The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge
ORDER: (1) ADOPTING MAGISTRATE JUDGE PORTER'S REPORT AND RECOMMENDATION; (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS; (3) DENYING REQUEST FOR EVIDENTIARY HEARING; and (4) DENYING REQUEST FOR APPOINTMENT OF COUNSEL.
Before the Court is Magistrate Judge Louisa S. Porter's Report and Recommendation ("R&R") recommending that the Court deny the Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, of Petitioner Jane M. Dorotik ("Petitioner"). [Doc. No. 1.] The Court has considered the Petition, Respondent's Answer, Petitioner's Traverse, Petitioner's Objections to the R&R, and all the supporting documents the parties have submitted. Having considered these documents, this Court ADOPTS the R&R and DENIES the Petition for the reasons stated below.
This Court gives deference to State court findings and presumes their correctness. If Petitioner wishes to rebut the presumption of correctness, she bears the burden of proving that the State court was incorrect by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding that findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness). Petitioner has not provided the Court with clear and convincing evidence that the state court erred in its findings of fact.
The following statement of facts is taken from the appellate court opinion affirming Petitioner's conviction on direct review.
In February 2000 appellant and her husband Robert Dorotik (Robert) were living on a ranch they rented in a rural area near Escondido. The pair had three adult children. Appellant and Robert frequently argued about money. Appellant and daughter Claire were horse enthusiasts. Robert disapproved of the money spent by appellant to support that interest. The couple was not particularly affectionate, sometimes discussed divorce, but never had a physical confrontation.
In 1997 appellant and Robert separated. Robert filed for divorce and sought spousal support from appellant whose employment was considerably more remunerative. The couple reconciled in 1998 and resided together at the ranch, agreeing to keep their finances separate. Their relationship was uneven and at times they argued. Robert started a business but it did not do well.
On the evening of [Sunday,] February 13, 2000, appellant called friends and asked if they had seen Robert. Appellant explained Robert had gone for a run at 1:00 p.m. and had not returned. Appellant called the sheriff and reported Robert missing. A search was undertaken. The next day a sweatshirt, which appellant stated Robert was wearing on his run, was found on a road about two miles from appellant's home. Shortly thereafter, Robert's body was found in brush next to a road about a half mile from where the sweatshirt was located. Appellant was notified. She started to cry and asked if her husband had suffered.
It was determined that Robert died from blunt force injures to the head, with ligature strangulation as a contributing factor. He suffered at least three blows to the head. He had two large lacerations at the right side and back of the head with skull fractures underneath those lacerations and direct damage to the brain at the back of the head. There was a depressed skull fracture on the right side of the head. In the back of the head the bone was completely displaced and there was a hole in the skull. Robert had abrasions on his face and a ligature mark on his neck. There were abrasions and contusions on his hands that appeared to be defensive wounds. Robert was alive when strangled. An expert concluded the damage to Robert's head was consistent with hammer strikes.
The police interviewed appellant on February 13, 2000. She told the officers that about 1:00 p.m. Robert told her he was going to jog. She went to the barn and did not see him leave. When she returned to the house at 4:00 p.m., Robert was not there. When he had not returned by 5:00 p.m., she went out looking but could not find him. She then called the police. Appellant told the officers she and Robert each had a $250,000 life insurance policy with the other as beneficiary.
A search was conducted of appellant's residence. Bloodstains were found in several areas in the master bedroom. The patterning of some of the stains was consistent with a beating occurring in the room. When officers turned over the mattress in the room, they found a large-volume bloodstain near the headboard. There was a folded, bloodstained towel between the mattress and box springs. In a bag in the master bedroom the officers found a syringe containing a horse tranquilizer. A bloody fingerprint was found on one of the syringes. The print was identified as appellant's. A bed sheet was found in a hamper with transfer, drip and impact blood spatters on it. A steam shampooer and cleaning supplies were found in a living room closet. Blood was found on the handle, cap and nozzle of one of the bottles. Bloodstains were also found in the bed of a truck used at the ranch. DNA testing indicated many of these bloodstains were consistent with Robert's blood.
An expert in bloodstain patterning opined that the events started on the bed in the master bedroom. Robert was struck at least twice and perhaps a third time on the bed. He remained on the bed for a time after the assault. At some point Robert moved or was moved to another area in the bedroom where he was struck at least once more. Robert remained in that area for some time.
The expert also examined the clothes from Robert's body. There were transfer but no spatter stains on his T-shirt. There was no blood on his sweatpants. There were two bloodstains and a large amount of feces on Robert's boxer shorts. There was no blood on his shoes.
Appellant did not testify. She offered evidence suggesting that someone else killed Robert. (Lodgment No. 6, People v. Dorotik, No. D038706, slip op. at 2-4.)
In a one-count felony Complaint filed in the San Diego County Superior Court on February 22, 2000, refiled as an Information on November 1, 2000, Petitioner was charged with one count of premeditated murder in violation of Cal. Penal Code sections 187(a) and 189. (Lodgment No. 1, Clerk's Tr. ["CT"] 1-4.) On June 12, 2001, a jury found Petitioner guilty of murder and separately found that the murder was premeditated. (CT 323.) On August 2, 2001, Petitioner was sentenced to twenty-five years to life in state prison. (Id. at 497.)
Petitioner appealed her conviction, raising claims which are not presented here. (Lodgment Nos. 3-5.) The appellate court, in an unpublished opinion, affirmed the judgment of conviction in all respects. (Lodgment No. 6, People v. Dorotik, No. D038706 (Cal.Ct.App. Nov. 18, 2003).) Petitioner filed a petition for review in the state supreme court presenting the same claims, which was summarily denied. (Lodgment Nos. 7-8.)
Petitioner filed a habeas petition in the state superior court on April 4, 2005, presenting essentially the same claims raised in her federal Petition here. (Lodgment No. 9.)
That petition was denied on the merits and on procedural grounds. (Lodgment No. 10, In re Dorotik, No. HCN0787 (Cal.Sup.Ct. Aug. 2, 2005).) Petitioner took her habeas petition to the appellate court on January 3, 2006, now proceeding pro se, where she submitted claims similar to those counsel had raised in superior court. (Lodgment No. 11.) That petition was also denied on the merits and on procedural grounds. (Lodgment No. 12, In re Dorotik, No. D047784 (Cal. Ct.App. Sept. 2, 2005).) Petitioner presented similar claims to the ones raised in the lower courts in a habeas petition filed in the state supreme court on November 20, 2006, which was denied without citation or a statement of reasoning. (Lodgment Nos. 13-14.)
On June 1, 2007, Petitioner filed a Petition for Writ of Habeas Corpus with this Court [doc. no. 1], as well as a Motion for Leave to Proceed In Forma Pauperis [doc. no. 2] and a Motion to Appoint Counsel and Request for DNA Testing [doc. no. 3]. The Court denied Petitioner's request to proceed in forma pauperis and dismissed the case without prejudice on June 15, 2007. [Doc. No. 4.] Petitioner paid the filing fee on July 2, 2007 [doc. no. 6] and Magistrate Judge Porter ordered the case to be reopened on July 9, 2007 [doc. no. 7]. On July 23, 2007, Magistrate Judge Porter denied without prejudice Petitioner's request for appointment of counsel and request for DNA testing. [Doc. No. 8.]
Respondent Warden Dawn Davidson ("Respondent") filed an Answer to the Petition accompanied by a Memorandum of Points and Authorities in Support Thereof on October 9, 2007. [Doc. No. 11.] Petitioner submitted a Traverse on December 13, 2007. [Doc. No. 17.] On August 19, 2008, Magistrate Judge Porter filed an R&R recommending that Petitioner's habeas petition be denied. Petitioner filed objections nunc pro tunc on October 24, 2008. [Doc. Nos. 20, 29.]
I. State Habeas Prisoner Standard
A federal court must grant habeas relief to a petitioner in state prison if the petitioner is in custody "in violation of the Constitution or other laws or treaties of the United States."
28 U.S.C. § 2254(a). A federal court's duty in examining a state prisoner's habeas petition is governed by 28 U.S.C. § 2254 as amended by the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA"). Pursuant to section 2254, a federal court may grant habeas corpus relief from a state-court judgment only if the adjudication was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States," or (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). State interpretation of state laws and rules cannot serve as the basis for a federal habeas petition, as no federal or constitutional question would be implicated. See Estelle v. McGuire, 502 U.S. 62, 68 (1991) (stating that "federal habeas corpus relief does not lie for errors of state law"; federal courts may not reexamine state court determinations on state law issues).
II. Reviewing Magistrate Judge's R&R
The duties of a district court in connection with a magistrate judge's R&R are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). A district court must "make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3) (2007); see also United States v. Raddatz, 447 U.S. 667, 676 (1980) ("[I]n providing for a 'de novo' determination . . . Congress intended to permit whatever reliance a district judge, in exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations.").
Because Petitioner has filed objections to the R&R, this Court must conduct a de novo review of the portions of the R&R to which objections were made. Petitioner objects to the R&R by claiming that "her confinement is in violation of the Constitution." [Doc. No. 29.] She further argues that (1) she is entitled to an evidentiary hearing because she has established a colorable claim for relief and was denied an evidentiary hearing in state court, (2) the court should order DNA testing of the rope used to strangle the decedent, the hair wrapped around the decedent's finger, and fingernail scrapings of the decedent because the DNA found on these items might help identify the real perpetrator, and (3) she should be excused from the procedural default of her Brady claim because she has established cause and prejudice and demonstrated that the Court's failure to reach the merits of her claim would result in a fundamental miscarriage of justice.
I. Petitioner's Ineffective Assistance of Counsel Claims
When the highest state court issues a decision in a case but does not articulate the rationale for its determination, such as by issuing a silent denial, the silence is deemed to be consent to the lower court's decision, and the reviewing court should "look through" to the "last reasoned opinion" to determine the legal basis for the denial. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).
Alternatively, when the state court reaches a decision on the merits but provides no reasoning to support its conclusion, the reviewing court is required to conduct an independent review of the record to determine whether the state supreme court clearly erred in its application of controlling federal law when it denied the claim without a statement of reasoning. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002); Greene v. Lambert, 288 F.3d 1081, 1089 (9th Cir. 2002) ("[W]hile we are not required to defer to a state court's decision when that court gives us nothing to defer to, we must still focus primarily on Supreme Court cases in deciding whether the state court's resolution of the case constituted an unreasonable application of clearly established federal law."). In independently reviewing the record, the reviewing court must "still defer to the state court's ultimate decision." Pirtle, 313 F.3d at 1167.
Petitioner presented ten ineffective assistance of counsel claims in habeas petitions filed in the state superior, appellate, and supreme courts.*fn1 The superior court denied Petitioner's claim on the merits in a written order, but addressed only the first two of Petitioner's ineffective assistance of counsel claims. (Lodgment No. 10, In re Dorotik, No. HCN0787, slip op at 2-3.) The appellate court did the same, addressing only the first two of Petitioner's ineffective assistance of counsel claims on the merits.*fn2 The supreme court summarily denied all ten of Petitioner's ineffective assistance of counsel claims without a statement of reasoning or citation of authorities. (Lodgment Nos. 13-14.)
Because the appellate court issued a reasoned opinion denying Petitioner relief based on her first two claims, while the state supreme court issued a silent denial as to these claims, the Court will look through the state supreme court's order to the appellate court's decision on the merits to determine the legal basis for the denial of Petitioner's first two ineffective assistance of counsel claims.
As for Petitioner's third through tenth ineffective assistance of counsel claims, because there are no state court opinions which provide a statement of reasons for their denial, the Court is required to conduct an independent review of the record to determine whether the state supreme court clearly erred in its application of controlling federal law when it denied these claims without a statement of reasoning.
Claims of ineffective assistance of counsel are governed by Strickland v. Washington, 466 U.S. 668 (1984). "A guilty plea cannot be attacked as based on inadequate legal advice unless counsel was not 'a reasonably competent attorney' and the advice was not 'within the range of competence demanded of attorneys in criminal cases.'" Strickland, 466 U.S. at 687. To make out a claim of ineffective assistance of counsel under Strickland, Petitioner must show (1) "that counsel's performance was deficient" and (2) "the deficient performance prejudiced the defense." Id. The court need not address both the performance prong and the prejudice prong if the petitioner fails to make a sufficient showing of either. See id. at 700. The Strickland test applies in full force in federal collateral proceedings. Id. at 697.
The first prong of the Strickland test for deficiency of counsel requires a plaintiff to demonstrate that counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Strickland, 466 U.S. at 687. "[T]he defendant must show that counsel's representation fell below an objective standard of reasonableness . . . under prevailing professional norms." Id.at 688. Furthermore, judicial scrutiny of counsel must be highly deferential because of the risk that the benefit of hindsight would make the counsel's performance seem unreasonable. Id. at 689.
The second prong of the Strickland test requires that any deficiency of counsel also be prejudicial. Id. at 692. Therefore, even if a defendant is able to show that counsel acted unreasonably, she still must show that counsel's actions had an adverse effect on the outcome. Id. at 693. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
Petitioner's argues that her Sixth Amendment right to receive effective assistance of counsel was violated when defense counsel failed to: (1) subject the prosecution's forensic evidence to meaningful adversarial testing and obtain readily available forensic evidence which would have challenged the prosecution's theory of the case and exposed the weakness of the prosecution's forensic evidence; (2) prepare and call Petitioner as a witness; (3) demonstrate that Petitioner was physically incapable of committing the murder as theorized by the prosecution; (4) object or move for a mistrial when a police detective testified that he believed that Petitioner was the murderer; (5) obtain DNA testing on several items of physical evidence; (6) present alternate scenarios consistent with the physical evidence; (7) provide innocent explanations for the apparently incriminating evidence; (8) present evidence that the police focused on Petitioner from the beginning of the investigation and failed to follow other leads which would have led them to the real killers; (9) engage in a reasonably competent investigation before pursuing an absurd theory that Petitioner's daughter was the killer; and (10) make good on promises to the jury regarding what the evidence would show, refrain from admitting to the jury that Petitioner was guilty, and refrain from stating that counsel personally did not believe in the evidence he presented at trial. [Doc. No. 1.] Each of Petitioner's claims will be examined in turn.
Petitioner argues that her attorney was deficient for failing to subject the prosecution's forensic evidence to meaningful adversarial testing and to obtain readily available forensic evidence which would have challenged the prosecution's theory of the case and exposed the weakness of the prosecution's forensic evidence. [Doc. No. 1.]
Petitioner contends that: counsel failed to subject the prosecution's findings regarding the bedroom to comparative testing by independent experts; Charles Merritt, the prosecution expert, had made errors in other cases; the expert retained by the defense, Lisa DiMaio, failed to prepare a report analyzing the prosecution's forensic evidence; and counsel erred in not calling forensic experts to testify for the defense. [Doc. No. 1.]
Petitioner also argues that a post-conviction report prepared by Herbert McDonnell "raise[s] serious questions as to the validity of the prosecution's theory of the case." [Doc. No. 1.] This report concludes that: it is more likely than not that the fatal blow to the decedent and the majority of his blood loss occurred outside of the bedroom; Merritt's findings are flawed in finding a transfer pattern rather than a splatter; there was less blood present in the bedroom than would be expected if the killing took place there; the blood found on the mattress could have resulted from a nosebleed; what were reported as blood stains could have been stains caused by rain; there was not enough blood on the mattress to support the theory that the victim remained on the bed for a period of time after being hit multiple times; the convergence of the blood spatter was below what was calculated by the prosecution's expert witness because the expert did not allow for the effect of gravity; and further testing is required regarding the area around the potbelly stove in order to determine whether the stains there are related to the murder. [Doc. No. 1.]
Petitioner concludes that "no constitutionally competent attorney" would have accepted the prosecution's forensic evidence and theory of the case. [Doc. No. 1.] Instead, counsel should have challenged this evidence and considered alternate scenarios that did not implicate Petitioner, such as the theory that ...