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 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is represented in this action by David R. Mugridge, Esq.
Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Tulare, following his conviction by jury trial on March 14, 2007, of two counts of murder and enhancements for personal use and intentional discharge of a firearm causing death. (CT*fn1 225-226.) On April 11, 2007, Petitioner was sentenced to life without parole plus twenty-five years. (CT 225.)
Petitioner filed a timely notice of appeal. On July 3, 2008, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), modified the judgment by striking one of the multiple-murder special findings but affirmed Petitioner's judgment in all other respects in a reasoned decision. (See Resp't's Answer, Ex. 1.) Petitioner then filed a petition for review in the California Supreme Court. (LD*fn2 4.) The petition was summarily denied on October 1, 2008. (LD 5.)
On December 29, 2009, Petitioner filed a federal habeas petition in this Court along with a motion for stay and abeyance of proceedings to allow Petitioner to return to state court to exhaust two claims that had not been previously presented to the state courts. On February 9, 2010, the Court determined Petitioner had shown good cause for a stay and granted the motion.
Over the course of the next year and a half, Petitioner failed to comply with multiple court orders with respect to the stay. Petitioner was repeatedly warned that continued failure to comply would result in vacating the stay. On July 29, 2011, after Petitioner persisted in failing to abide by court deadlines, the Court vacated the stay nunc pro tunc to February 9, 2010, and dismissed the unexhausted claims. Respondent was directed to file an answer to the remaining claims. On November 2, 2011, Respondent filed an answer. On December 2, 2011, Petitioner filed a traverse.
At approximately 1:00 a.m. on December 30, 1998, Detective Meek was dispatched to the Goshen area to assist then-Deputy Boudreaux, who was attempting to catch a suspect who had fled from a vehicle stop Boudreaux had initiated following a citizen's report of a female in need of help. After a pursuit, the vehicle came to a stop. The driver-[Petitioner]-ran a short distance and then turned, as if to fight. Although Boudreaux sprayed him with pepper spray, [Petitioner] managed to run again. He was taken into custody within 10 to 20 minutes, and spontaneously stated he pushed her down, and she deserved it. His breath smelled strongly of alcohol and his voice was slurred.
Meek was then directed to make contact with Cindy Baldiviez,FN1 who reportedly was the victim of spousal abuse. Cindy was crying and very upset, and she appeared afraid. She advised that the suspect was [Petitioner], her live-in boyfriend at the time and the father of their son, Alfred. Cindy related that she and [Petitioner] had both been at home. [Petitioner] had been drinking for a few hours, when a man Cindy had never met before showed up at the house. The men wanted to go for a ride, but Cindy did not want [Petitioner] to, because they had been drinking. They ended up going for a ride in a van. [Petitioner], who was driving, was very drunk and all over the road, and she told him to pull over so that she could drive, as she was sober. [Petitioner] became very angry and started calling her names. Eventually, he pulled over. The argument continued, and he told her to get out of the van. When she refused, he tried to pull her out of the van by her hair, then began punching her in the head. When she fell to the ground, he kicked her several times. She ran off. This incident occurred around midnight, and Meek observed a goose egg on Cindy's forehead.
FN1. To avoid confusion, we refer to various individuals by their first names. In addition, we refer to Cindy and [Petitioner]'s son, Alfred Suniga IV, as Alfred. No disrespect is intended.
As of the time of the homicide, Cindy and [Petitioner] had been a couple for approximately 10 years, and had been married for part of that time.
Around 1999 or 2000, Katrina Murillo lived with her grandmother, Olivia Baldiviez; her aunt, Cindy Suniga; and Cindy's husband, [Petitioner]. Cindy and [Petitioner] had their own room. There were many times when Cindy and [Petitioner] argued, but on one particular occasion, the arguments escalated, and Murillo heard loud yelling and what sounded like [Petitioner] hitting Cindy. Murillo heard Cindy tell [Petitioner] to stop hitting her. When Murillo went into the room, Cindy and [Petitioner] both appeared angry, and Cindy was crying. This was something that happened over and over again and that Murillo heard many times.
At approximately 7:15 a.m. on July 1, 2001, Visalia Police Officer Pree was dispatched to a residence on Copper Court, where he contacted Cindy, who was crying and afraid. She related that she had returned home just prior to Pree's arrival, and had found unknown people at her home and numerous beer bottles lying around. She went inside and was telling the people to get out, when [Petitioner] told her to leave. At one point, he produced a shotgun, racked the action, and pointed the weapon at her. He told her that if she was not going to leave, he would make her leave, and, as far as he was concerned, she did not have a house anymore. Cindy then left the residence and contacted the police. Although [Petitioner] was not there, officers found a .12-gauge, pump-action shotgun in the house.
At approximately 2:50 a.m. on July 29, 2002, Visalia Police Officer Alfano responded to a minimart following a call from a woman saying she had been involved in a disturbance with her husband. Upon arrival, he contacted Cindy, who was crying and upset and appeared afraid. She said [Petitioner] had come home intoxicated and accused her of cheating on him. The argument had become heated, and he had pushed her around the room, pulled her hair, and called her names. Alfano responded to the residence, but did not find [Petitioner].
Pauline Baldiviez was Olivia Baldiviez's daughter and Cindy's sister. On September 18, 2005, she and her boyfriend Joe Cruz, Cindy and [Petitioner], and Joe's sister Christina Cruz and her boyfriend Daniel Nanez, left Olivia's house around 7:00 or 8:00 a.m., to go to an Oakland Raiders football game. They traveled in a van. Joe drove. [Petitioner] had a couple of beers and Daniel was also drinking. Although the game did not start until 5:30 p.m., they left early to make sure they had plenty of time, as they planned to tailgate before the game.
They arrived in Oakland around 2:00 p.m., and had to wait in line to get into the stadium parking lot. While the van was in line, [Petitioner] and Cindy got out at a store. Pauline kept watching for them as the van moved along in line. At one point, the sisters waved at each other. When [Petitioner] and Cindy got back into the van, Pauline heard them arguing. [Petitioner] was upset because he thought Cindy had been waiving at someone else. Cindy was angry. This type of misunderstanding occurred a lot when [Petitioner] was drinking: he would get a little jealous of Cindy or not be quite sure what was going on. [Petitioner] tended to act very inappropriately toward Cindy when he drank, and he frequently cursed at her.
Once inside the parking lot, the group barbecued for a couple of hours. Everyone except Pauline was drinking, and Pauline observed [Petitioner] to have approximately four beers.FN2 At some point, he and Cindy walked away. They seemed fine and were gone for abut 20 or 30 minutes. When they returned, it was time to eat. [Petitioner] just stood by Cindy and did not interact with the others.
FN2. Joe Cruz estimated the group took two or three cases of beer with them to the game. He, [Petitioner], Daniel, and Christina were sharing that beer while they were tailgating. By Daniel's own account, he got "pretty wasted" and "was gone." Joe described his own intake in the parking lot as "[q]uite a few" beers, and he "was wasted" by the time they drove home.
A little before 5:00 p.m., the group started cleaning up in preparation for entering the stadium. Pauline and Cindy got into the van to touch up their makeup. The sliding door was open, and [Petitioner] was standing outside the van, right next to Cindy. Pauline heard them arguing and saw Cindy start to cry. [Petitioner] then struck Cindy in the nose with his closed fist. Pauline told him to stop hitting her sister. He did not say anything.
Pauline finished her makeup and went to the back of the van, where everyone was standing. Apparently around this time, Christina saw Cindy sitting in the van, crying. Cindy said she and [Petitioner] were fighting because he was accusing her of looking at all the men who where there in the parking lot. About 10 minutes later, when Pauline went to call Cindy to go, [Petitioner] was gone. Cindy just said he left. The group waited at the van for 10 or 15 minutes. Cindy was crying and seemed nervous. When [Petitioner] failed to return, the group got in line to enter the stadium. They were in this line about 10 minutes, but [Petitioner] still did not come. Cindy had his ticket and she kept looking around, hoping he would come, but eventually the group went on inside.
It was loud inside the stadium, and Pauline did not hear her cell phone ring. When she looked at it, she saw that she had missed [Petitioner]'s call, and that he had left a voice mail message saying he needed to talk to Cindy. Pauline informed Cindy, who tried to call [Petitioner] back, but no one answered. Cindy left the stadium and went to the van to see if he was there, and Pauline believed she even drove around, looking for him, but he was nowhere to be found. After about 30 minutes, she returned to the others, but was very worried.
The group stayed until the game ended, then walked to the van. They did not see [Petitioner], nor was he waiting for them by the vehicle. They waited another 15 minutes, then Cindy said [Petitioner] would probably call his mother, who lived in Goshen, to pick him up. Although Joe was not comfortable with just leaving [Petitioner] behind, the whole group made the decision to go. Everyone then got in the van and drove home. During the ride, Cindy was nervous. She wanted to hurry and go home.
When they neared Olivia's house in Goshen, Cindy telephoned to ask if Olivia could go home with her, because she was scared. Olivia agreed. The group arrived at Olivia's house around midnight. Some 10 to 15 minutes later, Olivia, Cindy, and Cindy and [Petitioner]'s children, drove to Cindy's house in Visalia. Once there, seven-year-old Alfred went to bed with Cindy in Cindy's room, while five-year-old Ariah went to bed with Olivia in Ariah's room.
Meanwhile, [Petitioner] telephoned his mother, Rachel Suniga, and asked her for a ride home from the game. A family friend, Angela Fernandez, drove Rachel to Oakland, as Rachel was unable to drive that long a distance.FN3 They picked [Petitioner] up across from the stadium, where the hotels are located. To Fernandez, he appeared tired and stressed out, although not really upset. She could tell he had been drinking, and he appeared intoxicated to her.FN4 She overheard him tell his mother that he and Cindy had had an argument, and that Cindy had taken his ticket. He said that he was going to be in big trouble. To Rachel, [Petitioner] did not seem angry. She could tell he had been drinking, although he was not falling-down drunk. He was a little upset, although he became calmer as they drove back to Goshen.
FN3. The trip was approximately four hours, one way.
FN4. When interviewed by police several hours after picking up [Petitioner], Fernandez related that she had seen [Petitioner] intoxicated and, on this occasion, he was not, but had probably had a good six-pack. She also related that [Petitioner] was very upset and could not believe "she" had done this to him.
On the way home, [Petitioner] asked for a bathroom, so they stopped at a store in Manteca. Rachel bought [Petitioner] some beer, although he did not drink the entire six-pack. Fernandez, who was driving, got lost. [Petitioner] told her to backtrack in the direction from which she had come, and that led her to the freeway.
When they reached Rachel's house in Goshen, Fernandez left, while Rachel and [Petitioner] went inside. They both were tired, but [Petitioner] asked if he could take the truck. Rachel invited him to spend the night, as his home in Visalia was about a 15- or 20-minute drive, but [Petitioner] said he had to go home because he had to go to work the next day and had to get his clothes. Rachel told him to wake his father and ask if he could take the truck, a 2001 white Silverado pickup. When [Petitioner] woke his father about 2:00 a.m., [Petitioner] was drinking a beer. His father thought it was a problem that [Petitioner] was drinking and would be driving, but allowed him to take the truck.
Alfred was still awake when [Petitioner] came home, and he went with Cindy to the door in response to knocking and the doorbell ringing. [Petitioner] was acting "[b]ad" and yelling. Cindy let him in. Alfred had seen him drunk before, and he appeared drunk now. Alfred did not see anything in his hands.
Alfred ran back to his mother's room, but Cindy stayed where she was. Alfred heard both his parents yelling and cursing, then Alfred heard four loud whipping noises, like a belt whipping.FN5 Ariah ran into Cindy's room, where Alfred was. Alfred did not know where Olivia was. When Alfred no longer heard anything, he and Ariah ran out of the room. He saw Cindy on the floor in the bathroom. Olivia was on the floor in the kitchen. Both women were bloody, and neither was able to say anything to him. Alfred then called 911. He did not see [Petitioner] leave the house.
FN5. According to Detective Grant, a small-caliber firearm such as a .22 would make a noise similar to a belt-whipping sound or a firecracker.
Alfred's 911 call was logged in at 2:08 a.m. on September 19. In it, Alfred reported that his mother and grandmother were dead and his father was drunk. Alfred said his father, who was outside, had thrown his mother and grandmother on the ground. Alfred said he did not see it. Police and an ambulance were dispatched as the result of the call.
Visalia Police Officer Alfano arrived at the house, which was near the intersection of Kennedy and Copper, at 2:12 a.m. Upon approach, he could see that the front door was partially open and light was on inside the house. He heard what sounded like a small female inside the residence, yelling for help and basically saying, "'Please don't make Mom be dead.'" When Alfano and other officers entered through the front door, Alfred walked up to Alfano. He was crying and appeared to be very scared. Alfano sent him outside, where other officers could assist him.
Cindy was lying halfway in the bathroom, just off the hall, near the entrance to the residence. There was a strong odor of gunpowder, indicating the incident had just occurred. The officers proceeded to search the residence to see whether the gunman was still inside. In the kitchen, they found Olivia. Ariah came out of the master bedroom and ran to Alfano. She was crying and very scared and upset, and had a portable telephone in her hand. He rushed her to the front door, where he handed her off to another officer. No one else was found inside the house.
Alfano was directed by his sergeant to start assisting with a yard-to-yard search of the area for the gunman, who was assumed to be [Petitioner]. No one was found during the search.
Cindy suffered two gunshot wounds to the face, one of which went through the brain and was, of itself, lethal. She also suffered three gunshot wounds to the upper right back, one of which transected the aortic arch and was, of itself, fatal. All five were inflicted of a distance of at least a couple of feet. Olivia suffered a single gunshot wound to the back that caused her to bleed out into the chest and abdominal cavities, and was fatal within a matter of minutes. It also was inflicted from at least a couple of feet away.
All DNA extracted from evidence found at the scene came from the two victims. No skin or other tissues were found in their fingernail clippings. No firearms or anything suggesting there had been firearms at the house were found. However, Detective Grant recovered several bullets that were consistent with a .22. He determined that at least eight rounds had been fired. He found no shell casings, indicating a revolver had been used.
Not long after [Petitioner] left his parents' house, Rachel received a telephone call from Melissa Omos, the mother of [Petitioner]'s child from a previous relationship. Rachel was told that something had happened at the house on Copper, and that her grandchildren were being taken to the Visalia Police Department. Rachel responded that she had known something was going to happen.
Later that morning, Francine Recendez and Martin Vasquez received word that [Petitioner], Recendez's nephew, was at their home in Selma. When they arrived, [Petitioner] said that something had happened at his house, and that he had shot something with a gun. He was crying and mostly thinking about his children. He did not want to turn himself in, but was convinced to do so, and Vasquez drove him to the Visalia Police Department for that purpose. This occurred roughly around 11:00 or 11:30 a.m.
[Petitioner], accompanied by family members, turned himself in at the Visalia Police Department at approximately 12:50 p.m. on September 19. He had no visible injuries. Officers subsequently searched the white Chevrolet Silverado pickup, in which [Petitioner] had arrived at his aunt's home, for firearms and firearms-related evidence. They found nothing.
Mario Fierro was a Nuestra Familia dropout who had been in prison five times and whose criminal record dated back to 1985. At the time of trial, he was in custody and awaiting sentencing, having pled guilty to second degree burglary. He pled guilty on June 27, 2006,FN6 with an indicated sentence of four years in prison. He had his attorney contact the district attorney's office in October 2006, and gave a statement on October 17. Although Fierro requested that the district attorney's office make him some kind of deal in his current case in return for his information, nothing was offered to him in return. Fierro was hoping that his sentencing judge would take into consideration his initiative in doing this, as he had never testified against anyone before and his life had been threatened.
FN6. Fierro testified on March 8, 2007. According to him, sentencing typically occurs a few weeks after a plea. He was scheduled to be sentenced a couple of times, but there were continuances.
Fierro was acquainted with [Petitioner], as they had been in jail together in around 1999 to 2000. In May 2006, when Fierro returned from prison, he was housed in the same unit with [Petitioner]. Sometime in late September or early October, [Petitioner] asked Fierro if he thought the district attorney would offer [Petitioner] manslaughter. As Fierro did not really know about [Petitioner]'s case, [Petitioner] calmly told him, over the course of two conversations, that he and his wife or girlfriend went to a game in Oakland. They got into an argument, and he got mad and left and was unable to see the game. He went to go get drunk and was upset because he was left in Oakland. His mother came and picked him up, and he was pretty angry about the situation. All he could think about on the ride home was killing the woman. When he got back from Oakland, he acquired a pistol that he had in his truck, which was at his father's house, then went to the house and shot her four to five times. He shot her once in the face and the bullet came out through the top of her head. He shot her mother in the lower back. He said that one of his children might ...