Goodwin R. Brodit v. Steven J. Cambra, Jr., Warden

350 F.3d 985 Goodwin R. BRODIT, Petitioner-Appellant, v. Steven J. CAMBRA, Jr., Warden, Respondent-Appellee. No. 02-15323. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 10, 2003. Filed November 26, 2003. Ronald C. Tyler, Assistant Federal Public Defender, San Francisco, CA, for the petitioner-appellant. George F. Hindall, III, Deputy Attorney General, San Francisco, CA, for the respondent-appellee. Appeal from the United States District Court for the Northern District of California; Susan Yvonne Illston, District Judge, Presiding. D.C. No. CV-99-00093-SI. Before: ALEX KOZINSKI, SUSAN P. GRABER, and MARSHA S. BERZON, Circuit Judges. Opinion by Judge GRABER; Dissent by Judge BERZON. OPINION GRABER, Circuit Judge: 1 Petitioner Goodwin Brodit was convicted in state court of continuous sexual abuse of a minor, in violation of California Penal Code § 288.5, for engaging in sexual activities with his 10 year old stepniece. In this federal habeas petition, brought pursuant to 28 U.S.C. § 2254 , he challenges his conviction on the grounds that the state-court procedures denied him due process of law and that he received ineffective assistance from his…

Opinion by Judge GRABER; Dissent by Judge BERZON.

Petitioner Goodwin Brodit was convicted in state court of continuous sexual abuse of a minor, in violation of California Penal Code § 288.5, for engaging in sexual activities with his 10 year old stepniece. In this federal habeas petition, brought pursuant to 28 U.S.C. § 2254 , he challenges his conviction on the grounds that the state-court procedures denied him due process of law and that he received ineffective assistance from his state trial counsel. We affirm.

PROCEDURAL HISTORY

Petitioner was charged with violating section 288.5 by committing at least three lewd and lascivious acts with his stepniece while he was staying in the home of her mother and stepfather (Petitioner’s brother), between June 12, 1992, and December 31,1994. A jury convicted him. The state trial court sentenced Petitioner to serve a term in prison, pay restitution, undergo HIV testing, and register as a sex offender.

Petitioner pursued both a direct appeal and habeas relief through the state courts. He raised in state court all the claims that he brings before us. The California Court of Appeal consolidated the direct appeal with the state habeas…

dissenting:

I concur in Part A of the majority opinion. I conclude, however, that Brodit’s counsel was ineffective under the standard established in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), and that habeas relief is available for that constitutional injury. I *943 therefore respectfully dissent from Part B of the majority opinion.

BACKGROUND

The majority opinion provides no factual background against which to evaluate the ineffective assistance claim. As I do not believe the contention can be adjudged outside of its factual context, I provide that context here.

Charging documents accused Brodit of a violation of California Penal Code section 288.5, alleging that he committed at least three lewd and lascivious acts with his stepniece Jane Doe. 1 These incidents purportedly occurred while Brodit was staying in the home of Jane’s mother, Arcel, and stepfather, John Brodit, his brother, between June 12, 1992 and December 31, 1994. The course of the ensuing trial was considerably influenced by the set of special rules that California has evolved for use in child abuse prosecutions. The existence of these rules, which I agree are valid under…