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Salvador Zapien v. D.K. Sisto

November 10, 2011

SALVADOR ZAPIEN,
PETITIONER,
v.
D.K. SISTO,
RESPONDENT.



The opinion of the court was delivered by: Dennis L. Beck 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 [Doc. 38]

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).

BACKGROUND

Following a jury trial in the Tulare County Superior Court, Petitioner was convicted of second degree murder with a weapon use enhancement. Petitioner was sentenced to a term of 16 years to life.

Petitioner filed a notice of appeal. On December 13, 2007, the California Court of Appeal, Fifth Appellate District affirmed the judgment.

Petitioner then filed a petition for review to the California Supreme Court, which was denied. He also filed a petition for writ of certiorari to the United States Supreme Court, which was also denied.

Petitioner filed a petition for writ of habeas corpus in the California Superior Court, Tulare County. The court denied the petition in a reasoned decision.

On March 12, 2009, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Fifth Appellate District. The court denied the petition without prejudice because Petitioner "failed to summarize all the facts pertinent to his challenges and to provide an adequate record."

Petitioner thereafter filed a petition for writ of habeas corpus in the California Supreme Court, which was summarily denied with citation to In re Swain, 34 Cal.2d 300, 304 (1949).

Petitioner filed the instant petition for writ of habeas corpus on December 31, 2008.

On August 20, 2009, the Court granted Petitioner's motion to stay and hold the petition in abeyance while he returned to the state courts to exhaust the unexhausted claims.

On July 12, 2011, the Court granted Respondent's motion to dismiss the third amended petition as a mixed petition unless Petitioner elected to delete the unexhausted claims.

On July 22, 2011, Petitioner filed a fourth amended petition raising only the exhausted claims. Respondent filed an answer to the fourth amended petition on October 7, 2011, and Petitioner filed a reply on November 2, 2011.

STATEMENT OF FACTS*fn1

The fatal stabbing in this case occurred on September 22, 2001. About two months earlier, the victim moved out of the residence she shared with [Petitioner]. The victim apparently did not reveal to [Petitioner] the address or phone number of her new residence. However, [Petitioner] continued to call the victim on the cell phone she used for work. A few days before the killing, the victim asked her work supervisor if her cell phone number could be changed because [Petitioner] was calling her. Although the victim's request for a new number was approved, it was not changed before she was killed.

On the evening of September 22, 2001, the victim attended a wedding reception for one of her male co-workers. She arrived at the reception hall at approximately 5:00 p.m., around the same time as her friend and co-worker, Virginia Contreras, and Contreras's date, Juan Moya. The three sat at a table near one of the exists of the reception hall.

About an hour later, [Petitioner] showed up. The victim, who had not mentioned [Petitioner] was going to be there, looked at Contreras with an expression of surprise. [Petitioner] came up to their table, presented the victim with a plastic red rose and asked if he could join them. The victim replied, "'Well, I guess, if you want.'"

[Petitioner] did not appear to be intoxicated when he arrived at the wedding but, in Moya's words, was "talking real well." During the course of the evening, the victim, Moya, and Contreras each had one or two beers, and [Petitioner] may have had two or three beers. [Petitioner] never appeared intoxicated to Moya or Contreras. They also observed no arguing between [Petitioner] and the victim, who danced together once or twice.

During the evening, [Petitioner] conversed with Moya. [Petitioner] asked him about the possibility of Moya hiring him as a truck driver. Moya told [Petitioner] they could talk once [Petitioner] obtained a truck-driving license. [Petitioner] also asked Moya questions about who the victim was seeing. Moya responded that it was not his (Moya's) business to check up on who the victim was seeing.

Around 9:00 p.m., the victim, Moya, and Contreras decided to leave the wedding reception. They walked together from the reception hall to their vehicles. Contreras testified:

"[CONTRERAS]: We were leaving the building. We went and said good by [sic] to the bride and groom, and he stood up-

"THE COURT: Who is 'he'? "[CONTRERAS]: Salvador. He walked with us, as walking Angela out. And we were maybe a couple steps in front of Angela and Salvador. I looked back and it was normal. And Juan and I continued to the car which was just about in front of it. There is only-[sic] we were parked here-we were parked facing south, and she was parked facing north, and only one car in between us, so you can clearly see her, Angela, and Salvador.

"We got into the car immediately when they were approaching Angela's car. She unlocked it and opened the door. And when she was going to get in, we were already-had pulled behind her, so we saw her get in the car, and Salvador closed the door. And then we moved up so that she can pull behind Juan and I, and she was right behind us. And then he continued-Salvador continued to walk towards the hall through the main entrance."

Contreras confirmed she did not see any kind of argument between [Petitioner] and the victim.

After they left the parking lot, Moya and Contreras initially observed the victim's car behind them but shortly lost sight of her. Contreras called the victim's cell phone several times and left messages when the victim failed to answer. After Moya briefly stopped at a stop sign to wait for the victim's car, Moya and Contreras continued on their journey home. On cross-examination, Moya confirmed they were not concerned enough to turn around to see where the victim was, explaining, "We didn't think that anything could have happened, that's why . . . ." Contreras also testified: "I didn't worry because there was no arguments. There was no other indication of him [Petitioner] being upset. He wasn't drinking. He wasn't drunk. He didn't smoke. He was actually-he was calm. So there was no-nothing that indicated to me that [the victim] was in danger...."

Around 9:19 p.m., a sheriff's deputy discovered the victim's car abandoned in a vineyard about a mile or so outside the town where the wedding reception was held. It appeared the car had traveled out of its lane of the two-lane road, crossed the dirt shoulder, and come to rest in a couple rows of grape vines. The interior of the car was covered with blood and a black-handled knife was seen stuck into the panel of the driver's door. About five to ten minutes later, the deputy was notified about someone being brought into the hospital. He testified the hospital was about a 15-minute drive from the crime scene.

Analysis of evidence gathered from the crime scene and damage to the victim's car and [Petitioner]'s pickup truck revealed that the front end of [Petitioner]'s truck had collided with the left side of the victim's car while traveling at a high rate of speed. The evidence also indicated that the driver's window of the victim's car had ...


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