The opinion of the court was delivered by: James P. Hutton United States Magistrate Judge
ORDER DENYING WRIT OF HABEAS CORPUS
BEFORE THE COURT is a petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a person in state custody (Ct. Rec. 1, amended at Ct. Rec. 22), Respondent's answer (Ct. Rec. 28), and Petitioner's reply (Ct. Rec. 29). Randi Dana Covin represents Petitioner. Respondent is represented by Deputy Attorney General Judy Kaida. The parties have consented to proceed before a magistrate judge. (Ct. Rec. 8.) This matter was heard without oral argument. After careful review and consideration of the pleadings submitted, it is ordered that the Petition for Writ of Habeas Corpus be denied.
At the time her petition was filed, Petitioner was in custody in Chowchilla, California, pursuant to her 2004 San Joaquin County conviction for first degree murder. (Ct Rec. 1 at p. 1.) Petitioner challenges the 2004 San Joaquin County conviction. (Ct. Rec. 1.)
The Third District Court of Appeal described the facts:
In September 2002, defendant moved into the Stockton apartment of her daughter Alisha Brown, Brown's infant son, and Brown's fiancé Jason Santos. Defendant's husband had died and she had "lost" her house.
Defendant and Santos did not get along and they argued frequently. Santos and Brown also argued and some of their arguments were based on Santos's dislike of defendant and his desire for her to move out of their apartment.
In the morning of November 9, 2002, defendant noticed that her car had been broken into and the pink slip and registration were missing. She came back into the apartment and looked at Santos accusingly. Brown and Santos denied he was involved. Defendant left the apartment.
That afternoon Santos, Brown and the baby went clothes shopping. On the way home they stopped at a bar where Santos and Brown drank shots of tequila.
They returned to the apartment at approximately 7:00 p.m. Defendant arrived shortly thereafter in a happy mood. Brown told Defendant they had been drinking so defendant left to buy herself beer.
After defendant left, Santos asked Brown to dance with him. When she refused, Santos became "mad" and called Brown a "bitch." He came toward her and she thought he was going to hit her. In response, Brown hit Santos in the head with a Lego box, cutting him in the forehead.
When defendant returned from the store, Santos and defendant began arguing in the living room. Brown did not know what the argument was about. She tried to act as "mediator," but they would not "shut up." Santos left the apartment to get more beer. That night Santos made three trips to buy beer.
When Santos returned from his last trip to the store, he could barely stand up and was slurring his words. He sat on the couch with his body hunched over and his legs spread apart. Defendant, who was in the kitchen, told Santos she "was going to have somebody come and kick his ass."
Santos stumbled into the kitchen, rummaged through the knife drawer, and said, "I'm not going to have nobody come fuck me up." Before Santos had a chance to grab anything, Brown hit him over the head twice with the telephone and knocked him over. She sat on top of his chest, choked him, and told him she was not going to get up until he calmed down. Santos kept kicking his feet and moving his arms.
Brown told defendant to get the knife out of the drawer and hide it. Instead, defendant held the knife in her hand. Brown then asked defendant to grab the baby because Brown did not want her son to see her sitting on top of Santos. Defendant asked Brown if she wanted her to get the baby a bottle of milk. Brown replied, "Yes." With a knife in her right hand and a baby bottle in her left hand, defendant tried to force open the refrigerator door. Santos's feet were blocking the door. Defendant placed the bottle on the stove and reached into the refrigerator to grab the milk. Santos kicked the refrigerator, bruising defendant's arm. Defendant said she was going to call Brown's father and asked Brown to call 911. Brown told defendant there was no need to call 911.
Defendant started "chopping" at Santos's legs with the knife. Brown asked defendant what she was doing, told defendant to stop, and put her arm in the way. Defendant nicked Brown with the knife and then stopped because she thought she had cut Brown.
Brown got off of Santos after he promised not to hit her. The two sat down on the couch and looked at each other. The argument had stopped and Santos was calm.
Defendant still had the knife in her hand. She was upset that Brown and Santos had made up. Defendant said, "[O]h, my God," and walked off. She went into the kitchen and started sharpening two knives. One was the kitchen knife that belonged to Brown and the other was a knife that belonged to defendant. Defendant walked over to Santos, put the kitchen knife to her crotch, and asked, "You want me to fuck you with this? I know your kind." Santos paid no attention and looked at Brown. Defendant walked back into the kitchen, continued sharpening the knives, and "taunt[ed] Santos, saying, "I got dead aim, I got dead aim."
Santos got up, stumbled toward Brown and told her, "You will always be my girl and Diego [the baby] will always be my son." Defendant looked at Santos and told him, "I know you want me, I seen the way you look at . . . me when you come out [of] the room." Santos threw a beer can at the wall and said, "Shut up. Just shut up, bitch." He told Brown he was "not like that" and told defendant, "I love you, but I don't like you."
Defendant had "an evil grin" and was holding a knife. Brown thought defendant "looked like she was about to do something" so Brown ran in between defendant and Santos and told him to leave the apartment because defendant was going to stab him. Santos responded, "I'm not going nowhere. She ain't going to stab me."
With two knives in her hands, defendant walked through the living room. Brown, who had the baby in one hand, pushed Santos into the desk to get him away from defendant. Defendant tried to stab Santos three or four times but missed because Brown had knocked Santos into the desk. Brown screamed at defendant to "stop, stop, stop" and asked what she was doing. Santos pushed Brown and the baby out of the way. Defendant stepped closer to Santos and stabbed him.
Bleeding, Santos walked into the bedroom and was face down on the bed. Brown followed Santos and tried to help him breathe. Brown told defendant, "Mama, you punctured his lungs. Why you kill him? Why you kill him?" Defendant got a towel from the closet, threw it on top of Santos's body, and directed Brown to "Cover his wound."
Defendant called 911. According to the police officer who answered the call, defendant yelled "hysterical[ly]" that "she just stabbed a mother fucker in the shoulder."
Stockton Police Officer David Reeder was dispatched to the apartment. There was blood on the kitchen floor and wall. On the countertop was a large butcher knife with blood on the blade. Reeder followed the blood trail through a small hallway into the bedroom where he found Santos. The mattress around Santos's head was soaked in blood. There was a "knife cut" in his shirt and a two-inch laceration on his chest. Santos was dead.
Defendant said, "I did it, take me." Officer Kevin Tyler handcuffed defendant and brought her to his patrol car. She was crying and visibly upset. She smelled of alcohol but did not appear to be intoxicated. En route to the "Essential Services Building," defendant repeatedly asked if Santos was all right and whether she had killed him. She said that she did not want to kill him, he had thrown a beer can at her and made her angry, she stabbed him, and she knew she was going to jail for murder or attempted murder.
An autopsy was performed on November 10, 2002. There was a nine and one-half inch stab wound on Santos's right upper chest. There were bruises below the stab wound that were consistent with the stabber thrusting the knife into Santos's body with such force that the stabber's fist bruised Santos's body. Santos died of shock and hemorrhaging. Santos must have become unconscious 30 seconds to one minute after the wound was inflicted and he would have died "shortly thereafter."
Defendant testified on her own behalf at trial. The morning before the stabbing, Santos pulled a knife on her and Brown and said,"I could kill both of you." Defendant responded, "I ain't a [sic] scared of you."
The evening of the stabbing, defendant went to the store twice to buy beer. When she returned from the first trip, Brown and Santos were arguing, but she did not "pay much attention to it because they always argue." When she returned from the second trip, Santos was wiping his head and Brown had a Lego bucket in her hand. Brown said, "he tried to swing at me and I hit him in the head with the bucket."
Brown told defendant to "get the knives so he won't get them." Defendant went into the kitchen and retrieved one knife from the drawer and retrieved a folding knife from her bag that was between the couch and the table. Defendant told Brown to call 911 and Brown responded, "No, Mom, don't call 911." Defendant picked up her telephone but it did not work. She fixed the telephone line and put the knife down. Defendant prepared to hand the telephone to Brown when defendant was pushed against the sink from behind. Brown "threw" Santos on the floor in front of the refrigerator. Brown sat on him, choked him, and told him she wanted him to leave.
Defendant told Santos, "You stupid idiot, you trying to fight her. I told you one day she'd over power you."
The baby started crying and defendant announced she was going to prepare a bottle for the baby. Santos, whose feet had been against the refrigerator, pulled back his feet as though to accommodate the defendant. Instead, when defendant reached into the refrigerator to get the milk, Santos pushed the refrigerator door with his feet "really hard" and pinned her in the refrigerator. Defendant grabbed a knife and started swinging it but could not reach Santos. She started hitting his legs with the heel of her foot.
Santos kept telling Brown he loved her. Brown asked Santos, "If I let you up, you're not going to swing at anybody?" Defendant told Brown, "Don't let him up. Let me call 911." Santos and Brown told defendant not to make the call and she complied. Defendant then tried to call her oldest daughter and the daughter's father but they were not home.
Brown got off of Santos, which "startled" defendant. Defendant told Santos to leave ut he sat on the couch and said, "I ain't going no fucking where." Defendant was in the kitchen and she and Santos were "fussing back and forth." She was not sure whether she "started on" him or he "started on" her. She called him a "[p]unk" and "faggot" and he called her a "bitch" and "slut." He threw three or four Lego or domino pieces at her. Defendant, who still had the knives, told Santos that he should leave, that she would throw "it" at him, and that "I bet I'll stick you." She told Brown to tell him to "quit throwing those dominos at me because I have dead aim." Santos complied with defendant's request but told her he was going to "fuck [her] up." Defendant responded, "you ain't fucking nobody up, I'll fuck you up."
Cussing, Santos approached defendant and "got kind of too close to [her]." Defendant started backing up. He threw a beer at her. It "skimmed" her and hit the wall. He grabbed the baby and used him as a shield. Defendant told Brown to get the baby away from Santos. Brown grabbed the baby and pushed Santos, saying,"She's going to stab you." Santos said, "Your mother ain't gonna do shit to me" and then swung at defendant but missed.
Defendant "went around the divider" and stabbed Santos in the shoulder. The knife went in all the way. Santos ran into the bedroom and defendant called 911. While on the telephone, she heard Brown screaming louder and louder. She put the telephone down and examined Santos's wound. Defendant did not see blood coming from the wound, thought Santos was "all right," and went back to the telephone.
Defendant had felt threatened by Santos and thought he was going to do something to her or Brown. She intended to "stop" Santos when she "poke[d]" him with the knife. She did not want to kill him.
During cross-examination, defendant acknowledged she had told police, "It's my fault. I struck him with the knife because he hit me with a beer. And I lost my temper and I just started sticking him. I kept trying to stick him because I just got tired."
Defendant also acknowledged telling a defense investigator that Santos was mean to her, had called her a "crack mother," and "cuss[ed]" at her. She believed Santos was jealous of her and Brown's relationship. Santos told her more than once that he did not want her living in the apartment. She believed Santos treated Brown "like hell" and was "just an asshole."
In August 2003, psychologist Dr. Nancy Kaser-Boyd administered s series of tests to defendant, conducted a "fairly" long evaluation of her, and reviewed her mental health records from Fresno County and much of the "discovery" in this case. It was Dr Kaser-Boyd's opinion defendant suffered from chronic post traumatic stress disorder (PTSD).
Dr. Kaser-Boyd recounted that defendant grew up in a home with "extreme violence." On one occasion, her father beat her brother with a baseball bat. On another occasion, her father shot at defendant, narrowly missing her. When defendant was six years old, she was sexually abused by a stepbrother. When she was 12 or 13 years old, she and a girlfriend were kidnapped by two men and were beaten and raped repeatedly. She later had a relationship with a man who was violent toward her and the children. Defendant's first child was born one month ...