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; and (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE
The matter before the Court is Magistrate Judge Louisa Porter's Report and Recommendation (R&R) that the Petition for Writ of Habeas Corpus be denied with prejudice. [Doc. No. 27.] Petitioner has filed Objections to the R&R. [Doc. No. 28.] For the reasons set forth below, the Court ADOPTS the R&R and DENIES the Petition WITH PREJUDICE.
The following presentation of facts is taken from the California Court of Appeal's opinion in People v. Norris, No. SCD 164985 (Cal. Ct. App. Sep. 1, 2004). (Lodgment No. 6.) The Court presumes these factual determinations are correct. 28 U.S.C.A. § 2254(e)(1).)
A. The Prosecution's Case
Norris and his wife Lori were both in the Navy. They had a son, Dante, who was born in 1999. From March 2001 to October 2001, Lori was stationed in Maine and Norris was stationed in San Diego. During this time period, Lori began an extra- marital affair with another Navy sailor named Jeffrey Ocampo. In the spring of 2001, Norris had a six-week affair with a woman named Kay Smith. From July 2001 to October 2001, Norris also had a friendship with another woman named Alexis Marosi. Marosi slept with Norris in his bed many times, and they kissed and "cuddle[d]" together, but never had sex.
In September 2001, while Lori was on leave in San Diego, she and Norris mutually agreed to separate. The next month, however, Norris and Dante traveled to Galveston, Texas, where Lori's ship was being commissioned. After this visit, Lori broke off her relationship with Ocampo and Norris stopped seeing Marosi.
Lori's ship returned to San Diego in November 2001. Shortly afterward, Lori resumed her affair with Ocampo. After Thanksgiving, Norris began having an affair with a co-worker named Brandi Kauffman. Norris told Kauffman that he and Lori were living together because of their son, but that they led separate lives, and Lori was seeing somebody else. Two days after Thanksgiving, Kauffman called Lori and confirmed that she was seeing somebody else. According to Kauffman, her relationship with Norris continued until Lori's death. Kauffman spent nights at Norris's apartment when Lori was gone. During this time period, Lori and Norris decided to get a divorce.
On New Year's Eve, Lori told Norris that Ocampo was her boyfriend. Norris became upset.
On January 2, 2002, Norris came to Lori's ship while she was working. They argued and Lori began crying. Norris left the ship.
On the evening of January 9, 2002, Lori went to a movie with Ocampo. Afterward, she decided to spend the night at Ocampo's apartment. Sometime after midnight, Lori called Norris to tell him that she would not be coming home that night, and that she would be home in the morning to pick up her work uniform. The next morning, Lori asked Ocampo if she could borrow some of his work clothing so that she would not have to return home. Ocampo agreed. Lori left Ocampo's apartment around 6:15 a.m. Ocampo did not walk her out of the apartment.
According to his cellular telephone records for the morning of January 10, 2002, Norris made numerous attempts to reach Lori on her cellular telephone from 4:32 a.m. until 6:14 a.m. At 6:13 a.m., Norris called his employer and left a message saying that he had a flat tire and would be late to work. Around 6:25 or 6:30 a.m., a witness observed Norris's car parked behind Lori's car in a parking lot near Ocampo's apartment. Norris's car backed up, turned into a parking stall, and then drove away. Lori's car remained parked in the same spot.
A few hours later, another witness noticed someone inside Lori's car. The witness called the police. When the police arrived, they discovered Lori's dead body in the back seat of her car. She was hanging from a cord that was wrapped twice around her neck and tied to the clothes hook above the window. The cord had been ripped from a mesh storage pouch inside the vehicle. Lori also had 230 puncture wounds to her head, neck, chest, and left hand and arm. Some of the injuries were defensive wounds. The cause of death was multiple stab wounds and hanging. Lori was still alive when she was hanged, but there was no sign that she resisted the hanging.Norris dropped Dante off at his daycare center between 7:30 and 8:00 a.m. that morning. He usually dropped Dante off between 6:00 and 6:30 a.m. In the sign-in book, Norris wrote that he had dropped Dante off at 6:30 a.m. Norris arrived at work between 8:00 and 8:30 a.m.
That night, Norris called his friend, Erica McGrath, and asked her to go to his apartment and get rid of something in the dishwasher. She refused. The next day, the police recovered an awl from Norris's dishwasher. The awl was part of a tool set, the rest of which was discovered in the front passenger area of Norris's vehicle. The stab wounds could have been inflicted by the awl.
Ocampo had been in Lori's car two days before she was killed. He had not seen an awl in the car. Lori had never talked to him about etching the dashboard of the car.
Norris testified in his own defense. He admitted that he had killed Lori by stabbing her with the awl and strangling her with a cord.
According to Norris, he and Lori had agreed to separate in November 2001. They continued living together and completed some paperwork for a divorce. However, Norris was "furious" when Lori told him on New Year's Eve that the other person she had slept with was Ocampo. Norris had met Ocampo in Texas and bought him a beer. He felt "disrespected" by Ocampo.
On January 4, 2001, after Dante told Norris that he had seen Lori and Ocampo kissing, Norris confronted Lori at work on the ship. That night, Norris packed up all of Lori's belongings in boxes. When she returned in the morning, he gave her some money and told her to move out of the apartment. However, Lori convinced Norris to let her stay. They decided to make one more attempt to reconcile, and they agreed to break off their other relationships. According to Norris, he told Brandi Kauffman that he could not see her anymore.
On January 9, 2002, Lori told Norris that she was going to the movies with Ocampo. Norris was angry and suspicious, but Lori assured him that he had nothing to worry about because they were going out only as friends. She said she would be home that night. Sometime after midnight, however, Lori called Norris and said she would not be coming home.
Early the next morning, Norris repeatedly attempted to call Lori. He finally drove to Ocampo's house, because he wanted to talk to Lori about their relationship. Dante was asleep in Norris's car. On the way to Ocampo's house, Norris called work and left a message saying that he had a flat tire and would be late.
As Norris approached Lori's parked car, he saw two people hug and kiss. When the woman walked away and got into her car, Norris realized it was Lori. She started to drive away. Norris pulled up behind Lori and flashed his headlights at her. She pulled over into the parking lot and Norris got into her car. Lori asked him what he was doing there. He said he just wanted to talk.
Norris and Lori started arguing and shouting. After they had finished arguing, they sat in the car in silence. Norris reached over to hold Lori's hand. She pulled her hand back and slapped him. Norris punched her, and Lori fought back.
Norris grabbed the awl from the cup holder of Lori's car near the gearshift. He had given the awl to Lori about a week or a week and a half earlier, because she wanted to use it to etch her name in her dashboard. Norris admitted stabbing Lori repeatedly with the awl, but he did not realize he was doing it at the time. Lori fought back. At some point, they fell into the back seat. Norris continued stabbing her. He remembered grabbing the rope in the back seat, but could not recall wrapping it around Lori's neck or hanging her. Later that day, he realized what he had done with the rope. When Norris left, Lori was in the back seat of the car, bleeding and motionless. Norris ran to his car and drove away.
In closing argument, defense counsel argued that the killing was not premeditated, and that Norris was guilty of either voluntary manslaughter or second degree murder, but not first degree murder.
In the Superior Court of the State of California, for the County of San Diego, Petitioner was tried and convicted by a jury of first degree murder, based on the January 10, 2002, killing of Petitioner's wife, Lori Norris, pursuant to California Penal Code §§ 187(a) and 189. The jury further determined that Petitioner personally used a deadly or dangerous weapon during the commission of the murder in violation of California Penal Code § 12022(b)(1). (Lodgment No. 1, vol. 2 at 218, 289.) The superior court sentenced Petitioner to serve an indeterminate term of 25 years to life in state prison, plus a consecutive one-year term for the weapon use enhancement. (Id. at 289, 332.)
Petitioner appealed the judgment to the California Court of Appeal. He argued the trial court erroneously admitted evidence of hearsay statements made by the victim, and that this error violated his Sixth and Fourteenth Amendment rights to confrontation. (Lodgment No. 3.) In a reasoned opinion filed September 1, 2004, the California Court of Appeal found that Petitioner failed to preserve the issue for review by failing to make a timely and specific objection to the hearsay evidence during trial, and denied Petitioner any relief. (Lodgment No. 6.) Petitioner filed a petition for review in the California Supreme Court, in which he raised the same issue presented to the court of appeal. (Lodgment No. 7.) The California Supreme Court denied his petition on November 17, 2004. (Lodgment No. 8.)
On December 2, 2005, Petitioner filed a petition for writ of habeas corpus in the California Superior Court. (Lodgment No. 9.) In a written order filed January 20, 2006, the superior court rejected Petitioner's claims. (Lodgment No. 10.) On March 10, 2006, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. (Lodgment No. 11.) On May 17, 2006, in a written order, the court of appeal denied the petition. (Lodgment No. 12.) On September 11, 2006, Petitioner filed a petition for writ of habeas corpus in the ...