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Rossum v. Scribner

April 8, 2009

KRISTIN ROSSUM, PLAINTIFF,
v.
L.E. SCRIBNER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER: (1) ADOPTING IN FULL THE CONCLUSIONS OF THE REPORT AND RECOMMENDATION, (2) ADOPTING IN PART THE REASONING OF THE REPORT AND RECOMMENDATION, AND (3) DENYING PETITION FOR WRIT OF HABEAS CORPUS (Doc. No. 12.)

Presently before the Court is Kristin Rossum's ("Petitioner") petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner claims that she was denied effective assistance of counsel.

The matter was referred to United States Magistrate Judge Jan M. Adler, pursuant to 28 U.S.C. § 636(b)(1)(B). On May 16, 2008, Magistrate Judge Adler issued a Report and Recommendation ("R&R"), concluding that this Court should dismiss the petition on the merits, deny petitioner's request for an evidentiary hearing, and deny petitioner's request for discovery. (Doc. No. 12 ("Report").) On July 16, 2008, petitioner filed objections to the R&R. (Doc. No. 16.) This Court has considered all relevant materials, and, for the reasons set forth below, the Court ADOPTS IN FULL the R&R's conclusions, ADOPTS IN PART the R&R's reasoning, and DISMISSES the petition.

BACKGROUND

In habeas corpus proceedings instituted under 28 U.S.C. § 2254, "a determination of a factual issue made by a state court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). Petitioners bear the burden of rebutting this presumption by "clear and convincing evidence." Id. Petitioner has not objected to the state court characterization of the facts. (See Report, at 2--4; Lodgment No. 8, at 3--7.) Therefore, this order incorporates by reference the factual summaries contained within the R&R. (Report, at 2--5, 7--10; see also Lodgment No. 8, at 3--7.) For purposes of clarity, however, this Court will provide a brief overview of the relevant facts.

Petitioner met the victim, Greg de Villers, in 1995. (Lodgment No. 8, at 3.) At the time, she was addicted to methamphetamine and living in a motel room in Chula Vista. (Id.) De Villers helped petitioner stop using methamphetamine, and the two were married in 1999. (Id.) On November 2, 2000, de Villers told petitioner of his suspicions that she had resumed using methamphetamine and was having an extramarital affair. (Id. at 4.) He "threatened to reveal her drug use and her affair . . . to [her] employers if she refused to quit her job." (Id.) On November 6, 2000, de Villers died. (Id., at 5.) According to Petitioner, he had spent the entire day at home and "out of it." (Id. at 4--5.)

San Diego County Medical Examiner Dr. Brian Blackbourne performed de Viller's autopsy. He found five needle marks on de Villers' body. (Lodgment No. 2, vol. 8 at 520.) Paramedics and the emergency room doctor caused four of those marks, but no explanation was provided as to the fifth. (See Lodgment No. 2, vol. 12, at 1248, 1266 & 1269.) Normally, the specimens from de Viller's autopsy would have been tested by the Medical Examiner's Office. However, because he was married to Petitioner, who was employed as a toxicologist by the Medical Examiner's Office, the specimens were instead sent to an outside testing facility. (Lodgment No. 2, vol. 8 at 521.)

The transfer of the specimens, however, was less than smooth. The sheriff's department employee, Frank Barnhart, who was supposed to take custody of the specimens immediately following the autopsy, was unable to do so. (Id.at 521.) Thus, the decision was made to transport the samples back to the Medical Examiner's office and hold them there in a refrigerator for about thirty six hours. (Id.) The specimens were then transported to the sheriff's crime lab and turned over to Mr. Barnhart. (Id.) Notably, all toxicologists who worked at the Medical Examiner's Office had a key for the building which would allow them to enter during off hours. (Id. at 442.)

The toxicology tests on the autopsy specimens revealed large quantities of the drug fentanyl in de Villers' stomach contents, blood, urine, peripheral blood, antemortem blood, and forearm tissue.*fn1 (Id. at 524--25 & 555--56.) According to the testimony of Dr. Theodore Stanley, an expert in anesthetic drugs, fentanyl is a pain reliever and anesthetic that can cause unconsciousness, slowed or stopped breathing and death when taken in too large a quantity.*fn2 (Lodgment No. 2, vol. 9 at 632--34.) Fentanyl is tasteless and can be administered orally or intravenously, or through a dermal patch. (See id., at 635--35 & 670.) In the quantities found in Mr. de Viller's samples, Dr. Stanley testified, fentanyl would render a person unconscious and probably stop their breathing. (Id., at 646--69 & 663.) Dr. Stanley opined that, given this massive amount of fentanyl, it is likely that the drug entered Mr. de Villers' system in multiple ways. (See id., at 651--52 & 658--59.) The effects of this sort of dose would be evident in, at most, twenty to thirty minutes and would lead, within an hour, to "profound decreases in respiratory rate," and "periods of apnea."*fn3 (Id., at 660.)

The discovery of fentanyl in de Villers' samples prompted an audit of the drugs stored at the Medical Examiner's Office. (Lodgment No. 2, vol. 8 at 401--16.) That audit found that fifteen fentanyl patches of various strengths and ten milligrams of liquid fenanyl were missing. (Id.) Petitioner had "logged in" the missing liquid fentanyl and the missing patches all came from cases on which Petitioner had worked. (Id.) Thus, on November 6, 2001, Petitioner was charged with murdering de Villers by poison. (See Report, at 7.)

According to Dr. Blackbourne's testimony at trial, he believed that, based on levels of lung congestion and the amount of urine in his bladder, de Villers had been "out of it" for about fourteen hours before he died. (Lodgment No. 2, vol. 8 at 519.) He also testified that, in his opinion, Mr. de Villers died of acute fentanyl intoxication. (Id., at 525.) The parties stipulated to the levels of fentanyl found in de Villers' autopsy samples. (Id., at 525--26.)

In November, 2002, a jury found Petitioner guilty of first degree murder. (Report, at 4.) She was sentenced to prison for life without the possibility of parole. (Id.) Petitioner appealed her conviction and filed a concurrent petition for writ of habeas corpus in the California Court of Appeal for the Fourth Appellate District, Division One. (See Lodgement Nos. 3 & 6.) Petitioner's conviction was upheld, and her habeas petition was denied. (See Lodgement Nos. 8 & 9.) Petitioner then filed an appeal and a petition for habeas corpus with the California Supreme Court, both of which were summarily denied. (See Lodgment Nos. 10, 11, 12 & 13.) On August 10, 2007, Petitioner filed the instant habeas corpus petition before this Court. (Doc. No. 1.) On November 13, 2007, Respondent filed an answer, (Doc. No. 8) and on December 21, 2007, Petitioner filed a traverse. (Doc. No. 9.) Magistrate Judge Adler issued his R&R on May 16, 2008, to which Petitioner filed objections on July 16, 2008. (Doc. No. 16.)

LEGAL STANDARD

A. Review of Habeas Corpus Petitions Under § 2254

The R&R sets forth the appropriate standard of review under § 2254. (Report, at 5--6.) This Court may grant Petitioner's section 2254 petition only if the Court determines that the final "reasoned state judgment" is either "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States," or "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); Williams v. Taylor, 529 U.S. 362, 403, 412--13 (2000). In this case, because the California Supreme Court summarily rejected petitioner's claims, the Court "looks through" to the appellate court's decision. Ylst v. Nunnemaker, 501 U.S. 797, 803--04 (1991). Where "the state court supplies no reasoned decision," the Court must "perform an 'independent review of the record' to ascertain whether the state court decision was objectively unreasonable. Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. ...


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