The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are petitioner's petition for a writ of habeas corpus (Doc. 1), respondent's answer (Doc. 16), and petitioner's reply (Doc. 36).
The California Supreme Court recited the following facts, and petitioner has not offered any clear and convincing evidence to rebut the presumption that these facts are correct:
Around 6:15 p.m. on April 6, 2000, the body of 13-year-old Sarah Phillips was found on the living room floor of her Vacaville home. She had been strangled with a telephone cord, and her body had suffered multiple bruises, scrapes, and scratches. Her pants and panties had been removed, and her shirt was pushed up.
Defendant was arrested around 2:00 a.m. on the morning after the killing and charged with her murder. He had visited the victim's house regularly while dating her older sister three years earlier. DNA evidence as well as other evidence implicated him as the perpetrator. The Court of Appeal summarized the non-DNA evidence: "[Defendant] aggressively propositioned several women before the assault on Sarah, showing interest in whether they lived alone; he admitted speaking with Sarah around the time of the killing when she was alone at her home, where the killing occurred; he was seen by witnesses in the area before the killing, without scratches, and after the killing, with scratches consistent with the struggle indicated by the crime scene evidence; and shortly after the murder he told a witness he had done something bad, which he could not 'fix.'"
The prosecution also presented DNA evidence. Three kinds of DNA tests (D1S80, DQA1 polymarker, and STR) were performed on bloodstains found on the victim's clothing and on defendant's clothing when he was arrested. All of the tests matched defendant's genetic profile to blood on the victim's jeans, and the victim's profile to blood on defendant's pants. The STR testing also matched the victim to a hair found in defendant's pants, and both the victim and defendant to blood found under the victim's fingernail.
The STR test was the most sensitive. It compared nine genetic markers and included a marker for gender discrimination. Nicola, Shea, a criminalist with the Sacramento laboratory of the California Department of Justice (Department), was the prosecution's STR expert. She testified that, to help juries understand the significant of a DNA match, the Department followed the statistical approach recommended by a 1996 report of the National Resource Center for presenting the frequency with which genetic profiles occur. (Nat. Resource Center, The Evaluation of Forensic DNA Evidence (1996) (hereafter 1996 NRC Report)). The Department used databases that the Federal Bureau of Investigation published in the Journal of Forensic Sciences reflecting profile frequencies in the Caucasian, Hispanic, and African-American populations, "because those are the major populations in our country and in our state."
Shea testified she used all three databases to avoid making assumptions about the ethnic background of the perpetrator. Data for other groups, such as Native Americans, would also be compared if information had indicated another group might be a source of the evidence sample -- for example, if the crime had occurred on an Indian reservation. She explained that "the same profile will show up with a different frequency in the different populations." However, she also staid that "the three populations given give you a ballpark of how often you would expect to see that profile in those populations. If something is extremely rare in those three populations, you might expect it for that many markers to be extremely rare in one of the other populations." When nine genetic markers are used in the analysis, the result would be a "pretty discriminating number" no matter what population database was used.
Defendant's genetic profile would be expected to occur in one of 96 billion Caucasians, one of 180 billion Hispanics, and one of 340 billion African-Americans. The victim's genetic profile would be expected to occur in one of 110 trillion Hispanics, one of 140 trillion Caucasians, and one of 610 trillion African-Americans. Criminalist Shea noted that these profiles were extremely rare; the world contains only about six and a half to seven billion human beings.
Defendant objected to the introduction of these profile frequencies, arguing that the prosecution had failed to lay a foundation for this evidence because it did not establish the race of the persons who left the blood samples. The trial court disagreed and admitted the evidence. The jury found defendant guilty of first degree murder with use of a dangerous weapon during the commission of an attempted rape and a lewd act on a child.
Petitioner was convicted following a jury trial of first degree murder, committing a lewd act upon a child, and attempted forcible rape. The jury found true the special allegations that the murder was committed while petitioner was engaged in a lewd act upon a child and attempted rape. The jury also found that petitioner used a deadly and dangerous weapon during the commission of the crimes. On January 10, 2003, petitioner was sentenced to life in state prison without the possibility of parole, plus a consecutive term of eight years for committing a lewd act upon a child. Sentence for attempted forcible rape was stayed.
Petitioner's conviction and sentence were affirmed by the California Court of Appeal in a published opinion. See People v. Wilson, 21 Cal. Rptr. 3d 102 (Cal. App. 1st Dist. 2004). The California Supreme Court also affirmed in a published opinion. See People v. Wilson, 38 Cal.4th 1237 (2006). Petitioner did not seek certiorari from the United States Supreme Court and did not file any state post-conviction actions. ...