The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER DENYING PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254
On June 1, 2011, Amy Davis ("Petitioner"), a prisoner in custody in California, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner challenges the constitutionality of her conviction and sentence on the grounds that her trial and sentencing counsel were ineffective. On September 7, 2011, Javier Cavazos and Kamala Harris ("Respondents") filed a response in opposition. (Doc. No. 7.) On February 2, 2012, Petitioner filed a traverse to the petition for writ of habeas corpus. (Doc. No. 18.) On February 24, 2012, the magistrate judge issued a report and recommendation. (Doc. No. 20.) On May 7, 2012, Petitioner filed an objection to the magistrate judge's report and recommendation. (Doc. No. 25.) On May 7, 2012, Petitioner also filed a motion for a certificate of appealability. (Doc. No. 26.) For the following reasons, the Court denies Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and denies a certificate of appealability.
On April 11, 2007, a jury in Superior Court of California, County of San Diego, found Petitioner guilty of felony murder for killing and robbing Theodore Salanti. At trial, Petitioner testified that two men murdered the victim and that she took part in the crimes because she was acting under duress. Petitioner's trial testimony that two men were responsible for the murder was consistent with Petitioner's pre-arrest and post-arrest statements to police. At trial, defense counsel presented a duress defense and the court instructed the jury accordingly. Petitioner now claims, in direct contradiction to her trial testimony, that her former boyfriend was responsible for orchestrating the murder and robbery of the victim. Petitioner argues that her defense counsel were ineffective because they failed to discover her boyfriend's involvement and present a duress defense based on his involvement.
The following facts are taken from the California Court of Appeal decision in People v. Davis, No. D052605, 2009 WL 1744527, at *1-6 (Cal. Ct. App. June 22, 2009), and are presumed to be correct pursuant to 28 U.S.C. § 2254(e)(1):
The victim, 57-year-old Theodore Salanti, and the defendant, 24-year-old Davis, were friends. Although the two apparently did not have a sexual relationship, Salanti's friends believed that he wished that Davis was his girlfriend. Salanti often gave Davis generous sums of money, provided her with drugs, and allowed her to use his car. Davis was a frequent guest at Salanti's condominium.
Salanti was a drug dealer and user. He was known to keep large quantities of drugs, including methamphetamine and marijuana, in a safe located in his bedroom/workroom, and in other places around his condominium. He also was known to keep large sums of cash--often between $20,000 and $100,000--in his home. He kept drugs and cash in a home safe, and would sometimes hide cash under his carpet. Salanti often bragged about his money.
Davis stole approximately $30,000 from Salanti at one point approximately a year before Salanti was killed. According to Davis, she offered to give the money back to Salanti, but he allowed her to keep it, told her not to steal from him again, and said that if she ever needed anything, she could just ask for it.
One of Salanti's closest friends last saw Salanti alive on Friday, September 23, 2005. In the very early morning hours of September 23, Salanti sent an email to Davis in which Salanti said, "Hey I'm just forgetting about you. You back with your ex, so don't call or come over." Davis went to Salanti's home on Saturday, September 24.
At 3:12 p.m. on September 24, Davis went to a 7-Eleven store near Salanti's condominium and bough a Slurpee, a Gatorade, M & M's, Blistex, and cigarettes. She paid with a $100 bill.
At 4:00 a.m. on September 25, Davis went to a Sav-On drugstore and purchased a "Wonder Wheeler" [a type of cart]. Davis also returned to the 7-Eleven nine different times that day, and bought, among other things, various cleaning products.
At about 5:30 p.m. on September 26, a locksmith called to follow up with Salanti regarding work that the locksmith had begun on Salanti's car on either September 23 or 24. The locksmith had made a number of unsuccessful attempts to reach Salanti by telephone during the intervening days. However, on the evening of September 26, a woman answered Salanti's telephone and told the locksmith that Salanti had gone out to get something to eat.
Salanti's neighbors saw Davis in the condominium complex and driving Salanti's car between September 23 and September 28. One neighbor saw Davis wearing a bathing suit. Davis appeared to walking to or from the complex pool. On September 28, Davis was pulled over by California Highway Patrol officers while she was driving Salanti's car.
Discovery of Salanti's Body
On Thursday, September 29, Salanti's friends called 911 after they had been unable to reach Salanti for a number of days and had observed things that they thought were suspicious inside his condominium. Fire officials responded to the call and pried open the front door. Once the door was open, they smelled the odor of a decomposing body. The fire officials discovered Salanti's body inside a suitcase in the entryway. The suitcase was wrapped in duct tape and covered with a comforter and a sleeping bag.
Salanti's face, including his nose and mouth, was covered in duct tape. His hands were tied behind his back with rope. There was duct tape around Salanti's right ankle. Two of his pants pockets were pulled inside out. His empty wallet was found in the master bedroom.
The medical examiner determined that Salanti had been dead for several days before his body was discovered. The cause of death was determined to be "homicidal violence including asphyxiation." Salanti's body was bruised, and he had six fractured ribs. Salanti's body tested positive for amphetamines, fentanyl, and marijuana.
Police found Davis's DNA on several items inside Salanti's condominium, including cigarette butts, a plastic cup, a latex glove found in the trash-can, a knife handle, and a box-cutter. A piece of latex glove with Davis's DNA on it was found attached to duct tape that matched the duct tape on Salanti's body. Davis's fingerprints were found all over the condominium.
At approximately 1:30 p.m. on Saturday, September 24, someone performed an internet search on Salanti's computer seeking information concerning Liberty floor safes. Additional searches were performed between 4:00 p.m. and 10:00 p.m. that day regarding how to locate and open safes. On Tuesday, September 27, between 1:00 p.m. and 2:00 p.m., two searches were conducted on Salanti's computer. One involved how to get rid of the odor from a decaying body, and the other involved how to find a floor safe and open it.
In Salanti's car, investigators found papers that contained Salanti's banking information, blank checks, and documents regarding safes. Davis's Initial Statement to Police
On October 1, 2005, San Diego police officers went to Davis's mother's home where they met with Davis. Davis agreed to accompany the officers to the police station for an interview. On the way to the station, Davis told the officers that she had been driving Salanti's car, and took them to the car. During the interview, Davis said that she had last seen Salanti alive on Thursday, September 22. She claimed that on that day, she borrowed Salanti's car because her car had broken down. Davis denied any knowledge of Salanti's death. She admitted to detectives that in the past she had stolen $30,000 from Salanti. According to Davis, Salanti had forgiven her.
Davis told the detectives that Salanti usually kept more than $100,000 in his condominium, and that he kept money in the safe in his home, and also hid money in other places throughout the home. Davis said that she knew the combination to Salanti's safe because he had given it to her. Detectives noticed that Davis had scratches on both of her hands.
On October 2, the day after Davis first spoke to detectives, Davis called detectives and left a voice-mail message in which she indicated that she had more information for them. Detectives met with Davis on October 4. She told the detectives that she had failed to tell them something on the previous occasion when she spoke with them because she was scared. She said that she had called the detectives to ask to speak with them again after she told her mother and brother "everything." Davis told the detectives that she knew that two men had been involved in Salanti's death.
According to Davis, two men who were armed with a knife approached her outside of Salanti's condominium while Salanti was gone. The men entered Salanti's condominium and stole his marijuana from a kitchen cupboard. The men then forced Davis to sit in the room where Salanti's desk was located. She heard Salanti come in, and she could hear the two men beating him. She tried not to listen, and claimed that she did not know what else had happened. Davis told the detectives that she ran outside, and that the two men told her to drive them to the intersection of El Cajon Boulevard and Utah Street. She asked the men whether they had hurt Salanti, and they assured her that they had not. ...