The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge Sitting by Designation
Pending before this Court are Charitie Hennig's ("Petitioner") "Amended Petition for Writ of Habeas Corpus" (Doc. 14), filed on February 1, 2006; Respondent's "Answer to Petition for Writ of Habeas Corpus" (Doc. 21); and Petitioner's "Traverse to Answer to Petition for Writ of Habeas Corpus" (Doc. 44). For the reasons discussed below, Petitioner's application for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254(a) is denied.
Petitioner was found guilty in the Solano County Superior Court by a jury of voluntary manslaughter*fn2 in violation of California Penal Code Section 192, and assault on a child causing death, in violation of California Penal Code Section 273ab. On January 14, 2002, she was sentenced to serve 25 years to life imprisonment. Petitioner filed a direct appeal from the judgment and sentence before the California Court of Appeal for the First Appellate District, Division Five. The Court of Appeal affirmed the judgment and sentence in an unpublished opinion filed on April 4, 2003. Petitioner filed a petition review in the California Supreme Court. In her petition for review, she asserted that the trial court erred in refusing to instruct the jury on involuntary manslaughter, and that her sentence of 25 years to life constituted cruel and unusual punishment. The Supreme Court denied her petition on August 31, 2005. The Supreme Court denied the petition for review on June 18, 2003.
The California Court of Appeal summarized the facts presented at trial as follows in its unpublished decision, People v. Charitie Lovee Hennig, No. A097722, 2003 LEXIS 3377, at *2-7 (Cal. Ct. App. (Apr. 4, 2003).
In September 2000, Mark and Casandra Dana hired defendant to baby-sit, on weekdays, for their four children, including nine-month-old Matthew. Matthew was a healthy, normal child, who had a history of intermittent constipation, which was neither severe nor uncommon. He was likely to be particularly fussy when trying to pass a hard stool. Mrs. Dana informed defendant of Matthew's intermittent constipation.
At approximately 7:30 a.m. on February 5, 2001, Mrs. Dana dropped her four children off at defendant's home. Between 8:30 and 9:00 a.m., Mr. Dana discovered his mother, Dora, beating frantically on the front door of the Dana's home. Dora was "hysterical," saying something had happened at defendant's house and one of the babies was not breathing. Mr. Dana and his mother drove immediately to defendant's home where they found the front door open. When they entered the living room, Mr. Dana could hear defendant in the far bedroom. When Mr. Dana entered that bedroom, he found defendant seated on the bed, her demeanor "frantic." Defendant was on the telephone trying to get help. Matthew was lying on defendant's lap, with his eyes closed and head back. He was blue around the mouth, unresponsive and appeared to be dead. After an ambulance arrived, the paramedics unsuccessfully attempted to resuscitate Matthew. He was pronounced dead about an hour after his arrival at the hospital.
Solano County Sheriff's Department Detective Gary Elliott conducted a tape-recorded interview of defendant at the hospital.*fn3 Defendant was "visibly upset." Defendant told Elliott that Matthew was "fussy" and tired, so she laid him in a portable crib in the living room and covered him with a blanket. She also said Matthew was "congested." While seated in the living room, defendant read to the other children. After answering the telephone, she returned to the living room, picked Matthew up and found he was limp, cold and "all white." After unsuccessfully trying to resuscitate him, defendant called 911.
Forensic pathologist Mark Super reviewed X-rays taken of Matthew at the hospital and performed an autopsy. The X-rays revealed "skull fractures." A single golf-ball-sized, hard stool was found in Matthew's diaper. Because the stool was considerably larger than Matthew's anus, Super opined that Matthew may have been fussy while passing it. There was a large bruise over the entire back of Matthew's head. The autopsy revealed a complex branching fracture of the back of Matthew's skull with evidence of hemorrhage inside the skull. The skull was deformed and flattened over a broad surface. The fracture signified a "severe" injury was significant evidence that the head had sustained a very severe impact. The fractures extended from the occipital bone to the spinal cord. Matthew also suffered subdural hematomas (blood clots on the brain), evidence of very severe shear forces that cause blood vessels in the brain to leak and cause blood clots on the brain. Optic nerve sheath hemorrhage also indicated blunt force trauma. Super opined that Matthew died from blunt force head injuries. After the infliction of injury, Matthew would have become immediately unconscious and his injury would have been immediately apparent.
Super opined that Matthew's injuries were caused by a single, "very severe, accelerated force against a hard, broad surface," likely by holding him by the legs and swinging him "with all one's might" into the floor or wall. Because the fractures were complex and over a wide area, Super opined that Matthew's injuries could not have been caused by a simple fall or a routine household accident. Super said that Matthew's injuries could not have been caused by a simple fall or a routine household accident. Only a catastrophic accident, such as a huge bookcase falling on Matthew or his fall from a height of several stories could cause such injuries. Super also said that Matthew's injuries were inconsistent with being found unconscious in a playpen or crib.
Following the autopsy, Super inspected defendant's home. He determined that Matthew's head could have struck the hard walls or the linoleum covered cement floor. Because nothing in the house suggested accidental injury, Super concluded that injury was "willfully inflicted" on Matthew "at great force." Super rejected the idea that an adult falling on Matthew could cause his injuries, regardless of the weight of the adult.
At the time of Matthew's death, defendant was pregnant. Certified nurse-midwife Denise Downing testified that defendant then weighed 234 pounds. Downing said that in many pregnant women, as the fetus grows, the woman's center of gravity is displaced, and she can lose her balance.
Defense forensic pathologist Sharon VanMeter reviewed Super's autopsy report, X-rays, and autopsy photographs of Matthew. She also reviewed Super's preliminary hearing testimony. She agreed with Super that Matthew suffered a skull fracture caused by blunt force trauma. She also agreed that such a fracture required either acceleration of the body against a hard surface or a hard object hitting the head, such as a baseball bat or two-by-four. She found reasonable Super's opinion that Matthew's head hit an object rather than being hit by the object. She said Matthew's pathologic findings were not consistent with a normal, alert child being placed in a playpen and shortly thereafter being found to be unresponsive. VanMeter also found reasonable Super's opinion that Matthew's injuries were sustained after he was swung by his feet or legs such that his head hit a floor or wall. In response to a hypothetical question, VanMeter testified that it was reasonably possible that if a 230-pound woman was carrying Matthew while walking quickly and then tripped, fell and hit a hard floor, landing with all her body weight on top of Matthew, enough force would be generated to cause the type of fracture suffered by Matthew. On cross-examination, she conceded that she had neither observed this in her work as a pathologist nor seen any published medical literature regarding such a scenario.
Petitioner filed a petition for state habeas corpus relief in pro se in the Solano County Superior Court. It was denied August 4, 2004. She then filed a petition for habeas corpus before the California Court of Appeal. It was denied on procedural grounds ...