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Dennis Louis Nelson v. Gary Swarthout

July 22, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


I. Introduction

Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2004 conviction for first degree murder. Petitioner was sentenced to life in prison, with the possibility of parole. Petitioner raises four claims in his petition, filed October 7, 2009, that his prison sentence violates the Constitution. For the reasons set forth below, the undersigned recommends that the petition be denied.

II. Procedural History

On June 18, 2004, a jury found petitioner guilty of first degree murder.

Petitioner was sentenced to a term of life with the possibility of parole.

Petitioner filed a timely appeal and on August 31, 2006, in a partially published opinion, the California Court of Appeal for the Third Appellate District affirmed the judgment. People v. Nelson, 142 Cal. App. 4th 696 (Lodged Document "LD" D, App. A).*fn1

Petitioner filed a timely petition for review in the California Supreme Court. (LD D.) The court granted review on three questions:

1) Did the delay in charging defendant violate his state and federal constitutional rights? (2) Does the methodology for assessing the statistical significance of a "cold hit" from a DNA database require proof of general scientific acceptance? (3) How should the statistical significance of a "cold hit" from a DNA database be calculated?

People v. Nelson, 43 Cal. 4th 1242, 1249 (2008). On June 16, 2008, in a published opinion, the California Supreme Court affirmed. Id. at 1268 (LD I at 24). On October 6, 2008, the United States Supreme Court denied petitioner's petition for writ of certiorari. Nelson v. California, 129 S. Ct. 357 (2008).

Petitioner filed no petitions for writ of habeas corpus in the state courts.

III. Facts*fn2

In the late afternoon of February 23, 1976, Ollie George, a 19--year--old college student, drove her brother's car to a shopping center in Sacramento to buy some nylons. Around 5:30 p.m., she told her mother by telephone that the car would not start. Around that time, she was seen at a nearby McDonald's restaurant. Later the car was found unattended at the shopping center, with the door unlocked and the keys in the ignition. The car contained grocery items, nylons, Ollie's purse, and a partially eaten McDonald's hamburger. Ollie was missing. Her family notified the police that she was missing, and her disappearance was reported in the newspaper and on television. Two people said they had observed Ollie inside a car at the shopping center around the time she disappeared. The hood was open, and a man described as African--American appeared to be working on the engine. One witness said the man was wearing a "watch cap."

Two days later, Ollie's body was found in an unincorporated area of Sacramento County. She had been raped and drowned in mud.

Within a couple of weeks, one of the witnesses saw what he believed to be the same car in which he had seen Ollie around the time she disappeared. He reported the license number to the police. The car was petitioner's faded blue Oldsmobile F85. In early March 1976, sheriff's detectives observed petitioner and his car in an apartment parking lot. He was wearing a watch cap. He agreed to go to the sheriff's department for an interview. There, he gave a rather confused account of his whereabouts at the time Ollie disappeared. Petitioner's mother-in-law said that petitioner was at her house sometime between 4:00 and 6:00 p.m. on the day Ollie disappeared, but she also said that petitioner never stayed long at her house.

During the investigation, detectives received hundreds of tips, including reports that Ollie, or at least a woman who, like Ollie, was African--American, was seen with a Caucasian male or males. Detectives interviewed over 180 potential witnesses and followed other leads. However, they were unable to develop sufficient evidence to focus the investigation on a specific person. Eventually, the matter became a cold case, that is, unsolved but inactive.

In later years, for unrelated events, petitioner was convicted of criminal offenses, including rape and forcible oral copulation, and was sentenced to a lengthy prison term. A biological sample was obtained from him for DNA analysis and entry into the state convicted offender databank.

In October 2000, the state allocated funds to enable local law enforcement agencies to utilize DNA to solve sexual assault cases that lacked suspects. Sacramento County began hiring and training analysts, a process that takes about a year. At that time, the county had about 1,600 unsolved sexual assault cases. In July 2001, a review of Ollie George's death determined that the case had biological evidence warranting analysis. The case was put in line for DNA analysis. The evidence included a vaginal swab, semen stains on Ollie's sweater, and Ollie's hair samples obtained during the autopsy. An analyst used part of a semen stain from the sweater to develop a DNA profile. The state Department of Justice obtained that profile for comparison, by computer, with the state's convicted offender databank. At the time, the databank contained about 184,000 individual profiles. The search resulted in a match with one of the persons in the databank. Petitioner was that person, and he was identified as a potential source of the semen stain.

In 2002, with a warrant, detectives obtained oral swabs from petitioner, which were analyzed with Ollie's vaginal swab, the semen stains on her sweater, and her hair samples. Petitioner's DNA matched the DNA of each of the evidence samples. As a result, petitioner was charged with Ollie's first degree murder. Before trial, petitioner moved unsuccessfully to have the matter dismissed due to the delay in charging him with the murder. . . . At trial, over objection, the prosecution presented evidence that the DNA profile on the vaginal swab would occur at random among unrelated individuals in about one in 950 sextillion African--Americans, one in 130 septillion Caucasians, and one in 930 sextillion Hispanics. There are 21 zeros in a sextillion and 24 zeros in a septillion. . . .

In view of the DNA evidence, the defense did not deny that petitioner had sexual intercourse with Ollie. Rather, the defense claimed that Ollie and petitioner had consensual intercourse on the weekend before she disappeared, and that someone else abducted, raped, and murdered her.

43 Cal. 4th at 1247-49.

IV. Standards for a Writ of Habeas Corpus

An application for a writ of habeas corpus by a person in custody under a 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). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Federal habeas corpus relief 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.

28 U.S.C. § 2254(d).

Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. ...

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