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THOMPSON v. LEWIS

May 21, 2003

DEBORAH THOMPSON, PETITIONER,
v.
GAIL LEWIS, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Maxine M. Chesney, United States District Judge

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS

Deborah Thompson is a California prisoner, proceeding pro se, who filed this habeas corpus petition pursuant to 28 U.S.C. § 2254. After an initial review, the Court ordered respondent to show cause why the petition should not be granted based on petitioner's three claims. Respondent has filed an answer, along with a memorandum and exhibits. Petitioner has filed a traverse.

FACTUAL*fn1 AND PROCEDURAL BACKGROUND

Petitioner and Ed Traster were driving in Traster's blue Thunderbird on Summit road, a two-lane mountain road in Santa Cruz County, at about 5:30 p.m. on March 18, 1997. There was still daylight, visibility was good, and there were no obstructions in the road. On a straight stretch of the road, where the posted speed is 40 m.p.h. and, when children are present, 25 m.p.h., the driver accelerated to at least 55 m.p.h. The car crossed the double line into the oncoming lane, jerked back into its proper lane, spun around, climbed the curb and an embankment, ran along a cyclone fence, hit a tree, descended the embankment, and rolled onto its side. Traster had not been wearing a seat belt, was partially ejected, and died. Petitioner, who also was not wearing a seat belt, survived and managed to climb out of the sun roof, suffering a laceration on her nose and various bruises. The results of blood tests indicated that at the time of the accident, petitioner and Traster each had a blood-alcohol level of .20, as well as methamphetamine in his/her system. Petitioner also had valium and its metabolite in her system.

Kelly Rafter Piunit, an assistant district attorney for the County of Santa Clara, witnessed the accident, called "911," and stopped at the scene. She testified that she saw Traster in the passenger seat and that petitioner said, "poor," followed by a man's name. Specifically, Piunit testified: "It was a male name, but I don't remember what name it was, but it was just — she was pretty hysterical. `Poor,' let's just say, `Dave,' or something. `Poor Dave, poor Dave. I can't believe I did this to poor Dave,' and kind of hysterical. I don't know-two, three, four times." Joshua Doak also witnessed the accident. He testified that he was traveling in the opposite direction and that just before the accident he saw two people in an oncoming car, identifying petitioner as the driver and Traster as the passenger. After the accident, Doak saw Traster hanging out of the passenger seat, screaming for help.

Richard Mason, a forensic pathologist, and California Highway Patrol Officer Dane Lobb, an accident-reconstruction expert, each testified that in his opinion petitioner was the driver and Traster the passenger at the time of the accident. Their opinions were based on numerous factors, including the separate seat-position settings that corresponded to petitioner's and Traster's physical size, Traster's position and injuries after the crash, and the impact marks on the driver's side that corresponded to petitioner's injuries.

Petitioner's defense was that Traster was driving the car at the time of the accident. In support thereof, petitioner called several witnesses who testified to having seen petitioner in the passenger seat and/or Traster driving the vehicle earlier in the day. Gary Fairchild testified he saw petitioner in the passenger seat of the Thunderbird in front of a liquor store sometime between 3:00 and 4:00 p.m. that day. He testified that the car was parked at the time and that he did not see Traster at all. Whitaker Deiniger testified that at around 4:00 p.m., Traster drove up to Deiniger's house with petitioner as a passenger. After speaking to Deiniger for a few minutes, Traster drove away. Michael Tabler tesified that at around 5:00 p.m., Traster and petitioner picked him up at his house and they all went to a liquor store, after which Traster drove back to Tabler's house. According to Tabler, Traster was drunk, drove fast, and made quick turns.

The jury convicted petitioner of gross vehicular manslaughter while intoxicated. Petitioner was sentenced to 16 years to life in state prison. The California Court of Appeal and the Supreme Court of California rejected her direct appeals.

DISCUSSION

A. Standard of Review

This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975).

A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). Habeas relief is warranted only if the constitutional error at issue had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Penry v. Johnson, 121 S.Ct. 1910, 1920 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). A federal court must presume the correctness of the state court's factual findings. 28 U.S.C. § 2254(e)(1).

B. Legal ...


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