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Roy Gerald Smith v. M.D. Mcdonald

June 24, 2011


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner's petition for a writ of habeas corpus (Doc. 1), respondent's answer (Doc. 14), and petitioner's traverse (Doc. 22).*fn1 Also before the court are petitioner's motion for discovery (Doc. 19) and motion to stay these proceedings (Doc. 20). / / / / / /


A. Facts*fn2

The state court recited the following facts, and petitioner has not offered any clear and convincing evidence to rebut the presumption that these facts are correct:

Defendant Roy Gerald Smith was charged with murder with the special circumstance of lying in wait. . ., grand theft auto. . . ., and having four prior serious felony convictions. . . . The prosecution announced its intent to seek the death penalty.

The victim, 46-year-old Mary Starkey, had advertised a boat for sale. Apparently claiming that he was interested in buying the boat, defendant went to Starkey's residence on June 15, 2005, where he was seen by Starkey's mother, Olivia Morino. When Starkey came out of the house with paperwork for the boat, defendant said that he needed to retrieve some money from a safe deposit box. He drove off in a brown minivan, and Starkey followed in her Saturn. When Starkey did not return home, Morino contacted the police to file a missing person report.

The day after Starkey was reported missing, members of her extended family went looking for her. A cousin saw Starkey's Saturn in the parking lot of a local winery and reported this to the police. Officers examined the Saturn and found a woman's purse containing a driver's license and credit cards in the name of Mary Starkey, as well as $327 in cash.

Surveillance tapes showed the Saturn arriving in the parking lot between 10:30 and 11:00 p.m. on June 15, 2005. A man wearing a numbered sports jersey, later identified as defendant, got out of the car and went into the winery through an entrance requiring an employee identification card. Larry Perez, who worked at the winery, saw defendant arrive in the car and asked him about it. Defendant said it belonged to a friend.

At the change of shift the next morning, defendant left the winery in the van of a fellow employee, Jorge Estrada. After having told Estrada that the car belonged to a drug dealer, defendant said: "You know what, Jorge? I think I did something bad." Defendant later said he had killed the dealer in a drug dispute. He used the word "asphyxiate" when he demonstrated how he reached around the dealer from behind and covered the mouth to prevent the dealer from breathing. Estrada saw scratches and abrasions on defendant's hands. Defendant explained the dealer struggled and kicked really hard. He said his wife saw the body in the bathtub and became angry with him. He asked Estrada for suggestions as to where he should dump the body. Estrada suggested a dumpster. Defendant looked at Estrada and asked, "you ain't going to tell on me, would you?"

A warrant search of defendant's residence yielded a sports jersey with the same number as the one seen in the surveillance video. Defendant's wife, Lolita Rodriguez, told an officer that she knew nothing about the homicide, but that she saw a woman's shoulder in the bathroom shower on June 15, 2005. In a later interview, Rodriguez said that when she arrived home from work on June 15, defendant emerged from the bathroom wearing jeans and no shirt; he appeared to be wet. Their children asked to use the bathroom, but defendant at first said no. Then he went into the bathroom, came back out, and said that the children could use it. After he did so, Rodriguez followed defendant into the bathroom and saw a Caucasian woman's shoulder in the tub. She screamed, gathered the children, and took them to a local restaurant where they stayed until it closed. When she returned home, defendant was there but the body was gone. Defendant left for work at 10:00 p.m. After he was arrested, defendant said to Rodriguez: "I don't know if I'm going to be able to get out of this, so I want you to go back to your family."

Mary Starkey's body had not yet been discovered when defendant was charged with her death.

As part of a negotiated plea agreement, defendant furnished information leading to recovery of the victim's body. The prosecutor amended the information to allege first degree murder and agreed not to seek the death penalty. Defendant pled guilty to the charge and admitted the lying in wait special circumstance. The charge of grand theft and the four prior serious felony conviction enhancements were dismissed. In accordance with the plea agreement, defendant was sentenced to state prison for life without the possibility of parole, was awarded 756 days' custody credit, and was ordered to pay a $200 restitution fine plus 10 percent surcharge. . . and a $20 court security fee. . . .

B. Procedural History

Petitioner was sentenced on July 16, 2007, and the California Court of Appeal affirmed on February 19, 2009. Petitioner did not seek direct review by the California Supreme Court. Petition did, however, file a state habeas petition in the trial court, which was denied in a reasoned decision on July 2, 2009. Petitioner then filed a habeas petition in the California Court of Appeal, which was denied on September 3, 2009. Petitioner filed a petition for writ of habeas corpus in the California Supreme Court on November 30, 2009. That petition was denied on May 12, 2010. / / / / / / / / /


Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") are presumptively applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998). The AEDPA does not, however, apply in all circumstances. When it is clear that a state court has not reached the merits of a petitioner's claim, because it was not raised in state court or because the court denied it on procedural grounds, the AEDPA deference scheme does not apply and a federal habeas court must review the claim de novo. See Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) (holding that the AEDPA did not apply where Washington Supreme Court refused to reach petitioner's claim under its "re-litigation rule"); see also Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (holding that, where state court denied petitioner an evidentiary hearing on perjury claim, AEDPA did not apply because evidence of the perjury was adduced only at the evidentiary hearing in federal court); Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001) (reviewing petition de novo where state court had issued a ruling on the merits of a related claim, but not the claim alleged by petitioner). When the state court does not reach the merits of a claim, "concerns about comity and federalism . . . do not exist." Pirtle, 313 F. 3d at 1167.

Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) 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 ...

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