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Gary Dean Story v. Michael Martel

January 10, 2011

GARY DEAN STORY,
PETITIONER,
v.
MICHAEL MARTEL, WARDEN, ET AL.,
RESPONDENTS.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY

This habeas action arises out of the 1976 murder of Betty Vickers in her apartment in Mountain View, California. Although Petitioner was arrested in connection with Ms. Vickers's 18 death in 1976, he was not formally charged with the homicide at that time. The case remained 19 inactive for approximately twenty-five years, until 2000 or 2001, when the District Attorney's 20 office began a process of investigating "cold cases" in which DNA testing of physical evidence 21 might allow further investigation to proceed. CT 968; RT 1764. Upon initial investigation of the 1976 was missing and could not be found. CT 968; RT 1764. In the course of this investigation, 24 however, an investigator uncovered evidence of subsequent similar offenses by Petitioner and 25 located a witness who claimed that Petitioner had boasted of getting away with a homicide in California. CT 968; RT 1764-65. Based on this new evidence, the DA's Office decided to proceed 27 with prosecution of the case. Petitioner was indicted in 2002, and a Santa Clara County jury found Vickers case, the DA's Office discovered that all of the physical evidence gathered by the police in him guilty of first degree murder on October 4, 2005. People v. Story, No. H030020, 2009 WL 1931798 (Cal. Ct. App. July 7, 2009), Resp. Ex. 10 ("Op.") at 2. The California Supreme Court 3 denied his petition for review on October 14, 2009. Resp. Ex. 12. prosecution of Petitioner twenty-five years after the homicide and following the loss of all physical 6 evidence violated his Due Process rights. The Court has reviewed the briefs submitted by Petitioner timely filed a petition for writ of habeas corpus in this Court, claiming that the Petitioner and Respondent, as well as the underlying record. Although the Court is troubled by the 8 loss of evidence and the lengthy delay in this case, it cannot find that the state court's decision was 9 contrary to, or an unreasonable application of, clearly established federal law, or involved an 10 unreasonable determination of the facts. Accordingly, the Court concludes that Petitioner is not 11 entitled to habeas relief and DENIES the petition.

After work, Ms. Vickers frequently socialized with friends at a bar called the St. James Infirmary.

Id. Although Petitioner, who was married at the time, was not part of Ms. Vickers's social group, 17 he occasionally socialized at the St. James Infirmary as well and would sometimes chat with Ms. Prior to September 1976, Ms. Vickers shared a two-bedroom house with Arlene Bockholt Baker in Mountain View. Id. Ms. Baker recalled two occasions when Petitioner visited Ms. Vickers at the Mountain View house. Id. Once, Petitioner followed Ms. Vickers home from a 22 softball game, and they spoke on the front lawn for a while before Petitioner left. Id. The second 23 time, one morning in the summer of 1976, Ms. Vickers informed Ms. Baker that Petitioner had 24 spent the night in her bed and was still asleep in her room. Id. Ms. Vickers explained that nothing 25 had happened between her and Petitioner, as she was menstruating. Id.

in Mountain View. Id. at 4. One Sunday morning shortly after Ms. Vickers moved in, Suzanne

I.Factual Background

In 1976, Betty Vickers worked at the Palo Alto office of the Wall Street journal. Op. at 3.

It was there that she met Petitioner, who also worked at the Wall Street Journal in Palo Alto. Id. 15

Vickers and her group of friends there. Id.

In early September 1976, Ms. Vickers moved into a second-floor apartment on Dana Street Bonfield Lujan, who lived in the apartment below Ms. Vickers, and her friend Janet Rogers

Nielson, encountered Petitioner. Id. Petitioner was walking back and forth on the walkway in 3 front of Ms. Lujan's apartment. Id. He started yelling to the two women, stepped over a hedge 4 onto Ms. Lujan's deck, and repeatedly demanded to know where Ms. Vickers was. Id. When the 5 women told him they did not know Ms. Vickers, he reacted with hostility and accused them of 6 lying. Id. After arguing with them for about three minutes, he gave up and left. Id. at 5. 7

However, later that evening, when Ms. Lujan was home alone tinting her hair, he returned to her 8 apartment and knocked several times on her front door. Id. Ms. Lujan could see no one through 9 the peephole, but when she opened the door, she discovered Petitioner crouched down in the 10 doorway. Id. He smelled of alcohol and explained that Ms. Vickers had stood him up. Id. Ms. Lujan did not want to converse with Petitioner, but he had placed his foot over the threshold so that she could not shut the door. Id. After listening to Petitioner for about twenty minutes, the timer for 13 her hair tinting went off, and Petitioner withdrew his foot from the threshold, allowing Ms. Lujan 14 to close the door. Id.

and Shirley Ann Mitchell at St. James Infirmary. Id. at 6. Ms. Vickers arrived at the bar around Petitioner came over to the group and said hello. Id. He asked Ms. Knight if she wanted to go to Denny's with him to have breakfast, but she declined. Id. Petitioner then turned to Ms. Vickers 20 and asked her something, and Ms. Knight saw Ms. Vickers shake her head. Id. Around 1:15 a.m., Ms. Vickers, Ms. Mitchell, and Ms. Knight got up to leave the bar. Id. at 7. Petitioner got up as 22 well and walked out behind Ms. Vickers and her friends. Id. As they walked to their cars, Ms. Knight noticed Petitioner whisper something in Ms. Vickers's ear and saw Ms. Vickers shake her 24 head in response. Id. Before she got into her car, Ms. Vickers asked Ms. Mitchell if she would 25 accompany her home, but Ms. Mitchell was unable to do so. Id. Ms. Mitchell and Ms. Knight saw 26

Ms. Vickers drive off in the direction of her home and then saw Petitioner drive off in the same 27 direction. Id.

On the evening of October 21, 1976, Ms. Vickers agreed to meet her friends Patricia Knight 9:00 or 10:00 p.m. and had a drink with a group of her friends. Id. At some point in the evening,

The Mountain View police were summoned to Ms. Vickers apartment around 5:42 p.m. on October 22, 1976, after Ms. Vickers failed to show up for work. Id. They found her lying face-3 down on her bed with a nightshirt pulled halfway up her back. Id. at 8. The police collected 4 evidence from the crime scene, including a pair of underwear, bed sheets, a tampon, wine glasses 5 and a wine bottle, cigarette butts, fingerprints, vaginal and rectal smears, and hair samples. Id. at 8, 6 21. An autopsy indicated that Ms. Vickers died from manual strangulation not long after she left 7 the St. James Infirmary. Id. at 8-9. The autopsy found no visible vaginal injuries and no indication 8 of sperm in her body, but the vaginal samples were not tested for the presence of semen. Id. at 9.

Because Petitioner had undergone a vasectomy in 1973, Id. at 14, the absence of sperm was not 10 inconsistent with a theory that he had sexually assaulted Ms. Vickers. See id. at 9, 11. Tests of A forensic scientist also conducted a blood-typing test on the presumed semen stain on the sheets. 14

Id. at 10-11. While the test confirmed that Petitioner could have been a contributor, it conclusively 15 excluded only about 10 percent of the population. Id. at 13, 20-21.

charged with the murder. Id. at 13. As a result of the homicide investigation, however, the

Superior Court judge refused to revoke probation, stating that the People had not made a serious 20 effort to prove that Petitioner had violated any of the express conditions of his probation. CT 1121.

The judge noted that while there had been "some innuendo as to the defendant's involvement with 22 the homicide of Betty Vickers," Petitioner's involvement with her death remained "shadowy and 23 inconclusive." Id.

No one was charged with the homicide of Betty Vickers, and the case remained open, but inactive, for approximately twenty-five years. In 2000 or 2001, after use of DNA evidence became 26 widely accepted, the District Attorney's office began a process of reinitiating investigation in cases 27 where new DNA testing techniques might allow "cold" cases to proceed. RT 1764; CT 968.

Ms. Vickers's sheets indicated a presumptive presence of semen; however, the tests were not conclusive and were not followed up with an examination for the presence of sperm. Id. at 10-11.

Petitioner was questioned and arrested in connection with Ms. Vickers's death, but was not Probation Department petitioned to have Petitioner's probation revoked. CT 1120-21. The 19

When investigators began looking into the case of Betty Vickers, they discovered that all the 2 physical evidence collected in 1976 had been lost or destroyed. Op. at 8; RT 1764. In the course 3 of their initial investigation, however, investigators learned that Petitioner had since been 4 implicated, and in one case convicted, in two incidents of sexual assault that were likely admissible 5 as character evidence under California Evidence Code § 1108. In one case, Petitioner was 6 acquitted on charges that he choked a woman on one occasion in 1980 and a month later held a gun 7 to her head and then raped her while grabbing her throat and choking her. Op. at 18, 23. In a 8 second case, Petitioner pled guilty to charges that he raped another woman at gun point in 1986. 9

Id. at 19-20, 24. Evidence Code § 1108, which was enacted in 1995, also allowed the prosecution 10 to present evidence of two rapes that allegedly occurred prior to 1976. One witness testified that in 1974, Petitioner struck her on the head with a gun, held her by the throat, and banged her head violently against the headboard of her bed until she lost consciousness. Id. at 16-17. A second 13 witness testified that in the spring of 1976, after chatting with Petitioner at the St. James Infirmary, 14

2000-2001 also located two ex-wives of Petitioner who both recalled Petitioner stating that he had 16 killed before and gotten away with it, in one instance specifying that he had killed someone in 17

Based on this new evidence and the testimony of original witnesses who could still be located, the prosecution filed an indictment on April 24, 2002. Id. at 1; CT 968. Following a jury 20 trial, Petitioner was found guilty of first-degree murder on October 4, 2005, and sentenced to life 21 imprisonment with the possibility of parole. Op. at 1. On appeal, Petitioner raised four violations 22 of his due process rights based on: (1) the 25-year pre-indictment delay which resulted in the loss 23 of all physical evidence; (2) the admission of four incidents of violent sexual conduct pursuant to Evidence Code §§ 1108 and 1101(b); (3) insufficiency of evidence; and (4) the cumulative effect 25 of errors by the trial court. Resp. Ex. 3. Initially, the California Court of Appeal reversed 26 judgment, finding that the trial court prejudicially erred in admitting evidence of the sexual 27 offenses. Op. at 2. The California Supreme Court granted review and reversed, holding that such

Petitioner came to her house, entered uninvited, and raped her. Id. at 17-18. The investigation in California. Id. at 15.

evidence may be admitted where the defendant is accused of murder during the course of a rape.

Id. It then remanded the case to the Court of Appeal to determine whether the pre-indictment delay 3 violated Petitioner's due process rights. Id. The Court of Appeal found no violation of due 4 process, id. at 32-33, and the California Supreme Court denied Petitioner's petition for review.

Resp. Ex. 12. Petitioner's federal habeas petition is now before this Court.

II.Discussion

A.Standard of Review

Because the instant petition was filed after April 24, 1996, it is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which imposes significant 10 restrictions on the scope of review in federal habeas corpus proceedings. Under AEDPA, a federal 11 court may not grant a habeas petition challenging a state conviction unless the state court's ruling:

"(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly 13 established Federal law, as determined by the Supreme Court of the United States; or (2) resulted 14 in a decision that was based on an unreasonable determination of the facts in light of the evidence 15 presented in the State court proceeding." 28 U.S.C. ยง 2254(d). The first prong applies both ...


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