The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
(1) DENYING PETITION FOR WRIT OF HABEAS CORPUS
(2) DENYING CERTIFICATE OF APPEALABILITY
On August 12, 2009, Luis M. Garces ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §2254, challenging his conviction for first degree murder and assault with a deadly weapon on Confrontation Clause grounds. (Doc. No. 1 at 2.) Primarily, Petitioner contends that the forfeiture by wrongdoing doctrine does not bar his claim because Giles v. California, 554 U.S. 353 (2008) applies retroactively to his case.*fn1 (See Doc. No. 13-1 at 5, 6.)
On October 9, 2009, Petitioner filed his First Amended Petition. (Doc. No. 11.) The Court denied Respondent's motion to dismiss the First Amended Petition, (Doc. No. 16), and ordered Respondent to file an answer. (Doc. No. 20.) On June 16, 2010, Respondent filed an answer to the First Amended Petition. (Doc. No. 21.) Petitioner filed a traverse on September 2, 2010. (Doc. No. 25.) On February 25, 2010, the magistrate judge issued a Report and Recommendation that the Court deny Petitioner's First Amended Petition. (Doc. No. 26.) Petitioner responded with an Objection to the Report and Recommendation on May 2, 2011. (Doc. No. 29.) For the reasons set forth below, the Court DENIES Petitioner's First Amended Petition and adopts the Report and Recommendation.
On March 3, 2004, the San Diego County Superior Court convicted Petitioner of first degree murder and assault with a deadly weapon in connection with the stabbing death of his ex-girlfriend and the non-fatal stabbing of the decedent's friend. (See Lodg. No. 11, In re Garces, No. HC18685, Order (Cal. June 22, 2009).)
Post-trial, the Court denied a motion for new trial. Petitioner then appealed. Garces, 2006 WL 1553358, at *1. The California Court of Appeal affirmed with respect to the assault with a deadly weapon conviction. Id. at *27. However, it reversed the murder conviction, holding the Confrontation Clause barred prior statements made by the decedent to police officers. Id. at *14-26.
Respondent appealed, and, on August 23, 2006, the California Supreme Court granted a petition for review of the opinion below, but deferred action "pending consideration and disposition of People v. Giles, No. S129852." (Lodg. No. 4.) On May 23, 2007, the California Supreme Court decided People v. Giles, holding that the doctrine of forfeiture by wrongdoing is applicable outside of witness-tampering cases, so long as the "wrongdoing" is the same offense for which the defendant is on trial. People v. Giles, 40 Cal. 4th 833, 850-55 (2007), reversed by Giles v. Cal., 554 U.S. 353 (2008).
On July 11, 2007, the state supreme court remanded Petitioner's case to the Court of Appeal for reconsideration in light of People v. Giles. (Lodg. No. 5.) On December 17, 2007, the appellate court affirmed both convictions in their entirety. (Lodg. No. 6.) In so doing, the court reversed itself with respect to the murder conviction, concluding that under People v. Giles, the forfeiture by wrongdoing doctrine applied and barred Petitioner from raising a Confrontation Clause claim. (Id.)
On January 11, 2008, the United States Supreme Court granted certiori in Giles. Giles v. Cal., 554 U.S. 353 (2008). Petitioner then filed a petition for review in state supreme court. (Pet.'s Opp., Ex. A.) The California Supreme Court denied the petition for review "without any prejudice to any relief to which defendant might be entitled after the United States Supreme Court decides Giles v. California." (Lodg. No. 8.) When Petitioner did not file a petition for writ of certiori in the United States Supreme Court, the judgment against him became final on May 27, 2008, ninety days after the state supreme court's denial of review. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).
On June 25, 2008, the United States Supreme Court reversed in part the California Supreme Court's decision in People v. Giles. Giles v. Cal., 554 U.S. 353 (2008). The United States Supreme Court held that the doctrine of forfeiture by wrongdoing applies only where the defendant engages in conduct "designed to prevent a witness from testifying," and only where the defendant acted with the intent of preventing the witness from testifying. Id. at 354. On February 9, 2009, Petitioner filed a motion to recall the remittitur requesting that his direct appeal be reinstated. (Lodg. No. 9.) The appellate court denied the motion on March 5, 2009, "without prejudice to the filing of a petition for writ of habeas corpus in the superior court." (Lodg. No. 10.)
Petitioner filed a habeas petition in the San Diego County Superior Court on April 27, 2009, arguing that his murder conviction should be reversed in light of Giles because there was no evidence that he killed the decedent with the intent of preventing her from testifying. (Lodg. No. 11.) The superior court denied relief on June 22, 2009, finding by a preponderance of the evidence that Petitioner had killed the decedent with the intent of preventing her from testifying. (Id.)
Petitioner then commenced this action by filing a federal habeas petition on August 12, 2009, followed by a First Amended Petition, filed on October 9, 2009. (Doc. Nos. 1, 11.)
The following facts are excerpted from the California Court of Appeal opinion in People v. Garces, No. D045022, 2006 WL 1553358, at *1-14 (Cal. Ct. App. June 8, 2006). This Court gives deference to state court findings of fact and presumes them to be correct. See 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from these facts, are entitled to statutory presumption of correctness). The relevant facts as found by the state appellate court are as follows:
On December 4, 1997, at around noon, when Rachael Brooks responded to a knock on her front door on Madison Avenue in San Diego, she saw a woman, who appeared very distraught and fearful, and spoke only in Spanish. . . . When she turned to walk away, Brooks noticed a stab wound in her back. Brooks called 911 at 12:06 p.m., to report the incident at her neighbor's house . . . .
San Diego Police officers and paramedics arrived within minutes. After the police briefly talked with Brooks and the wounded person, a transvestite named Rodolfo "Janet" Rodriguez (Janet), Janet was taken to the hospital for treatment and the officers entered the neighboring house on Madison Avenue. There, the officers discovered the body of Jorge "Yamile" Lee (Yamile), another transvestite, who had been stabbed several times in the hand, back, neck and chest . . . . [A] sock, which was turned inside out, [was] . . . found near the body on the living room floor. A large brown-handled butcher knife with blood smeared about four inches from its tip was found near the doorway leading from the dining room to the hallway to the bedroom.
San Diego Police Officer Miguel Morales interviewed Janet at the hospital for about 10 minutes shortly after the knife attack and murder. . . . Janet, who was in pain and crying at the time, told Morales she had not known Yamile long and had just moved in with her. Yamile and her exboyfriend, named "Luis," had serious relationship problems and he had just gotten out of jail where he was in custody for violating a restraining order. The ex-boyfriend had called Yamile that morning asking for a ride, but she had refused and told him not to call again. Not expecting the ex-boyfriend to come to the house, Janet was surprised when she heard Yamile screaming, "you're killing me" from the next room and saw Yamile being assaulted by a man she recognized from photos as Luis, the ex-boyfriend. Janet rushed into the room and made eye contact with Luis as she fled the house, but he pursued and attacked her. . . .
San Diego Police Detective Miguel Angel Penalosa joined Morales . . . and together with another officer, showed Janet a photographic lineup which included Garces's photo. Janet identified Garces from the lineup as the attacker. . . . Janet had spent the night before the attack with Yamile and had answered the phone that morning and had given it to Yamile when the man who identified himself as "Luis" asked for her. Janet overheard Yamile say something about a ride downtown, about someone owing him some money, and Yamile telling him to leave her alone. When she got off the phone, Yamile told Janet that her ex-husband was coming over to the house. Janet told Penalosa that a short time later Garces, whom Janet recognized from the photographs in Yamile's albums, arrived at the house. Yamile introduced him as "Luis" and he asked Janet if she were living there. Janet told him "no," and when he and Yamile left the bedroom, Janet heard Yamile screaming, "You're killing me, you're killing me, leave her alone." When she walked to the doorway, Janet saw Garces stabbing Yamile with a large 10- to 12-inch kitchen knife which he then used to attack her. Janet struggled with him and then collapsed to the floor after he stabbed her. Luis stabbed Yamile again before leaving the house. . . .
During the subsequent investigation, it was determined that Garces had pled guilty November 26, 1997 to misdemeanor domestic violence (§ 273.5, subd.
(a)) and making annoying phone calls (§ 653m), and had been released from jail on November 30, 1997. It was also learned that Garces had stayed at the home of his friends Reyna Rodriguez and her husband Saul Madrid the night before the attacks on Janet and Yamile. . . . The next morning Madrid left for work before 6:00 a.m. and Rodriguez left the home sometime between 10:00 a.m. and noon. . . . Garces was at the house when Rodriguez left and asked Rodriguez to leave the key to the house and the security gate with him. When Rodriguez returned home about one or two hours later, but no later than 12:30 p.m., Garces was outside, running up the stairs of the house, looking wet as if he had just fixed his hair. Appearing nervous, Garces said something horrible had happened, he had to leave and that if anyone asked her, Rodriguez should tell them he had gone to the store with her. He also told Rodriguez he had left some pants in the bathtub and she could either leave them or get rid of them. . . .
That evening when Madrid returned home from work, he found a pair of Garces's pants soaking in the bathtub with his own work clothing. . . . Subsequently, Rodriguez noticed that a 12-inch brown-handled kitchen knife was missing from her home. She believed that a picture of a knife found at the murder scene was her missing knife.
The autopsy showed Yamile had died from a four-inch deep stab wound to the back of the neck which had severed her subclavian artery and penetrated the top of her left lung. . . .
On September 30, 2002, Jorge Hechavarria, whose wife was Garces's sister, reported to the . . . Police Department near Miami, Florida, that he had overheard Garces . . . say on Thanksgiving Day of 2001 to another person, "I had a problem with my girlfriend in California and the blood ran.". . . Garces was subsequently arrested and brought back to San Diego for trial. A ...