, 795 (10th Cir. 1981), the prosecutor asked a character witness if her opinion would change if "she `knew that on at least two occasions during April of 1979 [Polsinelli] distributed one ounce quantities of cocaine," again, the charge for which he was being prosecuted. See also United States v. Oshatz, 912 F.2d 534 539 (2nd Cir. 1990) (prosecutor asked whether character witness's opinion would change if he knew defendant had committed the acts alleged in the indictment).6 In contrast, the trial judge in Poizner's case indicated that the prosecutor would be permitted to ask Poizner's character witnesses "if they've heard or are aware of the allegations that these kids have testified to here." (Lodgment No. 2, vol. 5 at 838.) The judge also indicated the prosecutor could ask character witnesses about the previously excluded journal entries in which Poizner admitted to breaking into homes to observe children sleeping or observe their bodies. (Id. at 839.) None of the permitted questions included the kind of guilt assuming hypotheticals considered in the circuit court cases cited by Poizner.

For all the foregoing reason, the Court concludes the state court's rejection of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Williams, 529 U.S. 412-13. Nor was it based on an unreasonable determination of the facts. The claim is DENIED.

F. Jury Instructions and the Burden of Proof (Ground Four)

In ground four, Poizner contends the trial court's modification of the jury instructions for the charged allegations reduced the prosecution's burden of proof, thereby violating Poizner's due process and fair trial rights. (Pet. at 65-72; Traverse at 26-28.) Respondent counters that the instructions adequately informed the jury of its obligation to find that the allegations were true beyond a reasonable doubt, and that the state appellate court's decision denying this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Mem of P. & A. Supp. Answer at 35-36.)

Poizner raised this claim in the petition for review, filed in the California Supreme Court, from the denial of habeas corpus petition he filed in state court. (Lodgment No. 12.) The California Supreme Court denied the petition without citation of authority (Lodgment No. 13.) Accordingly, this Court must "look through" to the California Appellate Court's denial of this claim as the basis for its analysis. That court wrote:

(Lodgment No. 11 at 4.)

The Supreme Court addressed the necessity of instructing a jury on the prosecution's burden of proof in Carella v. California, 491 U.S. 263 (1989):

Id. at 266.

An instructional error can form the basis for federal habeas corpus relief only if it is shown that "`the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.' [citation omitted]." Murtishaw v. Woodford, 255 F.3d 926, 971 (9th Cir. 2001) (citing Cupp v. Naughten, 414 U.S. 141, 146 (1973)); Henderson v. Kibbe, 431 U.S. 145, 154 (1977). The allegedly erroneous jury instruction cannot be judged in isolation, however. Estelle, 502 U.S. at 72. Rather, it must be considered in the context of the entire trial record and the instructions as a whole. Id.

The trial judge in Poizner's case decided to simplify the instructions by placing the "beyond a reasonable doubt" instruction at the end of the instructions for all the allegations instead of repeating the instruction for each allegation. Poizner contends the trial judge reduced the burden of proof on the prosecution by altering the language of the reasonable doubt instruction for the allegations from "[t]he People have the burden of proving this allegation beyond a reasonable doubt. If you find the People have not met this burden, you must find that this allegation has not been proved" to "[t]he People have the burden of proving this allegation beyond a reasonable doubt. If you have a reasonable doubt the allegation is true, you must find it not to be true." (Pet. at 68-69) (italics added).

Poizner's claim is meritless. The jury was clearly told the prosecution had the burden of proving the allegations beyond a reasonable doubt. (Lodgment No. 1, vol. 1 at 0198.) In addition, they were told that "[w]henever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt." (Id. at 0157.) Poizner does not explain how the two phrases "the People have the burden of proving [the allegations] beyond a reasonable doubt[, and] if the People have not met this burden, you must find the allegation has not been proved" and "The People have the burden of proving beyond a reasonable doubt the truth of each allegation[, and] if you have a reasonable doubt that an allegation is true, you must find it not to be true," differ in any substantial way. "The Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course." Victor v. Nebraska, 511 U.S. 1, 5 (1994). "[T]he proper inquiry is not whether the instruction `could have' been applied in an unconstitutional manner, but whether there is a reasonable likelihood that the jury did so apply it." Id. at 6, citing Estelle, 502 U.S. at 72. Here, there is no reasonable likelihood the jury found the allegations to be true based on a standard lower than beyond a reasonable doubt. They were repeatedly instructed that in order to find Poizner guilty of the crimes and to find the allegations to be true, they must do so beyond a reasonable doubt. Accordingly, the Court concludes the state courts' resolution of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. It was also not based on an unreasonable determination of the facts. The claim is DENIED.

G. Cruel and Unusual Punishment (Ground Five)

Next, Poizner argues his sentence of 75 years-to-life plus seven years violates the Eighth Amendment. (Pet. at 73-78; Traverse at 29.) Respondent counters the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Mem. of P. & A. Supp. Answer at 36-39.)

Poizner raised this claim in the petition for review he filed in the California Supreme Court challenging the appellate court's denial of his habeas corpus petition. (Lodgment No. 12.) That court denied the petition without citation of authority. (Lodgment No. 13.) Accordingly, this Court must "look through" to the state appellate court's opinion addressing this claim as the basis for its analysis. Ylst, 501 U.S. at 805-06. That court wrote:

(Lodgment No. 11 at 4.)

In Andrade, the Supreme Court concluded that the only clearly established legal principle that could be discerned from the Court's Eighth Amendment jurisprudence was that "[a] gross disproportionality principle is applicable to sentences for a term of years . . . [T]he precise contours of [the principle] are unclear, [and it is] applicable only in the `exceedingly rare' and `extreme' case." Andrade, 538 U.S. at 72-73 (citing Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)). The Supreme Court also explained that "the governing legal principle gives legislatures broad discretion to fashion a sentence that fits within the scope of the proportionality principle . . . ." Id. at 76 (quoting Harmelin, 501 U.S. at 998). Because of this, "[t]he gross disproportionality principle reserves a constitutional violation for only the extraordinary case." Id. at 77.

The Ninth Circuit has applied these principles and has given this Court some guidance as to the kind of "exceedingly rare" Eighth Amendment claim that warrants federal habeas relief. See Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000) ("[Ninth Circuit] cases may be persuasive authority for purposes of determining whether a particular state court decision is an `unreasonable application' of Supreme Court law, and also may help us determine what law is `clearly established.'"). In Ramirez v. Castro, 365 F.3d 755, 775 (9th Cir. 2004), the court concluded that a sentence of twenty-five years to life for a nonviolent shoplifting of a $199.00 VCR where the defendant's prior convictions were two nonviolent second degree robberies, violated the Eighth Amendment. The Ninth Circuit struck down a sentence of twenty-eight years to life imposed on a defendant who had failed to update his sex offender registration within five days of his birthday. Gonzalez v. Duncan, 551 F.3d 875 (9th Cir. 2008). The Court found that there was no "rational relationship between Gonzalez's failure to update his sex offender registration annually and the probability that he will recidivate as a violent criminal or sex offender." Id. at 887. Without a rational connection between Gonzalez's past behavior and his current conviction, there was no justification for an increased sentence for the "passive, harmless and technical violation of the registration law." Id. at 885.

The Ninth Circuit has upheld sentences, however, in cases where either the triggering offense or the defendant's prior record involve violence or the threat of violence. Thus, in Rios v. Garcia, 390 F.3d 1082 (9th Cir. 2004), the court concluded that a sentence of twenty-five years to life for a conviction for a felony petty theft did not violate the Eighth Amendment because Rios "struggled with the loss prevention officer and tried to avoid apprehension . . . . [H]is prior robbery `strikes' involved the threat of violence because his cohort used a knife . . . . Rios [had] a lengthy criminal history, beginning in 1982, and he ha[d] been incarcerated several times." Id. at 1086. In Taylor v. Lewis, 460 F.3d 1093 (9th Cir. 2006), the court upheld a sentence of twenty-five years to life for felony possession of cocaine and misdemeanor possession of drug paraphernalia. Although the triggering offense was nonviolent, Taylor's prior convictions included second-degree burglary, robbery with a firearm, and voluntary manslaughter with the use of a weapon. Id. at 1100.

Finally, the Ninth Circuit upheld a life sentence without parole in Norris v. Morgan, 622 F.3d 1276 (9th Cir. 2010) for child molestation conviction under Washington's "two strikes" law. In conducting de novo review of Norris' Eighth Amendment challenge on habeas review, the Court began by analyzing whether "`the crime committed and the sentence imposed leads to an inference of gross disproportionality.'" Norris, 622 F.3d at 1290 (quoting Harmelin, 501 U.S. at 1005). The "harshness of the penalty imposed upon the defendant" is to be compared to "the gravity of the triggering offense," and a court can consider the state's justification for the sentencing scheme and "the actual harm caused to his victim or to society." Id. (citations omitted). The Ninth Circuit noted that in determining the gravity of the offense, courts are to "look beyond the label of the crime" and examine the "factual specifics" of it. Id. (citing Reyes v. Warden, 399 F.3d 964, 969 (9th Cir. 2005) and Ramirez, 365 F.3d at 768). Norris' crime involved touching a five-year-old girl on her genitalia over her clothes for a few seconds. Nevertheless, the Court found the fact that the crime was committed against a person pivotal:

Norris, 622 F.3d at 1293-94.

The Ninth Circuit has also upheld harsh and lengthy sentences in several unpublished cases similar to Poizner's.7 In Poslof v. Yates, 462 Fed. Appx. 710 (9th Cir. 2010), the Court upheld a sentence of 27 years-to-life for failing to register a new residence as a sex offender in the face of an Eighth Amendment challenge. In Blakaj v. McEwan, 2013 WL 3811813 (9th Cir. 2013), the Court upheld a sentence of 30 years-to-life for various sexual offenses against several victims under California's "one strike" law, the same sentencing scheme under which Poizner was sentenced. The Blakaj court noted:

Id. at *19.

Poizner's crimes, like the defendants in Norris and Blakaj, are serious, sexual crimes against multiple juvenile victims. They are not "passive," "harmless," or "technical violations" of a regulatory offense. Rather, they are intentional harms committed upon young boys who were vulnerable due to their substance abuse issues and who looked to Poizner as a trusted adult in their lives. Poizner abused his victims and violated the trust they placed in him for his own pleasure, and thus his case is not the "exceedingly rare" instance where the sentence is disproportionate to the crime. Thus, the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Nor was it based on a unreasonable determination of the facts. For the foregoing reasons, the claim is DENIED.

H. Erroneous Admission of Uncharged Acts (Ground Six)

In ground six, Poizner argues the state trial judge improperly admitted evidence from his journals in which he described sexual conduct with individuals other than the victims. (Pet. at 79-95; Traverse at 30-31.) The evidence was admitted under California Evidence Code § 1108 as propensity evidence and under Evidence Code § 1101 as evidence of intent.8 Poizner contends the evidence should not have been admitted because it violated California's "corpus delicti" rule. (Pet. at 87-95; Traverse at 30-31.) Respondent argues first the claims are based only on state law, for which federal habeas corpus relief is not available, and that, in any event there is no clearly established Supreme Court law which states the admission of propensity evidence violates due process. (Mem. of P. & A. Supp. Answer at 39-42.)

Poizner raised this claim in the petition for review he filed in the California Supreme Court on direct review. (Lodgment No. 7.) That court denied the petition without citation of authority. (Lodgment No. 8.) Accordingly, this Court must "look through" to the state appellate court's opinion denying the claim as the basis for its analysis. Ylst, 501 U.S. at 805-06. That court wrote:

A. Legal Principles

B. Analysis

(Lodgment No. 6 at 14-19.)

Poizner's claim regarding the corpus delicti error rests solely on state law.9 He contends "the trial court erred by admitting Poizner's handwritten notes because the prosecution failed to prove requisite corpus delicti of the uncharged sexual offenses," citing only California law, then states this error deprived Poizner of his federal due process rights. (Pet. at 79-80.) But, as previously noted, simply claiming that a state court's improper application of state law violated a petitioner's due process rights does not transform the claim into a federal one. Langford, 110 F.3d at 1389. Moreover, the state trial judge's ruling was correct under state law. As the appellate court noted, "the California Supreme Court has not squarely decided whether the corpus delicti rule applies to evidence admissible under sections 1101, subdivision (b) or 1108," and that with respect specifically 1108 evidence, the California Supreme Court in People v. Alvarez, 27 Cal.4th 1161 (2002) concluded that extrajudicial statements are admissible even if there is no independent proof of the corpus delicti so long as the jury is instructed, as they were in Poizner's case, that a conviction cannot be based on extrajudicial statements alone. Id. at 1180-81.

In any event, as Respondent notes, there is no clearly established Supreme Court law which holds that character or "propensity" evidence is inadmissible or violates due process. Indeed, the Supreme Court expressly reserved deciding that issue in Estelle, 502 U.S. at 75 n.5. See Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008); Alberni, 458 F.3d at 864. As the Ninth Circuit has noted:

Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (citing Williams 529 U.S. at 375 and Musladin, 549 U.S. at 77).

Moreover, Ninth Circuit precedent "squarely forecloses" the claim that admission of propensity evidence violates due process. Mejia, 534 F.3d at 1046; see also, e.g., Greel v. Martel, No. 10-16847, 2012 WL 907215, 472 Fed. Appx. 503, 504 (9th Cir. 2012) (stating that "Ninth Circuit precedent `squarely forecloses [the] argument' that admission of evidence of sexual misconduct to show propensity violates due process") (quoting Mejia, 534 F.3d at 1046). Thus, because there is no clearly established Supreme Court law applying the corpus delicti rule to uncharged offenses or holding the admission of propensity evidence violates due process, the state court's rejection of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Musladin, 549 U.S. at 77. In addition, as discussed above, the state court's denial of this claim was not based on an unreasonable determination of the facts. The claim is therefore DENIED.

I. Corpus Delicti Instruction (Ground Seven)

In ground seven, Poizner claims the trial court erred by failing to instruct the jury "not to consider Poizner's extrajudicial statements when deciding if a corpus of the uncharged crimes existed." (Pet. at 96-97; Traverse at 32-33.) Respondent contends the claim is solely one of the application of state law and that the state court's denial of the claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Mem. of P. & A. Supp. Answer at 39-42.)

Poizner raised this claim in the petition for review he filed in the California Supreme Court on direct appeal. (Lodgment No. 7.) The state supreme court denied the petition without citation of authority. (Lodgment No. 8.) Accordingly, this Court must "look through" to the state appellate court's decision denying the claim as the basis for its analysis. Ylst, 501 U.S. at 805-06. That court stated as follows:

(Lodgment No. 6 at 18.)

As the state court noted, and as discussed above in section IV(H) of this Order, the California Supreme Court has left open the question whether the corpus delicti rule applies to uncharged conduct. See People v. Horning, 34 Cal.4th 871, 899 (2004); People v. Davis, 168 Cal.App.4th 617, 638. Appellate courts in California have rejected the idea. See, e.g., Davis, 168 Cal. App. 4th at 636-38; People v. Denis, 224 Cal.App.3d 563, 568-570. Without any authority, either state or federal, mandating the instruction should have been given, Poizner has not established error.

Moreover, instructional error can form the basis for federal habeas corpus relief only if it is shown that "`the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.' [citation omitted]." Murtishaw, 255 F.3d at 971; Henderson, 431 U.S. at 154. The allegedly erroneous jury instruction cannot be judged in isolation. Estelle, 502 U.S. at 72. Rather, it must be considered in the context of the entire trial record and the instructions as a whole. Id. Here, any error in instructing the jury with the corpus delicti instruction with regard to the uncharged conduct did not "so infect the entire trial that the resulting conviction violates due process." Murtishaw, 255 F.3d at 971. There was ample evidence of Poizner's guilt in the form of testimony by his victims. Accordingly, the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Nor was it based on an unreasonable determination of the facts. The claim is DENIED.

J. Erroneous Admission of Evidence of Spanking (Ground Eight)

In ground eight, Poizner argues the trial court's admission of evidence from his diary, in which he described engaging in sexual activities and spanking with "Homeboy" when he was eighteen and "possibly smacking his ass a couple of times before, jokingly, before he was 18, I think once" violated his due process rights. (Pet. at 98-99; Traverse at 34; Lodgment No. 2, vol. 4 at 478-79.) The evidence was admitted as propensity evidence under Evidence Code § 1108. (Lodgment No. 1, vol. 1 at 1076.) Respondent contends the state court's resolution of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Mem. of P. & A. Supp. Answer at 42-44.)

Poizner raised this claim in the petition for review he filed in the California Supreme Court on direct review. (Lodgment No. 7.) That court denied the petition without citation of authority. (Lodgment No. 8.) Accordingly, this Court must "look through" to the state appellate court's opinion denying this claim on direct appeal as the basis for its analysis. Ylst, 501 U.S. at 805-06. That court analyzed the claim as follows:

(Lodgment No. 6 at 19-22.)

As previously noted, to the extent Poizner is arguing the trial court improperly applied California law in its admission of evidence, he is not entitled to relief. Federal habeas relief is not available for alleged violations of state law. Estelle, 502 U.S. at 67-68; see also 28 U.S.C. § 2254(a).

Moreover, as discussed above, there is no clearly established Supreme Court law which holds that character or "propensity" evidence is inadmissible or violates due process, see Estelle, 502 U.S. at 75 n.5; Mejia, 534 F.3d 1036, 1046 (9th Cir. 2008); Alberni, 458 F.3d at 864, and Ninth Circuit has precedent "squarely forecloses" the claim that admission of propensity evidence violates due process. Mejia, 534 F.3d at 1046; Greel, 472 Fed. Appx. at 504. Thus, because there is no clearly established Supreme Court law which holds the admission of propensity evidence violates due process, the state court's rejection of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Musladin, 549 U.S. at 77.

Even if the evidence was wrongly admitted and the jury improperly instructed, the state court's conclusion that any errors were harmless was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Erroneous admission of evidence and instructional error can form the basis for federal habeas corpus relief only if it is shown that "`the ailing instruction by itself [or the wrongly admitted evidence] so infected the entire trial that the resulting conviction violates due process.' [citation omitted]." Murtishaw, 255 F.3d at 971; Henderson, 431 U.S. at 154. Here, as the state court noted, although the jury was instructed they could consider the uncharged offenses involving Homeboy as propensity evidence, they were also explicitly instructed that they could not consider any evidence of consensual sexual activity between Poizner and Homeboy when Homeboy was an adult for that purpose. (Lodgment No. 1, vol. 1 at 176-78.) A jury is presumed to follow the instructions given to it by a trial court. Zafiro v. United States, 506 U.S. 534, 540 (1993). Further, the evidence supporting Poizner's conviction was overwhelming. Accordingly, the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Nor was it based on an unreasonable determination of the facts. The claim is DENIED.

J. Admission of Charged Offenses as Propensity Evidence (Ground Nine)

In claim nine, Poizner attacks the admission of the charged offenses as propensity evidence. (Pet. at 100-01; Traverse at 35-36.) Respondent counters that the state court's resolution of the claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Mem. of P. & A. Supp. Answer at 44-46.) Specifically, Respondent notes Poizner's contention that the charged crimes were improperly used as propensity evidence was resolved against him by the California Supreme Court during the pendency of his appeal and that, in any event, as discussed previously, there is no clearly established Supreme Court law which prevents the use of propensity evidence. (Id.)

Poizner raised this claim in the petition for review he filed in the California Supreme Court on direct review. (Lodgment No. 7.) That court denied the petition without citation of authority. (Lodgment No. 8.) Accordingly, this Court must "look through" to the state appellate court opinion denying the claim as the basis for its analysis. Ylst, 501 U.S. at 805-06. That court wrote:

The court in Villatoro proceeded to consider whether the trial court had erred by instructing the jury with a modified version of CALCRIM No. 1191 similar to the instruction given in the present case [footnote omitted], and the defendant's argument that the modified instruction failed to clearly designate the standard of proof that applied to the charged offenses. (People v. Villatoro, supra, 54 Cal.4th at p. 1167.) The defendant in Villatoro contended that a juror could have used any standard of proof, or none, to convict him, depriving him of the presumption of innocence. The court rejected these arguments, pointing out "the instruction clearly told the jury that all offenses must be proven beyond a reasonable doubt, even those used to draw an inference of propensity. Thus, there was no risk the jury would apply an impermissibly low standard of proof." (Id. at p. 1168.) It pointed out the trial court had also instructed the jury with CALCRIM No. 220, which "defines the reasonable doubt standard and reiterates that the defendant is presumed innocent; it also explains that only proof beyond a reasonable doubt will overcome that presumption." (Ibid.) Thus, the modified instruction did not impermissibly lower the standard of proof or otherwise interfere with defendant's presumption of innocence. (Ibid.)

(Lodgment No. 6 at 22-25.)

As noted above, to the extent Poizner is attacking the state court's interpretation and application of its own rules of evidence, he is not entitled to relief. Estelle, 502 U.S. 67-68. In any event, it appears the trial court did not err by admitting charged offenses as propensity evidence and so instructing the jury. See Villatoro, 54 Cal. 4th at 1160-68. Moreover, as previously discussed, there is no clearly established Supreme Court law which holds that character or "propensity" evidence is inadmissible or violates due process. Indeed, the Supreme Court expressly reserved deciding that issue in Estelle, 502 U.S. at 75 n.5. See Mejia, 534 F.3d at 1046; Alberni, 458 F.3d at 864; see also, e.g., Greel, 472 Fed. Appx. at 504. Thus, because there is no clearly established Supreme Court law which holds the admission of propensity evidence violates due process, the state court's rejection of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Musladin, 549 U.S. at 77. Accordingly, the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Nor was it based on an unreasonable determination of the facts. The claim is therefore DENIED.

K. Admission of Evidence of Poizner's Sexual Orientation, Consensual Homosexual Acts and Possession of Homosexual Pornography (Grounds Ten and Eleven)

Poizner next contends the trial court improperly admitted evidence of his homosexuality, consensual homosexual sexual activity, and possession of homosexual pornography, thereby violating his due process rights. (Pet. at 102-10; Traverse at 37-38.) Specifically, Poizner argues his sexual orientation and consensual homosexual activity was irrelevant and prejudiced the jury, the pornographic DVD depicting homosexual sexual activity between adults was irrelevant because there was no connection between the sexual activity, the pornographic DVD and the crimes alleged, and the trial court should have excluded the evidence under Evidence Code § 352. (Pet. at 102-13; Traverse at 37-38.) Respondent contends the state court's resolution of these claims was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law, and, to the extent Poizner challenges the application of state law, he is not entitled to relief. (Mem. of P. & A. Supp. Answer at 46-49.)

Poizner raised this claim in the petition for review he filed on direct appeal in the California Supreme Court. (Lodgment No. 7.) That court denied the petition without citation of authority. (Lodgment No. 8.) Accordingly, this Court must "look through" to the state appellate court's opinion as the basis for its analysis. Ylst, 501 U.S. at 805-06. That court thoroughly analyzed the claim as follows:

B. Evidence of Poizner's Sexual Orientation

C. The DVD Cover

(Lodgment No. 6 at 25-36.)

As with Poizner's other claims involving the erroneous admission of evidence, to the extent he claims the trial judge improperly applied state evidentiary law and thus the evidence should not have been admitted, he is not entitled to relief. Estelle, 502 U.S. at 67-68; see also 28 U.S.C. § 2254(a). Simply claiming that a state court's improper application of state law violated a petitioner's due process rights does not transform the claim into a federal one. Langford, 110 F.3d at 1389.

In addition, as previously noted, "[a]lthough the [Supreme] Court has been clear that a writ should be issued when constitutional errors have rendered the trial fundamentally unfair (citation omitted), it has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ," and thus "under AEDPA, even clearly erroneous admissions of evidence that render a trial fundamentally unfair may not permit the grant of federal habeas corpus relief if not forbidden by `clearly established Federal law,' as laid out by the Supreme Court." Holley, 568 F.3d at 1101; see also Greel, 472 Fed. Appx. at 504.

In any event, the admission of evidence of Poizner's sexual orientation, consensual homosexual acts and possession of homosexual pornography, and the jury instructions associated with that evidence, did not render his trial fundamentally unfair. Estelle, 502 U.S. at 67. Poizner admitted he was bisexual in the pretext phone call Austin made to him. (Lodgment No. 1, vol. 1 at 0137.) The prosecution did not focus on Poizner's sexuality in questioning witnesses or in closing argument, and did not argue that Poizner's sexuality made him guilty of the crimes. (Lodgment No. 2, vol. 7 at 1063-1110, 1139-51.) The evidence of Poizner's consensual homosexual acts with "Homeboy" was brief and, in the context of the trial as a whole where multiple victims testified about Poizner's sexual crimes, did not render the trial fundamentally unfair. The DVD cover, while graphic, was no more disturbing than the live testimony from the multiple young victims who testified about Poizner's actions. Further, the jury was instructed they could not consider evidence of Poizner's sexuality, consensual homosexual acts, and possession of homosexual pornography as evidence he was "disposed or inclined" to commit the offenses and only for the limited purpose of determining Poizner's intent and whether he had a plan or scheme to commit the charged offenses. Poizner's homosexuality and interest in homosexual pornography that depicted young men who looked like teenaged boys engaging in sex was relevant to that inquiry.

In sum, there is no clearly established Supreme Court law which forbids the admission of prejudicial evidence, and the evidence Poizner complains of did not render his trial fundamentally unfair. Accordingly, the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Williams, 529 U.S. at 412-13. Nor was it based on an unreasonable determination of the facts. Poizner is not entitled to relief as to this claim, and it is therefore DENIED.

L. Ineffective Assistance of Counsel (Subclaims of Grounds One and Three)

Poizner contends trial counsel was ineffective when he failed to obtain Brandon's psychiatric records and failed to present character witnesses. (Pet. at 46-47, 62-63, 94-95; Traverse at 11-18, 22-25.) Respondent argues the state court's denial of these claims were neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Mem. of P. & A. Supp. Answer at 25-26.)

Poizner raised his ineffective assistance of counsel claims in the petition for review he filed in the California Supreme Court challenging the appellate court's denial of his petition for writ of habeas corpus. (Lodgment No. 12.) The California Supreme Court rejected this claim without citation of authority. (Lodgment No. 13.) Accordingly, this Court must "look through" to the state appellate court's opinion denying the claim as the basis for its analysis. Ylst, 501 U.S. at 805-06. That court analyzed the claims as follows:

(Lodgment No. 11 at 2-3.)

To establish ineffective assistance of counsel, a petitioner must first show his attorney's representation fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 688 (1984). "This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. He must also show he was prejudiced by counsel's errors. Id. at 694. Prejudice can be demonstrated by a showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.; see also Fretwell v. Lockhart, 506 U.S. 364, 372 (1993). Further, Strickland requires that "[j]udicial scrutiny of counsel's performance . . . be highly deferential." Strickland, 466 U.S. at 689. There is a "strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Id. at 686-87. The Court need not address both the deficiency prong and the prejudice prong if the defendant fails to make a sufficient showing of either one. Id. at 697.

"Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010). "The standards created by Strickland and section 2254(d) are both highly deferential and when the two apply in tandem, review is `doubly' so." Harrington v. Richter, 562 U.S.86 (2011) (citations omitted). These standards are "difficult to meet" and "demand[] that state court decisions be given the benefit of the doubt." Cullen v. Pinholster, 563 U.S. 170, 181 (2011). Federal habeas relief functions as a "guard against extreme malfunctions in the state criminal justice systems," and not simply as a means of error correction. Richter, 562 U.S. at 102-03 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979). "Representation is constitutionally ineffective only if it `so undermined the proper functioning of the adversarial process' that the defendant was denied a fair trial." Strickland, 466 U.S. at 687.

As to Poizner's claim that counsel was ineffective for failing to obtain and introduce psychiatric records, Poizner has not established either deficient performance or prejudice. Id. at 688, 694. As to Brandon's psychiatric records, there is no evidence that counsel failed to obtain Brandon's psychiatric records. Counsel may have obtained them, then made a strategic decision not to use them. In any event, as discussed above in section IV(C) of this Order, had defense counsel introduced Brandon's psychiatric records from Second Chance, the prosecution would have likely called Brandon's therapists as witnesses, who would have testified regarding their misgivings about Brandon's relationship with Poizner, the concept of "grooming," and the fact that molestation victims often deny the molestation at first. That evidence would have been detrimental, not helpful, to Poizner's case. As to Austin's psychiatric records, Austin testified extensively on direct and cross examination about his psychological issues, admitting he cut himself both before and after Poizner's abuse, purposely beat himself up on one occasion in order to falsely accuse his mother's boyfriend of battery, admitting he was "manic" and was on medication for having bipolar disorder, admitting he had gotten kicked out of his rehabilitation program, that he was suspended from school and had gone to juvenile hall. (Lodgment No. 2, vol. 3 at 252, 253, 264, 266.) Poizner has not established what further information about Austin's psychological state was contained in his psychiatric records and how that information would have helped his defense.

Counsel was also not ineffective for failing to introduce character witnesses. As discussed above in section IV(E), had defense counsel introduced such witnesses, extremely damaging evidence from Poizner's diary would have been presented to the jury. As the trial judge noted during the motions hearing excluding some of the diary entries, "I am persuaded that if jurors heard this evidence about him sneaking into homes and molesting children while they sleep it would be game over." (Lodgment No. 2, vol. 1 at 38.) Trial counsel also stated in a declaration attached to the petition for writ of habeas corpus Poizner filed in San Diego Superior Court that while he intended to present character evidence, the trial court's ruling permitting the prosecution to introduce damaging evidence from Poizner's diary made it strategically unwise to present such evidence. (Lodgment No. 9, Ex. H.) "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland, 466 U.S. at 691.

For the foregoing reasons, the Court concludes the state court's resolution of Poizner's ineffective assistance of trial counsel claims was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law, and was not based on an unreasonable determination of the facts. Williams, 529 U.S. at 412-13. The claim is DENIED.

M. Ineffective Assistance of Appellate Counsel (Subclaims of Grounds Three, Four, and Five)

Poizner contends appellate counsel was ineffective for failing to raise claims three (trial counsel's failure to introduce character evidence), four (the trial court's modified instruction on the allegations lowered the prosecution's burden of proof) and five (Poizner's sentence violates the Eighth Amendment) on direct appeal. (Pet. at 63-64, 72, 78; Traverse at 22-25, 26-28, 29.) Respondent contends the state court's adjudication of the claims is neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Mem of P. & A. Supp. Answer at 33, 36, 39.)

Poizner raised these claims in the petition for review he filed in the California Supreme Court challenging the denial of his habeas corpus petition by the state appellate court. (Lodgment No. 12.) That court denied the petition without citation of authority. (Lodgment No. 13.) Accordingly, this Court must "look through" to the state appellate court's opinion denying the claims as the basis for its analysis. Ylst, 501 U.S. at 805-06.

As to trial counsel's failure to introduce character evidence, the state appellate court concluded that "appellate counsel was not ineffective for failing to challenge the trial court's evidentiary ruling, which was clearly correct. (People v. Constancio (1974) 42 Cal.App.3d 533, 546 (Constancio) [counsel not required to make meritless argument].) (Lodgment No. 11 at 3.) As to the jury instruction question, the state appellate court, citing Constancio, noted that "[t]he trial court . . . was not required to tell the jury four separate times . . . that the People had to prove the allegation beyond a reasonable doubt, and appellate counsel did not provide ineffective assistance by not arguing otherwise on appeal." (Id. at 4.) As to Poizner's claim that appellate counsel was ineffective because he failed to raise an Eighth Amendment challenge to his sentence, the state appellate court found as follows:

(Lodgment No. 11 at 4-5.)

The standard of review for claims of ineffective assistance of appellate counsel is the same as that for trial counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000) (citing Smith v. Murray, 477 U.S. 527, 535-36 (1986)). A petitioner must first show that his appellate counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. He must then establish he was prejudiced by counsel's errors. Id. at 694. To establish prejudice in the context of ineffective assistance of appellate counsel, a petitioner must demonstrate that he would have prevailed on appeal absent counsel's errors. Smith, 528 U.S. at 285. Appellate counsel is not required to raise frivolous or meritless claims on appeal. Jones v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012).

The state appellate court correctly analyzed Poizner's ineffective assistance of appellate counsel's claims. Appellate counsel told Poizner's habeas counsel he did not challenge the trial court's ruling on the admissibility of character evidence because he concluded the ruling was correct, though he also stated that since he challenged the admissibility of other portions of Poizner's diary, he "probably should have done the same with [those] portions of the diaries." (Lodgment No. 9, Ex. I.) As noted above, appellate counsel is not required to raise frivolous or meritless claims on appeal. Jones, 691 F.3d at 1101. Appellate counsel's statements indicate he did not raise the character evidence claim because he at least initially believed it was meritless. And, though he later indicated he "probably should have" raised the claim since he was raising other claims related to the admission of evidence from Poizner's diaries, as discussed in section IV(E) of this Order, his initial analysis was correct, and Poizner would not have prevailed on appeal had appellate counsel raised this claim. Smith, 528 U.S. at 285. Thus, Poizner has not established either that appellate counsel's failure to challenge the trial court's ruling on the admissibility of character evidence was objectively unreasonable representation, or that he was prejudiced by appellate counsel's failure to do so. Id.

Appellate counsel also did not render ineffective assistance by failing to raise a challenge to the reasonable doubt jury instructions for the allegations. As discussed in section IV(F) of this Order, the jury instructions properly and sufficiently advised the jury of the necessity to find each and every allegation to be true beyond a reasonable doubt, and thus the claim is meritless. Jones, 691 F.3d at 1101. Because the claim is meritless, there is no likelihood Poizner would have prevailed on appeal had appellate counsel raised the claim. Smith, 528 U.S. at 285.

Finally, appellate counsel did not render ineffective assistance by failing to raise and Eighth Amendment challenge to Poizner's sentence. Appellate counsel told Poizner's habeas corpus counsel he did not raise an Eighth Amendment claim because "the law was overwhelmingly unfavorable on the merits." Indeed, as discussed in section IV(G) of this Order, this Court agrees Poizner's sentence does not violate the Eighth Amendment. Because the claim is meritless, Poizner has not established either that counsel erred by failing to raise the claim, or that he was prejudiced by such failure. Jones, 691 F.3d at 1101; Smith, 528 U.S. at 285. Accordingly, the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law, and was not based on an unreasonable determination of the facts. The claim is DENIED.

N. Cumulative Error (Ground Twelve)

Poizner contends the cumulative effect of the errors at Poizner's trial violated his federal due process and fair trial rights. (Pet. at 111-12; Traverse at 32.) Respondent argues first that there is no clearly established Supreme Court law establishing that cumulative error is a federal constitutional error, and that alone precludes relief. (Mem. of P. & A. Supp. Answer at 49-51.) In addition, Respondent notes that because the only error identified in state court was the admission of consensual touching of Homeboy when he was an adult to prove propensity, and that evidence was found to be alternatively admissible as evidence of intent, Poizner's trial did not contain multiple errors upon which a claim of cumulative error can be based. (Id.)

Poizner raised this claim in the petition for review he filed on direct appeal. (Lodgment No. 7.) That court denied the petition without citation of authority. (Lodgment No. 8.) Accordingly, this Court must "look through" to the state appellate court's opinion denying the claim as the basis for its analysis. Ylst, 501 U.S. at 805-06. That Court stated that "[o]ur rejection of [Poizner's] claims of substantive error, and conclusion that any assumed error was harmless, necessarily disposes of his claim of cumulative error. [Citations omitted.]" (Lodgment No. 6 at 36.)

Although Respondent is correct that there is no clearly established Supreme Court law finding cumulative error is a federal constitutional claim, the Ninth Circuit has held that such clearly established law exists. Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007). In Parle, the Ninth Circuit concluded that "[t]he cumulative effect of multiple errors can violate due process even where no single error rises to the level of a constitutional violation or would independently warrant reversal." Id., citing Chambers, 410 U.S. at 290, n. 3. As Respondent notes, only one error occurred at Poizner's trial, namely, the admission of consensual spanking as a sexual offense pursuant to Evidence Code § 1108. (Lodgment No. 6 at 20.) But the state court properly concluded this error was harmless because the evidence was alternatively admissible as evidence of "intent, common plan or scheme, or any of the other permissible inferences under [1108]." Id. Because multiple errors did not occur at Poizner's trial, no cumulative error occurred. The state court's resolution of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Williams, 529 U.S. at 412-13.

V. CONCLUSION

For the foregoing reasons, the Court concludes that Poizner is not entitled to federal habeas corpus relief. The Petition is DENIED. The Court also DENIES a certificate of appealability. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

IT IS SO ORDERED.