Carlos Montoya v. Kim Jones

MEMORANDUM

Carlos Montoya appeals the district court’s dismissal of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254 . We review de novo the district court’s dismissal of the petition. White v. Martel, 601 F.3d 882, 883 (9th Cir.2010) (per curiam). We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we affirm.

1.Montoya was charged with three counts of lewd conduct with a minor under the age of sixteen, in violation of Idaho Code § 18-1508 . The first count was for “manual/genital contact with the intent of appealing to, arousing, or gratifying the sexual desires of [Montoya].” The second and third counts used the same language, except the second count was for “oral/genital contact” and the third was for “genital/genital contact.” At trial, the jury was told in Instruction No. 18 that the state had to prove, in relevant part, that Montoya had “committed an act of manual-genital contact or oral-genital contact or genital-genital contact or any other lewd or lascivious act upon or with the body of [the victim],” and that the act was intended “to arouse, appeal to, or gratify the lust or passions or sexual desires of either of them.” (emphases…