The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 19]
Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Following a bench trial in the Fresno County Superior Court, Petitioner was convicted of first degree felony murder with special circumstances (Cal. Pen. Code*fn1 §§ 187, 190.2, subd. (a)(17)(A); count 1), residential burglary (§§ 459 & 460; count 2), and false imprisonment (§ 236; count 3).
Petitioner was sentenced to life without the possibility of parole.
Petitioner filed a timely notice of appeal. On November 13, 2009, the California Court of Appeal, Fifth Appellate District affirmed the judgment. Petitioner then petitioned for review before the California Supreme Court. Review was denied on February 8, 2010.
Petitioner then filed a petition for writ of habeas corpus in the Fresno County Superior Court. The petition was denied on April 12, 2011.
On May 17, 2011, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Fifth Appellate District. The petition was denied on May 27, 2011. Finally, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court on June 23, 2011, and an amended petition on October 17, 2011. The Supreme Court denied relief on November 16, 2011.
Petitioner filed the instant petition for writ of habeas corpus on December 30, 2011. Respondent filed an answer to the petition on May 24, 2012. Petitioner filed a traverse on November 2, 2012.
In the early morning hours of December 28, 2006, emergency personnel responded to a call at a residence on South Holly Avenue near Jensen Avenue. They found Otis Ezell Jones, Jr., lying face down on the floor with his mouth covered and gagged with duct tape. Jones was dead.
Fresno police officers investigating the inside of the residence found an extension cord tied in noose fashion underneath Jones's head. His hands were tied, bound, and taped and his legs and buttocks were tied and bound with wires. His head was wrapped in duct tape, his hands were bound with black zip ties, and a telephone cord extended from his hands to his legs in "hogtying" fashion. A white sheet bearing blood stains was located around his ankles. They also found a window covered with curtains held up by duct tape.
Officers found blood evidence at various spots in the living room, including an electrical outlet and surrounding wall. They found some blood stains on a child's rocking horse and crib/playpen, a nearby laundry basket, a cushion and couch, and also on an old-fashioned doorbell affixed to the interior of the front door.
They also found some dark, bunched-up duct tape, the same type that was used on Jones, by the front door. Another piece was found near a cushion by Jones's body.
A San Francisco 49ers beanie was located in a laundry basket, and a Dallas Cowboys beanie was located on the floor. In a set of stackable plastic drawers in the master bedroom, officers found an Oakland Raiders beanie bearing blood evidence, a brown leather mask, and a Motorola two-way radio. The officers also found a bat wrapped in black electrical tape inside a closet.
Officers found a black cord plugged into a wall of the kitchen. The cord ran up a wall, looped along the ceiling, and entered the closet in the northwest corner of the residence. The cord was held in place by "eye hooks." The cord led to a black light or "grow light" fixture in that closet. The closet also contained a red dish or plate to catch excess water from a potted plant and green leafy substances on the carpeted floor. Inside the garage, officers found several marijuana pipes and lighters, some rolling papers, and similar evidence.
Officers investigating the outside of the residence found a black cloth that may have been a "scrunchy" hair device. Officers also found a piece of black duct tape on the elevated cement porch attached to the crime scene residence. The officers found no signs of forced entry into either the residence or the garage. The windows on the back side of the house had no signs of forced entry.
Michael Chambliss, M.D., a forensic pathologist with the Fresno County Coroner's Officer, conducted an autopsy on Jones's body. Jones was about six feet five inches tall and weighed a little more than 225 pounds. At the time of the autopsy, Jones's body was hog-tied, with binding on his wrists and ankles and a connected piece of black duct tape running between the ankles and writs area. Duct tape entirely encircled Jones's head. Black tape encircled the lower forehead, eyes, and nose and ran all the way down to the upper lip area. The wrist areas were secured with duct tape and black plastic zip ties. The ties were on the outside of the tape. The ankle areas were secured with black duct tape and a white cord.
Chambliss documented external lacerations to the face and back of Jones's head near the neck. He detected a laceration on Jones's left forehead just above the eyebrow, an additional laceration on the upper left forehead, a star-shaped laceration on the left cheek, and an abrasion on the right chin area. Some of these lacerations were at least one-half inch deep and were produced by a blunt object. They were not, however, the direct cause of death. Chambliss also found recognizable bruising of the left side of the lower lip. Some of the lacerations could have been caused by a fist.
There were multiple wrappings of the black duct tape around the head. These tightly wound segments of tape may have resulted in pattern impressions on Jones's cheek and in the compression of his nose. A white cord tightly secured Jones's ankles and left patterns where the cord encircled his ankles and lower legs. Chambliss found an abrasion on the outside of the right lower leg just above the ankle. The patterns left on Jones's skin suggested a significant tighter force in the ankle area. Chambliss found a linear abrasion passing from the top of Jones's right shoulder down onto the back portion of his right shoulder. Something other than Jones's movement caused the linear abrasion.
Based on various temperature calculations and a visit to the crime scene, Chambliss concluded that the victim expired sometime between 2:00 a.m. and 4 a.m. on December 28, 2006. In Chambliss's opinion, Jones's cause of death was suffocation via binding and partial gagging of the mouth and nose. [FN 1] Although the duct tape did not completely cover Jones's mouth, Chambliss concluded the tightness of the binding around the nose and upper lip compressed the nose and severely compromised Jones's ability to move oxygen in and out of his system. The hog-typing of Jones's body also restricted the normal mechanics of his chest and diaphragm movement. Chambliss also said if someone had held a hand over Jones's mouth, that would have completed closure of the upper airway and would have caused Jones to expire sooner. In Chambliss's opinion, Jones would have died by suffocation whether he had been face down, face up, or on his side.
FN 1. Chambliss also noted blunt head trauma on Jones's death certificate, but not as a direct cause of death.
Chambliss recovered samples of Jones's blood, urine, and vitreous during the autopsy. Testing of the urine came back positive of metabolite of marijuana.
Stanbrough and John Daniel Gutierrez were suspects in the crime. On January 2, 2007, officers executed a search warrant at Gutierrez's Sanger residence. Officers found white electrical cord, which was similar to one used in the crime, behind the passenger seat of Stanbrough's Ford Ranger pickup truck. They found similar cord in a dresser drawer in Gutierrez's bedroom.
Officers also recovered Jones's black Honda. They found a black zip tie on the floorboard near the center console. That zip tie was similar to the zip ties used to bind Jones's body. Officers also found a black Motorola walkie-talkie in Jones's vehicle. That electronic device matched a walkie-talkie found in Jones's residence.
Amanda Coronado, a recovering drug addict and parolee, testified she formerly used crystal methamphetamine, crack cocaine, and the animal tranquilizer "KJ." She had known Stanbrough for several years because they were neighbors. She also was friends with two young men, a young Asian named Kevin and Gutierrez. On one occasion, Stanbrough, Gutierrez, Coronado, and Coronado's cousin Shanee spent an evening at Kevin's home. They talked and smoked crystal methamphetamine together. Coronado mentioned she needed some caulking and windshield wipers for her boss's truck. Stanbrough said he had some at his mother's home.
Stanbrough called for a ride and his friend Gabriel arrived in a truck. Coronado, Stanbrough, Shanee, and Gabriel departed in the truck and ultimately went to Stanbrough's mother's home. Along the way, Stanbrough asked Coronado and Shanee whether they wanted to "do a jale." Coronado explained the phrase "do a jale" could refer to one of two things. A "jale" could be a "come up," i.e., an invitation to commit a crime. She also said the phrase could refer to "dope and crystal meth." [fn 2.]
FN 2. According to Coronado, Stanbrough always characterized his entry into his sister's home as a "jale" and not as a robbery or burglary.
They arrived at Stanbrough's mother's house in the vicinity of the old Golden State Highway and went to a little shed behind the house. At the shed, Stanbrough said something about wanting to go someplace and take some things. Coronado was under the impression the job was going to take place right away. Stanbrough took a bunch of black plastic zip ties from the shed, along with the caulking and wipers he promised Coronado. The ties were secured into a bunch with a "[z]ip tie holding them together."
When Stanbrough and Coronado returned to Gabriel's truck, she discussed the job with Shanee and they decided not to participate because it did not sound right. Coronado told Shanee that Stanbrough wanted to use the zip ties. Gabriel said he was using his father's truck and did not want to get into trouble. Stanbrough and Gabriel took Coronado and Shanee to the home of Coronado's mother and then departed.
A day or two later, Stanbrough and Gutierrez visited Coronado in a little brown truck and said they were still going to do the job. Stanbrough asked whether Coronado and Shanee wanted to participate. When Coronado asked some questions, Stanbrough said he was going to go to his sister's house and rob the occupants to get a stereo. Stanbrough also told Coronado that his sister [fn 3] knew about the possible robbery. He explained that his sister's husband had been hitting her and his sister wanted to get back at him. According to Stanbrough, his sister did not care whether he took property when he went to her house.
FN 3. The victim, Jones, was married to Stanbrough's sister, Amanda Jones.
Stanbrough told Coronado he was going to enter his sister's house and tie up his sister's husband. He asked Coronado to loan him the fake gun she had found on the sidewalk, a gun that appeared to be a real weapon. When Coronado asked whether Stanbrough would be recognized inside his sister's home. Stanbrough said he would wear a blue "pano" (handkerchief) to cover his face. She asked Stanbrough what kinds of things were in the sister's home and he said, "lots of stuff, just lots of stuff." He also said his sister was going to pay him for the job and that meant Coronado would get paid if she participated. Stanbrough told Coronado his plan was to tie up the victim and scare him, but not kill him.
After staying briefly with Coronado, Stanbrough departed with Gutierrez.
She called Stanbrough several times, using her mother's cell phone. Stanbrough did not answer the first time. The second time, he answered and she asked whether he was going to come by for some more crystal methamphetamine.
Stanbrough told her he was busy doing what he "was going to do," which Coronado interpreted as the planned robbery. Coronado believed Stanbrough was at his sister's house when Coronado made these calls. Stanbrough eventually called Coronado back at "tweaker time" (a methamphetamine user's term for late at night) and said he was going to pick her up.
Stanbrough and Gutierrez showed up in a green vehicle at sunrise. Shanee was with Coronado and the four of them started smoking in the car. Coronado said Stanbrough looked tired and Gutierrez acted "like a little bitch ... like something was wrong with him." The quartet took off to look for a store to buy alcohol. Along the way they dropped off Gutierrez so he could change his clothes. Gutierrez changed at Stanbrough's request. When they again picked up Gutierrez, he was wearing different clothes and carrying his old clothes. They went to a meat market to buy liquor. Inside the store, Gutierrez appeared shaken and told Coronado, "I've got to leave town. I've got to leave town.... He's dead." They made their purchase, returned to the car, and traveled to Coronado's mother's apartment. Stanbrough asked her for a change of clothes and Coronado said she would look inside the apartment. During their travels, Coronado noticed a little bit of blood on Gutierrez's face and by the ear on Stanbrough's face.
Coronado had Stanbrough enter the apartment quietly because everybody was still asleep. She gave him a sweat outfit, he changed, and she put his old clothes in a plastic bag. She also put Gutierrez's old clothes in the bag, wrapped the bag, and threw it in the trash. They reentered the car and she gave Stanbrough a moistened paper towel to clean the blood of his ear. She then threw away that towel separately. Coronado admitted she was shocked when she saw the blood on Gutierrez's face in the meat store. Stanbrough and Gutierrez stayed a bit longer and then departed.
Amanda Jones was interviewed on the morning of the crime. She identified Stanbrough, her brother, as one of the participants. She also told the officers that a pink cell phone recovered from the bed in the master bedroom of the crime scene house was hers. Police personnel retrieved information from the phone, including stored phone numbers, the number of the device itself, and the calls that recently had been placed from the phone. Amanda Jones said the phone was used during or just prior to the crime and a call made shortly after 3:00 a.m. from the phone was noted. Stanbrough later confirmed the 3:00 a.m. call listed on her phone was to the cell number he was using at the time. Stanbrough also told the officers that his sister had purchased the cell phone for him.
On the afternoon Amanda Jones was interviewed, the officers instructed her to make a controlled call to the number from the 3:00 a.m. call. She initially agreed to make the call but then attempted to negotiate with the officers. Her demeanor was quite and calm and she ultimately made the call. As soon as Stanbrough answered the telephone, she became hysterical, incoherent, hard to understand, and was taking exaggerated deep breaths and unable to speak complete words. She eventually accused Stanbrough of doing something to her husband and Stanbrough repeatedly asked his sister what she was talking about.
Cingular cell phone records for Stanbrough's phone showed a number of calls made and received on December 28, 2006. A 12:45 a.m. call was noted at a tower in Sanger, Stanbrough's city of origin. Four other calls, extending from 12:54 a.m. to 1:04 a.m., also were noted at that tower and a companion tower. Calls made at 1:23 and 1:25 a.m. were noted at a tower on Fresno Street in the Kearney area of Fresno. At 1:38 a.m. a call was noted at a tower on East California Avenue, a few blocks from Jones's residence. A series of calls took place between 1:38 a.m. and 4:04 a.m. and were noted at the California Avenue tower. At 4:33 a.m. a call was noted at a South Orange Avenue tower. The latter tower is located east or southeast of the Jones residence on South Holly Avenue. A call made 38 seconds later was noted at a tower on East Jensen Avenue near Fresno Pacific University. At 4:36 a.m. a call was noted at a tower on South Peach Avenue, indicating the phone was continuing in an ...