The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding with retained counsel, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are petitioner's amended petition for a writ of habeas corpus (Doc. 42), respondent's answer (Doc. 43), and petitioner's reply (Doc. 51).
The state court recited the following facts, and petitioner has not offered any clear and convincing evidence to rebut the presumption that these facts are correct:
Bridgette Alvarez and her daughter Alexis were often homeless. In August 2003, Alvarez gave temporary guardianship of her daughter to Heredia, a man who lived (with his wife and two young children) next door to her father. On the afternoon of October 23, 2003, Alexis suffered severe injuries while she was at home with Heredia and his children. She was transported to Kaiser Hospital in Vallejo and then to Children's Hospital in Oakland, but she died of her injuries the following day.
A felony complaint was filed against Heredia on October 29, 2003, and, after a preliminary hearing, he was charged with murder (Pen. Code, § 187, subd. (a)) and assault on a child under age eight causing death (Pen. Code, § 273ab). The matter proceeded to a trial, but the jury could not reach a verdict on either count. Heredia's second jury trial commenced on June 30, 2005.
The state court then recited the following outline of the prosecutions' case:
Alvarez testified that Stacey Jolly, a friend of hers, first suggested that she give custody of Alexis to someone else. She then spoke with Heredia on the phone two or three times, and he agreed to take Alexis. Alvarez had often seen Heredia with his children, and she believed he was a good father to them. No mention was made about whether Heredia's wife would help care for the girl.
Several witnesses testified that Alexis was a normal child and not especially clumsy. She was potty-trained, and she always preferred to take baths instead of showers. Alvarez said the child refused to take showers because she did not like the water hitting her in the face. Alvarez and Alexis stayed at the home of Alvarez's friend Dana Bidou the night before Alexis went to live with Heredia. Bidou saw Alexis in her underwear before her mother bathed her that night, and she observed no bruising or other marks on the child. Alvarez's sister saw Alexis the next day, i.e., the day she left to live with Heredia, and she also noticed no marks or bruises on the child's body. Alvarez and her sister last saw Alexis in the middle of September. The child was asleep in Heredia's truck, and her hair had been shaved off. Alvarez did not notice any marks on the girl, but Alexis was wearing long sleeves and pants. Alexis appeared sad and cried some.
About a month after Alexis had moved into Heredia's home, she stayed with his sister-on-law, Quinn Steadman, for two weeks while Heredia and his wife took a trip to Florida. Steadman became concerned because Alexis's physical well-being seemed to be deteriorating, and she called Child Protective Services (CPS) to seek help. Alexis's mental state was different from that of any other child Steadman had seen or cared for. She could not remember Steadman's name or how to perform daily functions such as routines for personal hygiene. Steadman noticed Alexis was clumsy "at times" and urinated erratically -- sometimes holding her urine all day, sometimes urinating several times throughout the day. Alexis also behaved strangely with food, consuming her meals rapidly as if there would not be another opportunity to eat. She bruised easily, and Steadman noticed several bruises on her body and significant redness in her crotch area. Weeks earlier, shortly after Alexis was placed in Heredia's care, Steadman had observed burn marks on the girl's ankles. Alexis had also suffered a broken nose, and Heredia told Steadman it happened because Alexis fell while taking a shower. However, Steadman bathed Alexis and confirmed that the child was terrified of showers. Steadman told CPS about the broken nose and bruising she saw on Alexis's legs and back and a knot Alexis had on the back of her head. Although Heredia had told Steadman that Alexis was clumsy, the child did not fall or have any accidents while in Steadman's care. Although Steadman told CPS she thought Heredia's family was physically abusing Alexis, she testified that she said this because she believed it was the only way to get CPS involved. She believed Alexis needed professional help, and she wanted to do whatever was necessary to get the child taken away from her sister and Heredia because, given problems the couple was going through, she did not think they could give Alexis that help.
Around 3:30 in the afternoon on October 23, 2003, Heredia's next-door neighbor Earl Grimm was home alone when he heard the sound of a child crying. After about five to seven seconds of crying, Grimm heard a loud crash like a heavy glass or a vase breaking, followed by a single scream and then silence. Concerned, Grimm looked out his window up and down the street, but he saw no one outside. Around 4:15 p.m., paramedics arrived at Heredia's house in response to a 911 call. Heredia and two young children were there, and Alexis was lying on the floor, flat on her back and motionless. She was not responsive to any stimulation, was not breathing, and had no pulse. A paramedic started CPR and brought Alexis into the ambulance. Heredia asked where they were taking Alexis but asked no other questions and did not accompany the paramedics to the hospital.
Dr. Harold Farber, a pediatrics expert who treated Alexis at Kaiser Hospital, testified that she arrived with multiple bruises on her scalp, ears, nose, buttock and thighs, which are not typical areas of child bruising. Her pupils were fixed and non-reactive, indicating she had a severe brain injury. After Alexis was resuscitated, the medical staff prepared her for immediate helicopter transport to the neurosurgical center at Children's Hospital in Oakland. Based on his experience in dealing with cases of suspected child abuse, Dr. Farber testified Alexis's injuries appeared consistent with "non-accidental trauma."
Dr. Thomas Reid treated Alexis when she arrived at the intensive care unit of Children's Hospital. When Alexis arrived at Children's, she had unstable blood pressure, could not breathe on her own, and was on life support. Dr. Reid could not detect any sign of brain function in her. He recorded bruises on both sides of her forehead, a bruise between her right eye and ear, a bruise on her right upper eyelid, several small bruises inside and outside her left ear, bruises on the outside of both thighs, and a squishy lump the size of a silver dollar above her right ear. Dr. Reid explained that blunt force trauma occurs when the head is hit with something solid, like a fist or baseball bat, that does not penetrate the skin. The impact causes the brain to swell, and this swelling ultimately leads to death. A CT scan performed on Alexis's brain demonstrated that she had such swelling, and swelling was consistent with her other symptoms on examination. Alexis was given the diuretic drug mannitol in an effort to reduce the brain swelling. However, Dr. Reid did not expect Alexis to survive because, as a result of the swelling, she had no detectable brain function. He had no doubt that Alexis had been inflicted with head trauma and no doubt that the head trauma was caused by child abuse. Analysis of Alexis's blood indicated that she had an abnormality in blood coagulation (known as "DIC") that could cause excessive bruising, but Dr. Reid explained this condition is very common after a severe injury. Although DIC can have other causes, it is a condition induced indirectly by trauma, and Dr. Reid attributed the DIC observed in Alexis to her head injury.
Dr. James Crawford, a pediatrician specializing in child abuse, also examined Alexis while she was at Children's Hospital. He documented extensive bruising in the same areas described by Dr. Reid and a large area of swelling on the scalp. Dr. Crawford testified these were not "normal scrapes and bruises" such as one might see on any four-year-old. Accidental lesions typically occur on the front of the body and over body areas like the elbows, knees, and shins. The mount of bruising on Alexis was "clearly far in excess of anything that's normal," and the lesions on her head and buttocks were particularly indicative of physical assault. Dr. Crawford had no doubt in his mind that Alexis had been severely beaten. Moreover, the presence of a bruise indicates a relatively recent injury, because bruises typically last only a week, or slightly longer. Like Dr. Reid, Dr. Crawford explained that DIC is caused by a catastrophic injury or trauma to the body. However, Crawford noted that Alexis's blood coagulation studies at Children's did not suggest she had DIC, and he did not believe the extensive bruising on her body was caused or heightened by DIC. He testified that Alexis died from a traumatic brain injury, which was evidenced by cerebral edema (i.e., brain swelling) and the bleeding that was present between her brain and skull.
Forensic pathologist Arnold Josselson performed an autopsy on Alexis's body on October 24, 2003. Dr. Josselson noted the presence of numerous bruises of varying ages, and he testified that such bruising was "almost always due to child abuse" and could not have occurred from a fall off of a bed. The area above Alexis's right ear appeared grossly swollen, and Dr. Josselson found widespread bleeding between the scalp and skull, indicating "a rather marked blunt force injury applied to the head." Inside the skull, there was another large hemorrhage in the area between the brain and the dura (i.e., the membrane that covers the brain), and additional small areas of hemorrhage were found on the surface of the brain itself. Dr. Josselson testified that all of these findings were consistent with blunt force head injury, and he concluded this was the cause of Alexis's death. Dr. Josselson explained that children who suffer head injuries of this type usually die as a result of brain swelling, and such swelling was documented in films taken when Alexis was admitted to Children's Hospital. Although the brain was not swollen at the time of autopsy, Dr. Josselson believed there were two reasons why. First, while treating Alexis, doctors administered the drug mannitol, which reduces brain swelling. Second, the swelling in Alexis's brain caused a compression of the pituitary gland and led her to develop diabetes insipidus, something Dr. Josselson observed often happens in children. When the pituitary gland is squeezed from the brain swelling, it stops producing a hormone that causes the body to retain water. Without this hormone, the patient loses a high volume of water through urination, and hospital records indicate this is what happened to Alexis. Dr. Josselson found no injury to the neck upon examination. He did not remove the spinal cord because the CT scan showed the neck to be normal and there was no clinical indication of a neck injury. Dr. Josselson testified that a fall from a bed could not have caused all of Alexis's injuries, and the vast majority of forensic pathologists agree that a child cannot die from a fall from a bed. Police officers determined the bedroom where Alexis was injured was carpeted, and the top of the bed measured two feet three inches from the floor.
Detective Philip Silva of the Vallejo Police Department spoke with Heredia about the incident on October 23, 2003. Heredia said there had been an accident and Alexis had fallen off a bed. The only other people at home were Heredia and his two children, ages four and three; Heredia's wife was at work when the injury happened. Heredia explained that his son was ill and he had stayed home from work for the past four days to take care of the children. When asked if he had ever hit Alexis, Heredia said he had spanked her on the bottom with a belt two nights earlier as punishment because she urinated while at the dinner table. He said the child had problems with potty training and frequently had accidents. Heredia stated that he used a belt "on a fairly regular basis" for discipline, but he admitted he got "carried away" during this recent spanking. When he was shown photographs and asked about the bruising and marks on Alexis's head and body, Heredia either denied that the bruises were present, saying he could not see them, or claimed Alexis already had them when she came to live with him. Although he denied slapping or punching Alexis in the head, Heredia admitted he once "popped her" in the mouth when she said a bad word. Heredia said he also used the belt to discipline his own children, but Detective Silva saw no signs of bruising or abuse on them.
Heredia told the police that on the afternoon of October 23, 2003, the children were bouncing on the bed and he went into the bedroom to make them stop. He said he picked up his son and set him down on the ground and then reached to pick up his daughter. As he did so, Alexis was bouncing across the bed. Heredia said he was playing with his daughter and did not actually see Alexis fall, but when he looked he saw Alexis lying on her back with her head facing a dresser. Her eyes were open and she did not appear to be breathing. Heredia said it "looked like she was gasping," and he thought she was playing. When he realized the child was unconscious, he carried her into the living room. Then he called his wife and 911 and also started CPR on the girl. Heredia said he believed Alexis had hit her head on the dresser or windowsill, but the police found no dents or markings on these areas indicating this happened. Heredia told the police Alexis was a very clumsy child and had injured herself several times in his home. For example, once Alexis was taking a shower, and after Heredia had left the room she slipped and fell flat on her face, injuring her nose. Other times, she tripped and fell in the garage and on the front brick steps. Heredia also told the ...