The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner, Renecha Marie Gulley, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Gulley is currently in the custody of the California Department of Corrections, incarcerated at the Valley State Prison for Women in Chowchilla, California. Respondent has filed an answer. Gulley has not filed a traverse.
STATEMENT OF THE FACTS*fn1
Prosecution Evidence Before Both Juries
On July 18, 2004, at 8:45 a.m., the Sacramento Metropolitan Fire Department was dispatched to a call for a child who had fallen out of bed. A fire engine and ambulance arrived at the scene together at 8:51 a.m. Thomas Dunne, a paramedic firefighter, arrived in the ambulance. Dunne testified that as he was pulling the ambulance gurney out a man carrying a small child walked up and set the child on the gurney. The child (three-year-old Christopher Thomas) *fn2. was limp and not responding at all. Dunne was not expecting this as usually a fall with a head injury is a bump on the head.
Christopher was breathing, but his jaws were clenched tight. Dunne rubbed Christopher to wake him up, but Christopher did not move. When Dunne pinched Christopher's hand hard, one arm moved a little bit. When Dunne lifted the T-shirt Christopher was wearing, he saw bruises everywhere, including on Christopher's chest, hip, buttocks, and back. He also noticed burn marks on Christopher's lower extremities. Although Christopher's pupils were initially the same size, on the ride to the hospital, one of Christopher's eyes became "blown," which means the pupil became really big, eventually becoming fully dilated. Christopher's eyes deviated to the left. Christopher's symptoms indicated a bleed in the brain causing pressure on the brain.
The ambulance traveled "code three" to the hospital and arrived at 9:17 a.m. Christopher was whisked into the emergency room. He was unconscious and non-responsive. Dunne described him as lifeless.
Dr. Kevin Coulter, a pediatrician with a specialty in child abuse and the medical director of the child abuse clinic at the University of California Davis Medical Center was called to help with the medical assessment of Christopher. Coulter first saw Christopher in the intensive care unit after Christopher's examination in the emergency room and after completion of the initial medical tests. The CAT scan of Christopher's head revealed a subdural hematoma, a bleeding over the surface of the brain between the brain and the skull. The bleeding in Christopher's head covered the left side of his brain and was also underneath the brain, causing pressure on his brain. The brain had become swollen and the combination of swelling and blood had shifted Christopher's brain to the right. There was no evidence of a skull fracture or injuries to the spinal cord. Coulter originally thought there was not only fresh subdural blood on Christopher's brain, but also old blood. He later revised that opinion to conclude all of the blood was from a recent acute hemorrhage.
Christopher's condition was grave on his arrival at the hospital. In order to control the swelling of Christopher's brain, Christopher was taken into surgery even though he was not in a stable condition. Neurosurgeons removed a bone flap from Christopher's skull in order to try to suction blood off the brain and allow space for his brain to swell out of the opening. Christopher became very unstable during surgery, suffering a 15- to 45-minute period of time in the operating room when he needed cardiopulmonary resuscitation. Christopher's brain was not in a condition where Christopher could be saved. The brain death protocol was started with a first exam at 10:00 p.m. on July 18, 2004. The exam showed Christopher's brain had died. When a second exam confirmed the result, Christopher was declared legally dead on July 19, 2004. Coulter testified Christopher had a number of bruises and other injuries on his body. There were parallel lines of bruising on the front of his chest, a bruise below his knee, areas of injury to his left forearm, an area of healing injury to his wrist, a healing abrasion on his right upper thigh, an injury to his upper cheek right below the left eye, older burn scars on his lower leg, and bruises on his right thigh, right hip, over his right buttocks, on his right shin, on his back and on the front and back of his right upper arm. Although the bruises below the knee were consistent with accidental injury, the bruises in the other areas were more likely inflicted injuries. Some of the bruising was consistent with grasping injuries; others were consistent with an object impacting Christopher's body. Coulter testified the injuries were not the result of medical intervention. In Coulter's opinion, all of the bruising except the scars was inflicted within the previous nine days. None of the injuries from the neck down were life-threatening.
Coulter opined Christopher's brain injury was the result of an acceleration/deceleration action similar to what happens in a car accident or a fall from a balcony. It could have been the result of an impact too, but with an acceleration/deceleration component. A fall from a bed was unlikely to have caused either the fatal head injury or the totality of the bruising. Coulter testified an adult pushing Christopher into a wall with one hand could explain Christopher's injuries depending on the force of the push and impact.
Coulter testified one single event caused the bleeding on Christopher's brain. However, he explained multiple actions can occur within an event and that "event" really meant episode that "may encompass a multiplicity of actions [.]" Coulter believed Christopher sustained his head injury within 24 hours from his hospital admission, but could not rule out that Christopher was injured twice within such time. Christopher's head injuries could have happened between 4:00 a.m. and 9:00 a.m.
Coulter was shown a video, taken approximately eight hours before Christopher was brought to the hospital, of Christopher interacting with a puppy. Coulter testified it was unlikely Christopher's head injury had occurred at that point. Coulter was also shown a video of a fist fight between Christopher and his five-year-old brother Deon. Coulter testified neither the fight nor any similar interactions caused Christopher's injuries.
Dr. Stephany Fiore, a forensic pathologist, performed an autopsy of Christopher. Fiore noted bruising on Christopher's fingers in addition to the bruises and scars noted by Coulter. The bruise on Christopher's thigh was deep, extending into the fat below the skin. Others were more superficial. All of the bruises and scrapes were fresh injuries that happened around the same time. She estimated the time of the injuries in the realm of hours rather than days prior to death.
Fiore noted three areas of trauma on the outside of Christopher's head: a bruise on his left cheek; a bruise on the left side of his forehead; and another bruise on the left side of the back of his head. Inside his head, Christopher had large subdural hemorrhaging that pre-existed the medical intervention. All of the blood was new. The bruises showed Christopher received blows that could have caused the subdural bleeding. One or all three of the blows could have caused the bleed.
Fiore gave the cause of death as blunt force injuries to the head. She testified great force was required to produce these injuries and that it was not medically reasonable to conclude they were caused by a simple fall from a bed. According to Fiore, a child of the age, size and physical capabilities of Deon would not have been capable of inflicting the injuries that caused Christopher's death. The fatal injuries were consistent with being shaken back and forth or being slammed into a wall.
With these types of injuries, Fiore expected a progression of symptoms. Immediate loss of consciousness could occur, from which the injured person might or might not recover. This would be followed by a phase of symptoms caused by the accumulation of blood within the skull and the swelling of the brain. Such symptoms would include a change in the level of consciousness, changes in the eyes, and sometimes vomiting. A loss of consciousness would usually occur within a very short period of time.
Fiore agreed with Coulter that Christopher did not appear to have been injured at the time the video with the puppy was taken. She believed the injury probably occurred within a few hours of the time 911 was called. She testified there was a medical possibility that prompt medical attention may have kept Christopher alive, but given his significant head injury she could not say in what condition he would have lived.
Statements Given At The Scene
At the scene, defendant Christopher identified himself as Christopher's godfather to a deputy sheriff, who arrived with the fire department and ambulance that morning. He told the deputy Christopher frequently stayed at defendants' apartment. He had been staying with them for the previous nine days. Defendant Christopher claimed Christopher usually had a new bruise every time he came to visit.
Defendant Christopher told the deputy that he left the apartment around 6:00 a.m. to take his wife, defendant Gulley, to work. Three children were left at the apartment; his nephew Jeffrey Bailey and his godchildren Christopher and Deon. When defendant Christopher returned, he moved Christopher from the front room into the bedroom because their puppy was messing with Christopher when he was in the front room. Around 8:00 a.m. defendant Christopher heard a thud in the bedroom. When he went to check on Christopher, he saw him on the floor, lying next to a speaker box. Christopher's eyes were open, but he looked dazed. Defendant Christopher brought Christopher out to the front room and put him on the couch. His head kind of flopped back and he appeared to go to sleep.
Defendant Christopher became concerned when he later could not wake Christopher. He called his wife at work and told her she needed to come home. Defendant Christopher subsequently took Christopher with him to pick up his wife from work and they went together to the VA hospital on Mather Air Force Base. It turned out there was no emergency facility there. Defendant Christopher declined an employee's offer to call 911 for them. Defendants went home and called 911.
Another sheriff's deputy entered the defendants' apartment just after Christopher was picked up by the ambulance. He observed Jeffrey asleep on a loveseat and Deon asleep on the floor. When he awoke, Deon told the deputy he had been staying with defendants, his godparents, for a number of days. Deon made a spontaneous statement: "Please don't put him in jail." When asked, Deon said he was referring to his godfather. Deon related that his godfather woke him early that morning and asked where Christopher got his whoopings. Deon said he did not know and went back to sleep. Deon told the deputy that his godfather had punched Christopher very hard in the chest and demonstrated the punch for the deputy by punching himself with a closed fist. Deon said his godfather hit Christopher in the same manner during the previous night and Christopher cried really hard. Deon said he got whoopings from both his godparents and his mother. Christopher got more whoopings because he was really bad.
Defendant Gulley's Interview Statements
Defendants agreed to accompany officers downtown to talk about the circumstances leading to Christopher's hospitalization. Defendant Gulley and defendant Christopher were placed in adjoining rooms where they could communicate through the common wall. A videotape of defendant Gulley's interview with Sheriff's Detective Tom Koontz was played at trial. *fn3
For the first several hours of the six-hour interview defendant Gulley claimed Christopher was fine when she left for work that morning around 5:30 or 5:45 a.m. Defendant Christopher took her to work and would have been back home around five to 10 minutes later. She said defendant Christopher started calling her at work around 7:30 or 7:45 a.m. saying something was wrong with Christopher and that he was not responding. Defendant Gulley told her husband that Christopher was probably just tired and to let him sleep. Defendant Christopher continued to phone defendant Gulley. Assured that Christopher was breathing fine, did not have a temperature, and was not cold or pale, defendant Gulley continued to recommend letting Christopher sleep. Defendant Gulley told defendant Christopher not to call 911 because she thought he was exaggerating. She became more concerned when defendant Christopher told her he had lifted Christopher's eyelids and that one of the pupils was bigger than the other and that Christopher had fallen off the bed and hit the speaker box. Defendant Gulley called Kaiser to speak with an advice nurse, but was told they could not give out advice to nonmembers.
Defendant Gulley's manager would not let her leave because she was the only employee at work. Defendant Christopher brought Christopher to the AM/PM to convince the manager defendant Gulley was not lying and needed to leave. Defendants took Christopher to the hospital by the Air Force Base, but it did not have an emergency room. They took him home and called 911. The only thing defendant Gulley knew happened to Christopher was that he fell off the bed and hit the speaker box. Defendant Gulley said she was willing to take a lie detector test as she was telling the truth.
When Koontz left the interview room defendants spoke to each other through the adjoining wall. After their conversation, defendant Gulley changed her story. She told Koontz that when she woke up for work she saw Christopher was laying there without his clothes on. Defendant Gulley told Christopher to go stand in the corner until she left. Christopher started crying. Defendant Gulley grabbed him by his arm, but he would not stand on his feet. He kept falling to his knees. Defendant Gulley grabbed him, shook him and pushed him towards the corner, telling him to stand in the corner. Defendant Gulley claimed she only shook Christopher with one hand. To her it wasn't hard, but to Christopher it probably was. She said that when she pushed him against the wall, he hit his head. When she was ready to leave for work, she put clothes on Christopher and laid him down to go to sleep. She claimed defendant Christopher did not know that she had shaken Christopher. It did not cross her mind to tell defendant Christopher about the incident when he started calling her at work. She did not have ...