FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on February 14, 2001 in the San Joaquin County Superior Court on charges of murder, sodomy and rape, with the special circumstances finding that the murder was committed while petitioner was engaged in the crimes of sodomy and rape. He seeks relief on the grounds that: (1) the trial court violated his right to due process by admitting into evidence his statements made over the jail ventilation system, a tape recording of a song he sang in his jail cell, and DNA and fingerprint evidence; (2) the trial court violated his right to due process by denying his request for substitute counsel; and (3) his trial and appellate counsel rendered ineffective assistance. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
PROCEDURAL AND FACTUAL BACKGROUND*fn1
Defendant Patrick Shawn Loveday was convicted of murder (Pen.Code, § 187),*fn2 sodomy ( § 286, subd. (c)(2)), and rape (§ 261, subd. (a)(2)). The jury also found two special circumstances allegations true, specifically, that the murder was committed while defendant was engaged in the crime of sodomy and that the murder was committed while defendant was engaged in the crime of rape . . . .
The victim, Irene Powell, and her husband Fred were having marital problems largely relating to her drug use. During the two weeks prior to her murder, the Powells' relationship was improving. The Powells had sexual relations both the night before and the morning that Irene was murdered. On the afternoon of the 26th of September, 1998, Irene left to take clothes to the laundromat. Fred never saw her again.
On September 27th, while a local farmer was checking out his ranch he found Irene's body in a walnut orchard. The farmer called 911. Deputy Sheriff Herrera was dispatched to the orchard. When he arrived at the scene, he saw a woman who appeared to be Hispanic. She was mostly nude. Her white shirt was pulled forward, exposing her back and the cups of her bra were pulled up over her breasts. She was on her knees, with her rear-end up in the air and the top of her head touching the ground at an extremely tilted angle. Both arms were down, tucked beneath her body. Her anus appeared unnaturally large.
The dirt in the area where the body was found was hard, uneven and dry. There were faint tire marks in the row where Irene was found. There were various locations in the dirt where someone had stood or knelt. One of these locations was directly behind Irene, between her knees.
Irene's red Thunderbird was found at a motel. There were large blood smears on the hood of the car, the steering wheel, the center console, and the passenger side door. Defendant's fingerprints were found inside Irene's car.
Irene had a number of abrasions and contusions on her body. She had bruises on her neck and both lips and her right eye was swollen shut. There was a series of bruises measuring two and one-half to three inches long, one-half inch high, and one-half inch wide on her left thigh. The similarity of these bruises in size and shape suggested they were made by the same object. Bones in her neck were broken. There was dirt on her body, her face and surrounding the anus. There were no anal injuries but the anus was dilated. From her injuries, it appeared Irene had been strangled, stabbed and severely beaten all over her body, probably by something other than a fist. The forensic pathologist concluded the cause of death was manual strangulation.
Sperm was found in both the vaginal and anal swabs and semen was found in the rectal swab. All the DNA samples recovered from Irene's body were matched to Irene, Fred or defendant. Some of the sperm from the vaginal swabs was consistent with Fred Powell's DNA. The sperm from the rectal swabs was "indistinguishable" from defendant's DNA. There were additional DNA fragments in the vaginal swab which were consistent with defendant's DNA. Although the presence of sperm revealed a sexual act, the condition of the anus and the vagina did not establish whether the sexual act was forced or consensual. Fred testified he and Irene had not had anal sex and Irene did not like anal sex.
Irene and defendant had a history of smoking crack cocaine together. Irene would go to defendant's apartment about once a week and they would get high.
In September or October 1998, Shana Morris began dating defendant. Defendant told her he had killed someone. He went on to relate the details telling her he had met a lady and they had gone for a drive in her red Thunderbird. They stopped and smoked some rock cocaine. The lady owed defendant money for the drugs and he got mad. He hit her in the face, slammed her face into the hood of the car, and strangled her. He left her face down in a puddle in an orchard. He used her pants to wipe his fingerprints out of the car. Defendant did not tell Ms. Morris about any sexual activity between himself and Irene. The information Ms. Morris related to the police included details of the crime which had been withheld from the public.
In August 1999, Detective Wuest went to the jail to take defendant's fingerprints. After defendant was returned to his cell, Detective Wuest and Correctional Officer Ralph Huggins listened to defendant via the intercom system in the jail cells. Detective Wuest recorded defendant's comments. After Detective Wuest testified about the specific contents of the tape, which, essentially, was defendant rapping various lyrics such as "They're trying to give me murder and I'm not going to take it." The tape of this performance was played for the jury.
Huggins also heard an additional conversation between defendant and other inmates. Specifically, defendant admitted he had killed Irene by "choking her out." He also stated he had had sex with Irene in exchange for drugs.
Jury trial commenced on January 18, 2001, and a verdict was reached on February 14, 2001. The jury found defendant guilty of murder, sodomy and rape and found both special circumstances allegations true. Defendant was sentenced to life without possibility of parole on the murder with special circumstances charge and the upper terms of eight years on both the rape and sodomy charges. These latter two sentences were stayed pending successful conclusion of the murder sentence.
I. Standards of Review Applicable to Habeas Corpus Claims
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.
The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). When it is clear that a state court has not reached the merits of a petitioner's claim, or has rejected the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
Petitioner claims that the trial court violated his right to due process by admitting evidence of his statements made over the jail ventilation system, a tape recording of a song he sang in his jail cell, and DNA and fingerprint evidence. After setting forth the applicable legal principles, the court will evaluate these claims in turn below.
Absent some federal constitutional violation, a violation of state law regarding the admissibility of evidence does not provide a basis for habeas relief. Estelle, 502 U.S. at 67-68. Accordingly, a state court's evidentiary ruling, even if erroneous, is grounds for federal habeas relief only if it renders the state proceedings so fundamentally unfair as to violate due process. Drayden v. White, 232 F.3d 704, 710 (9th Cir. 2000); Spivey v. Rocha, 194 F.3d 971, 977-78 (9th Cir. 1999); Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991) ("the issue for us, always, is whether the state proceedings satisfied due process; the presence or absence of a state law violation is largely beside the point"). A writ of habeas corpus will be granted for the erroneous admission of evidence "only where the 'testimony is almost entirely unreliable and . . . the factfinder and the adversary system will not be competent to uncover, recognize, and take due account of its shortcomings.'" Mancuso v. Olivarez, 292 F.3d 939, 956 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 899 (1983)). Evidence ...