The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITION FOR WRIT OF HABEAS CORPUS
On February 20, 2007, petitioner Mark Bates ("Petitioner"), a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On July 16, 2007, respondent Ken Clark ("Respondent") filed an answer. (Doc. No. 9.) On February 8, 2008, the magistrate judge filed a Report and Recommendation. (Doc. No. 13.) The magistrate judge ordered objections filed by February 22, 2008. As of the date of this Order, Petitioner has not filed objections to the Report and Recommendation. For the reasons set forth below the Court ADOPTS the Report and Recommendation and DENIES the Petition.
A. The Crime and Investigation
Petitioner is currently serving a sentence of sixteen years to life in Corcoran State Prison for the murder of Jose Sanchez. (Petition ("Pet.") 1.) Both Petitioner and the victim were transients living in San Diego at the time of the killing. (Lodgment 5 at 2.) On October 21, 2003, at approximately 10:00 p.m., police responded to a 911 call made from the Centro Cultural de la Raza ("center") in Balboa Park, San Diego, and found the victim, Mr. Sanchez, lying on the ground near the center. (Id. at 3.) His head had been smashed to such a degree that he appeared headless. (Id.) Police officers found Petitioner near the scene. (Id.) The woman who called 911 told police that Petitioner had banged on the door of the center and told her that the victim was hurt. (Id.) Petitioner had blood on his pants and was wearing his sweatshirt inside out. (Id.) Police later determined that there was blood on the outside of Petitioner's sweatshirt as well. (Id.) The police found four rocks near the victim's body; all four rocks had the victim's blood and brain tissue on them. (Id.) In response to some initial questions by police officers at the scene, Petitioner said that he knew the victim, had found him lying motionless, and had tried to revive him with CPR. (Id.) The police subsequently took Petitioner into custody.
After Petitioner was placed in custody, Detectives Kenneth Brown and Ed Valentine interviewed him. (Lodgment 1 vol. 2 at 202.) Prior to informing Petitioner of his Miranda rights, the detectives asked only basic informational questions such as the spelling of his name, where he lived, his age, his level of education, and the phone number of any family contacts. (Id. at 202-04.) Detective Brown then informed Petitioner of each of his Miranda rights, and asked after each one whether Petitioner understood the right. (Id.) Petitioner affirmatively responded that he understood each of the rights Detective Brown read to him. (Id.) Detective Brown then asked, "Do you want to tell me what happened tonight out there?" (Id.) Petitioner immediately began telling his version of the events, relating that he knew the victim and that he and the victim had gotten into an argument earlier in the day. (Id. at 206-11.) Petitioner said that following the argument, he had gone to another part of the park for a few hours, and that when he returned he found the victim laying motionless. (Id.) Petitioner stated that he had tried to perform CPR on the victim and had then gone to the nearby cultural center to get help. (Id.) During this custodial interview of Petitioner the following dialogue occurred:
Brown: Did you happen to see the condition of his head?
Brown: Why didn't you? If you're down, I'll tell you right now, if you're down doing CPR, you're, you're going to be able to see that. Petitioner: I didn't see the condition of his head.
Valentine: Mark, the thing is this, we're not saying you're a bad guy. Okay, Mark. You know, we're just saying that maybe you got upset. . . Petitioner: No.
Valentine: . . . and, listen to me, listen to me, okay, maybe you got upset, Jose was picking on you, was calling you names or whatever he might have been doing to you and you guys had a little argument and it turned into a fight and it got out of control. You know then, after, after, then you realized what happened and you went to get help. Because you didn't want anything bad to happen. You didn't want to hurt him, you know, and that's, that's what we're asking. We want to find out what happened. Maybe that's what occurred. But we need to hear it from you, cause unless you're a bad guy, we just want to know if maybe it was something that just got out of control and you didn't mean to do it.
Brown: Yea, that's what, that's very true, sometimes people, they don't mean to hurt somebody and you know you tried to go get help, you weren't sure and that's why you went to the community place. Isn't that what happened?
Petitioner: I'm not saying anything right now.
Brown: Basically here's the deal. Listen to me. That's why we're trying to give you an opportunity. Why don't you tell us what happened? Valentine: And if it happened the way we were saying, that I was telling you, or he was telling you, then we need to know, we need to find out, okay, that, we're trying to help you out. That's basically what we're trying to do.
Brown: I want to find, people like I was saying, sometimes things happen, you go to try to get help, you mean well by it, but things get out of control. Okay. And I think, I think that you seem like a decent guy, you went to try to get help, didn't you?
Petitioner: I sure did. (Unintel).
Brown: Well why don't you just tell us what happened and how, why you needed to try to get help? I think it's, listen to me, I think it's very important, you're at a very important time in your life right now. Okay, and I think you know and I know deep down what happened. I think it's not hard by looking at what happened. But I think it's important to find out the truth of the matter and I think the truth of the matter is that you can tell us what occurred. And that you probably tried to get help because you wanted to help your friend and that something happened. Why don't you tell us what happened?
Petitioner: I just want to know what I'm facing?
Brown: I don't know what you're facing right now. That's up to the district attorney to determine that stuff, but we need to find out what occurred. Did you hurt that man? Why don't you just tell us what happened?
Petitioner: Yea, I hurt him. (Lodgment 1 vol. 2 at 221-22.)
Petitioner then admitted killing the victim by smashing his head four times with one of the rocks found near the victim's body. (Id. at 223.) Petitioner said he attacked the victim because he "was mad at him . . . [a]bout the fight that we had during the day." (Id. at 224.) At first Petitioner admitted that the victim had just been lying silent and motionless when he hit him with the first rock. (Id. at 231, 234.) After admitting that he also hit the victim in the head and the chest and kicked him violently, Petitioner revised his story, saying that the victim was "getting mad and speaking Spanish" and "trying to get up and hurt me." (Id. at 238-40.)
During the trial Dr. Steven Campman, a deputy medical examiner for San Diego County, testified about the victim's injuries. He stated that the victim's head above the upper lip was "torn apart" and that all the bones of his skull were broken. (Lodgment 2 vol. 3 at 353.) All the brain material had been forced out of the victim's head. Additionally, the victim's hyoid bone, uppermost vertebra, left shoulder blade, and several ribs had been broken. (Id. at 355, 357.) Dr. Campman also testified that the victim's blood alcohol level was 0.39 percent at the time of death. (Id. at 368.)
Brian Kennedy, a blood spatter expert, also testified during the trial. He opined that the blood stains of Petitioner's pants were not consistent with doing CPR, but were consistent with smashing down a large rock four times or more. (Id. at 468.)
Dr. Raymond Murphy, a psychologist, testified during the trial that Petitioner had a 75 IQ, which was in the "borderline range of intelligence" and "at that stage where it can be considered a level of retardation." (Id. at 480.) Dr. Murphy stated that he believed Petitioner to be in the six- to eight-year-old range of functioning for basic psychomotor skills and in the eight- to ten-year-old range emotionally. (Id. at 481, 482.) Dr. Murphy testified that this level of cognition would affect Petitioner's ability to plan activities and make decisions, and that Petitioner's emotional functioning would cause him to become easily frustrated under certain situations. (Id. at 483-84.)
Dr. Lynette Rivers also testified during the trial. She stated that Petitioner had an IQ of 79, above the mildly retarded range, but classifiable as borderline intellectual functioning. (Id. at 526-27.) Dr. Rivers stated that, based on her review of the transcript of the detectives initial custody interview of Petitioner, he appeared to respond appropriately to the detective's questions and used fairly sophisticated words that evidenced some higher functioning verbal abilities. (Id. at 535.) She also stated that ...