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Davis v. Scribner


February 11, 2010




Petitioner Victor Samuel Davis is a state prisoner proceeding pro se with an amended petition for writ of habeas corpus brought pursuant to 28 U.S.C. §2254. Petitioner stands convicted in the Solano County Superior Court of two counts of murder in case VCR158881, for which he is currently serving two consecutive life sentences without the possibility of parole. The pending petition challenges the constitutionality of those convictions. It should be noted that on January 25, 2010, petitioner filed a motion entitled "motion for reconsideration" protesting the December 21, 2009 reassignment of this case to the undersigned. Petitioner asserts that the reassignment "would entail waste and duplication of the very tedious work that Magistrate Judge Mueller has already performed in this action," which could unduly prolong the resolution of this case. This matter is fully submitted for decision, and since the findings and recommendations as set forth herein have been completed, it is recommended that the motion for reconsideration be denied as moot.


A detailed summary of the evidence at petitioner's trial was set forth in the unpublished opinion of the California Court of Appeal, First District, case A109671:*fn1

Jennifer Perry checked in alone to room 101 of the California Motel in Vallejo around 9:00 p.m. on June 2, 2001. She was found there around 11:15 a.m. the next day,*fn2 dead from stab wounds to the back.

Suspicion initially focused on Perry's daughter, Regina Freeland. Two purses were found on a table in the motel room; one had Perry's driver's license, the other had Freeland's license. In between the purses was a letter from Freeland to Sally Joice that read: "Sally I'm very up set [sic] because my mother do not like my boy friend DeShawn Lee. She call him bad names. You know I know you do not like her either because she call the Police on you a lot. You are right I should hurt her so she will leave me a lone. [sic] I hate her. I'm feel very sad. I will kill her. Right now. I will keep this a secret. Like you said it. Please don't tell Stephanie I want to hurt her. She make me go to motel so I can not [sic] see my boyfriend DeShawn."

Perry's personal effects in the room included a journal she had written with entries beginning in May 1997, and ending June 2, 2001. In 1999 entries, Perry reported meeting defendant and a man named Robert Reed. Entries in 2000 and 2001 indicated that Perry had been physically and mentally abused by Reed; an entry on May 28, 2001, stated, "I had another argument with Robert. [H]e slap me [sic] because I told him that I love someone else. I did not tell him that it was Victor." The entry for June 1, 2001 read: "I feel so terrible the way I treat Victor. [H]e deserves better. I don't [know] why I do the things I do. I hate myself." The entry for June 2, 2001 read: "Sally has too much control over my daughter. I feel like calling the Police on her again. She is the reason why my daughter does not care for me or do what I ask her. I do not like Regina's retarded boyfriend DeShawn. I told her she find some one [sic] else. She was very angry. She never acted this way until she met Sally. I hope dies. [sic] She is evil."

DeShawn Lee's grandmother, Gladys Anderson, received a phone call from Freeland on the night of June 3, 2001. Anderson told police that: Freeland asked to speak to DeShawn; Anderson asked Freeland where she was; Freeland said she was at a pay phone booth; Anderson asked her what she was doing at a pay phone; and Freeland said, "They have police there. I killed my momma." When Anderson asked Freeland again where she was, Freeland said "wait," then came back on the line and said, "good-bye."

Freeland's decomposing body was found in the middle of the crawl space under Chevy's restaurant in Emeryville on the night of June 12, 2001, next to a large Henckel's butcher knife. The restaurant is about a 10-minute walk from the pay phone where Freeland called Anderson. The knife was stained with Perry's and Freeland's blood. Freeland died from two stab wounds to the stomach and one to the left wrist. A trail of blood led from the western edge of the crawl space, moving east, then north, then west, to the point where the body was found, 32 feet from the west wall. To access the crawl space from the west, it would have been necessary to climb over 12 feet of riprap. Freeland's clothes were not torn from being dragged, but she was so heavily sedated with over-the-counter medications when she died that it was questionable whether she was conscious or could have crawled to the location where she was found.

No DNA evidence tied defendant to either crime scene. Perry had a.10 percent blood alcohol level when she died; her DNA and that of Freeland were found on top of a nearly-empty whiskey bottle in room 101 of the California Motel. No bathmat was found in room 101; a bathmat located under the restaurant was stained with Freeland's and Perry's blood. Perry's blood was found on Freeland's clothes and shoes. The DNA of an unknown male was found on a wad of chewing gum underneath a nightstand in room 101; that same person could have been the source of DNA on a cough drop or piece of hard candy in the area of Freeland's body.

Herbert Jensen, a Vallejo police detective who was dispatched to room 101 to investigate Perry's murder, thought that the scene looked "staged" because of the way Freeland's letter was placed prominently between the women's purses, and the purses and other objects were arranged neatly around the room. Deborah Puffer, whose employer published the journal Perry used, testified that the journal was not sold until 1999. Thus, the 1997 and 1998 entries in the journal could not have been made contemporaneously.

Forensic pathologist Brian Peterson reviewed Freeland's autopsy report and crime scene photos and opined that Freeland did not die under the restaurant. He explained that, since little blood was found in Freeland's abdominal cavity, most of her bleeding must have been external, but there was insufficient evidence of external bleeding in the crawl space. Spraying of blood would have been expected from the severing of the radial artery at Freeland's wrist, but there was no evidence of spraying at the scene. Frederick Dauer, an Emeryville police officer who investigated Freeland's death, conceded that the floor of the crawl space was porous, and that the amount of blood at the scene could not be quantified.

In Peterson's opinion, Freeland's death was a homicide rather than a suicide. Peterson thought that Freeland's injuries were "simply the wrong kind of wounds for suicidal wounds. In my experience, again, some 5200 cases, I simply have not seen this pattern ever in a sharp force suicide. [¶]... [¶] The pattern being a combination of stabbing and cutting, stabbing and cutting without apparent hesitation injury, stabbing and cutting with no previous attempts manifest by healed injuries, stabbing to the liver, which is, I think, for the layperson, a rather unlikely place to stab. Again, anyway, I've just never seen it."

Perry's cousin, Sharon Abangan, testified that Perry had an anxiety disorder, and that Freeland was mentally impaired and suffered from lupus. Abangan said that Perry and Freeland never drank,*fn3 that Freeland never used sedatives, and that neither Perry nor Freeland had a car.*fn4 Virginia Hughes, a job coach for mentally disabled adults who knew Freeland for six months before her death, heard nothing from her suggesting that she was unhappy or had a problem with her mother. Freeland's friend Shana Harper said that Freeland did not drink or use drugs. Harper said that Freeland loved Perry, and that Freeland never said she did not like Perry or wanted to hurt her. Harper said that Freeland was a "very happy" person who never mentioned suicide, but she told police that Freeland had temper tantrums, and kicked and threw things when she was asked to do something she did not want to do.

Before her death, Freeland was renting a room in Virginia Hawthorne's home in San Pablo. A search of Freeland's room revealed no alcohol or sedatives, or any evidence of animus toward Perry or of a planned suicide. Kathy Jones, one of Hawthorne's caretakers, said that Perry would visit Freeland and that the two seemed to get along well. Jones said that Freeland was excited about the job training program she was in before she died, and that she never saw Freeland try to hurt herself or others. Barbara Bush, an independent living skills worker who helped Freeland and Jones, said that she had met Perry many times and observed no friction between her and Freeland. She said that Freeland did not use alcohol or drugs, and exhibited no suicidal tendencies.

When Detective Jensen interviewed defendant on June 4, 2001, defendant said that Perry had been his girlfriend for four years, but they had broken up in March, and he had a new girlfriend named Christina Smith. Defendant said that Perry had a room upstairs in his house, and that he had last seen her on May 29th. Richard Skrinde said that he had several conversations with defendant after defendant moved into their Alameda neighborhood in March 2001, and that he and his wife stopped by defendant's place one afternoon to ask if he and Smith wanted to join them for dinner. Defendant "declined, stating that he had another female in the apartment, a former girlfriend... and that it was an uncomfortable situation, and his social calendar was kind of a mess until he got that resolved... [¶]... [¶] He indicated that he needed to get this woman out of his house in order to have a tranquil relationship with his new girlfriend."

In the June 4 interview, defendant first told Jensen that Perry had no relatives, but several minutes later said that he believed she had a daughter. Jensen said he asked defendant if he "understood [who] a relative was," and defendant said "he didn't think that it included a daughter. He thought it was just cousins and stuff." Kathy Jones said that defendant would come to visit Freeland, and that he and Freeland would generally go to her room and shut the door. Jones described defendant and Freeland as "pretty private." Barbara Bush recalled defendant coming by the house to see Freeland the weekend before Memorial Day in 2001. Shana Harper said that she visited Freeland every weekend, and that defendant visited Freeland every other weekend, before June 2001. When Harper spoke with police on June 4, 2001, she said she did not know if defendant and Freeland had a relationship, but she testified at trial that she had seen defendant and Freeland have sex.

Perry was working as a photo processor in a drug store making $10.50 an hour before her death. She had taken out four insurance policies on her life in the total amount of $900,000 naming defendant as the beneficiary. Perry listed defendant as her fiancé on at least one of the policy applications. Defendant told Detective Jensen that he was an inventor, but that he had not gotten anything patented and was unemployed. In April 2001, defendant told his neighbor Skrinde and Skrinde's wife, a real estate agent, that "he was looking to come into some money" and would be able to pay cash for a $500,000 home. Defendant told them that he was going to get rid of his Porsches and buy a Lamborghini.

Sharon Abangan testified that Perry came over to her house in late May 2001 "panicky" and "very upset." Abangan said that Perry had bruises on her neck from being choked. She took Perry to the Alameda police on May 28, 2001, and reported to Officer Michael Healy that defendant had threatened to kill Perry.*fn5 Healy described Perry as a "meek" person, and testified that she was feeling "threatened" and was "visibly shaken" when he spoke to her. Healy did not observe any physical evidence of choking, but told Perry "to relocate because [he] felt she was in danger" in view of the insurance policies. Healy could not find a shelter where Perry could stay, and told her to come back the next day. Healy went to talk to defendant but no one answered the door at his residence. Abangan told Perry to cancel her life insurance policies. Abangan thought that defendant had taken Perry's driver's license and taken control of her checking account.*fn6 She had Perry write on a file card "three important things" she had to do to get away from defendant: canceling the policies, and getting a new driver's license, and checking account.*fn7

When the police searched defendant's home on June 5, 2001, they found Perry's life insurance polices in an upstairs bedroom she had apparently occupied. In a search of defendant's home on June 27, 2001, the police found two books on forensic evidence, and a videotape of television programs on the use of biological and trace evidence to solve crimes.*fn8 On August 30, 2001, the police seized two cell phones in the master bedroom of defendant's home. The phones had numbers ending in 60 and 61. The "61 phone" was found on a nightstand next to bottles of nail polish and prescription pills for Christina Smith. There were car magazines on the floor next to the other nightstand where the "60 phone" was found. Matthew Sisson told police that the 60 number was defendant's number, and he testified that defendant had called him from that number before June 3, 2001.*fn9

Perry made a withdrawal from an ATM in San Leandro at 12:20 p.m. on June 2, 2001; defendant made a cell phone call from San Leandro at that same time.*fn10

Kathy Jones saw defendant, Perry, and Freeland together at Freeland's residence on the afternoon of June 2nd. She said that they seemed to be in a hurry. They came into the house, went into Freeland's room, shut the door, stayed there for a few minutes, came out, and left the house. When Jones gave her statement to the police, she said that defendant had appeared agitated that afternoon.

Wrapping found in a wastebasket in room 101 of the California Motel helped determine that the knife found next to Freeland's body had been purchased at 7:01 p.m. on June 2nd at Macy's Hilltop store in Richmond. The clerk who sold the knife could not identify defendant as the purchaser; she recalled only that the buyer was an African-American or Hispanic male in his 30's. The transaction was not recorded on the store's video surveillance tapes.

Defendant received a call in Alameda at 8:13 p.m. on June 2nd, made a call in Vallejo at 9:01 p.m., around the time Perry checked into room 11, and made a call back in Alameda at 9:49 p.m.

Alice Sampson, who lived with Freeland and Hawthorne, said that she returned home from a trip around 11:45 p.m. on June 2nd and saw Freeland sitting alone on the front porch. After Sampson went into the house, she heard Freeland go into her room. Sampson said that Freeland stayed inside her room for about five minutes making a lot of noise; she had never made that kind of noise before. Sampson then heard Freeland leave the house.

Defendant made 13 calls from Vallejo between 1:19 a.m. and 4:27 a.m. on June 3, 2001.

Freeland called Anderson from Emeryville at 10:34 p.m. on June 3rd; defendant made a call from Emeryville that night at 10:50 p.m. Defendant made or received 12 calls in Emeryville between 4:04 a.m. and 6:43 a.m. on June 4, 2001. (People v. Davis, 2006 WL 2965368 at 1-5.)

Following a court trial in which petitioner acted as his own counsel, he was convicted of two counts of murder, with the use of a knife, in addition to the special circumstances of murder for financial gain and multiple murders. Petitioner was sentenced to two years plus two consecutive life terms, without the possibility of parole.

On direct appeal, the California Court of Appeal, First Appellate District, affirmed judgment, and the California Supreme Court denied review. Petitioner sought habeas corpus relief in the state courts which was denied at all levels.


In the pending petition, petitioner claims that (A) he was deprived of due process of law when the police destroyed Macy's surveillance footage and lied about it at trial; (B) insufficient evidence supported the murder convictions; (C) the trial court erred in admitting the cell phone technology evidence to show petitioner's whereabouts; and (D) the trial judge abused his discretion in refusing to recuse himself from considering petitioner's new trial motion since he had already served as the trier of fact.


An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States.

28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)).

This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that 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); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).


A. Lost or Destroyed Evidence

Petitioner claims that he was deprived of his right to due process when the Vallejo police department deliberately destroyed exculpatory evidence and then lied about it during trial, in violation of California v. Trombetta, 467 U.S. 479 (1984) and Arizona v. Youngblood, 488 U.S. 51 (1988). Petitioner also contends that the prosecution withheld the evidence from the defense in violation of Brady v. Maryland, 373 U.S. 83 (1963).

1. Additional Background

Additional facts relevant to this claim were summarized by the California Court of Appeal as follows:

Wendy Glen, a loss prevention manager at Macy's Hilltop store, testified that when the Vallejo police contacted her at the store on June 6, 2001, they viewed two video surveillance tapes recorded around the time the Henckel's knife used in the killings was purchased, but the tapes did not show who bought the knife. One of the tapes was viewable on a VRC (sic), the other, a "DAT" digital tape described in the record as a small data card, could be viewed only on a Macy's machine. Glen said that the digital tapes could run for a couple of days, but were replaced daily and kept for one month. She gave the officers the digital tape.

Defendant advised during the trial that the defense had received the digital tape, and arrangements were made with Macy's for the defense to view it. When the trial resumed several days later, defendant reported that the digital tape did not contain footage of the date the knife was purchased, but rather of earlier dates, and he orally moved under Trombetta (California v. Trombetta (1984) 467 U.S. 479) and Youngblood (Arizona v. Youngblood (1988) 488 U.S. 51) to exclude all evidence concerning the purchase of the knife. The court told defendant that he would need to make a written motion, but remarked, "The fact that the knife was purchased and it's allegedly the murder weapon is a crucial element of the case."

Officer McGraw testified that he went to Macy's at Hilltop with Detectives Mathews and Silva on June 6, 2001, and asked to see the June 2nd tape. They viewed a VHS tape for the half-hour periods before and after the knife was sold, which did not show who bought it. McGraw recalled that Glen had trouble playing the digital tape, which was part of a new surveillance system, and he did not remember viewing that tape.

After the People rested, defendant moved to exclude evidence concerning the sale of the knife, or for dismissal of the case, based on the alleged failure of the police to preserve the digital tape of the date in question. The court reiterated its belief that the purchase of the knife was "a crucial area of factual dispute in this case," and took testimony from Officers Silva and Mathews, and further testimony from Glen, concerning the digital tape the police received.

Silva and Mathews confirmed that they went to the Macy's store with Officer McGraw on June 6, 2001. Macy's had a VHS surveillance system and a newer digital system; video in the digital system was recorded first onto a hard drive and then downloaded onto a digital tape. They watched digital video footage for June 2nd while they were at Macy's on June 6. Silva said they were told that the footage they viewed was from the digital tape. Glen gave them a copy of the VHS tape, and what they thought was the original digital tape for June 2nd. Silva and Mathews recalled Glen taking the digital tape out of the Macy's machine.

Silva and Mathews removed the digital tape from the Vallejo police evidence vault on June 14 to see if the footage could be converted to a VCR format or to photos. Although the knife transaction was not captured on the tape, Silva said they were interested in "one specific Black male" shown to have been in the store. When they went to the digital equipment manufacturer's facility in Union City and viewed the tape, they discovered that it contained no footage of June 2nd. After consulting with the manufacturer's representative, Silva concluded that the June 2 footage they watched at Macy's on June 6 must have been on the hard drive, rather than the digital tape. Silva and Mathews then went with the manufacturer's agent to Macy's to see if the June 2nd footage could be recovered from Macy's hard drive, but found that the footage for that date had been recorded over and erased.

Glen said that footage from the digital video system was sometimes lost around that time because the hard drive "would only hold maybe one or two days worth of information on it," and personnel "would forget to hit the archive button in order to download from the hard drive to the data tape." She could not say whether, on June 6, 2001, at Macy's, the police had viewed footage from the hard drive or a digital tape.

(People v. Davis, 2006 WL 2965368 at 10-12.)

After hearing this testimony, the trial court denied petitioner's motion to exclude all evidence of the knife sale based on the lost, destroyed or suppressed footage:

I don't think anybody lied to me, contrary to your position, which you think there's some conspiratorial effort being made to indicate this evidence doesn't exist. I don't think that's the case. I think I heard honest testimony given by all parties that had they been a little quicker maybe in examining the digital tape and discovering a little quicker that there were no images on it, perhaps they could have gotten back to Macy's quicker, and they wouldn't have been taped over yet.... [¶]... [¶] But what is the controlling issue here is whether or not the prosecution committed a violation by purposely or negligently or willfully destroying evidence, and that's not the evidence before me. The evidence is that if anybody destroyed the evidence, it was Macy's. Macy's is not an agent of the police or the District Attorney or the prosecutorial team, and therefore, they've committed none of the errors to which you've complained and the motion is denied.

(People v. Davis, 2006 WL 2965368 at 10-12.)

On direct appeal, the California Court of Appeal agreed with the trial court's ruling. Specifically, the court of appeal held:

The prosecution may be sanctioned if the police, in bad faith, destroy evidence that is potentially exculpatory, or, in the absence of bad faith, destroy evidence that is irreplaceable and plainly exculpatory. (Youngblood, supra, 488 U.S. at pp. 57-58; Trombetta, supra, 467 U.S. at pp. 488-489; People v. Carter (2005) 36 Cal.4th 1215, 1246.) Since there is no evidence that the tape at issue would have helped to exonerate defendant, he is entitled to relief only if the police acted in bad faith in failing to preserve it. The court's finding to the contrary must be upheld if it was supported by substantial evidence. (People v. Memro (1995) 11 Cal.4th 786, 831.)

Defendant's line of argument on appeal, which was not among those he advanced in the trial court, is as follows: In view of Glen's testimony that the hard drive "would only hold maybe one or two days worth of information," the June 2, 2001, footage the police viewed on June 6 must have been on a digital tape rather than the hard drive. The officers must have received the digital tape for June 2nd because they remembered receiving a tape that was taken out of the Macy's machine. Consequently, the tape that was given to the defense, which had no footage of June 2nd, must have been altered while in police custody.

This line of argument fails, even assuming it was not waived by defendant's failure to assert it below. Defendant's motion turned primarily on the veracity of the officers who handled the tape, and the court could reasonably credit their testimony. Since their testimony provided substantial evidence to support the court's decision, defendant's claim of error must be rejected. (People v. Memro, supra, 11 Cal.4th at p. 831.)

Contrary to defendant's argument, willful destruction of evidence was not the only possible explanation for the failure to preserve the June 2nd footage. Glen's testimony that the hard drive could "maybe" have held only one or two days of information did not conclusively establish the drive's maximum capacity. The capacity of the hard drive was presumably greater than that of a digital tape, and Glen testified that a digital tape could "run a couple of days."

If it were impossible for the drive to hold more that two days of data, then Glen would presumably have confirmed that the June 2nd footage viewed on June 6 must have been on a tape; however, she said she did not know whether the drive or the tape had been played. The officers did not necessarily receive the tape for June 2nd even if the footage they saw on June 6th was from a tape rather than the hard drive. The officers might have been mistaken in recalling that the tape they received was taken out of the Macy's machine, or the machine might have held multiple tapes, in which case they could have been mistakenly given a tape for another date. Macy's personnel were dealing with a new digital surveillance system, and it is not inconceivable that they might have mishandled the tape in some fashion.

Accordingly, we have no cause to disturb the court's decision to admit evidence as to the sale of the knife. (People v. Davis, 2006 WL 2965368 at 12-13.)

2. Analysis of the Claim

In Brady v. Maryland, the United States Supreme Court held that the suppression before trial of requested evidence that is favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. 373 U.S. 83 (1963). In California v. Trombetta, 467 U.S. 479 (1984) and Arizona v. Youngblood, 488 U.S. 51 (1988), the United States Supreme Court limited Brady's reach, at least with respect to lost or destroyed evidence. Such evidence "must possess an exculpatory value that was apparent before the evidence was destroyed." Trombetta, 467 U.S. at 489. The state's failure to preserve "potentially useful" evidence does not constitute a due process violation unless the defendant can show bad faith on the part of the police. Youngblood, 488 U.S. at 58.

First, petitioner cannot demonstrate a Brady violation for the deliberate or accidental suppression of evidence because the footage was not material. In the Brady context, "evidence is material only if there is a reasonable probability that, had it been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985). Here, it was established through the testimony of multiple witnesses, including law enforcement officers and the Macy's loss prevention officer, that the footage from June 2, 2001 did not show the transaction of the knife being purchased. In this regard, the evidence neither implicated or exculpated petitioner. Even if the proper digital tape had been provided to the defense, and it was successfully proved that petitioner did not appear on the tape, there is no reasonable likelihood that a different verdict would have resulted. At this time there is no evidence that the footage had any exculpatory value. Moreover, there was an abundance of circumstantial evidence which did connect petitioner to the murders. Under these circumstances, there is no reasonable probability that the result of the proceeding would have been different had the footage been provided to the defense and there can be no relief for the alleged Brady violation.

Petitioner's claim also fails to the extent he relies on the holdings of Trombetta and Youngblood. "Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense." Trombetta, 467 U.S. at 488. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. at 489 (citation omitted). The high court as been unwilling to read the "Due Process Clause as imposing on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution." Youngblood, 488 U.S. at 58.

"[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Id. at 57.

Again, the video footage at issue in this case had no apparent exculpatory value at the time it was lost or destroyed. Detective Silva testified that he and Mathews were interested in reviewing the footage for the image of "one specific black male" shown to be in the store, because they had received information that a black male may have been involved in the crime.

(RT at 1350.) Silva could not say whether the man was petitioner or not. (RT at 1362.) There is no evidence of any knowledge on the part of the police that the footage had any exculpatory value at the time it was lost or destroyed. Nor is there any support for petitioner's speculation that Silva must have "switched" the correct data tape at Macy's for another tape upon learning that the defense wished to view it. In this case, there is no showing of bad faith. See United States v. Cooper, 983 F.2d 928, 931 (9th Cir. 1993) ("presence or absence of bad faith turns on the government's knowledge of the apparent exculpatory value of the evidence at the time it was lost or destroyed") (citing Youngblood, 488 U.S. at 56-57); Grisby v. Blodgett, 130 F.3d 365, 371 (9th Cir. 1997) (citing Youngblood, 488 U.S. at 57) (unsupported or speculative contention that the evidence had potential exculpatory value is not sufficient).

In sum, petitioner cannot show bad faith on the part of the police, or that the missing evidence had exculpatory value, or that it was material in the Brady context. There also is no reasonable probability that the missing footage would have produced a different result at trial had it been provided to the defense. The California Court of Appeal's denial of petitioner's claim citing Brady, Trombetta, and Youngblood is not contrary to, or an unreasonable application of federal law, or based on an unreasonable determination of the facts in light of the evidence.

B. Sufficiency of the Evidence

Petitioner claims that the evidence at trial was insufficient to support his murder convictions because (1) no physical evidence placed him at either crime scene; and (2) there was ample other evidence that a third party (Regina Freeland) committed the crimes (i.e., Freeland's letter of intent to kill her mother and Perry's journal which corroborated the letter, Freeland's telephonic confession to DeShawn Lee's grandmother, and DNA and physical evidence).

On habeas corpus review, sufficient evidence supports a conviction so long as, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Prantil v. California, 843 F.2d 314, 316 (9th Cir. 1988) (per curiam). As stated by the United States Court of Appeals for the First Circuit, the focus under Jackson is not the correctness, but rather, the reasonableness of the state judgment.

See Hurtado v. Tucker, 245 F.3d 7, 19 (1st Cir. 2001). The dispositive question is "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 318).

Under this standard, "all of the evidence is to be considered in the light most favorable to the prosecution." Wright v. West, 505 U.S. 277, 296 (1992) (quoting Jackson, 443 U.S. at 319) (emphasis in original). The prosecution need not affirmatively rule out every hypothesis except that of guilt." Wright, 505 U.S. at 296. A reviewing court such as this one must presume- even if it does not affirmatively appear in the record- that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id. In rejecting petitioner's sufficiency of the evidence claim, the California Court of Appeal reasoned as follows:

Defendant tries to discount the probative value of the many damaging facts against him by discussing them in isolation, but the evidence as a whole added up to strong proof of his guilt.

Defendant attempts to explain away the powerful motive evidence by claiming that he could not have known that Perry was likely to cancel her life insurance policies, but there was evidence that the policies were purchased with the expectation that the two would marry, and that expectation had been dashed by the time Perry was killed. Given the testimony that defendant was breaking up with Perry and had threatened her life, he would likely have realized that his beneficiary status under the policies was in jeopardy. Defendant ventures that there are millions of life insurance beneficiaries, and calls it "at best a stretch to suggest that because a person is considering cancellation of an insurance policy the beneficiary will engage in killing the insured before that event can occur." But these reflections overlook the unusual and potentially sinister circumstances here. The policies were of very high value relative to Perry's low salary, and it is not apparent why she would have taken out so much insurance apart from defendant's influence. Defendant, moreover, identified no source other than proceeds of the policies for the cash that he said would enable him to pay for the house and the sports car he wanted. The policies and the related evidence were thus suggestive of a plot to kill Perry for financial gain.

Defendant seeks to dismiss the incriminating cell phone evidence by citing decisions where mere presence at or near a crime scene was deemed insufficient to establish culpability. He observes that the phone calls did no more than put him in the general vicinity of the crime scenes in this case. However, the cumulative weight of the cell phone evidence was considerable. Not only did the calls in Vallejo and Emeryville tie him to both of the crime scenes, they also tied him to other relevant events of June 2-4, 2001, including Perry's ATM withdrawal, the purchase of the knife, and Freeland's call to Anderson claiming responsibility for Perry's death.

Defendant attempts to impugn Peterson's opinion that Freeland was not killed under the restaurant by pointing out, among other things, that the opinion was based on the reports of others and on the allegedly low volume of blood at the scene, which was never quantified by the investigating officers. However, it was for the court to determine the weight to be given to the opinion in light of those facts. Similarly, the court could reasonably find on the basis of the cell phone and other evidence that defendant bought the murder weapon, even though the employee who sold the knife could not identify him as the purchaser.

Defendant had a strong motive for killing Perry, and could have thought it would be relatively easy to frame a mentally impaired person like Freeland for the murder. Things did not add up at either crime scene: the victims left a letter and a back-dated journal expressing animosity toward one another they had never previously exhibited; neither drank alcohol, but apparently consumed whiskey on the night of June 2, 2001; Freeland's wounds were inconsistent with a suicide, and she was probably too sedated to make it on her own to the point in the crawl space under the restaurant where her body was found. Defendant had threatened Perry's life, he lied to the police about when he last saw her, he was the one last seen with Perry and Freeland before they died, and he happened to be in the vicinity of all of the events surrounding their deaths. Contrary to defendant's argument, the court had solid, credible circumstantial evidence from which to find him guilty beyond a reasonable doubt. (People v. Stanley, supra, 10 Cal.4th at pp. 792-793.)

(People v. Davis, 2006 WL 2965368 at 6.)

The California Court of Appeal reasonably determined that a rational trier of fact could have found petitioner guilty beyond a reasonable doubt. In addition to the above summarized evidence, it was established at trial that petitioner had a romantic and/or sexual relation ship with both Perry and Perry's daughter, Freeleand, who had a mental disability. (RT at 460-63, 580-81, 800-804, 849-54.) Perry made $10.50 an hour, but had almost a million dollars worth of life insurance to which petitioner was the principal beneficiary. (RT at 626-28.)

Perry's cousin, Abangan, testified that Perry and Freeland had a good relationship. (RT at 791- 800.) This was contradicted only by the letter and journal entries present at the crime scene, which appeared to have been staged, as stated by one of the investigating officers. (RT at 117- 118.)

In late May 2001, Perry and Abangan sought the help of law enforcement; Abangan told police that petitioner had threatened and abused Perry, and choked her until she passed out. (RT at 854-907.) Between May 24, 2001 and June 2, 2001, almost all the money was withdrawn from Perry's bank account. (RT at 551-569.)

On June 2, 2001, petitioner was seen with Perry and Freeland leaving Freeland's home. (RT at 924-25.) An eyewitness told police that petitioner appeared agitated. (RT at 1034-35.) Later that day, Perry checked into the motel alone. (RT at 1026.) She was found stabbed to death the next morning; her blood alcohol level was.10 percent, and she had no defensive wounds. (RT at 66-70, 275-281.) Freeland's body was found nine days later on June 12, 2001, under Chevy's restaurant in Emeryville, CA. (RT at 131-132.) Freeland had been stabbed to death (RT at 284), and the knife found with her body had her blood as well as Perry's blood on it. (RT at 395-96.) Freeland had a large amount of sedatives in her system, including the date rape drug GHB; the toxicologist opined that she was either extremely sedated or actually unconscious at the time of death. (RT at 330-47.)

On June 3, 2001, Freeland called the grandmother of her boyfriend from a payphone in Emeryville and said that she had killed her mother. (RT at 1167, 1552-65.) The "60" cell phone registered to petitioner's girlfriend was active in Emeryville at the time of this call; it was also in the vicinity of San Leandro when the last withdrawal was made from Perry's San Leandro bank account. (RT at 551-56, 1152-69.) The knife found with Freeland's body was purchased with cash at Macy's in Richmond CA, on the evening of June 2, 2001. (RT at 734.)

The "60" phone received a call in Richmond around the same time, and received another call in the vicinity of Vallejo around the time that Perry checked into the Vallejo motel. (RT at 1160.)

Finally, although petitioner was an unemployed inventor with no inventions or patents, in April 2001 he told a neighbor that he expected to come into money in the near future and planned to buy a $500,000 house and a Lamborghini. (RT at 514-17.) The California Court of Appeal reasonably concluded that the evidence was suggestive of a plot to kill Perry for financial gain. In addition, the court's ultimate conclusion that sufficient evidence supported both murder convictions is not contrary to, or an unreasonable application of federal law, or an unreasonable determination of the facts. Petitioner is not entitled to relief on his claim of insufficient evidence.

C. Cell Phone Evidence

Petitioner contends that the cell phone technology admitted at trial to show his whereabouts was unreliable and should not have been allowed into evidence. Specifically, petitioner points out that the exact location of a caller or person receiving a call could not be accurately pinpointed.

A state court's evidentiary ruling, even if erroneous, is grounds for federal habeas relief only if it rendered the state proceedings so fundamentally unfair as to violate due process.

Drayden v. White, 232 F.3d 704, 710 (9th Cir. 2000); Spivey v. Rocha, 194 F.3d 971, 977-78 (9th Cir. 1999); Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). "A habeas petitioner bears a heavy burden in showing a due process violation based on an evidentiary decision."

Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005).

1. Additional Background

Additional facts relevant to petitioner's evidentiary claim were summarized by the California Court of Appeal:

Clive Delany, a radio frequency engineer for Cingular Wireless, testified for the prosecution as an expert on cell site and wireless communication technology. Early in Delany's testimony, defendant requested a foundational Kelly hearing on the use of cell sites to establish a caller's location. The prosecutor submitted that Kelly was inapplicable because the radio wave technology used in cell phone communication systems was not a new scientific technique. The court denied the request for a Kelly hearing, stating, "... this is not some new engineering material. This is just a field of science that we all know about. [¶] We don't need a 402 hearing... for me to determine something before the trier of fact hears it. I'm going to hear it. Now, whether or not it has any credibility, that's going to be up to the evidence presented and any other evidence presented."

Delany said that cell phones communicate via radio links. He said that radio was traditionally used only for "point-to-point" communication; cell phone technology was innovative insofar as it enabled communication from "point to multi-points." He said that cell phones had been in use since the 1980's, and that there was nothing "controversial or not accepted" about their technology.

He explained that a cell phone establishes a radio link with a cell site in the area where the call is placed. The general area from which a call is made can be determined from phone company billing records showing which cell site a phone "hits" when a call is made. Given the local density of cell sites, calls generally hit sites within one-half mile from where they are placed. However, a call does not necessarily hit the nearest site; a number of variables can affect which site is hit, including topography, the number of other calls being made at the time, and the size of the site. If a site is busy a call can bounce to another site, but the range of reachable sites is limited because signals weaken over distance. A call placed in Vallejo, for example, would not hit a site in Alameda.

Vallejo police conducted an experiment in which they made cell phone calls from inside room 101 of the California Motel every hour on the hour from 9:00 p.m. on September 29, 2001, to 6:00 a.m. the next morning. The calls hit three different cell sites in Vallejo, which were up to two and one-half miles apart. Delany said that the three sites had strong signals and provided overlapping coverage; one of the sites was a long-range tower on a hill. He thought it was unlikely that a call made in Vallejo would hit a site as far as ten miles away, given the proximity of the sites in the area. He acknowledged that the company could not pinpoint a caller's precise location, and that a call could hit a site two and one-half miles away.

After Delany testified, appellant moved to exclude the cell phone evidence on Kelly grounds. The court denied the motion, stating: "The fact that it isn't a precise science, so to speak, doesn't make it inadmissible. It would go to the weight that the Court or the trier of fact would give to such evidence. And the Court has well in mind how the witness testified, and he, by his own admission, indicated that he could not be precise. He could only testify within certain limits."

(People v. Davis, 2006 WL 2965368 at 7.)

2. Analysis of the Claim

As to this claim, the California Court of Appeal reasoned:

"In Kelly, the California Supreme Court held the admissibility of expert testimony based on 'a new scientific technique' requires proof of its reliability. (People v. Kelly, supra, 17 Cal.3d at p. 30.) To satisfy this requirement, the proponent of the testimony must show: (1) the technique has gained general acceptance in the particular field to which it belongs, (2) any witness testifying on general acceptance is properly qualified as an expert on the subject, and (3) correct scientific procedures were used in the particular case. (Ibid.)" (Wilson v. Phillips (1999) 73 Cal.App.4th 250, 254.) "The Kelly test is intended to forestall the jury's uncritical acceptance of scientific evidence or technology that is so foreign to everyday experience as to be unusually difficult for laypersons to evaluate. ([Kelly, supra,] at pp. 31-32.) In most other instances, the jurors are permitted to rely on their own common sense and good judgment in evaluating the weight of the evidence presented to them. [Citations.]" (People v. Venegas (1998) 18 Cal.4th 47, 80.)

"In applying the Kelly standard, it is important to distinguish between expert testimony and scientific evidence; the former is not subject to the special admissibility rule of Kelly, which applies to cases involving novel devices or processes." (People v. Bui (2001) 86 Cal.App.4th 1187, 1195.) "[A]bsent some special feature which effectively blindsides the jury, expert opinion testimony is not subject to Kelly...." (People v. Stoll (1989) 49 Cal.3d 1136, 1157; see People v. Cegers (1992) 7 Cal.App.4th 988, 999 [no "magical device was unveiled to astound a gullible jury"].)

Kelly "only applies to that limited class of expert testimony which is based, in whole or part, on a technique, process, or theory which is new to science and, even more so, the law." (People v. Stoll, supra, 49 Cal.3d at p. 1156; see, e.g., People v. Pride (1992) 3 Cal.4th 195, 239 [Kelly not applicable to hair comparison evidence that had been "routinely admitted in California for many years without any suggestion that it [was] unreliable"]; People v. Nolan (2002) 95 Cal.App.4th 1210, 1215 [Kelly not applicable to a urine testing device; urinalysis was not new, and other jurisdictions had accepted device's "validity for almost a decade"]; People v. Bury (1996) 41 Cal.App.4th 1194, 1201 [Kelly not applicable to a breathalyzer; technique was not novel, and breath tests for blood alcohol had "long been recognized by decisional law in California as scientifically valid"].)

Defendant's threshold contention is that the court improperly curtailed his Kelly showing below, but we find no such error. Initially, the court merely noted that it would be unnecessary, in the absence of a jury, to have a separate foundational hearing on the admissibility of the cell phone evidence; the court could hear the evidence for itself and decide what to make of it. While the court said it did not believe that the evidence involved any new scientific technique, it did not suggest that defendant was precluded from presenting proof to the contrary, and it permitted him to renew his Kelly motion after the expert testified. Defendant was not prevented from making his Kelly argument.

Defendant's argument for a Kelly hearing rests on the alleged novelty of using cell phone records to identify a caller's location. However, cell phone evidence has been introduced for that purpose in a number of cases, including one in California that was reported well before defendant's trial, without any concern for the validity of the underlying science. (People v. Martin (2002) 98 Cal.App.4th 408, 412 [prosecution "relied on [the defendant's] cell phone records to establish his location during the crucial time period"]; U.S. v. Wasielak (11th Cir. 2005) 139 Fed.Appx. 187, 193 [records showed defendant made cell phone calls in city where thefts occurred]; People v. Tineo (N.Y.Sup. Oct. 28, 2005, No. 2762-2004) 2005 WL 3636712, [records showed that defendant's and victim's cell phones were in " 'same general area' " at time of murder]; State v. Tran (Minn.2006) 712 N.W.2d 540, 543-545 [records indicated that defendant was in victim's neighborhood on afternoon of murder]; Wilson v. State (2006) 195 S.W.3d 193, 196-197 [records showed defendant "traveling from the vicinity of his residence to the vicinity of the victim's residence during the time period in question"]; State v. Seymour (Ohio Ct.App. Jul. 14, 2004, No. 03-CA-37) 2004 WL 1614891, [defendant made call from cell sector where victim's body was found]; Pantazes v. State (Md.Ct.App.2001) 785 A.2d 865, 872 [cell phone call not likely a cry for help because it was not made from victim's house]; see also People v. Vu (Oct. 6, 2006, No. G035831) 143 Cal.App.4th 1009 [2006 WL 2847792].)*fn11

In the one case we have found that considered whether cell phone records could reliably establish the location of calls, the evidence established that "the basic properties of cellular technology [were] well understood," and that "sound scientific theory" supported the use of the records for that purpose. (Pullin v. State (Ga.2000) 534 S.E.2d 69, 71.) This six-year-old decision further noted that the "scientific principles of cellular telephone technology" had been "widely accepted" in reported cases. (Ibid.; see also Werdegar, Note, Lost? The Government Knows Where You Are: Cellular Telephone Call Location Technology and the Expectation of Privacy (1998) 10 Stan. L. & Pol'y Rev. 103, 105 [collection of cell site call receiving information is "technologically straightforward"].)

The ability of cell phone records to reveal a call's location is appreciated by both prosecutors and defendants. (E.g., United States v. Harper (N.D.N.Y. Mar. 20, 2006) No. 5:05-CR-447 (FJS) 2006 WL 721576 [defendant sought discovery of cell tower locations to show he did not make a call from the location alleged]; Bratcher v. Commonwealth (Ky.2004) 151 S.W.3d 332, 354 [state subpoenaed defendant's cell phone records "because this information would give the approximate location, within a few miles, of the cell phone when the call was made"].) The technology in question has been used to apprehend suspects, and to encourage them to confess. (See U.S. v. Forest (6th Cir.2004) 355 F.3d 942, 947-948 [agents called suspect's cell phone because his "general location" could be determined from "which cellular transmission towers were being 'hit' "]; People v. Tineo, supra, 2005 WL 3636712 at [interrogators used "ruse" that they had proof the defendant's cell phone and that of the victim "had been right next to one another at about the time of the murder"]).

The testimony here and the decisions elsewhere confirm that the technology in question is neither new to science or the law. (People v. Stoll, supra, 49 Cal.3d at p. 1156.) The case at bench is indistinguishable from People v. Pride, supra, 3 Cal.4th at p. 239, People v. Nolan, supra, 95 Cal.App.4th at p. 1215, and People v. Bury, supra, 41 Cal.App.4th at p. 1201, where the expert testimony concerned techniques that were well established and widely accepted.

No "special feature" that could "blindside[ ]" the trier of fact is involved. (People v. Stoll, supra, 49 Cal.3d at p. 1157.) Over 170 million Americans own cell phones. (Note, Who Knows Where You've Been? Privacy Concerns Regarding the Use of Cellular Phones as Personal Locators (2004) 18 Harv. J.L. & Tech. 307, 312 ( Locators )), it has been estimated that nearly 46,000 become wireless subscribers everyday (Handler, supra, 10 Va. J.L. & Tech. at p. 5, ¶ 12), and "almost everyone is presumably aware in a general sense that making cell calls entails sending and receiving information via cell towers" (Locators, supra, at p. 313). Recipients of cell phone bills will generally appreciate that the company has some idea of where their calls originate; that awareness is so well understood it has been exploited in police interrogations (People v. Tineo, supra, 2005 WL 3636712 at 4). Thus, the technology at issue is not "so foreign to everyday experience as to be unusually difficult for laypersons to evaluate." (People v. Venegas, supra, 18 Cal.4th at p. 80.)

We therefore independently agree with the trial court that a Kelly hearing was not required.

(People v. Davis, 2006 WL 2965368 at 8-10.)

As set forth by the California Court of Appeal, Delaney's testimony was based on methodology that appears to be scientifically valid and properly applied to the facts in issue in this case. Admission of the cell phone evidence, even if improper, in no way rendered the state proceedings so fundamentally unfair as to violate due process. Accordingly, the California Court of Appeal's conclusion that the cell phone evidence was properly admitted was not an objectively unreasonable application of federal law or an unreasonable determination of the facts. Petitioner is not entitled to relief for his claim that the cell phone evidence was improperly admitted at trial.

D. Judicial Bias

After the penalty phase of trial concluded, resulting in two life sentences without the possibility of parole, petitioner moved for a new trial. When that motion came on for hearing on January 10, 2005, petitioner requested that the judge recuse himself from deciding post-trial motions. Petitioner stated there would be "the appearance that there's a possibility I could not receive a fair trial" because "you found me guilty of these crimes." The request was denied. The trial judge further denied petitioner's motion for a new trial. For his fourth and final claim, petitioner contends that the trial judge should have recused himself and that he was entitled to independent review by a new, unbiased judge on his motion for a new trial.

A criminal defendant has a due process right to a fair and impartial judge. In re Murchison, 349 U.S. 133, 136 (1955). The "right to a fair trial necessarily requires that the trial judge be neutral, detached, and free from actual bias." Dyas v. Lockhart, 705 F.2d 993, 995 (1983). Recusal is required when a judge has a personal bias or prejudice against a party.

Herrington v. Sonoma County, 834 F.2d 1488, 1501, n.13 (9th Cir. 1987). Judicial bias may be shown by demonstrating the judge's actual bias, or by showing that the judge had an incentive to be biased sufficiently strong to overcome the presumption of judicial integrity (i.e., likely bias). See Paradis v. Arave, 20 F.3d 950, 958 (9th Cir. 1994). On habeas corpus review, the relevant inquiry is not whether the trial judge committed judicial misconduct, but rather, "whether the state trial judge's behavior rendered the trial so fundamentally unfair as to violate federal due process under the United States Constitution." Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995).

Here, petitioner has not offered sufficient evidence to support such a finding. The California Court of Appeal found, with respect to this claim:

Defendant renews his argument that the court was required to recuse itself from deciding the new trial motion because, having served as the trier of fact, it could not be expected to independently and impartially reassess the weight of the evidence. But no authority mandates recusal in this situation, and to accept defendant's contention would greatly disrupt settled practice. Courts are routinely called upon in new trial motions to revisit their prior rulings, even in cases that are tried to a jury. (E.g. People v. DeLouize (2004) 32 Cal.4th 1223, 1227 [jury instructions]; People v. Carter (2005) 36 Cal.4th 1114, 1195 [erroneous admission of evidence].) "[J]ustice is better served by having the trial court that heard the evidence hear the motion for a new trial" (People v. Ross (1988) 205 Cal.App.3d 1548, 1553), but if the mere possibility of the sort of bias defendant posits were sufficient to mandate recusal, then few new trial motions could be heard by the judge that presided over the trial. Accordingly, it was not an abuse of discretion to deny the recusal motion. (See generally People v. Alvarez (1996) 14 Cal.4th 155, 237.)

Defendant seizes on the court's reference to the availability of appellate review when it denied the recusal motion to argue that the court applied the wrong standard in examining the evidence on the motion for new trial. He observes that whereas evidence is reviewed on appeal only for its legal sufficiency (People v. Sarazzawski (1945) 27 Cal.2d 7, 15, disapproved on another ground in People v. Braxton (2004) 34 Cal.4th 798, 817), the court on a new trial motion is "not bound by the jury's determinations as to the credibility of witnesses or as to the weight or effect to be accorded to the evidence" (People v. Dickens (2005) 130 Cal.App.4th 1245, 1251). He notes that the court used the past tense in explaining its ruling-stating that it had "made its finding" as to his guilt-from which he infers that the court failed to undertake the requisite reappraisal of the evidence in deciding the new trial motion.

However, we are not persuaded that the court misapprehended the applicable law or was derelict in the performance of its legal duties. (See generally People v. Martin (2005) 127 Cal.App.4th 970, 977["[a] judge is presumed to know and follow the law"].) "The principles underlying the granting or denying of a new trial motion are not arcane. Lawyers and judges are well aware there is no more awesome power than that of the trial court in determining whether to grant or deny a new trial motion.... Although it would have been preferable for the court to have been more specific, stating it was denying the motion based on its independent weighing of the evidence, its failure to do so and its use of less than artful language cannot be equated with having applied the wrong standard." (People v. Price (1992) 4 Cal.App.4th 1272, 1276.)

(People v. Davis, 2006 WL 2965368 at 20.)

As noted by the state appellate court, "[t]rial judges are presumed to know the law and to apply it in making their decisions." Paradis v. Arave, 20 F.3d 950, 955 (9th Cir. 1994).

Since there is no indication otherwise, it must be presumed that in denying the new trial motion, the trial judge in this case independently reviewed the evidence as he was required to do and concluded that sufficient evidence supported both murder convictions. Petitioner has failed to show any evidence of actual or likely bias on the part of the trial judge. The trial judge's refusal to recuse himself from deciding the motion for a new trial did not render petitioner's trial so fundamentally unfair as to violate federal due process.


For all the foregoing reasons, IT IS HEREBY RECOMMENDED that petitioner's application for writ of habeas corpus be DENIED. In addition, it is recommended that the January 1, 2010 motion entitled "motion for reconsideration" be DENIED.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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