The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge
ORDER: (1) ADOPTING MAGISTRATE JUDGE BENCIVENGO'S REPORT AND RECOMMENDATION; (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS; and (3) DENYING REQUEST FOR EVIDENTIARY HEARING
Before the Court is Magistrate Judge Cathy Ann Bencivengo'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 Richard Raymond Tuite ("Petitioner"). [Doc. No. 1.] This 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 the documents, this Court ADOPTS the R&R and DENIES the Petition for the reasons stated below.
This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only 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 findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness). Because the facts as found by the state appellate court are set out in detail in the R&R, the Court will only provide a brief summary here. (See R&R at 2-12.)
On January 21, 1998, at around 6:00 a.m., Stephanie Crowe was discovered lying in the doorway of her bedroom, the victim of a fatal stabbing. The condition of the body indicated the victim had died at least six hours prior to being discovered. There were no signs of forced entry in the home.
Petitioner was last seen on the night of the killing headed up the road leading to the victim's home. That same evening, Petitioner was reported to have approached several homes in the victim's area, banging on doors, trying to find "Tracy" or the "the girl." Earlier that month, Petitioner turned the door handle and tried to enter the residence of Cecilia Jachna; Petitioner said he was looking for "Tracy."
For a period of approximately three months following the killing, Petitioner was seen peering into windows, attempting to make unauthorized entries through the doors of homes, and searching for "Tracy." Approximately a month and a half following the killing, while in the mental health ward of the Vista jail on an unrelated matter, Petitioner was seen pacing back and forth, raising his arms up in the air and yelling, "Tracy, you whore. I am going to kill you."
The victim's DNA was discovered on two articles of Petitioner's clothing, although blood on one article of clothing, the victim's white T-shirt, was not discovered until a period of time following the initial examination.*fn1 When the DNA evidence was discovered on the white T-shirt, the defense moved for a continuance for further testing, but the motion was denied. At trial, the prosecution presented expert testimony explaining the DNA evidence found on the Petitioner's shirts as well as the expert testimony of Gregg McCrary, who testified as to whether the crime scene was organized or disorganized. At trial, Petitioner presented expert testimony that the DNA evidence on his shirts came about by contamination, and additionally presented the expert testimony of Mary Ellen O'Tool to determine whether the crime scene was organized or disorganized. The bulk of the defense's case was directed toward establishing that the victim was murdered by her brother and his two friends.*fn2
On May 26, 2004, a jury convicted Petitioner of voluntary manslaughter, in violation of Penal Code § 192(a), as a lesser included offense of murder in the stabbing death of 12-year-old Stephanie Crowe. (Clerk's Transcript, Vol. 9 at 1973.) The jury also found true the allegation that Petitioner personally used a deadly and dangerous weapon, a knife, in violation of Penal Code § 12022. (CT, Vol. 9 at 1974.) In a separate proceeding, the trial court found Petitioner had a prior prison term conviction within the meaning of Penal Code § 667.5(b). (CT, Vol. 10 at 2359.) Petitioner was sentenced to a total term of 13 years in prison. (Id.)
Petitioner filed an appeal in the California Court of Appeal, Fourth Appellate District, Division One. (Lodgment No. 3.) Petitioner argued the following: (1) the trial court erred during deliberations when it refused to permit a portion of a witness' direct testimony to be included in a readback; (2) the trial court erred when it denied Petitioner's motion to continue the trial after investigators discovered the victim's DNA on Petitioner's white T-shirt less than two months before trial was set to commence; (3) the jury committed misconduct during deliberations when it considered evidence not presented at trial; (4) the trial court erred when it instructed the jury how to use evidence of uncharged acts because the instruction created an unreasonable inference that violated federal due process; (5) the trial court violated Petitioner's federal and state confrontation rights when it precluded him from cross-examining a prosecution witness about his efforts to prevent a defense expert from testifying; (6) the trial court committed error by failing to give sua sponte instructions on involuntary manslaughter as a lesser included offense of murder; and (7) the cumulative effect of errors committed at Petitioner's trial rendered the proceedings fundamentally unfair, in violation of federal due process. (Id.) On December 14, 2006, the Court of Appeal affirmed the judgment. (Lodgment No. 6.)
On January 19, 2007, Petitioner submitted a petition for review in the California Supreme Court. (Lodgment No. 7.) The petition for review raised the same arguments as in his direct appeal. The California Supreme Court summarily denied the petition for review on April 2, 2007. (Lodgment No. 8.)
Petitioner filed the instant federal petition ("Petition") on June 23, 2008. [Doc. No. 1.] Respondent answered on August 21, 2008. [Doc. No. 5.] Petitioner filed his traverse ("Traverse") on September 17, 2008. [Doc. No. 8.]On October 9, 2008, Magistrate Judge Bencivengo filed an R&R recommending that Petitioner's habeas petition be denied. [Doc. No. 9.] Petitioner filed objections to the R&R on November 5, 2008. [Doc. No. 10.]
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 re-examine state court determinations on state law issues).
A state-court decision is "contrary to clearly established federal law" if it (1) applies a rule that contradicts the governing law set forth in Supreme Court cases, or (2) confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at the opposite result. See Williams v. Taylor, 529 U.S. 362, 405 (2000). The inquiry into whether a state court's interpretation of federal law is "contrary to" clearly established federal law is itself a question of federal law as to which federal courts owe no deference to the state courts. See Cordova v. Baca, 346 F.3d 924 (9th Cir. 2003).
A state court decision is an "unreasonable application of" Supreme Court precedent if the court "correctly identifies the governing legal rule but applies it unreasonably to the facts of the case." Luna v. Cambra, 306 F.3d 954, 960 as amended 311 F.3d 928 (9th Cir. 2002); Williams, 529 U.S. at 412-13. This is a "highly deferential standard for evaluating state-court rulings," Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997), and "demands that state court decision be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).
Under section 2254(d)(1)'s "unreasonable application" clause, a writ of habeas corpus may not issue simply because the reviewing district court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law "erroneously" or "incorrectly." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Rather, that application also must be objectively unreasonable. Id. at 76. Though this standard is not self-explanatory, it is a higher standard than clear error, the old standard applied by the Ninth Circuit. Clark v. Murphy, 331 F.3d 1062, 1068 (9th Cir. 2003).
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 generally to the R&R and raises the following specific objections in support thereof: (1) Petitioner objects to a finding made by the Magistrate Judge that competing expert opinions of O'Toole and McCrary as to whether the crime scene was "organized" or "disorganized" had almost no significance on the case as a whole, and thus the harmless error finding made by the California Court of Appeal was not objectively unreasonable; (2) Petitioner objects to the finding that the Confrontation Clause error had no impact on the decision the jury was required to make concerning how the victim's blood was placed onto petitioner's shirts; (3) Petitioner objects to the finding made by the Magistrate Judge that the modified version of CALJIC No. 2.50 given by the trial court did not create an inference of guilt that was objectively unreasonable; (4) Petitioner objects to the finding made by the Magistrate Judge that the trial court reasonably found that petitioner's counsel had adequate time ...