FINDINGS AND RECOMMENDATIONS
James C. Gaines, a state prisoner, proceeds pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. At issue is Gaines's 2007 conviction for the 1972 murder of 12-year-old Shannon Ritter.
II. FACTUAL AND PROCEDURAL BACKGROUND
A cold case for more than three decades, the investigation of Ritter's murder was reopened in 2006 when Gaines's DNA was identified on a cigarette butt taken from the apartment where the murder took place. The California Court of Appeal set forth a detailed summary of the facts of the murder and the subsequent investigation which culminated years later in Gaines's arrest and conviction.
The murder of Shannon Ritter
On the evening of September 29, 1972, Margie Doporto hired Shannon Ritter to baby-sit her young children at Doporto's apartment. Doporto was a young married woman who lived in the apartment complex with her four children. When Doporto's husband, who was in the military, was away, she often had male visitors.FN3
FN3. Doporto died before trial.
The night Ritter babysat at Doporto's apartment, her friend, 17-year-old Mary Ellen Koone, stopped by to check on her. Ritter came to the door and told Koone "there was somebody in the house and she was very uncomfortable about it." The man had rung the doorbell and asked for Doporto. Ritter told Koone the man insisted on waiting in the apartment for Doporto to return.
Koone stepped in front of the door and saw a black male sitting on the couch, watching television. Koone had never seen the man before but guessed he was between 17 and 20 years old, of a build slighter than medium. Seated, he appeared to be about five feet three inches to five feet six inches tall.
Koone offered to have her mother come over and "run him off," but Ritter declined. Ritter said she "would be too embarrassed" if she sent him away and the man turned out to be a friend of Doporto.
Koone asked Ritter the man's name. Ritter asked the man, who responded that his name was Robert and he was a high school sophomore. Ritter asked Koone to come into the apartment, but Koone declined, saying she had to return home to check on her own baby. Koone was the last person, other than the slayer, to see Ritter alive.
A few hours later, Doporto's neighbors, Everett and Jacqueline Hipsher, were awakened by Doporto's knocking at their door. Everett walked over to Doporto's apartment and went inside. He saw water flowing down the stairs. Everett climbed the stairs and looked into the bathroom. In the tub he saw hair floating on top of the water. Everett soon realized there was a person in the water. Deputy Sheriff Ron Goesch and his partner were dispatched to Doporto's apartment and found Ritter's body in the bathtub. Ritter was nude, lying on her left side with her face in the water near the running faucets. Rigor mortis had begun to set in.
Goesch found Doporto's children asleep in different bedrooms. They were moved to a nearby apartment prior to the deputies' searching Doporto's apartment.
In the living room, sheriff's deputies discovered Ritter's clothing piled on one end of the couch where Koone had seen the man sitting. Ritter's bra was still fastened, her underwear was inside out, a t-shirt was partially inside out, and one pant leg was wadded up. Ritter's shoes were on the floor at the other end of the couch. Both shoe soles were damp.
Sheriff's deputies found three cigarette butts next to an overturned ashtray near the shoes. Two of the cigarette butts were Salem brand. On a nearby table lay a pack of Salem cigarettes, three of which were missing. A deputy described the house as "messy" and "dirty."
The pathologist who conducted Ritter's autopsy testified Ritter died from a combination of manual strangulation and drowning. Ritter's body had been submerged long enough to develop a condition known as "skin slip," which the pathologist testified is often the result of being in hot water.
An examination of Ritter's body revealed two deep bruises on the right side of her head and abrasions on her lip, chin, and neck. The throat and neck injuries indicated Ritter had struggled while being strangled. The lip injuries could have been caused by Ritter's falling against something or being hit with something. In addition, Ritter's hyoid bone had been damaged.
The autopsy also revealed petechial hemorrhaging in the whites of Ritter's eyes, which occurs when significant pressure resulting from something tight around the neck causes tiny blood vessels to break. Petechial hemorrhaging also was present on the surface of Ritter's lungs and heart and on her chest, which, along with expanded lungs, pointed to death by drowning. The pathologist found a "frothy foam" around Ritter's mouth, another indication of drowning.
The pathologist's findings comport with Ritter's being strangled into unconsciousness and then placed in the bathtub and drowned.FN4
FN4. Ritter's fingernails, which were "bitten ... down quite low," yielded no scrapings from her attacker.
The pathologist found no evidence of rape or sodomy. However, the examination of Ritter's body yielded a series of linear lesions on one breast, around the areola. The lesions were possibly created by an instrument with a small rectangular end, but not by a fingernail or tooth. The injuries had been inflicted prior to Ritter's death.
The Subsequent Investigation
Defendant's Interviews Defendant, 23 years old at the time of the murder, lived with his wife and three children in the same apartment complex where Ritter was killed. Defendant's apartment was across a yard from Doporto's. He was an enlisted airman assigned to a nearby United States Air Force base.
The morning after the murder, sheriff's deputies interviewed defendant. Defendant told them he spent the entire night watching his two children, leaving only once to go to the market. One of the investigating deputies noticed something she considered unusual: defendant's shirt throbbed as though his heart was beating very hard and fast.
Later that day, Koone and her father were in the laundry room at the apartment complex. Koone's father told her a man was staring at her. Koone looked at the man and realized he resembled the man she had seen the night before with Ritter. That afternoon, Koone identified defendant in a photographic lineup as the man in Doporto's apartment the night of the murder. The lineup was composed of photographs of eight individuals.
Sheriff's deputies again interviewed defendant. After waiving his Miranda rights,FN5 defendant offered a different version of his movements the night of the murder. Defendant stated he dropped off his wife and one child at the bus station. He remained at home with the other two children. After putting them to bed, he went to a store near the apartment complex and was cited for shoplifting a bottle of liquor.
FN5. Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda ).
Later, he tried to go to the noncommissioned officers club for a drink but was turned away. He returned home and checked on the two children. He then went to an apartment in the same complex to visit a friend. The friend was not home and defendant returned to his apartment. Defendant took a shower and went to bed. Defendant denied having been in Doporto's apartment the night of the murder. However, a week earlier he had visited Ricky Wright in Doporto's apartment while Wright babysat for Doporto.FN6
FN6. Defendant subsequently identified Ricky Wright as Doporto's regular babysitter.
A few days after the murder, another sheriff's deputy interviewed defendant. During this interview defendant stated he had met with Ricky Wright in defendant's apartment, not Doporto's. He denied ever being in Doporto's apartment.
The following day sheriff's deputies arrested defendant, advised him of his Miranda rights, and interviewed him again. Defendant said he had talked to Doporto on several occasions. Again, he denied being in the apartment the night of the murder. Defendant began to sob "uncontrollably" and the deputy cut the interview short.
Deputies interviewed defendant again late that evening. During the interview, defendant told them he purchased a pack of Salem brand cigarettes after dropping off his wife at the bus station the night of the murder.FN7 Defendant was released for lack of evidence.
FN7. Defendant and his wife both told sheriff's deputies that defendant usually smoked Salem cigarettes. Strother's Arrest Approximately one week later, a detective took Koone to a nearby military base to see if she could identify the man she saw inside Doporto's apartment and in the laundry room. They ran across Doporto at the base. At the noncommissioned officers club in a crowd of approximately 200 people, Doporto pointed to a man named John Strother and said, "that's him."
The detective pointed in the direction of Strother and asked Koone if she saw "anybody that is familiar." When Strother turned toward them, Koone got upset, started shaking, and turned and walked away. Koone told the detective she was "certain that was the guy she saw."
Detectives arrested Strother for Ritter's murder. Strother had an airtight alibi, supported by seven witnesses who confirmed he had been with them the night of the murder. Accordingly, Strother was released.
At trial, Koone testified she identified Strother solely based on his size, five feet three inches, and race.FN8 Koone also testified she did not become visibly shaken until she saw Strother's face.
FN8. Gaines is five feet eight inches tall according to the probation report. In her statement to police, Koone estimated the stranger in Doporto's apartment was five feet six inches tall.
Detectives also showed Koone yearbooks from the local high school, since the man in the apartment said his name was Robert and he was a high school sophomore. Koone selected three photos, stating one looked the "most like" the intruder.
Sheriff's deputies also interviewed 15-year-old Craig Neall after he was seen looking over a fence near Ritter's apartment in the early morning hours the day after the murder. Neall, who lived in the complex near Doporto's apartment, told the deputies he had been walking his dog and had ducked down because dogs were not allowed in the apartment complex. Neall's shoes and the bottom of his pants were damp, and he appeared to have dressed in a hurry. Neall's father confirmed that he had told his son to walk the dog. Michelle Clendenin, the tenant of an apartment a few doors away from Doporto's apartment, was also interviewed in the early morning hours after Ritter's body was found. Clendenin stated she had been awakened an hour earlier by someone knocking on her door. When she opened the door, she saw a male Negro walking away. The man was approximately five feet eight inches tall. He turned and asked her what was going on. She recognized him as a previous resident of the apartment complex.
A deputy sheriff came by and asked if "they lived there." The man falsely stated that he did. After the deputy left, the man asked if he could come in. Clendenin refused, and the man told her, "I am not going to kill you or anything." The man continued to try to talk his way into the apartment. Clendenin again refused and slammed the door. Clendenin described the man as 30 years old and weighing about 175 pounds.
After Strother's release, the case went dormant. All property taken from the murder scene was logged into the sheriff's department property warehouse. This included the three cigarette butts found on the floor.
Frances D. Assault Three years after Ritter's murder, defendant assaulted 20-year-old Frances D. Defendant offered Frances a ride as she walked home from a friend's house. Defendant drove her to a deserted parking lot and offered her $20 to have sex with him. When Frances refused, defendant knocked her to the ground, beat her savagely, and began choking her.
Frances's screams attracted the attention of Dr. Kenneth Ozawa and his family, who had pulled into the parking lot. Ozawa happened to be Frances's physician, and the parking lot was adjacent to medical buildings he owned. Ozawa activated his high beams and drove toward the only other car in the parking lot, beside which a man crouched. The man jumped up, got inside the car, and sped away. Ozawa managed to note the license number. Ozawa found Frances on the ground, seriously injured. Frances's eye socket was broken and she required facial reconstruction.
Questioned by sheriff's deputies later that evening, defendant told them he had been home all night, except for a brief trip to the market with his wife and children. However, defendant's wife stated she had not gone to the market with him, although their children had. When confronted with this discrepancy, defendant admitted lying. An examination of defendant's car revealed blood spots and smears. Pine needles found inside the car matched those found at the crime scene.
The deputies arrested defendant. In a later interview, defendant said Frances "reached her hand down into a bundle she was carrying and demanded money." Defendant hit Frances and pulled her out of the car to defend himself. Defendant denied intending to commit any "sexual acts against ...