The opinion of the court was delivered by: Lucy H. Koh United States District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner, a California prisoner currently incarcerated at Valley State Prison for Women in Chowchilla, California has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 21 § 2254. ECF No. 1. Petitioner asserts three claims for habeas relief: (1) ineffective assistance of 22 counsel under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution on 23 the ground that trial counsel failed to present case-specific expert evidence that Petitioner was the 24 victim of intimate partner abuse in support of her self-defense argument; (2) ineffective assistance 25 of counsel under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution on 26 the grounds that trial counsel failed to present other available factual evidence of Petitioner's 27 intimate partner abuse-related defense and failed to object to prejudicial and irrelevant evidence 28 offered by the prosecution; and (3) denial of right to confront witnesses under Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution on the grounds that hearsay testimony of Gregory 2
Chandler, a key witness who had allegedly gone into hiding, was admitted at Petitioner's trial 3 without the prosecution acting in good faith to locate that witness. 4 5 be granted. ECF No. 7. Respondent filed an answer addressing the merits of the petition on 6 Having reviewed the briefs and the underlying record, the Court DENIES the petition for the 8 reasons set forth below. 9
On June 14, 2010, the Court ordered Respondent to show cause why the petition should not
September 12, 2011, ECF No. 19, and Petitioner filed a reply on December 12, 2011, ECF No. 25. 7
Federal courts reviewing habeas petitions are instructed to presume that the factual determinations of state courts are correct unless that presumption is rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (2006). Accordingly, the factual background 13 provided by the California Court of Appeal in its review of the case on direct appeal, People v. 14 Chandler, No. A114037 (Cal. App. 1 Dist. Feb. 18, 2009) (Exhibit A), will serve as the factual 15 framework for this habeas review. 16
Gregory Chandler*fn1 and Petitioner were married in 1999. They lived together in an 18 apartment in Antioch. On the evening of September 1, 2002, Tiffany Donaville visited Gregory at 19 the Chandlers' apartment. Gregory testified at the preliminary examination*fn2 that when he and 20 Donaville entered the apartment, they had no idea that Petitioner was there, and Gregory had been 21 trying to telephone Petitioner when he heard a shot.He saw Petitioner holding a gun; she told him 22 she was "tired of the butt whippings." He made some threatening remarks, and the next thing he 23 knew, he'd been shot. After struggling with his wife, Gregory recovered the gun, and hit Petitioner 24 in the face with it. He then called 911. 25
Shortly after midnight, Antioch police officers were dispatched to the Chandlers'
Gregory did not testify at trial, as the prosecution was unable to locate him. Instead, his 28 preliminary examination testimony was read to the jury. See Exh. A at 13. This forms the basis for Petitioner's third claim.
apartment, where they found Petitioner and Gregory, who was bleeding from a gunshot wound to 2 the right arm. A two-shot .38 derringer was lying on the floor; the gun had blood on it, and both 3 shells had been fired. As the officers entered, they heard Gregory say "She shot me," and observed 4 him point to Petitioner. Petitioner then said, in an angry tone, "That's what happens when you 5 bring that bitch into . . . my house." 6
The officers discovered Donaville's body in the kitchen. She had been shot once in the 7 back. Petitioner was arrested and taken to the police station, where she was described as looking 8 calm but clearly distracted, telling one officer that "she did not remember what hand she fired the 9 gun with." 10 Two police officers talked to Gregory after he was taken to the hospital. He told them that he picked up Donaville and took her to the apartment intending "to have drinks and sexual
intercourse." When he was in the kitchen getting drinks, he heard shots being fired. Gregory 13 specifically told the officers that Petitioner said "You brought that bitch into my house" while 14
Gregory was still in the kitchen, before she fired at him. She then pointed the gun at Gregory's 15 chest and said "Goodbye, motherfucker." As she fired, Gregory "instinctively raised his right arm 16 to try and block the shot." He struggled with Petitioner for the gun. He also told the officers that United 17 he and Petitioner had been arguing about "other women" for several days prior to the date of the 18 shooting. Gregory expressed his opinion that Petitioner had been hiding in a closet before 19 emerging and beginning firing, and said he did not want to "pursue charges" against Petitioner. 20
21 possessing a sawed-off shotgun, domestic violence, making terrorist threats against a woman, 22 residential burglary, selling drugs, and attempting to prevent a witness from testifying. 23
24 him, was that Petitioner was "lying in wait" in the apartment for several hours before she emerged 25 from a closet and began shooting. Gregory also told this detective that he had been shot before. A 26 records check showed that the derringer was registered to Petitioner. 27
28 what an officer described as "various states of dress, undress" and some magazines which were Defense cross-examination of the officers revealed that Gregory had felony convictions for
The lead detective on the case testified that his conclusion, based on what Gregory told
A subsequent search of the bedroom disclosed two photo albums with pictures of women in "pornographic in nature. They were swinger type magazines, alternative sexual lifestyle 2 magazines." The officers also found a home computer. Examination of the hard drive's files 3 showed that Gregory and Donaville exchanged emails from June 27, 2002 to August 12, 2002. 4
Other evidence showed that Petitioner and Gregory were, in the words of one of the experts, "using 5 the Internet to have relationships with other individuals." There was also a file with numerous 6
"sexually explicit" photographs of Petitioner and Gregory and "chat logs" of emails that were "of a 7 sexual nature with other couples." 8 10 relationships with women that were punctuated by violence, threats, and verbal abuse, which 11 continued even after each of the women ended the relationship. The defense also produced several
The defense introduced evidence that, prior to marrying Petitioner, Gregory had three witnesses who testified to seeing Petitioner repeatedly exhibiting injuries and bruises following her 13 marriage to Gregory. One of these witnesses saw Gregory hit Petitioner, and several of the 14 witnesses heard Petitioner express anger at Gregory's infidelity. 15
Arguments became common, physical violence not infrequent. Soon after they were married, United 17 Petitioner learned that Gregory had gone to prison because he "broke into a woman's house, beat 18 her, and threatened her." Petitioner knew Gregory cheated on her, which made her angry. 19 Petitioner further testified that she knew about Gregory's interest in Donaville because she read his 20 e-mails. 21 22 was in the apartment's storage room when she heard Gregory come home. She heard Gregory 23 calling her pager; the calls went on for several hours, with Gregory becoming increasingly angry. 24
Petitioner continued to hide under a bed because "[i]f he knew I was already there and I didn't 25 answer at first, there would have been another fight," and another fight "means me being hit." 26 27 on the living room sofa. Petitioner returned to the storage room, where she hid and fell asleep 28 again. Because she had her pager with her, Petitioner knew that Gregory's messages had become Petitioner testified that after she married Gregory he became possessive and controlling.
Petitioner testified that on the afternoon of September 1, 2002, the day of the shooting, she According to Petitioner, she fell asleep, and when she awakened, she saw Gregory asleep more menacing. 2
3 voices. Carrying the derringer, which was kept in one of Gregory's boots in the storage room and 4 was always loaded, Petitioner tried to leave the apartment, but seeing that Gregory was in the 5 kitchen, realized that she could not get out. Gregory spotted her and yelled, "What the fuck are 6 you doing here?" and "I'm gonna kick your ass." When Gregory moved toward her, Petitioner 7 fired at him. She cocked the derringer when Gregory came at her, and he grabbed her hands and 8 began hitting her. Petitioner remembered that "[t]he gun fires again when he's hitting me, and 9 we're falling into the living room." 10
Petitioner further testified that when she awoke for the second time, she heard unfamiliar Asked in direct examination "Did ... you shoot Tiffany Donaville in the back?" Petitioner answered: "No. I didn't even know she was shot in the back until later." When repeatedly asked on cross-examination: "It's been three years since you killed Tiffany Donaville, right?," Petitioner 13 only replied "It's been three years since she died, yes." Petitioner testified that the first shot she 14 fired hit Gregory in the arm, and the second shot was fired while she and Gregory were wrestling 15 for the gun. Petitioner was trying to shoot Gregory with the second shot, but she did not intend to 16 kill him with either shot; and she never aimed the gun at Donaville.
Petitioner testified on cross-examination that she transmitted images "of a sexual nature" 18 over the Internet using a webcam, and that she was "sometimes" forced to do that by Gregory, but 19 that "sometimes" she enjoyed doing it. Petitioner conceded that she could have escaped from the 20 apartment while Gregory was sleeping, and when he and Donaville were in the kitchen. After 21 Psychologist Marjorie Cusick testified as an expert on domestic violence and Battered
Women's Syndrome. Cusick testified that women in an abusive relationship are "very foggy" 24 about the details of events and the history of the relationship. Such women are at the greatest risk 25 of injury if they try to leave. Cusick further testified that, like sufferers of Posttraumatic Stress 26
Syndrome or disorder, victims of domestic violence adopt "accommodation" as a "coping 27 mechanism." She explained: "So what happens is that a victim's life may start out to be this big. 28
Gregory telephoned for police, Petitioner got a towel to stop his bleeding. 22
And then the more they're involved in this kind of relationship, the smaller their life becomes, because they are totally focused on the abuser and focused on trying not to be abused. Whether 2 that's physically, psychologically, emotionally, that becomes their focus. So they're 3 accommodating the abuser at the loss of a lot of other things that are going on in their lives and a 4 loss of objectivity . . . ." 5
Cusick also testified that even when the batterers are apprehended, many victims will not
6 cooperate in prosecuting them. Cusick has considerable experience in Oakland and Contra Costa 7
County treating and observing battered women. As between Caucasian and African-American 8 women victims, Cusick noted that while both "have a hard time reporting, . . . [i]n the African-9
American community, I hear more of a distrust of the criminal justice system, a fear of not getting 10 justice from the criminal justice system, not wanting to be in your community and calling the police . . . . [I]t's something that may be a stigma." Even when a victim "is in a safe place,"
Cusick said that "they will actually start to minimize and deny the abuse or rationalize it, make 13 sense of it, and start to see the abuser as this person they love . . . . And they'll focus on the 14 positive pieces of their relationship, because that makes them feel better." The victim might then 15 change her story: "[T]he reasons to change the story is about being afraid, is about reconciliation 16 with the abuser, is about the shame of bringing very private material into the public sector. And United 17 it's about distrust that anything will be done or that they'll be protected." 18
The jury deliberated for less than six hours before finding Petitioner guilty as charged. On
March 30, 2006, the Contra Costa County Superior Court sentenced Petitioner to a term of 25 years 20 to life for the murder of Donaville, plus 25 additional years for the enhancement required by Cal. 21
Penal Code Section 12022.53, subdivision (d), for use of a firearm causing great bodily injury. An 22 identical sentence was imposed for the attempted murder of Gregory, but this sentence was ordered 23 to run concurrently. 24
Petitioner filed a direct appeal and a companion habeas petition with the California Court of Appeal. On February 18, 2009, the California Court of Appeal affirmed the conviction and 26 judgment in a written opinion. Ex. A in Support of Petition for Writ of Habeas Corpus.*fn3 That 27 same day, the California Court of Appeal summarily denied the habeas petition. Ex. B. Petitioner 28 then filed a Petition for Review in the California Supreme Court and a petition for a writ of habeas 2 corpus in the California Supreme Court. On June 10, 2009, the California Supreme Court denied 3 review on direct appeal and summarily denied the habeas petition. Exs. C & D. Petitioner filed the 4 instant action on June 3, 2010. 5
8 custody pursuant to the judgment of a state court only on the ground that he is in custody in 9 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (2006). 10
This Court may entertain a petition for writ of habeas corpus "in behalf of a person in Following the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's 13 adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an 14 unreasonable application of, clearly established federal law, as determined by the Supreme Court 15 of the United States; or (2) resulted in a decision that was based on an unreasonable determination 16 of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d) (2006). The first prong applies both to questions of law and to mixed questions of law and fact, 18 Williams v. Taylor, 529 U.S. 362, 384-86 (2000), while the second prong applies to decisions based 19 on factual determinations, Miller--El v. Cockrell, 537 U.S. 322, 340 (2003). 20
"Under the 'contrary to' clause of (d)(1), a federal habeas court may grant the writ if the 21 state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of 22 law or if the state court decides a case differently than [the] Court has on a set of materially 23 indistinguishable facts." Williams, 529 U.S. at 412-13. A state court decision is an "unreasonable 24 application of" Supreme Court authority, falling under the second clause of § 2254(d)(1), if the 25 state court correctly identifies the governing legal principle from the Supreme Court's decisions 26 but "unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The federal 27 court on habeas review may not issue the writ "simply because that court concludes in its 28 independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. 2 3 not be overturned on factual grounds unless objectively unreasonable in light of the evidence 4 presented in the state-court proceeding." Miller--El, 537 U.S. at 340. The Court must presume 5 correct any determination of a factual issue made by a state court unless Petitioner rebuts the 6 presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (2006). 7
8 application of, clearly established federal law, a federal court looks to the decision of the highest 9 state court to address the merits of Petitioner's claims in a reasoned decision. LaJoie v. Thompson, 10 California Supreme Court denied habeas relief tten opinion.
Nevertheless, "Section 2254(d) applies even where there has been a summary denial." Cullen v. 13 Under 28 U.S.C. § 2254(d)(2), a state court decision "based on a factual determination will
In determining whether the state court's decision is contrary to, or involved an unreasonable 217 F.3d 663, 669 n.7 (9th Cir. 2000). Here, both the California Court of Appeal and the Pinholster, 131 S. Ct. 1388, 1402 (2011). In such a case, "a habeas court must determine what 14 arguments or theories supported or, as here, could have supported, the state court's decision; and 15 then it must ask whether it is possible fairminded jurists could disagree that those arguments or 16 theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Harrington United 17 v. Richter, 131 S.Ct. 770, 786 (2011). "If this standard is difficult to meet, that is because it was 18 meant to be." Id. 19
A.Ineffective Assistance of Counsel for Failure to Present Credible Case Specific Expert Testimony Regarding Intimate Partner Abuse and Its Effects on Petitioner
Claims of ineffective assistance of counsel are examined under Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail on a claim of ineffectiveness of counsel, Petitioner must 24 establish two things. First, she must establish that counsel's performance was deficient, i.e., that it 25 fell below an "objective standard of reasonableness" under prevailing professional norms, id. at 26 687--68, "not whether it deviated from best practices or most common custom," Harrington v. 27 Richter, 131 S.Ct. 770, 788 (2011) (citing Strickland, 466 U.S. at 690). "A court considering a 28 claim of ineffective assistance must apply a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance." Richter, 131 S.Ct. at 787 (quoting 2 Strickland, 466 U.S. at 689). Second, she must establish that she was prejudiced by counsel's 3 deficient performance, i.e., that "there is a reasonable probability that, but for counsel's 4 unprofessional errors, the result of the proceeding would have been different." Strickland, 466 5 U.S. at 694. A reasonable probability is a probability sufficient to undermine confidence in the 6 outcome. Id. Where a defendant is challenging her conviction, the appropriate question is 7
"whether there is a reasonable probability that, absent the errors, the factfinder would have had a 8 reasonable doubt respecting guilt." Id. at 695. 9 10 not indulge "post hoc rationalizations" for counsel's decisionmaking that contradict the available 11 evidence of counsel's actions, nor may they insist that counsel confirm every aspect of the strategic 12 Courts must afford tactical decisions by trial counsel considerable deference. [C]courts may basis for his or her actions. There is a "strong presumption" that counsel's attention to certain ...