FINDINGS AND RECOMMENDATIONS
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.
II. FACTUAL AND PROCEDURAL BACKGROUND
A detailed summary of the evidence at petitioner's trial was set forth in the unpublished opinion of the California Court of Appeal, First District, case A109671:*fn1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.
IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
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. ...