The opinion of the court was delivered by: Timothy J Bommerunited States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner Earl Joseph Christopher is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, it is recommended that the habeas petition be denied.
On September 22, 2006, a Sacramento County jury found Petitioner guilty of: (1) assault on a child resulting in death, CAL. PENAL CODE § 273ab (count one); and (2) second degree murder, CAL. PENAL CODE § 187(a) (count two). Clerk's Tr. vol. 1, 230-31; see Lodged Doc. 4, at 1.
On October 26, 2006, the trial court sentenced Petitioner to twenty-five years to life for his conviction of count one. Clerk's Tr. vol. 1, 9; see Lodged Doc. 4, at 1. The trial court imposed but stayed a fifteen years to life term for his conviction of count two. Clerk's Tr. vol. 1, 9; see Lodged Doc. 4, at 1-2.
Petitioner directly appealed to the California Court of Appeal, Third Appellate District. See Lodged Doc. 1. On September 9, 2008, the California Court of Appeal issued a reasoned decision modifying the judgment to give Petitioner 828 days of presentence custody credit, and affirming the judgment in all other respects. Lodged Doc. 4, at 52-53; see People v. Gulley, No. C053963, 2008 Cal. App. Unpub. 7348, at *66-67 (Cal. Ct. App. Sept. 9, 2008).
On October 16, 2008, Petitioner filed a petition for review with the California Supreme Court. See Lodged Doc. 5. On October 31, 2008, California Supreme Court allowed Petitioner to join and adopt by reference the issues raised in co-defendant Renecha Marie Gulley's petition for review filed with the California Supreme Court. See Lodged Docs. 6-7. On December 17, 2008, the California Supreme Court denied the petitions without comment or citation. See Lodged Doc. 7.
On February 25, 2009, Petitioner filed a petition for writ of habeas corpus with the Sacramento County Superior Court. See Lodged Doc. 8. On April 15, 2009, the Superior Court issued a reasoned decision denying the petition. See Lodged Doc. 9.
On November 2, 2009, Petitioner filed the instant federal habeas petition. See Pet'r's Pet., ECF No. 1.*fn1 On April 5, 2010, Respondent filed an answer, see Resp't's Answer, ECF No. 10, to which Petitioner filed a traverse on August 3, 2010, see Pet'r's Traverse, ECF No. 17.
III. FACTUAL BACKGROUND*fn2
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)*fn3 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, [Petitioner] 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 [Petitioner and defendant Gulley's] apartment. He had been staying with them for the previous nine days. [Petitioner] claimed Christopher usually had a new bruise every time he came to visit. [Petitioner] 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 [Petitioner] 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. [Petitioner] 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. [Petitioner] 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. [Petitioner] became concerned when he later could not wake Christopher. He called his wife at work and told her she needed to come home. [Petitioner] 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. [Petitioner] declined an employee's offer to call 911 for them. [Petitioner and defendant Gulley] went home and called 911.
Another sheriff's deputy entered [Petitioner and defendant Gulley's] 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 [Petitioner and defendant Gulley], 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 [Petitioner and defendant Gulley] agreed to accompany officers downtown to talk about the circumstances leading to Christopher's hospitalization. Defendant Gulley and [Petitioner] 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.*fn4 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. [Petitioner] took her to work and would have been back home around five to 10 minutes later. She said [Petitioner] 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. [Petitioner] 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 [Petitioner] not to call 911 because she thought he was exaggerating. She became more concerned when [Petitioner] 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. [Petitioner] brought Christopher to the AM/PM to convince the manager defendant Gulley was not lying and needed to leave. [Petitioner and defendant Gulley] 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[, Petitioner and defendant Gulley] 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 [Petitioner] did not know that she had shaken Christopher. It did not cross her mind to tell [Petitioner] about the incident when he started calling her at work. She did not have him call 911 even after he said one of Christopher's pupils was bigger than the other because she did not think he knew what he was talking about and she wanted to see Christopher for herself. She denied it was because she did not want to get in trouble for shaking Christopher.
When Koontz left the interview room again, defendant Gulley told [Petitioner] through the wall: "Baby? I told them I did it. . . . 'Cause I didn't want you to have to go through all that you're going through over there. . . . It's either me or you, babe. . . . Huh? 'Cause I heard her over there antagonizing you. . . . Everybody is trying to put that shit on you. I didn't sell. I didn't sell. . . . They need somebody and it's either going to [be] you or it's going to be me. Promise to stay by my side. Okay?" When Koontz returned and asked defendant Gulley if she was trying to protect somebody, she said she was telling the truth and she was not just saying she did it.*fn5 In a later conversation with [Petitioner] through the wall, she told him they would have to let him go now.
The next day Koontz interviewed defendant Gulley again. The tape of that interview was also played for the jury. Defendant Gulley told Koontz that Christopher was awake when she got up for work and that he had taken his clothes off. Defendant Gulley told him to get up and put some clothes on. Christopher just sat there, so defendant Gulley told him to go stand in the corner. Defendant Gulley brushed by Christopher as he was standing in the corner. She bumped him and he fell. She picked him up by his arm to get him to his feet, but he kept falling to his knees. She instructed him to stand up and get in the corner. She "kind of projected him" towards the corner and he fell and hit his head. After about five minutes, she told Christopher to go lay down and he walked over and laid down. She went to work. She told [Petitioner] not to call 911 even after several of his phone calls to her at work because she wanted to wait and see if Christopher would wake up.*fn6 Jeffrey's and Deon's Trial Testimony At trial, Deon testified Christopher got in trouble the night before his death. He thought Christopher was spanked or put in a corner. Christopher got punished by [Petitioner and defendant Gulley] a lot of times. Defendant Gulley spanked Christopher with a big belt, an electric cord, and a spoon. [Petitioner] spanked him with a belt and a big lace. Both [Petitioner and defendant Gulley] hit Christopher with their hands. Deon thought [Petitioner] threw Christopher and that was how Christopher got killed. Deon heard the army video game [Petitioner] was playing pause and then heard a bam or a boom on the wall, like something hit the wall. Christopher cried. Defendant Gulley was not there at that time in the morning. [Petitioner's] nephew Jeffrey testified at trial. He was 10 years old at the time of Christopher's death. Jeffrey testified Christopher got in trouble on the morning of his death when he peed on himself. Defendant Gulley told Christopher to go to the bathroom and he had to stand in the corner for awhile. [Petitioner and defendant Gulley] then left so defendant Gulley could go to work. Christopher kept crying for some juice after [Petitioner and defendant Gulley] left. Jeffrey testified Deon, bothered by Christopher's crying, kicked/pushed Christopher. Christopher fell and hit his head on the coffee table. Christopher cried and held and rubbed his head. Christopher was dizzy. He laid down on the couch. According to Jeffrey, Christopher had bruises from what Deon did. Deon did not like Christopher and always hit him with toys and stuff when [Petitioner and defendant Gulley] were not looking. Jeffrey admitted he went to visit [Petitioner] in jail a lot of times, but denied his family talked to him about what to say to help his uncle.
Sacramento Sheriff's Detective Kelly Clark testified he spoke with Jeffrey on July 18, 2004 around 10:45 a.m. Jeffrey never told Clark that Deon kicked Christopher causing him to hit his head. Jeffrey not only said he never saw Deon hit Christopher, but he said he never saw anyone hit Christopher.
Jeffrey's mother testified she took Jeffrey to see [Petitioner] in jail a number of times, but denied [Petitioner] suggested Jeffrey should testify that [Petitioner] did nothing to Christopher or that she suggested to Jeffrey what he should say in court.
Prosecution Evidence Before Defendant Gulley's Jury Only One of the sheriff's deputies who responded to assist with the injured child call spoke with defendant Gulley at the apartment. Defendant Gulley said she was the godmother of Christopher and Deon. Defendant Gulley told the deputy it was not uncommon for her to keep Christopher and Deon for weeks or months at a time. She thought their mother was not a very good mother and that she abused the children. Christopher would frequently come over with bruises. She allowed the deputy to enter the apartment to check on the two children remaining there.
Defendant Gulley wanted to show the deputy where Christopher fell. She took him to the bedroom where she moved a speaker from at least three feet away from the bed closer to the bed and said that was where it had been when Christopher fell.
Defendant Gulley told the deputy that the previous night Christopher ate a good dinner, had fun, and stayed up to 10:00 or 10:30 p.m. Christopher got up around 3:00 a.m. and asked for a drink of water. Defendant Gulley told him no and to go back to bed. Nothing was wrong with Christopher at that time. Christopher was still asleep when defendant Gulley got up for work around 5:45 or 6:00 a.m. At that time the other boys were still playing videogames. [Petitioner] drove her to work at the AM/PM around 6:00 a.m. She received the first of several phone calls from [Petitioner] telling her Christopher fell out of bed and was not responding around 7:45 a.m. He called her five to seven times, but she could not leave work as she was the only employee there. [Petitioner] brought Christopher to the AM/PM and defendant Gulley took him in to show her manager. After her manager turned her back on them, defendant Gulley carried Christopher back to the car and they left. Defendant Gulley described Christopher at that time as lifeless. [Petitioner and defendant Gulley] went to the Mather hospital, but were told they could not be helped. Since they did not know what was wrong with Christopher, they took him home and called 911. Robert Piispanen, a co-worker of defendant Gulley, testified he was woken up by a phone call from defendant Gulley at 7:15 a.m., at the latest 7:25 a.m., on July 18, 2004. Defendant Gulley told him she was not able to work that day as her godson was sick. She was going to take the child to the hospital. Piispanen asked why her husband could not take the child, but agreed to come into work to cover defendant Gulley's shift. Piispanen got to the AM/PM around 8:15 or 8:30 a.m. Defendant Gulley and her husband left with the child.
Defense Evidence Before Both Juries Defendant Gulley testified on her own behalf. She denied striking Christopher the morning he was taken to the hospital. She said she did not slam him against the wall and she did not cause any bruising. She denied doing anything to cause Christopher's death. She admitted she told [Petitioner] not to call 911 even after his third phone call to her. She said she thought Christopher's responses sounded normal and his injuries were not that severe. Defendant Gulley decided to take the blame for Christopher's injuries after talking to [Petitioner] while they were in custody. [Petitioner] told her he would take the blame. Defendant Gulley felt hurt because she did not believe he caused the injuries and she did not want him to take the blame. She decided to take the blame instead. Her statement to Koontz after that conversation was not truthful. She felt pressured by the officer. She thought if she told the officer something to satisfy him, she would be arrested and [Petitioner] would be set free. Even though both of them were subsequently arrested, she stuck to her story the next day because she believed her innocence would be shown. Something would show Christopher's fatal injury was from falling off the bed and hitting his head.
Defense Evidence Before Defendant Gulley's Jury Only Dr. Richard Ofshe, a professor of social psychology and expert on police interrogations and the manner in which a person can be manipulated into giving a false confession, testified before [Petitioner's] jury. He testified regarding police interrogation techniques and correlated some of those techniques to Koontz's interview of defendant Gulley. Ofshe had listened to the communication between [Petitioner and defendant Gulley] while they were being interrogated and believed her subsequent confession was consistent with defendant Gulley's testimony that she confessed to match [Petitioner's] offer to do it for her. Ofshe felt defendant Gulley's confession was contaminated in the sense that Koontz shaped the confession by suggesting what it should contain.
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, 362 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also 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.
In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable--a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). "When it is clear, however, that the state court has not decided an issue, we review that question de novo." Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S. 374, 377 (2005)).
The petition for writ of habeas corpus sets forth two grounds for relief. In ground one, Petitioner argues the trial court abused its discretion when it discharged Juror No. 1 during deliberations, denying Petitioner his right to a fair and impartial jury. See Pet'r's Pet. 20-21. Second, Petitioner contends trial counsel rendered ineffective assistance.
A. Ground One: Removal of Juror No. 1
Petitioner contends the trial court abused its discretion by removing Juror No. 1 during deliberations, "when it was not shown by a demonstrable reality that the juror was unable or unwilling to deliberate." Id. at 21. Petitioner argues he "did not get a fair trial in that the [trial c]court dwelved [sic] into the [j]ury's deliberative process" by dismissing Juror ...