The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Kern, following his conviction by jury trial on April 18, 2006, of murder in the first degree (Cal. Penal Code § 187), and possession for sale of cocaine base (Cal. Health & Saf. Code § 11351.5). (CT*fn1 550-551.) Weapon enhancements were also determined to be true. (CT 550-551.) In a bench trial in a bifurcated proceeding, the trial judge determined that Petitioner had served two prior prison terms within the meaning of 667.5(b). (CT 568-569.) On May 17, 2006, Petitioner was sentenced to serve an aggregate indeterminate term of sixty-four years to life in state prison. (CT 609-612.)
Petitioner filed a timely notice of appeal. On May 9, 2007, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), affirmed Petitioner's judgment in a reasoned decision, but dismissed two prior prison term enhancements. (See Lodged Doc. No. 7.) Petitioner petitioned for rehearing but rehearing was denied. (See Lodged Doc. Nos. 8 and 9.) On July 11, 2007, Petitioner filed a petition for review in the California Supreme Court. (See Lodged Doc. No. 15.) Review was granted but briefing was deferred. On September 12, 2007, the petition was dismissed and the case was remanded to the Fifth DCA in light of People v. Black, 41 Cal.4th 799 (2007). (See Lodged Doc. No. 16.)
Petitioner also sought collateral relief in the state courts. On March 10, 2008, he filed a petition for writ of habeas corpus in the Kern County Superior Court. (See Lodged Doc. No. 13.) On May 20, 2008, the petition was denied. (See Lodged Doc. No. 14.) On June 20, 2008, he filed a petition for writ of habeas corpus in the Fifth DCA. (See Lodged Doc. No. 10.) On September 4, 2008, the petition was denied and Petitioner was instructed to seek relief in the superior court first. (See Lodged Doc. No. 12.) Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court on September 22, 2008. (See Lodged Doc. No. 17.) The petition was denied on April 22, 2009. (See Lodged Doc. No. 18.)
On October 5, 2009, Petitioner filed the instant federal habeas petition, presenting nine claims for relief. On January 19, 2010, Respondent filed an answer to the petition. On March 1, 2010, Petitioner filed a traverse.
Rochelle M., the homicide victim, lived in an apartment with her 10-year old daughter, T., and her cousin Avanae Eddington. Defendant moved into Rochelle's apartment several weeks before she was murdered. Rochelle would cook, clean, iron, and wash defendant's car for him, even though defendant was not employed. Rochelle also gave defendant money and bought him a white Cadillac.
Eddington testified that defendant would argue with Rochelle and would beat her. On two occasions defendant pulled a gun on Rochelle. On four occasions, Eddington intervened when defendant was beating Rochelle. Defendant had many other girlfriends, and Rochelle and defendant would argue about that. Defendant would lock Rochelle out of their bedroom and would talk on his cellular phone to his other girlfriends. There were occasions when defendant and Rochelle would argue and Rochelle would leave the apartment by jumping out the window in T. and Eddington's room.
According to Eddington, defendant's gun was a .38 revolver. Out of fear, Rochelle asked Eddington to remove the bullets from the gun, but Eddington did not know how. Rochelle also asked her cousin to remove the bullets, but he did not know how either.
Defendant threatened to kill Rochelle many times. Rochelle would often telephone defendant at all hours of the night to find him. He would hang up on her and she would get mad.
In addition to testifying about Rochelle and defendant's abusive relationship, Eddington testified concerning drug sales that occurred in the apartment. She said that people would knock on the apartment door and defendant would tell Rochelle to go get a particular amount of drugs. She would do so and he would sell it to the person at the door. Eddington had seen defendant chop up crack cocaine in the apartment. Defendant had a plate, razor blades and bags to put the drugs in. He prepared the drugs in the room he shared with Rochelle and kept them in one of Rochelle's drawers in that room.
Rochelle was pregnant. Defendant told her she "better have" an abortion because he did not want a baby by her. Rochelle was upset. Two days before she was murdered, Rochelle told defendant to leave.
T. testified that defendant lived with them for several weeks. Defendant failed to help around the house. He treated T.'s mother, Rochelle, poorly. T. saw defendant hit Rochelle on at least 10 occasions. He would hit her with his hand and his fist.
Rochelle would sometimes escape through the window in T.'s room when defendant was hitting her. Rochelle would go to her neighbor's apartment after she fled.
T. said that during one argument between defendant and Rochelle, defendant put bleach in the fish tank water and killed T.'s fish. On another occasion when defendant was fighting with Rochelle, T. grabbed a knife and told defendant not to put a hand on her mother. Defendant told her that if she did not put the knife down he would shoot Rochelle. T. put the knife down.
T. had seen defendant point a gun at Rochelle during arguments. He had a gun in a black bag that he kept in his car. Rochelle tried to hide the gun one time. Defendant had kicked in the bathroom door and the bedroom door on separate occasions when he was fighting with Rochelle.
Rochelle sent T. to her aunt's to stay for a few days, several days before Rochelle was murdered.
On the evening of July 10, 2005 (the night before the murder), Eddington was at home from about 4 p.m. to midnight. Defendant was there for a short time around 8 p.m.
T. was staying at her aunt's house. When Eddington left, Rochelle was asleep in her room. Defendant drove the white Cadillac and a maroon Monte Carlo. Defendant and
Rochelle typically parked their cars behind their apartment in an alley. In the early morning hours of July 11, 2005, surveillance cameras at a store on the alley where Rochelle's apartment was located captured pictures of a white Cadillac and a maroon Monte Carlo traveling in the alley. The Cadillac was pictured driving south toward the apartments at 3:42 a.m. The Monte Carlo was then pictured driving north in the alley one minute later. The Monte Carlo was again captured on film driving south in the alley at 4:14 a.m.FN1 From 3 a.m. to 5 a.m. there was no other traffic, foot or vehicle, captured on the camera videotaping the alley.
FN1. The clock on the video monitor was 10 minutes fast; the times listed above are the corrected times taking into account the 10-minute time difference.
At 4:47 a.m., defendant telephoned 911 requesting an ambulance. The call lasted several minutes. After making his request, defendant could be heard in the background yelling at someone to get up. During part of the call, his voice became fainter, as if he was at a greater distance from the telephone.
Police officer Nathan Anderberg arrived at Rochelle's apartment at 4:51 a.m. The front door was open. He walked into the apartment. Defendant walked out from the hallway. Defendant said to Anderberg that "she shot herself." Defendant walked outside and Anderberg lost sight of him. Anderberg went into the bedroom and found Rochelle lying on the floor on her back. Rochelle had a gunshot wound in the center of her chest and died at the scene.
Police officer Eric South arrived at the apartment and was told to stand by defendant. Defendant was sitting in the back of a patrol car. He was visibly upset and asked if his girlfriend was okay. Defendant told South that he was in his car in the alley when he heard a loud pop. He was concerned, so he came inside to check on his girlfriend. He found that she had been shot. He thought he heard someone fleeing out the back window. He called 911. Defendant told South that people were out to get him, but he did not believe they would take it that far.
Defendant was transported to the police station. He was placed in a waiting room. He asked to use the bathroom, but his request was refused. He turned on the television and fell asleep. Detective Joseph Aldana arrived about 7 a.m. and asked defendant if he would go downstairs to be fingerprinted. Defendant asked if he could use the bathroom. He was told he could use the bathroom after they were done. Defendant cooperated until he was told they were going to do a gun residue test. He was taken back to the interview room.
After being instructed to sit down in the interview room, defendant sat down, unzipped his pants and stuck his hands into his pants. He was told to remove his hands from his pants. He refused and Officer South pulled his hands from his pants. Defendant had urinated on his right hand. A gunshot residue test was then performed, but no residue was found.
Officers processed the apartment and interviewed neighbors. There was nothing disturbed in the house except that the window in T.'s room was partially opened and the vertical blinds were disturbed. The bathroom door appeared to have been kicked in and the bedroom door was off its hinges.
Defendant's keys, wallet, telephone charger, money, cigarettes, cigarette lighter, baseball hat, and jewelry were on top of the dresser in the bedroom where Rochelle was shot.
Officers found a green plate inside a dresser drawer. The drawer contained items belonging to Rochelle. There were baggies of rock cocaine on top of the plate. No pipes for smoking cocaine base were found in the apartment. Defendant's wallet contained $220, in $10 and $20 bills. It was Officer Freddie Cavillo's opinion that the cocaine base was possessed for sale. He testified that it is not uncommon for individuals who sell drugs to have a firearm available to protect themselves.
Officers searched the apartment and surrounding areas for four hours looking for a firearm, but could find none. The white Cadillac driven by defendant and parked in the alley behind the apartment was searched. It contained a gun holster inside a cellular phone box. There was no gun inside the holster.
Rachel Earl Anderson was Rochelle's neighbor. He arrived home at 3 a.m. He took some pain killers and fell asleep. He woke up to the sound of tires screeching in the alley followed by the slamming of Rochelle's security door. He fell asleep and did not wake up again until police officers knocked on his door. When he was initially interviewed, Anderson said he did not hear anything.
Danielle Barthelme was a nearby neighbor of Rochelle for two weeks before Rochelle died. She knew defendant as a customer from a store where she worked. She had seen defendant at the store at about 2 a.m. that morning. She got off work about 3 a.m. At approximately 5 a.m., she heard a gunshot. Within one to two minutes defendant was pounding on the wall yelling that he needed help. Barthelme eventually went outside and defendant asked her to see if Rochelle was okay. Barthelme did not check on Rochelle and testified that defendant remained within her sight until after officers arrived.
When Barthelme was interviewed by police the morning of the offense, she told police she heard the gunshot 10 to 15 minutes before police arrived and defendant ran up and banged on her door two or three minutes after the gunshot. Barthelme also told officers that she did not go outside her apartment.
An autopsy was performed on Rochelle. She died from a single gunshot wound to her chest. The wound was not a contact wound or a close wound. She had two abrasions to the left side of her face. She was six to eight weeks pregnant. She tested positive for marijuana but had no other drugs or alcohol in her system.
A bullet projectile was obtained during the autopsy. Criminalist Greg Laskowski testified that the gun that was used to shoot Rochelle was probably fired from several feet away. Her killing was inconsistent with suicide. The bullet that was removed during the autopsy was a .38. A variety of short-barreled .38 guns would fit in the holster removed from defendant's car.
In addition to evidence regarding the crime, the People were allowed to produce evidence of other acts of domestic violence perpetrated by defendant. Walter Wallace, a licensed private investigator, contacted Rochelle on June 23, 2005, to serve her with a subpoena to testify in a burglary trial. He knocked on the door and Rochelle answered. They talked and then defendant came up to the door and asked Wallace why he was there and why he was talking to Rochelle. Wallace told defendant why he was there and defendant responded that the "fucking bitch ain't going to court." Defendant then grabbed Rochelle by the hair and pulled her inside. Wallace told defendant to stop and asked Rochelle if he should call police. Rochelle said no, that defendant would calm down after Wallace was gone.
N. S.testified that she has known defendant for five years and has dated him. He moved in with her for a few months. He was very controlling and monitored everything she did. He threatened to kill her if she left him. He threatened to blow up her grandmother's house if she left him. On one occasion, defendant was angry because his friend had come over and N. had let him use the telephone when defendant was not home. Defendant came home, stripped N., shoved his finger up her vagina, poured cold water on her, and threatened to pour hot oil on her. In addition, he held a knife to her throat, threw things at her, hit her in the face, and pushed her. She was able to escape because her cousin came over. On another occasion, N. was at her cousin's house and defendant pounded on the door and tried to drag N. outside. She fought and he picked her up and took her outside. Police arrived but she would not say anything to the police.
L.P. had a romantic relationship with defendant and he is the father of her child. She had previously called police and told them that defendant had hit her. She testified at trial that defendant did not hit her, and she lied to police when she told them that he had hit her. She also testified that during an argument with defendant she jumped from the second floor balcony only because she did not want to talk to him anymore, not because she was afraid of him.
K.W. is the mother of three of defendant's children. Her last baby, fathered by defendant, was conceived in June or July of 2005. She knew defendant had another girlfriend at the time. She testified that defendant never hit her or threatened her and she had never seen him with a gun. Her report to police that defendant had threatened her with a gun was not true and she made the report out of anger.
Michael Musacco testified as an expert on the effects of intimate partner battering.FN2 He testified that it is common for women who have been battered to not report incidents because the report enrages the perpetrator. In addition, many battered partners report incidents and then recant their reports later.
FN2. Intimate partner battering is now the preferred term used in what was formerly called battered women's syndrome. (See Lodged Doc. No. 7.)
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, 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 Kern 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. Lockyer v. Andrade, 538 U.S. 63, 70 (2003); 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 (1997), quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (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.
Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner 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 ...