The opinion of the court was delivered by: Charles R. Breyer United States District Judge
ORDER DENYING PETITION FOR A WRIT OF HABEAS
Petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2254 claiming insufficiency of the evidence. For the reasons set forth below, the petition is denied.
After a jury trial in the Superior Court of the State of California in and for th County of Humboldt, petitioner was found guilty first-degree murder for the killing of Maria Montero, child endangerment and using a deadly weapon in the commission of the killing. The California Court of Appeal reversed and remanded because the trial court erroneously admitted a declaration that Montero filed in support of an application for a restraining order against petitioner. On remand, petitioner waived his right to a jury trial and the case was tried to the court. On December 21, 2005, the trial court found petitioner guilty of second-degree murder and personally using a deadly weapon in committing the offense. On February 2, 2006, petitioner was sentenced to sixteen years to life in state prison. On February 28, 2007, the California Court of Appeal affirmed the judgment of the trial court and, on May 9, 2007, the Supreme Court of California denied review. On July 11, 2007, petitioner timely filed the instant petition for a federal writ of habeas corpus under 28 U.S.C. § 2254 claiming that there was insufficient evidence to support his second-degree murder conviction. Per order filed on November 15, 2007, the court found that petitioner's claim was cognizable under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer and petitioner has filed a traverse.
The California Court of Appeal summarized the facts of the case as follows: Star Lee Bakas, a neighbor of Montero, testified that on the day in question she was in her apartment studying. At approximately 9:00 a.m. she had smoked some marijuana and drunk a beer. Around noon, she saw Montero and Kenia, the then three-year-old daughter of Montero and defendant, "walking up the sidewalk of the apartments to check the mail." Bakas saw them return to their apartment, and approximately three minutes later heard "horrendous screams" coming from Montero and Kenia. She ran to Montero's apartment, knocked on the door and yelled to the landlord to "please call 911." It took her "a minute, maybe less" to get to Montero's apartment. The apartment doorwas ajar and it opened when Bakas banged on it. She saw defendant lying down with a knife, and Montero "on the floor with her back against the couch, and she appeared to be dead. And the little girl was behind the mother on the left-hand side of her, behind her shoulder." When Bakas opened the door, defendant started to sit up. She did not see any injuries on him at that time. She then went to the landlord's apartment, approximately 12 to 15 feet away, and "bang[ed] on the door screaming 'Call 911. He's killed the wife. There's a baby inside.' "When she received no response, she returned to Montero's apartment.
Defendant was sitting up, holding the knife and cutting his throat. He then held the knife to his stomach, but Bakas did not observe any bleeding from the stomach. Bakas called to Kenia, who looked frightened, and after about a minute Kenia left the apartment with her.
Bakas noticed small splatters of blood on Kenia's clothes and face, but did not see any injuries on her. Kenia was seven years old at the time of the second trial. She testified that on the day of the homicide, she and Montero went shopping. When they returned, no one else was in the apartment. Some time later, defendant arrived. Montero was in the kitchen, and Kenia saw defendant with a knife in his hand. She testified that he cut Montero on her chest and stomach. She did not recall Montero or defendant saying anything, but stated that defendant got Montero out of the kitchen and to the couch by "slamm[ing] her." While this was happening, Kenia hid in a closet. When she emerged, she saw her mother. Kenia testified that "I got a shirt. And I didn't know what the blood was, so I wiped her." She stated that Montero never held the knife. She was asked
"Did your mom ever say anything to your dad about hurting him?" and replied, "No. She didn't have time to say anything." On cross-examination, Kenia testified that she could see through the closet door, and that she stayed in the closet until defendant had left. Defendant testified that on the day of the killing he went to Montero's apartment to see Kenia. Montero was in the kitchen when he arrived and Kenia was outside in the car. He stated that he did not have a weapon with him and did not go to the apartment intending to kill Montero. He told Montero that "I was sad, and I wanted to see my daughter; and she told me that I was not going to see my daughter any more. . . I felt very badly because she is my daughter. . . I tell her that in that case what was the purpose of life if I didn't have my daughter. It didn't matter to me to be alive or not." He told Montero that he was going to kill himself. "She told me that if I had the guts to do it. . . She told me to get the knife from underneath the bed, and I went and got the knife from underneath the bed. . . I put it in my chest; and I tell her that if she was not going to let me see my daughter, I was going to kill myself. . . I started crying then with her. I left the knife on top of the TV, and I went to the bathroom. I was there crying. And so I came out and she say, 'Oh, you were saying about killing yourself, doesn't look like you have the guts to do that.' And she said, 'Do it and go and fuck your mother.' . . . She gave me the knife. I put it to my chest, and she just push it against me, and I don't remember any more what happened." When interviewed by the police shortly afterwards, defendant told them "that there was another man in Maria's life[-]that his name was Ramone Garcia and he was guilty of this whole mess." The day before the homicide, defendant told his cousin that he had been told that Montero had applied for a restraining order and asked for child support. This upset defendant. Defendant admitted that the Sunday prior to the homicide, Officer Reyna-Sanchez had explained the restraining order process to him and "that the court would make it possible even if [he] and Maria broke up and never got back together, there was still a process by which [he] could see Kenia." A forensic pathologist testified that he found "well over two dozen" wounds on Montero's body, of which he isolated six, any one of which would have been fatal. He testified that he recovered the tip of a knife blade from Montero's upper left arm bone. "The blade went into the arm and struck the long bone and basically embedded the tip of the knife which broke off and left the tip in the bone." He identified a number of defensive wounds on Montero's hands, "consistent ... with struggle." Kay Belschner, a senior criminalist, testified that she examined two pieces of Kenia's clothing; sweatpants and shoes from defendant; and pants, a top and a brassiere from Montero. She compared blood on the clothing to blood samples obtained from Montero and defendant. She also examined blood stains from the area of the homicide and from the furniture in Montero's apartment. She found defendant's blood "on his own clothing, his pants, and his shoes. There was one stain on the child's pants that was his type. . . On [Montero's] clothing there was a stain and a cast-off that were also his type. It was on her left pant leg." On defendant's sweatpants she found a variety of blood stains. "There is some heavy staining up in the front. There are some smears and wipes. There are some what I would classify as little dribbles. There are a number of spatters that go primarily downward. Many of them go towards the inseam primarily on the left leg. . . They are on the thigh and the lower calf area." All of the stains on defendant's pants were his own blood. The downward direction of the blood stains "suggest[s] an interpretation that the person wearing the pants was standing at the time." All of the blood stains on defendant's shoes were also his blood, except for one drop that was Montero's. Many of the blood drops on defendant's shoes "are clear heavy downward drops. They would have come from above the shoe." Belschner also found one stain of defendant's blood on Montero's pants, around the knee of the left leg. She opined that the blood had been flung from an object that had blood on it, such as a knife or a finger. She stated that it was likely that Montero was standing up when the blood was flung onto her pants, and that it was flung from in front of or beside her. She said that it "might be possible, but it would be a little less likely" that Montero was lying down horizontally at the time the blood was flung. She was asked, "[I]n your investigations-and you have had quite a bit of experience with blood-does it sometimes occur that you don't find blood where you expect it to be. . . ?" She replied,
"Yes, it does." Although she "expected to find a significant amount of Maria Montero's blood on Mr. Pantoja's pants," the fact that she did not would not invalidate her conclusions. "[T]here are probably explanations for why it didn't get on the pants with angles and ... positioning of people. It might have gone somewhere else and not strictly on the pants. It doesn't change anything about how his blood got on his own pants. On cross-examination, Belschner stated that although she had tested many of the stains on defendant's pants, she had not tested "every single stain on the pants." She stated that the drop of defendant's blood that was on Montero's pants could have landed there while she was lying down, but with her knee bent. She considered it more likely than not that defendant "was at least upright after he did some cutting" of his throat.
Officer Honeycutt testified that he first met Montero on April 23, 2001.Although Montero spoke Spanish and the officer spoke English, he observed that Montero was upset and agitated. Honeycutt returned later that evening with Officer Reyna-Sanchez, who spoke Spanish. After speaking with Montero, the officers went to an apartment where they found defendant. Reyna-Sanchez testified that he first met Montero on September 28, 2000, when he accompanied her to her apartment. When they arrived, defendant was there. Reyna-Sanchez told defendant that Montero "didn't want him there and that he needed to leave." Defendant was "concerned about his visitations with his daughter. . . if he and [Montero] divorced or separated." Reyna-Sanchez next met Montero on April 23, 2001, when he accompanied Honeycutt to Montero's apartment. When they spoke with defendant later that evening, he expressed concern about his ability to visit their daughter because Montero "was on the verge of separation, divorce, restraining order." Reyna-Sanchez also testified that he spoke with defendant's cousin, who said that defendant told him the night before the killing that he had learned Montero "had started legal proceedings for child custody. . ."
Defendant "was upset and nervous and concerned about losing his right to see his child. . . He said he was concerned about the possibility he might do something he might regret." Officer Martinez testified that he came in contact with Montero in 1999. She was bruised and expressed a fear that defendant would return and attempt to take their daughter away. The sister-in-law of Montero's brother assisted Montero in applying for a restraining order "a day or two" before Montero was killed. In the application, Montero also asked for custody of Kenia and child support. Dr. Jose LaCalle, a "cross-cultural forensic psychologist," testified for defendant. He assessed defendant as having "a verbal IQ of 74, performance of 77, full scale IQ of 74, which places him in the borderline mentally retarded label." He observed that defendant had a deep distrust of women stemming from an incident in which he was seduced by his uncle's wife, and that defendant suffered from depression. LaCalle described defendant's relationship with Montero as "very problematic, tumultuous." He testified that defendant had "some signs of paranoid ideation of mistrusting women, always suspicious of their actions and their motives of the relationship with him," and said that defendant was "obsessive." LaCalle interviewed defendant three times, once in 2001 and twice in 2002. During the second interview, LaCalle reported that defendant told him that when he threatened to kill himself Montero had pushed the knife into his chest, puncturing him, and that she told him that he did not "have the balls to do it." During the third interview, defendant told him that Montero had directed him to kitchen knives that were hidden under the bed. LaCalle indicated that "[i]f there were evidence that the defendant brought the knife with him," "[i]t would indicate premeditation." He also testified that defendant told him that Montero had told him "fuck your mother," a phrase which LaCalle opined "has a particularly harsh and combative character in . . . some circumstances." He stated that "In my experience, I have several cases that a person is dead after saying that. And, because of my knowledge of the Mexican cultural and Latin-American culture, I can assure you are thousands of dead people after that statement."
A forensic pathologist testified for the defense that "with medical probability" the knife that caused the wounds to defendant's chest "was in a sharpened state rather than a broken off state." He further opined that the wounds in defendant's stomach area "were inflicted after the knife had already been damaged . . ." However, he stated that he could not "preclude all of the [ ] wounds being inflicted with the knife with the tip broken." The knife wounds to defendant's chest area did not sever any major arteries or blood vessels. Montero's son testified that he cleaned out Montero's apartment after her death. He found two knives under her bed, one of which was small and plastic and the other approximately 10 to 12 inches long and serrated. He had been in Montero's apartment when she was alive, and had been present while his mother cooked, but he had never before seen the knife that was used to kill her, or one similar to it. The wife of defendant's brother, Alma Pantoja, testified that defendant was often "sad and depressive." Defendant told her that on the day of the killing he had asked Montero to see Kenia and she refused to let him. He said that if he could not see Kenia "then he was going to kill himself." "He said that then he grabbed a knife and put it on his chest. . . Then he said he didn't have the strength to do it. So he put the. . . knife away. And he walked somewhere else, sat down, and started crying. . . And she'll grab the knife, take it to him, and tell him that if he was-if he has the strength to do it, to go ahead and do it. Then he grabbed the knife again and put it on his chest again." She testified that although she had spoken with defendant several times since Montero's death, he had never said that he was upset at the time of the killing. Defendant's sister also testified. Defendant was living with her in August 2001. Defendant did not tell her about a restraining order. The week before he killed Montero, defendant slept "a lot." She ...