The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge. Local Rule 305(b).
Following a jury trial in the Tuolumne County Superior Court, Petitioner was found guilty of first degree murder. He is currently serving a sentence of 25 years-to-life.
On January 9, 2006, Petitioner filed a notice of appeal in the California Court of Appeal, Fifth Appellate District. On March 15, 2007, the state appellate court affirmed the judgment.
Petitioner then sought review in the California Supreme Court, which was denied on June 13, 2007.
Petitioner submitted a petition for writ of habeas corpus to the Tuolumne County Superior Court on December 17, 2007. The petition was denied on January 17, 2008. Petitioner then filed a petition for writ of habeas corpus in the California Court of Appeal, Fifth Appellate District, dated July 13, 2008. The petition was denied on December 30, 2008.
Petitioner filed a habeas corpus petition in the California Supreme Court, dated February 2, 2009. The petition was denied on July 22, 2009.
Petitioner submitted the instant federal petition for writ of habeas corpus on October 21, 2009, which was filed on October 27, 2009, containing eighteen claims for relief. At the same time, Petitioner filed a motion for stay and abeyance of the federal petition pending exhaustion of the state court remedies with respect to claims 15, 16, and 17.
Petitioner filed a subsequent habeas corpus petition in the California Supreme Court on September 24, 2009, which was denied on March 10, 2010.
On April 8, 2010, Petitioner filed an amended petition for writ of habeas corpus, which contains all eighteen exhausted claims.
Robert Johannes, age 48, lived by himself in a house owned by his mother in the Crystal Falls area of Tuolumne County, east of Sonora. Johannes had been injured in a work-related accident in 2001, and he eventually received, in late 2003 or early 2004, a lump sum workers' compensation payment of about $5,000, followed by biweekly benefit checks for $382. Johannes's condition deteriorated further when he suffered a stroke in the fall of 2002. The stroke left him with limited mobility, and required him to use a cane to get around.
Johannes's house was located on a wooded, steeply sloped lot uphill from a county road. There were some 70 steps leading from a parking area along the driveway to the house itself, which one entered through a sliding glass door off the porch. The living area was on the right, and the kitchen and dining areas on the left. Across the room from the door, a staircase led to Johannes's bedroom in a second-story loft area. Given his limited mobility, Johannes spent a lot of time in his bedroom. And he relied on his family and friends to take him places, and help with shopping, the housework, and his other needs.
Johannes's other needs included methamphetamine. He sometimes gave people money to go buy it for him, including the defendant, Joshua Mejia, and Mejia's girlfriend Rachel Demore. Johannes had been seen taking the money he paid for the drugs from an envelope of cash he kept in his bedroom.
Mejia and Demore had grown up in the area. After becoming a couple, they lived for a while with her parents, then with his parents (whose house was only two or three away from Johannes's), and finally, beginning in December of 2004, by themselves in a converted garage apartment they rented for $400 per month (which was paid initially by Mejia's parents). Neither Mejia nor Demore worked regularly, however, and they both smoked methamphetamine whenever they could, so they seldom had much money. As a result, they were unable to pay their rent, and had to move out of their apartment at the end of February of 2005.
During the several preceding months, Mejia had often talked to his friends about a "comeup," meaning "pretty much getting anything that you can that's worth something that you can get ... money [f]or." More particularly, Demore would later testify, Mejia said "he knew this guy that has a lot of money and it would be a good comeup and he wanted to, you know, go up there and beat him up and rob him." FN1 Mejia was referring to Robert Johannes.
FN1. In fact, Johannes had already spent most, if not all, of his $5,000 lump-sum workers' compensation payment. Johannes's sister testified he had given her $3,000 in 2004 to take his two daughters on a trip to Disneyland, and another $2,000 to buy them clothes and Christmas gifts.
The only person, according to Demore, who showed any real interest in Mejia's idea, was his friend, Josh Perry (sometimes identified as Josh Menking).
On March 1, 2005, Mejia and Demore packed up the stuff at their apartment, and spent the night there. The next afternoon, March 2, they drove in Mejia's pickup truck to a friend's house who "fronted" them some meth. They smoked some of it, and took the rest with them to Johannes's house later the same day. Mejia was wearing a sweatshirt, jeans, and a new pair of boots he had bought two weeks earlier with birthday money his parents gave him.
Mejia and Demore went up to Johannes's bedroom and smoked more of the meth with him. After awhile, Demore began cleaning Johannes's house as a way of repaying him the money he had given her and Mejia a few days before to buy drugs. She picked up the trash, vacuumed upstairs and down, did some dusting, washed the dishes, and wiped down the counters. Mejia remained upstairs with Johannes.
At some point, Mejia came down and got Johannes a glass of Kool-Aid. He later told Demore he had put something in it-evidently Formula 409 household cleaner-that he had hoped would make Johannes fall sleep. But the Kool-Aid tasted bad and Johannes did not drink it.
Later that afternoon, while Mejia and Demore were still at Johannes's house, some people came by and paid him $150 for a car he had sold them.
Once she finished cleaning, Demore talked some more with Mejia and Johannes in the bedroom, then left the house to wait for Mejia in the pickup. At that point, Demore testified, Johannes's metal cane was downstairs, hanging on the back of one of the dining room chairs.
Demore had been waiting in the pickup for five or ten minutes when the outside lights around Johannes's house went out. She walked back up to the house to investigate and found Mejia downstairs in the darkened living room. He motioned for her to be quiet and to go back to the pickup, which she did. Demore described what happened next. "It was quiet for a minute and then I heard what sounded like a wrestling match going on. I didn't hear anybody yelling, I didn't hear anything, I just heard like banging, like somebody was wrestling, and that went on for a couple minutes and then it went quiet and a couple minutes later, Josh [Mejia] ran down the driveway and he had a pillowcase over his shoulder and it had a bunch of stuff in it. [¶] ... [¶] "He was pretty shook up. He told me when he was up there, Bob [Johannes] had come down the stairs and he said he [Johannes] was holding the cane up like he was going to hit him [Mejia] and Josh said he took a swing at him [Johannes] and they started wrestling, and somehow they ended up in the bathroom and he told me that he had hit him several times over the head with the cane and that he stomped on his chest and then he beat him up with his fists and he said he wouldn't knock out when he was hitting him. He [Johannes] was saying, 'I didn't mean to touch her, I didn't mean to touch her.' [¶] ... [¶] "He said after he hit him over the head with the cane and stuff, he had gone upstairs and he grabbed everything that he could and he said when he flipped up the mattress, he found like child pornography and like a bunch of sex toys and he threw them all over the place before he left."
Demore observed that Mejia's hand was "swollen up huge."
Demore did not see Josh Perry at Johannes's house at any time that evening, nor did Mejia ever tell her Perry was, or had been, at the house.
Mejia and Demore drove to a friend's house, where Mejia dumped out the contents of the pillowcase onto a bed. There were some video game cartridges, a pistol in a blue canvas carrying case (the same pistol Mejia had stolen once before and sold to Johannes), a BB rifle, some glass meth pipes, an old stamp with a picture of Hitler on it, and several pieces of women's jewelry in a wooden box. All these items would later be identified as having belonged to Johannes; the jewelry had been his aunt's, and had been given to him to pass on to his two daughters.
Mejia gave some of the items to the people at the house.
Mejia and Demore then drove back to their apartment. Demore resumes the story. "... [W]hen we got there, Josh told me to take off my clothes, change my clothes and take off my shoes, and he took off his sweatshirt and his pants and he sorted through everything that he wanted in the bag [pillowcase] and left it out and everything that he didn't want, he put in the bag with our clothes and he threw it on the fire [in an outdoor burn pile]."
Mejia did not, however, throw his new boots into the fire. "[W]e went and got some beer after that, after he [Mejia] had burned the stuff, and we came back and packed up a little bit and we went to sleep."
When Mejia and Demore awoke the following afternoon, March 3, Mejia started calling around trying to sell the things he had taken from Johannes's house.
Someone named John agreed to buy the video games. Mejia and Demore drove to John's house. He gave them a hundred dollars for the games. "[W]e stayed there for a minute and did a line and left."
They drove next to Josh Perry's house, because Mejia said Perry owed them some money or drugs. It was dark by the time they arrived. Demore overheard Mejia ask Perry "where were you and stuff...." And Mejia told Perry something to the effect that he had beaten up a child molester. Mejia gave Perry some of the jewelry, and the Hitler stamp.
Mejia and Demore stayed only about 20 minutes at Perry's house before returning to their apartment. They packed up more of their stuff, gave the owner some money, and then drove to yet another friend's house, where they spent the rest of the night sleeping in their pickup in the driveway. It was now early in the morning of March 4. The following day, Mejia and Demore borrowed some money from Mejia's aunt and headed for Salinas where Mejia's brother was living.
Mejia and his brother sold the handgun for $100 and a "pretty good amount of cocaine." Two days later, on March 7, Mejia and Demore drove to the nearby town of Prunedale, where they stayed with some friends of Mejia's parents (who also were there). It was in Prunedale, on March 9, that Mejia and Demore learned warrants had been issued for their arrest for Johannes's murder. Mejia's parents hired a lawyer, who arranged for the couple to turn themselves in to police. Before that happened, however, Mejia took off his boots and threw them into some bushes near the Prunedale house. He was wearing tennis shoes when he was arrested Johannes's body had been discovered on the afternoon of March 3, downstairs on the floor of a bathroom adjoining the kitchen. Based on an analysis of blood stains and spatters found in the house, Johannes initially was attacked near the bottom of the stairs, then dragged across the carpet to a point in the living room, and then dragged again from there through the dining area and across the linoleum floor in the kitchen to the bathroom, where he was beaten some more. There were two bloody footprints on the kitchen floor. Johannes's metal cane was on the sofa; it appeared to be bent, and had dried human blood on it. The cane's rubber tip had detached and was found on the living room floor.
Johannes had $147.15 in the pocket of his pants. The T-shirt he was wearing had what later appeared to one investigator to be a shoe print in the blood on the front of the shirt, with a herringbone pattern different from that in the bloody footprints on the floor. But a criminalist who also examined the shirt was unable to confirm the investigator's suspicion.
The pathologist who performed an autopsy of Johannes's body found numerous blunt force injuries and lacerations on his face and head inflicted by "something like a pipe or something heavy and hard with a relative[ly] linear shape to it," like Johannes's metal cane. The pathologist acknowledged the injuries also could have been inflicted with a pool cue. One potentially fatal blow had fractured the base of Johannes's skull and caused bleeding over the surface of his brain. There also were bruises and contusions on his face consistent with his having been punched or kicked.
Another potentially fatal blow to Johannes's neck had fractured the hyoid bone protecting his breathing passage. Such an injury could have caused a "severe spasm of the airway" leading eventually to suffocation.
And Johannes had "very significant" chest injuries caused by having been kneed or "stomped" with great force. "The breast bone was fractured in two and all the ribs around the edges were broken inward and there was a depression there." This resulted in "what we call a flail chest on both sides and that is a loss of continuity of the rib cage [such that] the person can no longer exchange air properly [and] they may suffocate." Similar knee or stomping blows to Johannes's abdomen had lacerated his liver and spleen, and caused internal bleeding. Johannes's death was probably caused by the combined effect of these injuries. A toxicology test established that Johannes, at the time of his death, had "a large quantity" of methamphetamine in his system.
A palm print from Mejia's right hand was found on top of the kitchen stove, in an area adjacent to the route from the bathroom into the kitchen, and facing outward from the bathroom. The print was consistent with one that would have been left "if a person were to step out of the bathroom over the victim [Johannes] and put their hand on the stove for support." A thorough cleaning of the stovetop (such as Demore said she had done) would have removed any pre-existing prints, in which case the palm print would have to have been left afterward.
Seven latent prints were found on Johannes's cane. Three matched Mejia's left palm, and one matched his right little finger. The remaining three were insufficiently clear to establish a definite match, but could have been left by Mejia. The location and orientation of the prints indicated that Mejia had held the cane by the end away from the curved handle.
All the prints found at the scene were compared with those for Johannes, Demore, and Josh Perry, in addition to Mejia. Two prints taken from the sliding glass door were matched to Johannes, and one print on the bathroom sink was matched to Demore. None of the prints belonged to Josh Perry.
The soles of Mejia's boots (the ones he had tossed into some bushes in Prunedale) were compared with the two bloody footprints found near Johannes's body on the kitchen floor of his house. Despite some similarities, there was too little detail in the footprints to match them positively to the boots.
Investigators searching Johannes's bedroom found a sexually explicit magazine called "Naughty Neighbors" under his bed, but they found nothing there or elsewhere in the house containing photographs of children in sexual poses. Nor was any such material found among Mejia's possessions when officers searched the contents of his pickup truck.
In addition to telling police where to look for Mejia's boots, Demore provided other information that led investigators to some of the items Mejia reportedly had taken from Johannes's house on the night of the murder. Some pieces of the jewelry (but no clothes) were found in the burn pile at Mejia's and Demore's former apartment. The BB gun, rifle, some video games, and additional jewelry items were recovered from the persons to whom, by Demore's account, Mejia had given them. This included Josh Perry, who later led investigators to the mud hole where he had disposed of the jewelry.
Mejia's Defense Mejia testified in aid of his own defense, which was, essentially, that Josh Perry killed Robert Johannes after he (Mejia) had left Johannes's house.
Mejia acknowledged having talked to some people, including Perry, about a "comeup," i.e., a theft, at Johannes's house, but dismissed the talk as idle conversation and denied going to the house on March 2, 2005 for that purpose. He went instead, he said, to make up for having accepted $100 from Johannes a few days earlier to go buy him some meth, and then using all the drugs for himself and Demore.
By Mejia's account, he and Demore smoked the meth they had brought with them with Johannes. They talked and played video games in his bedroom. Time passed. The people who were buying Johannes's car came and left. Demore was downstairs cleaning; Mejia and Johannes were upstairs in the bedroom. Then Johannes went to the restroom.
While Johannes was in the restroom, Mejia decided to help Demore with the cleaning, and started to collect the trash in the bedroom. As he did, he found a sexually explicit magazine called "Naughty Neighbors." He sat down on the bed to look through it, when two Polaroid photographs fell out. They appeared to Mejia to show Johannes's two young daughters engaged in "some sort of sexual act." Mejia was "really disgusted" and put the photographs back inside the magazine. Then, for reasons he could not later explain, Mejia gathered up the video games and a BB gun and put them in a pillowcase. (He denied taking Johannes's black pistol or the wooden box of jewelry.) Mejia took the pillowcase downstairs and put it outside on the porch with the trash, near the sliding glass door. Then he went back upstairs.
At this point, Johannes came out of the bathroom. Mejia accused him of being a child molester. Johannes got angry and started yelling at Mejia to leave. The commotion brought Demore upstairs. Johannes made a lewd comment to Demore, and she hit him in the face three times with her fist. Johannes lifted his cane as if to hit Demore, whereupon Mejia stepped in between them and told Demore to go downstairs. She left the house and walked down toward the pickup. Mejia took the cane away from Johannes and threw it on the bed. He then went downstairs and out of the house through the sliding glass door.
At that moment, Mejia testified, "Josh Perry jumped out from behind the house over the railing" and onto the porch. He was dressed entirely in black, and was wearing blue rubber gloves. He asked Mejia "if we were going to do a comeup." Mejia said no, but added that "Bob [Johannes] was more than likely a child molester." Perry reportedly responded "he needed money and he wanted to do a comeup and basically he didn't care what was going on." Mejia reportedly told Perry "that I was leaving and I didn't want nothing to do with it." Mejia denied having previously made plans with Perry to do a comeup that day at Johannes's house.
Despite Mejia's attempts to stop him, Perry ran into the house and up the stairs to the bedroom. Mejia followed as far as the living room. "I heard a few noises going on upstairs and I was at the bottom of the stairs and I had seen Bob come to the door and he had his cane in his hand and Perry was hitting him." Perry knocked Johannes to the ground and "stomped" him repeatedly in the head and chest before sending him "Tilt-A-Whirling" down the stairs, stilling holding onto his cane. Perry then started "beating the hell out of [Johannes]" with the cane, and stomping on him intermittently while looking around the house for things to steal. Mejia was too frustrated and scared at this point to know what to do. Finally, however, he retrieved the pillowcase containing the BB gun and video games, and left the house. Demore was waiting for him down below. They got into the pickup and drove to their former apartment. According to Mejia, he told Demore along the way about everything that had happened up at the house with Perry.
At the apartment, Mejia punched his truck out of frustration, which accounted for his swollen hand. He acknowledged burning some "junk" that night in the burn pile, but described it as "miscellaneous items" that "we didn't want to take with us to Salinas." He recalled, however, seeing Demore throw a bag of clothes into the fire, along with "a small wooden box." Mejia denied trying to poison Johannes's Kool-Aid, and denied throwing his boots into the bushes in Prunedale.
After his arrest, Mejia gave an interview to investigators in which, over the course of several hours, he offered various conflicting versions of the circumstances surrounding Johannes's death. His testimony at trial was different still, in many particulars, from what he had told the investigators. He had not been entirely truthful, Mejia explained, because he was trying to protect Demore, and avoid implicating his friends. Eventually, however, as we have explained, he directly implicated Demore in the theft of Johannes's property (his jewelry in particular), and named Perry as Johannes's killer.FN2
FN2. One of the witnesses who testified for the defense was a friend of Mejia's named Carl Greenway. Greenway and Mejia had been housed at the same time at the county jail, sometime after Mejia's arrest in this case. Greenway testified he had seen Josh Perry at a friend's house on the night of March 2, 2005. He remembered the date because he had seen a story in the local newspaper that day about Johannes's murder. Perry had come to the house to sell Greenway's friend some crystal meth, and Greenway acted as the middleman in the transaction, which took place outside at Perry's car. According to Greenway, Perry seemed scared and agitated. He was also flashing around a large roll of cash that appeared to Greenway to contain between four and five thousand dollars. The roll of cash was wrapped in a check stub and secured with a rubber band. The check stub had " 'United States Treasury' " written on it, along with the name "Robert Johannes" or "Robert Johnson."
In rebuttal, the prosecution presented evidence that Johannes's murder was not reported in the newspaper until March 4, 2005; that Johannes's benefit checks came from the state rather than from the federal government; and that his name did not appear on the check stubs.
Officers arrested Perry on March 17, 2005. A search of the vehicle he was driving, which belonged to his girlfriend, produced the bottom half of a screw-together pool cue, a rifle belonging to a friend's father, and a pair of tennis shoes having a herringbone pattern on the sole.
Rebuttal Testimony Demore, in rebuttal, reaffirmed her earlier testimony and denied Mejia's account of events insofar as it differed from her's.
The prosecution also called Josh Perry as a rebuttal witness. Perry testified he did not know Robert Johannes; he had never been to Johannes's house and was not there on March 2, 2005; he did not steal anything from Johannes; and he did not hit, kick, or beat Johannes with anything, nor did he kill him. (Lod. Doc. 4 at 2-11.)
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 Tuolumne 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 cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.
Where a petitioner files his federal habeas petition after the effective date of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), he can prevail only if he can show that the state court's adjudication of his 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). "Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the earlier state court's decision "was contrary to" federal law then clearly established in the holdings of [the Supreme] Court." Harrington v. Richter, __ U.S. __, 131 S.Ct. 770, 785 (2011) (citing 28 U.S.C. § 2254(d)(1) and Williams v. Taylor, 539 U.S. 362, 412 (2000). Habeas relief is also available if the state court's decision "involved an unreasonable application" of clearly established federal law, or "was based on an unreasonable determination of the facts" in light of the record before the state court. Richter, 131 S.Ct. 785 (citing 28 U.S.C. § 2254(d)(1), (d)(2)). "[C]learly established ... as determined by" the Supreme Court "refers to the holdings, as opposed to the dicta, of th[at] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. at 412. Therefore, a "specific" legal rule may not be inferred from Supreme Court precedent, merely because such rule might be logical given that precedent. Rather, the Supreme Court case itself must have "squarely" established that specific legal rule. Richter, 131 S.Ct. at 786; Knowles v. Mirzayance, __ U.S. __, 129 S.Ct. 1411, 1419 (2009). Moreover, the Supreme Court itself must have applied the specific legal rule to the "context" in which the Petitioner's claim falls. Premo v. Moore, __ U.S. __, 131 S.Ct. 733, 737 (2011). "A state court's determination that a claim lacks merits precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Richter, 131 S.Ct. at 786.
"Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceedings, § 2254(d)(2)." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Both subsections (d)(2) and (e)(1) of § 2254 apply to findings of historical or pure fact, not mixed questions of fact and law. SeeLambert v. Blodgett, 393 F.3d 943, 976-77 (2004).
Courts further review the last reasoned state court opinion. SeeYlst v. Nunnemaker, 501 U.S. 979, 803 (1991). However, "[w]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Richter, 131 S.Ct. at 784.
For ease of reference and analysis, the Court has lumped all related claims under a single heading with corresponding sub-headings.
A. Suppression of Favorable Evidence
Petitioner raises six separate but related claims that the prosecution suppressed potentially exculpatory evidence-Claims Two, Four, Six, Seven, Ten and Eleven. Each claim will be addressed in turn.
Petitioner claims the prosecutor suppressed evidence that witness Rachel Demore had an "alleged agreement with the D.A. to testify," that she rehearsed the testimony with the district attorney and investigator, and that the ...