David Barghoorn v. Ken Clark

MEMORANDUM

California state prisoner David Bargh-oom appeals the district court’s denial of his 28 USC § 2254 (d) habeas corpus petition challenging his conviction in the Superior Court of California, Amador County. At his trial, Barghoorn was convicted of two counts of committing a forcible lewd act on a child under the age of 14 years (Counts I and II of the indictment), see Cal. Pen. Code § 288 (b)(1), and one count of continuous sexual abuse of a child under the age of 14 years (Count III of the indictment), see Cal. Pen. Code § 288.5 . Counts I and II each required proof of one act of abuse to convict, while Count III required proof of three or more acts of abuse. See Cal. Pen. Code §§ 288 (b)(1), 288.5. Barghoorn challenges his conviction on Count III for contiguous sexual abuse of a child, arguing that the state trial court’s use of California Jury Instruction— Criminal (CALJIC) No. 17.01 violated due process because it allowed the jury to convict upon proof of only one act of abuse. The state appellate court rejected the argument, as did the district court. The district court granted a certificate of appeala-bility and we have jurisdiction under 28 U.S.C. §§ 1291 and…