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Ceona Ashley Harvey v. Javier Cavazos

March 18, 2011

CEONA ASHLEY HARVEY,
PETITIONER,
v.
JAVIER CAVAZOS, WARDEN RESPONDENT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]

Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 Petitioner is represented by Danny D. Brace, Jr., Esq.

BACKGROUND

Following a jury trial in the Fresno County Superior Court, Petitioner was convicted of first degree murder. Petitioner was sentenced to life without the possibility of parole, plus four years.

On October 3, 2008, the California Court of Appeal for the Fifth Appellate District affirmed the judgment. The California Supreme Court denied review.

Petitioner filed the instant federal petition for writ of habeas corpus on April 14, 2010.

Respondent filed an answer to the petition on August 3, 2010. Petitioner did not file a traverse.

STATEMENT OF FACTS*fn2

Veronica and Sebastian Caradonna lived in Northeast Fresno in a home with their two young children. Since 1997, they ran All Scrub Cleaning, a cleaning business, from their home. Employees would arrive at the Caradonnas' home after 10 p.m. in the evening to load up the company van, pick up supplies, and receive directions from Sebastian as to what they were to do that evening. When they arrived, Sebastian would open the garage door and give them their instructions.

Employees were paid in cash every other week. On payday their money was placed in an envelope and handed to them at the end of their shift. The Caradonnas were in the process of changing their system of payment to paying their employees by check; the issuance of checks to employees was to begin on February 5, 2006.

Defendant was hired by Sebastian as an employee of All Scrub Cleaning and worked for the business from January 5 to January 13, 2006. After working for one week, defendant did not show up for her shift for the beginning of the next week. Defendant told Veronica that she had told Sebastian that she was going to Las Vegas and needed time off from work. Veronica talked to defendant on Monday and told defendant that if she took time off she needed to request time off in advance. Defendant told Veronica she was not going to come to work anymore. Defendant came to the Caradonnas' home to get paid and to turn in her work clothes. She came into the house and looked around a little bit. She was paid in cash and left.

At approximately 10 p.m. on the evening of February 1, 2006, Ramon Torres picked up Paul Mendez and Ruben Perez in the All Scrub Cleaning van and drove to the Caradonna residence to collect their supplies and get instructions so they could begin their shift. As they approached the home, Torres noticed a white car with shiny 20-inch rims parked nearby (exhibit 47, photograph of car). He had never seen it parked there before.

Mendez talked to Sebastian in the garage and then joined Perez and Torres while they loaded the van. Sebastian returned to go inside his home. Two men dressed all in black with their faces covered came up to the van. The taller of the two men (Derrick Hill) had a long rifle-type gun; the shorter man had a black handgun. The taller man pointed his weapon at Mendez and Perez, and told them to hurry up and go. He grabbed them and shoved them into the garage. The shorter man pulled Torres out of the driver's side of the van and shoved him to the door of the house.

Mendez opened the door in the garage that went into the house. Sebastian approached as the group entered the house. He looked scared. The shorter man grabbed Veronica. The taller man pushed Sebastian against the wall and pointed a gun to his face. The men demanded money. Mendez, Perez, and Torres were forced to the center of the family room. The assailant demanded that Veronica obtain shoelaces and told her "we know you have children in the house." Veronica found shoelaces and handed them to the taller man.

Perez and Mendez had their hands tied behind their backs and were forced to lie on the floor face down. Torres had a broken arm that was in a cast, so he was allowed to lie with his face in the couch. The shorter man went through the employees' wallets, but they did not have money because they were not getting paid until the next day.

The two assailants repeatedly asked Veronica and Sebastian where the money was and where the safe was. They both continued to tell the assailants they did not have money in the house and did not have a safe. The shorter man said he knew they had money in the house and a safe in the house because they had been watching them for six months. Veronica asked the men not to do anything because her children were in the house. The men told her that if she did not give them what they wanted they were going to kill her children.

The taller man took Veronica to the bedroom and searched the closet. He kept asking for the safe. The man found Sebastian's gun case. He took it out into the living room and the men removed the guns. The taller man took Veronica back to the closet two times and kept demanding money and asking where the safe was.

Sebastian offered them Veronica's wedding rings and the personal identification number (PIN) to his bank card. They took the rings after Veronica retrieved them from her purse. The assailants got angry and said they were not going to fall for Sebastian's offer of his PIN number because it would be stupid of them to go to the bank where there are cameras.

Sebastian told the assailants he had money in the garage. Sebastian signaled to Veronica with his eyes and the men forced him into the garage. While the men were in the garage, Veronica dialed 911 and then stepped away from the telephone.

When they returned from the garage, the assailants were angry because there was no money in the garage. They became more aggressive and demanding. They told Sebastian that if he did not give them the money they were going to shoot him in the leg. The shorter man said he was going to kill all of them one by one, starting with the children, if Sebastian did not give them the money. The shorter man stood over the Caradonnas' sleeping daughter with his gun. Veronica pleaded with him not to hurt her daughter. At this point, Sebastian was kneeling by the sliding glass door. He again signaled to Veronica and shots were fired. Sebastian fell to the ground.

The assailants got jumpy. Veronica told them to leave. The smaller man looked out the window. As the assailants tried to exit the front door, the door got stuck. Veronica opened the door and let the men out. The men took the guns they had removed from the gun case. Veronica then locked the door. She was screaming as Sebastian was on the ground mortally wounded. Mendez ran through the house and checked on the children.

Veronica kept screaming her neighbor's name. Her neighbor, a Fresno police officer, heard Veronica's screams. He got his gun and ran to the Caradonnas' front door. Torres unlocked the door and the neighbor entered. Veronica said they had shot Sebastian. The neighbor found Sebastian in a pool of blood. He was still breathing but eventually died.

Sebastian died from two gunshot wounds, one to his lower chest and another to his right shoulder. In addition, he had a laceration to his upper lip consistent with a blow by a handgun.

Mendez, Perez and Torres were questioned by police that night and in the days that followed. Mendez told police that when he worked with defendant, she asked him if Sebastian had money. Defendant told Mendez that she had friends that did home invasions. Defendant asked Mendez if Sebastian had a safe. Mendez said he did not know. This conversation made him uncomfortable. Mendez said that prior to this incident he was paid in cash in an envelope on Thursday nights every other week.

Perez testified that he worked with defendant while she was employed by All Scrub Cleaning. Defendant wanted to know if Sebastian had a safe and how much money he held. Perez told defendant he did not know. Defendant asked Perez if Sebastian had a bank account or if he kept his money at the house. Again Perez told defendant he did not know. Defendant started talking to Perez about "licks," a slang term for home invasions. Defendant asked Perez if he had ever done licks before. Defendant told Perez she knew people who had done licks and she had done a couple herself. She said one time she was the driver and another time she was the person who grabbed the money. Defendant also told Perez that she would let people know how many people would be inside a house, where the safe was, and how much money was present in the house. Perez told defendant he thought that the Caradonnas made a lot of money.

Antoinette Carrasco was defendant's friend. She was with defendant the entire morning of February 1, 2006. They drove around and defendant showed Carrasco where she was moving with Carrasco's sister. Defendant and Carrasco's sister were in a lesbian relationship that Carrasco did not approve of. Carrasco was with defendant until about 4:30 p.m. Carrasco and defendant were at Carrasco's home when Derrick Hill came over. Defendant said that Hill was outside and wanted to "holler at" Carrasco. Carrasco peeked outside the window and saw Hill in his car (a white Chrysler Sebring, depicted in photographic exhibit 47 at trial). Defendant had previously talked about Hill and said he was her "right-hand man" and her "homeboy."

Carrasco testified that when she worked at Jack in the Box in July of 2005 defendant asked her if she would leave the back door open so her "homeboy" could come in and rob the place. Defendant explained the plan: Hill would come in, hit Carrasco over the head without hurting her, and rob the establishment.

Carrasco told defendant, "Hell no."

Carrasco admitted she had been convicted of felony grand theft in 2002. She stated that her conviction arose when she was working at K-mart and she was giving merchandise away without charging customers for it.

Marcelino Caudillo worked for All Scrub Cleaning. Defendant had given Caudillo a ride, but the two had not worked together. Defendant saw Caudillo get paid and saw that she (Caudillo) had over $1,000 in her wallet.

Jim Cook, an expert on cellular telephones, testified how cellular telephones react with cellular telephone towers. He testified that when a person uses their cellular telephone the telephone call will be placed through the nearest tower as long as that tower has sufficient room and capacity at the time the telephone call is made.

Carol Hinojosa, the customer operations manager for Cricket Communications, brought in the telephone records of defendant and Derrick Hill. Between January 20 and January 31, 2006, there were 15 calls made between the two of them. The last in this series of calls was made the night before the murder, on January 31, 2006 at 10:17 p.m. The call lasted two minutes and 21 seconds. This call originated from Hill's telephone and bounced off of Cricket Communications cellular telephone tower No. 2444. Tower No. 2444 was the tower closest to the residence of the victims.

On the day of the murder there was a series of six telephone calls between defendant and Hill, beginning in the afternoon and ending at 6:10 p.m. On February 2, 2006, the day following the murder, Hill and defendant spoke by telephone to each other six times, with one telephone call lasting over an hour. There were four more calls on February 3, 2006, and one on February 4, 2006, between Hill and defendant.

Defendant agreed to come to the police station on February 5, 2006, and was interviewed by Fresno police detective Eppifino Cardenas. A tape of this interview was played at trial. Defendant told Cardenas that she had worked at All Scrub Cleaning for one week beginning January 5, 2006. She said all of the employees were paid in cash, but the Caradonnas were switching to checks. She knew they were switching to checks because she had to fill out forms for the switch.

Defendant denied having any knowledge about the robbery or murder. She said that she was moving into her apartment with Mary Brown on the evening of February 1, 2006. At approximately 10 p.m. that night defendant went to Food Max. She told Cardenas that she had heard of the term "licks" while listening to rap music. She told Cardenas that she did not tell anyone that the Caradonnas had money in their house. Defendant was allowed to leave after this interview.

Fresno police detective Brad Alcorn was assigned the murder case from Cardenas on March 23, 2006. On April 13, 2006, Alcorn sent two detectives to meet defendant in the parking lot of her workplace after she got off work. The detectives asked defendant if she would agree to be interviewed. She agreed and drove her car to the police station.

Prior to interviewing defendant, Alcorn made a detailed examination of her cellular telephone records. He was most interested in the call on January 31, 2006, from Hill to defendant placed the night before the murder at 10:17 p.m. that bounced off tower No. 2444. At the time of the interview Alcorn was operating under the mistaken belief that the call was received by defendant's cellular telephone off of tower No. 2444 also. That would place defendant and Hill in the neighborhood of the murder the night before the murder, at the time of night when the employees would be arriving at the Caradonnas' home. Alcorn did not learn until after the interview that defendant received the call from a cellular telephone tower in another neighborhood, far from the crime scene.

At the beginning of the interview, defendant was asked about her relationship with Hill. She said he had been around her family for awhile and he used to try to hit on her. Alcorn focused his interview on the evening of January 31, 2006, and kept asking defendant where she was. Alcorn accused defendant of being near the Caradonnas' home at the time of the call. Defendant continued to deny being in the area. Alcorn continued to question her about her location on January 31, 2006, and told her he had records that placed her in that area at the time of the 10 p.m. call. Defendant continued to deny being in the area, Alcorn kept pushing her, and eventually defendant said she probably was with Hill by the Caradonnas' home that evening.

She then said that she rode in Hill's truck and drove by the Caradonnas' home. She took Hill there because Hill told her he was going to follow her there anyway. Defendant told Alcorn she was afraid to ask Hill why he wanted to know where she worked. Defendant said that Hill asked her if Sebastian had money and if he had a safe. Defendant told Hill she was paid in cash when she worked for All Scrub Cleaning.

Defendant spoke to Hill the day after the murder. He told her the robbery did not happen. Hill told defendant he did not shoot anyone. Hill was with another person the next day when Hill came to talk to defendant. Defendant could not see the other person's face. Hill told defendant, "your job is whacked." Hill told defendant that Sebastian tried to run and the other guy shot him. Defendant said that Hill told her they did not get any jewelry or anything else. Defendant was allowed to leave after the interview but was arrested later that week.

A white Chrysler belonging to the mother of Hill's child was searched. Officers found a revolver hidden behind the headlight. It contained six live rounds. It was stipulated that the DNA found on the gun grip belonged to Hill. A vehicle belonging to Hill was searched. Officers found gloves inside this vehicle. Alcorn testified that the gloves were large and would fit Hill.

DISCUSSION

A. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Fresno County Superior Court, which is located within the jurisdiction of this Court.

28 U.S.C. § 2254(a); 2241(d).

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997; Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to ...


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