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August 27, 2003


The opinion of the court was delivered by: Charles Breyer, District Judge


Petitioner James William Niebauer ("Niebauer") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Niebauer was convicted by a jury for the first-degree murder of his wife, Abigail Niebauer ("Abigail"). He was sentenced to imprisonment for 27 years to life. The California Court of Appeal affirmed the judgment. Upon receipt of Niebauer's petition, the Court issued an order to show cause why a writ of habeas corpus should not be granted. Respondent filed an answer to the order to show cause, and petitioner filed a timely traverse.


On the evening of February 22, 1985, Niebauer shot and killed Abigail with a 12-gauge shotgun at their Palo Alto residence. Niebauer sought emergency assistance. He dialed 911 and explained to the responding officers that the shotgun discharged by accident. Page 2 He explained that he did not know that the gun was loaded, and that the gun accidentally fired as he was cleaning it. He later added that Abigail was standing within two feet of the gun when it discharged as he was showing her the gun's serial numbers.

At the time of Abigail's death, the Niebauers' 27-year marriage was experiencing difficulties. In the two years prior to her death, Abigail had been living in separate quarters. Both husband and wife were romantically involved outside the marriage.

According to statements that Niebauer gave to authorities shortly after the shooting, Niebauer ate dinner alone on the evening of the fatal shooting. After dinner, he decided to work on a shotgun that he intended to give to his daughter Cara as a belated Christmas present. After a while, he retired to the living room, leaving the gun in two pieces on the kitchen counter. When Abigail returned from dinner around 9:30 p.m., Niebauer offered to show her the shotgun. Niebauer showed Abigail the gunsmith's workmanship and turned the gun upside-down to show her the serial numbers. The gun discharged, inflicting a fatal wound in Abigail's chest.

Niebauer told the police that a gunsmith in Port Angeles, Washington had examined the gun the summer prior to the shooting. According to Niebauer, the gunsmith test-fired the gun and opined that it was safe as long as it was not loaded with extra-powerful shells. The gunsmith also "reblued" the metal parts and advised Niebauer to write to the factory to determine the gun's age. Niebauer gave police officers a gun case, a rusty bolt from the gun, and a box containing 14 shotgun shells that he retrieved from the garage.

Testing by police criminologists revealed that eight and one-half pounds force were required to pull the shotgun's trigger. It was also determined that the expended shell casing in the chamber of the shotgun was similar to eleven of the fourteen shells in the box that Niebauer produced. Gunpowder residue was detected on both sleeves of Abigail's sweater, as well as on both of her lower arms above the wrists.

The district attorney decided not to prosecute Niebauer, and the case was closed in April 1985. Police then destroyed the clothes that Abigail was wearing when she was shot, along with the gun residue kits, blood samples collected from the scene and from the Page 3 autopsy, the expended shell casing, and the rusty bolt from the gun. The gun itself was returned to Niebauer.

In the summer of 1986, Niebauer's daughter Cathy removed the gun from Niebauer's residence without his permission. The gun was stored in Cathy's friend's attic for several months.

Dissatisfied with the district attorney's decision not to prosecute the case, Abigail's brother, Lee Sansum, decided to investigate further. Toward that end, he hired a private investigator by the name of Moorehead. Moorehead obtained the gun from Cathy and turned it over to a firearms expert to test its susceptibility to accidental firing. Moorehead determined that the gun fired one of three times when it was cocked almost to the lock point before releasing the hammer; that it fired when the shotgun hammer was struck in at-rest or rebound position by a dead-blow hammer; and that it did not fire when dropped on the floor.

Sansum forwarded these findings to the attorney general in 1991 with a request that the district attorney's decision not to prosecute Niebauer be reviewed. The attorney general sent the gun to a criminalist to determine whether there had been any modifications since 1985 and whether the gun functioned in a normal manner. While noting that the gun's condition might allow accidental firing, the expert could not determine whether the gun had been modified in the time since it had last been in police custody.

In 1992, the attorney general's office concluded its investigation and declined to take further action. In a letter to Sansum, the attorney general noted that the case suffered from contradictory statements and lost evidence. In light of these problems, which the letter described in some detail, the attorney general concluded that it was not an abuse of the district attorney's discretion to decline to prosecute the case even though there were grounds to suspect that the shooting had been deliberate.

Notwithstanding the attorney general's letter, Sansum continued to press for further inquiry. One year later, a police agent in Palo Alto agreed to revive the investigation. Among other tests, the agent fired the shotgun into a mannequin to replicate the powder-staining patterns found on Abigail. He was able to obtain a close match by firing the gun Page 4 from a distance of 14 inches with the mannequin's arms raised in a defensive position.

Niebauer was indicted for first-degree murder in April 1998, more than thirteen years after Abigail's death. Prior to trial, Niebauer filed a motion to dismiss the prosecution on grounds of preindictment delay. He claimed that by the time the indictment issued, he was suffering from deteriorating health and loss of memory. In the previous five years, he had suffered multiple strokes and a heart attack. He was also taking a medication called atenolol that, he said, affected his memory. The trial court denied the motion without prejudice, preferring to hear the evidence in the case before making a ruling.

Trial commenced in July 1998. The prosecutor argued that the shooting was intentional and premeditated, basing his arguments on forensic evidence as well as witness testimony concerning the state of the Niebauers' relationship. Ballistics experts opined that Abigail's arms were positioned defensively when the gun discharged, while forensic experts testified that the pattern of blood splatter was inconsistent with an accidental shooting. Numerous witnesses testified about threatening statements that Niebauer allegedly made to Abigail and her lover, as well as about Abigail's fear of her husband prior to her death. Others testified that Niebauer was stalking Abigail; that Abigail had received a bruise near her eye as the result of a scuffle with Niebauer one month before her death; and that Niebauer was upset that Abigail did not plan to share her $100,000 inheritance with him. Niebauer's son testified that he had told the attorney general's office that Niebauer had once threatened to "get" his daughter "like he had gotten her mother," and the attorney general was called to the stand to play an audio recording of that interview.

The jury found Niebauer guilty of first-degree murder. Post-verdict, Niebauer renewed his motion to dismiss and was granted an evidentiary hearing. At the hearing, Niebauer testified that he could not remember certain events and that he had difficulty recalling details about the incident or any of the comments he allegedly made concerning it. Counsel for Niebauer further argued that the preindictment delay was prejudicial in that physical evidence was destroyed prior to indictment and at least one key witness — Niebauer's second wife, Laurie Gelardi — had died four years earlier. Finding that Niebauer's alleged Page 5 memory loss was "selective" and that the destroyed evidence was immaterial, the court denied the motion. Niebauer was sentenced in June 1999 to a term of 27 years to life.

Petitioner appealed his conviction to the California Court of Appeal, which affirmed in June 2001. He then appealed to the California Supreme ...

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