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David R. Stanton v. Gerald Janda

March 1, 2013


The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge



Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the petition, which was filed on August 17, 2010. On April 8, 2011, Respondent served on Petitioner and filed an answer to the petition with supporting documentation. Although the time for filing a traverse has expired, Petitioner failed to file a traverse.

I. Jurisdiction

Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam). Petitioner claims that in the course of the proceedings resulting in his conviction, he suffered violations of his constitutional rights. Further, the challenged judgment was rendered by the Tuolumne County Superior Court (TCSC), which is located within the territorial jurisdiction of the Eastern District of California. 28 U.S.C. §§ 84(b), 2254(a), 2241(a), (d).

Respondent filed an answer on behalf of Respondent Leland McEwen as Warden of the Calipatria State Prison, Petitioner's institution of confinement at the time the petition was filed. Petitioner thus named as a respondent a person who had custody of the Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules). See, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).

Accordingly, this Court has jurisdiction over the subject matter of this action and over the person of Respondent.

II. Substitution of Respondent

Fed. R. Civ. P. 25(d) provides that an action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending; rather, the officer's successor is automatically substituted as a party. The rule further provides that a court may at any time order substitution, but the absence of such an order does not affect the substitution.

Petitioner initially named as Respondent Leland McEwen, who at the time the petition was filed was the warden of Calipatria State Prison, where Petitioner has been confined at all pertinent times. However, the official website of the California Department of Corrections and Rehabilitation (CDCR) reflects that Gerald Janda is presently acting as Warden of Calipatria State Prison.

Accordingly, it is ORDERED that Warden Gerald Janda be substituted as Respondent.

III. Procedural Summary

Petitioner's first jury trial resulted in his conviction of possession of a firearm by a felon in violation of Cal. Pen. Code § 12021(a)(1), but the jury was unable to reach a verdict on a charge of the first degree murder of Jon Flaherty in violation of Cal. Pen. Code § 187(a). (LD 1, 2.) *fn1

Shawna, Petitioner's sister, was jointly tried with Petitioner and was also convicted of possession of a firearm by a felon; further, she was convicted of having been an accessory after the fact in violation of Cal. Pen. Code § 32. (Id.)

Petitioner was retried, and the jury convicted Petitioner of second degree murder and having personally and intentionally discharged a firearm and thereby having caused death within the meaning of Cal. Pen. Code § 12022.53(d). (Id.) Petitioner was sentenced to fifteen years to life for the murder and a consecutive term of twenty-five years to life for the firearm enhancement. (Id.)

Petitioner appealed the judgment, and the Court of Appeal of the State of California, Fifth Appellate District (CCA) affirmed the judgment by a reasoned decision filed on December 10, 2009, in case number F055888. (LD 1, 52.)

Petitioner filed a petition for review in the California Supreme Court (CSC), which was denied summarily on March 24, 2010, without a statement of reasoning or citation of any authority. (LD 2.)

IV. Factual Summary

In a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct; the petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. 28 U.S.C. § 2254(e)(1); Sanders v. Lamarque, 357 F.3d 943, 947-48 (9th Cir. 2004). This presumption applies to a statement of facts drawn from a state appellate court's decision. Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009). The CCA stated the facts in People v. David R. Stanton, case number F055888, filed on December 10, 2009, as follows:


Flaherty and his wife lived in San Andreas. Flaherty drove a Ford Ranger pickup truck, and kept a red kayak in the truck's bed. In February or March 2007, David moved into Flaherty's house.

On Friday, August 24, 2007, Flaherty and David spent the night at the residence of David's sister, Shawna. On Saturday, August 25, 2007, David and Flaherty were supposed to go to another location to repair a car for Flaherty's wife. Flaherty was wanted on an outstanding warrant and he was planning to turn himself in, but he wanted to fix the car so his wife could use it while he was in custody. David agreed to help with the car but failed to show up at their agreed meeting place on Saturday morning. Flaherty was angry, and called his wife 12 or 13 times and asked if she had heard from David.

Flaherty, David, and Shawna were acquainted with Mark Millard, who lived with his mother in a house on a large undeveloped parcel off Wards Ferry Road. Andrew O'Neill lived in a trailer that was parked on Millard's property. There were several abandoned vehciles (sic) around O'Neill's trailer, including a Chevrolet Beretta, and a second trailer that was unlocked and full of trash.

O'Neill testified that a .22-caliber semi-automatic rifle was kept in one of the unlocked cars parked by his trailer. A picture of a squirrel was carved into the rifle's stock. David and other visitors to the property occasionally used that rifle for target practice.

Sometime between 1:00 p.m. and 1:30 p.m. on August 25, 2007, David and Shawna drove up to O'Neill's trailer. O'Neill left around 2:30 p.m. and David and Shawna stayed on the property.

The testimony of Krystal Phillips and Cassidy Coffey about the homicide

When David failed to meet Flaherty at their appointed location, Flaherty got into his Ford Ranger truck and drove around the area to look for him. He met Krystal Phillips (Krystal) and Cassidy Coffey (Cassidy), and asked for their help to look for David.FN4 The women testified that Flaherty was angry at David for not showing up as he promised. Flaherty thought David was with Shawna. He told the women that Shawna was a big influence on David, and he wanted them to talk to Shawna so he could speak to David. Krystal and Cassidy agreed to help and got into his truck. Krystal testified that as they were driving around, Flaherty mentioned that David had a gun but he was too much of a coward to use it.

FN4. As we will explain post , Krystal and

Cassidy testified at David's first trial but failed to appear for the second trial, and the court permitted the prosecution to read the entirety of their former testimony into evidence at the second trial.

Daniel Karraker lived near Millard's property. On the afternoon of August 25, Karraker briefly stopped by Millard's residence and saw David there. Around 6:00 p.m., Flaherty contacted Karraker and asked if he had seen David. Karraker replied that he had seen David at Millard's house. Karraker saw Flaherty head in that direction.

Flaherty drove to O'Neill's trailer with Krystal and Cassidy, and parked his truck in the middle of the driveway. The small Beretta hatchback was parked by the trailer. The passenger door was open and Shawna was sitting in the passenger seat. Flaherty walked up to the car and asked Shawna about David's whereabouts. Shawna said she did not know where he was. Flaherty and Shawna argued and exchanged profanities.

Krystal testified Flaherty leaned over Shawna and into the car, Shawna's voice suddenly changed as if she was choking, and Shawna started screaming that she did not know where David was. Cassidy testified that Flaherty's hands were around Shawna's throat and he was choking her. Shawna screamed at Flaherty to stop, and Flaherty accused her of lying. Cassidy never saw Shawna pass out or lose consciousness. Flaherty walked away from the car and told Shawna to get out, but she stayed inside the car.

Krystal testified Flaherty turned around as if he heard something and raised his hands. Krystal saw a man with a gun by the trailer stairs, but she did not see the gunman's face. Krystal thought the gunman or Flaherty could have said something but she was not sure. The gunman walked toward Flaherty and fired his weapon. Flaherty was still on his feet after the first shot, and stumbled and fell down into a small culvert by O'Neill's trailer. Krystal heard Flaherty say, "'Help me,'" and then she heard more gunshots after he fell down.

Cassidy testified that she heard a gunshot, looked toward the trailer, and saw David walking out with a gun. David kept walking as he fired the weapon. Cassidy thought she heard four or five shots, and there was a gap between the first shot and the subsequent shots. Flaherty grabbed his chest and fell into the small culvert. His back was propped up against the embankment and his head was not on the ground. Cassidy testified that additional shots were fired after Flaherty fell down.

Cassidy stated that as the shots were fired, she grabbed Krystal and they hid behind another vehicle on the property. Both Krystal and Cassidy kept looking over the side of the vehicle to see what was happening. Krystal thought she heard eight or nine shots.

Cassidy testified that after the shots were fired, David said, "'Oh, my God,'" and "'Help me, Shawna.'" Cassidy saw David "wrestling" to put something in the back of Flaherty's pickup truck. Krystal heard the gunman say, "'Help me. Help me, Shawna,'" and "'Help me put him in the truck.'" Shawna replied, "'I'm fucking trying.'"

Cassidy testified that Shawna went into the small culvert where Flaherty had fallen, and she kicked the dirt to cover up something on the ground. Krystal heard the click from the truck's tailgate, and the gunman told Shawna, "'Cover him with a blanket.'" Shawna replied, "'Okay.'" Krystal heard another closing sound from the truck, and the truck left very quickly. Shawna was still kicking around the dirt in the culvert, trying to cover up something, as the truck left.

As soon as the truck left, Shawna and Cassidy argued about what happened, and Cassidy demanded Shawna's car keys. Cassidy dumped out the contents of Shawna's bag to look for the keys and several syringes fell out. Neither Krystal nor Cassidy noticed any marks around Shawna's neck. Krystal and Cassidy found the keys to another car parked by the trailer but it would not start. Shawna grabbed the syringes and drove away by herself in the Beretta, and left the two women on the property.

Cross-examination of Krystal and Cassidy

On cross-examination, Krystal and Cassidy admitted they lied to the police when they were initially questioned and said they did not know anything about the shooting, the victim's true name, or what happened at O'Neill's trailer. They admitted that they did not want to be considered snitches or rats. Cassidy and Krystal denied that they spoke with each other at the jail and agreed to stick to a "script" about what to say.

Krystal admitted she previously used drugs, she had prior felony convictions, and she was on parole at the time of the homicide. Cassidy admitted she had a prior felony conviction. At the time of their testimony, Krystal and Cassidy admitted they were in custody for failing to appear at trial.

Millard's testimony about the homicide

Millard testified he was in his house that afternoon, and he heard several gunshots, perhaps five or six, fired in quick succession from the direction of O'Neill's trailer. Millard called 911, ran out of his house with the telephone, and looked toward O'Neill's trailer. Millard saw David pointing and firing a rifle at another person. David walked toward the victim with a normal stride as he fired the rifle. The victim did not walk toward David, and the victim fell backwards near a creek bed. Millard testified that after he heard the five or six shots, there was a definite break of about 15 to 30 seconds, and then a final shot was fired. Millard testified David was right next to the victim in the creek bed when Millard heard the last shot, and David's hands were at a downward angle.

Millard testified the gunman was "in and out" of his field of view, but he testified that David was the gunman and that David walked forward as he fired the last shot.

Millard testified two girls were by O'Neill's trailer and they were screaming. The two girls ran toward Millard's house while he was on the telephone with the police. Millard told the girls that he was talking to the police and they should stay with him, but they ran back to the shooting scene. Millard thought Shawna was one of the girls who was running and screaming.FN5

FN5. Krystal and Cassidy testified they ran to a nearby house and spoke to a man who was on the telephone, they told the man they weren't involved in the shooting, and they ran back to the trailer.

Millard testified that David loaded the victim's body in the back of a Ford Ranger pickup truck which had been parked by O'Neill's trailer. David covered the body with a blanket or sleeping bag. Millard saw at least one of the girls kicking dirt on the ground where the body had been. Millard testified David drove away in the truck at a fast rate of speed. No one else was in the truck. Millard thought the girls left in another car and followed the truck.

Millard admitted that he told the 911 operator that he thought O'Neill was the gunman and Karraker was possibly driving the truck. Millard testified that things happened quickly, and he was scared and shaken when he was talking to the 911 operator. After the incident, he thought about what he saw and realized he was wrong about O'Neill and Karraker. Millard testified he did not know these people well and he had trouble putting "a face to a name" when he called 911 but he was now sure David was the gunman and the driver. Millard testified he was not influenced by newspaper accounts that David had been arrested for the homicide.

Millard acknowledged that at the first trial, he testified that he did not see the gunman firing the rifle, but now testified "[a]s I see it in my mind, I do, I did see the gun." Millard admitted he had lots of nightmares about the incident.

The homicide scene

Around 6:00 p.m., Tuolumne County Sheriff's Deputies arrived at Millard's property and found Cassidy and Krystal walking along the driveway. The women ignored the deputies' repeated orders to get on the ground, they were not cooperative, and they were finally placed in handcuffs and taken into custody.

A bloody suitcase had fallen out of Flaherty's truck and was on the roadway. There were bloodstains, blood drops, blood trails, drag marks, numerous footprints, multiple tire tracks, and Flaherty's broken wristwatch on the dirt near O'Neill's trailer. There were bloodstains in the culvert and embankment area, the dirt and leaves had been moved around to cover up something in that area, and there were blood stains that had been disturbed in the area next to drag marks. There were multiple shell casings on the ground.

Cassidy's initial statement

Deputy Philip Halencak interviewed Cassidy while she was still at O'Neill's trailer. She was angry and uncooperative. She said that she was with Krystal when they ran into an acquaintance named "Justin" at a bowling alley in Sonora. They got into Justin's small white pickup, and she thought they were going to the casino but he headed down Wards Ferry Road and stopped at a trailer. Justin walked towards the trailer while the girls stayed in the truck. Cassidy said she was still in Justin's truck when she heard several "really fast" gunshots. She pushed Krystal out of the truck, and they crouched down and hid under another vehicle that was on the property. She heard four more gunshots in a slower succession, as if someone was moving. Cassidy said she was still under the other vehicle when Justin's truck left the property. She saw a gray vehicle leave the property about five minutes after the truck. Cassidy said she did not (sic) what happened.

Deputy Halencak testified he spoke with Cassidy for about 15 minutes, and Cassidy repeatedly said she did not want to be known as a "'rat,'" and she did not want to cooperate or identify who was involved. Cassidy never identified the gunman, and said she only heard the gunshots and did not know if anyone was shot, but she thought the victim might have been "Justin," the guy who gave them the ride. Cassidy also said that Justin argued with a woman on the property, but she did not identify the woman or say that Justin had choked that person.

The search for the suspects

Around 6:03 p.m., a dispatch was put out for both the pickup truck and the Beretta. Around 6:45 p.m., several officers responded to Wards Ferry Bridge, which spans a canyon and adjacent river. The officers looked around the area and watched the vehicle traffic but they did not see the truck.

Around 7:00 p.m., a crime scene technician saw the Beretta on a country road. The technician called for backup assistance and followed the Beretta until it suddenly pulled over. Shawna emerged from the driver's side and was very excited. She confronted the technician and demanded to know why she was being followed. The technician asked her to get back into the Beretta and Shawna complied. Shawna was grabbing and rubbing her neck. The technician later took photographs of Shawna, which showed scratches up and down her neck. An officer responded to Shawna's location, asked her what was going on, and Shawna burst into tears and became very upset.

Another officer later saw Shawna and testified that she had scratches down the front of her neck that were "fairly long." There was some "purpling" but no bruises. Shawna did not have any scratches or marks on the middle or back of her neck.

Discovery of the pickup truck

At 8:30 a.m. on Sunday, August 26, 2007, Shawna contacted the sheriff's department and reported that Flaherty's truck was in a canyon. Shawna met the deputies and directed them to the truck's exact location because it could not be seen from the road.

The deputies found Flaherty's truck below the Wards Ferry Bridge, at the bottom of the steep and rocky canyon known as Murderers' Gulch. The canyon was about eight miles away from O'Neill's trailer, and it took about 25 to 30 minutes to drive there from the trailer. The truck plummeted 300 to 400 feet down a cliff with a slope of 45 degrees. The truck landed on a dry creek bed at the bottom of the canyon and flipped on its roof. The truck's final location was about a five-minute walk from the adjacent Tuolumne River.

A search and rescue team had to be lowered down the steep canyon to reach the truck. An officer was able to carefully walk down the canyon to the truck's location in about 10 minutes, and it took him 15 to 20 minutes to walk up the canyon and return to the road without safety rigging.

There were at least two different sets of footprints on the road at the top of the canyon. There were deceleration marks at the top edge of the canyon where the truck went over the cliff, which indicated the front tires were locked. The tire marks continued without a break from the deceleration skids and down the steep hillside, which indicated that the truck went over the cliff at a slow speed, the tires remained in contact with the surface as it went over, and it did not jump off at a high rate of speed. The truck went down in a straight direction, either because someone stayed in the truck long enough to steer it, or it was going so slow that the gravitational pull was in a straight, downward motion, and then it flipped over when it reached the bottom of the canyon.

There was debris from the truck and Flaherty's personal property scattered all the way down the steep hillside. At the bottom of the canyon, there was blood on the ground and bloody drag marks along the rocks, about 25 feet from where the truck landed. The blood did not appear to have originated from the truck, and an officer believed the drag marks began where Flaherty's body landed as the truck flipped into the canyon.

The top of the truck's passenger compartment was bent but both the driver and passenger doors were intact, latched, and closed. The truck's key was in the ignition's "on" position and the gear shift was in neutral. There was a large amount of blood in the truck's bed which was later matched to Flaherty. There was no blood in the truck's cab.

While the officers discovered Flaherty's truck, personal possessions, and bloody drag marks in the canyon, they could not find his body and could not locate David.

David and the kayak

The officers who found Flaherty's pickup truck noticed reddish-pink plastic scrapings along the rocks in the canyon, consistent with something being dragged across the rocks, but they could not identify the source.

Around 11:00 a.m. on Sunday, August 26, 2007, the sheriff's boat enforcement team launched watercraft from Mocassin Point Marina, and headed down the river to recover the truck from the base of the canyon. The deputies were in uniform and their boats were marked as being from the sheriff's department. Around 11:15 a.m., the deputies passed a man on the river in a kayak, about three-quarters of a nautical mile from the Wards Ferry Bridge. They had not received any information that the homicide suspect was associated with a kayak.

The sheriff's boat team hit a sandbar and had to turn around. Around 11:45 a.m., the deputies were returning to the marina when they saw the same man in the kayak at a different location on the river. The man did not wave at them or ask for assistance on either occasion.

Around 12:30 p.m., a clerk at the marina's snack bar noticed David was hanging around the marina. Around 1:00 p.m., David was still at the snack bar, he asked the clerk for a cigarette, and said he had been involved in a "kayaking incident" earlier that morning.

Around 3:30 p.m., another employee of the snack bar called the sheriff's department about a suspicious person. A deputy responded to the marina and asked David what he was doing. David said he was waiting for his girlfriend to pick him up. The deputy asked for his identification and David complied. The deputy recognized David's name as being wanted in Flaherty's homicide and arrested him.

The sheriff's department later found the red kayak at the marina. A deputy recognized the kayak as the one which he had seen on the river that morning. The red plastic scrapings on the canyon rocks by Flaherty's truck matched the red kayak, and Flaherty's wife identified the kayak as one that Flaherty used. The kayak contained a paddle, a polo shirt, and a pair of dark blue cargo plants. The back right leg of the pants had a rip that was at least 20 inches long.

David's injuries

David was wearing a red tank top, silky shorts, and tennis shoes when he was arrested at the marina. David had scrapes, abrasions, and bruises on his arms, hip, buttocks, and legs, and the deputies photographed his injuries.

An accident reconstruction specialist testified about the type of injuries someone would have suffered if that person was inside Flaherty's truck as it went down the canyon. If the truck went down at full speed, an occupant would have suffered severe and possibly fatal injuries. If the occupant jumped out of the vehicle as it rolled down the canyon, he would have suffered broken bones and major injuries because of the rocky ledge and steep descent. If the occupant remained in the truck and was restrained by a shoulder belt, he would have suffered deep abdominal bruises from the belt and harness. If the occupant remained in the truck without a seatbelt or hardness (sic), and the truck slowly went down the cliff, he would have been tossed around, possibly ejected, suffered major lacerations and bruises, and might not have survived.

The accident reconstruction specialist testified that the injuries observed on David when he was arrested at the marina were more consistent with getting out of the truck while it was still near the top of the incline, as the vehicle slowly went down the steep canyon, and he might have jumped out on the grass at the top of the canyon before the truck hit the rocks at the bottom of the canyon.

A pathologist examined photographs of David's scratches, bruises, and abrasions, and testified they were recent injuries but inconsistent with being in the truck as it plunged to the bottom of the canyon. The pathologist explained that a person in the truck would have suffered severe injuries and fractures if he stayed in the vehicle when it hit the bottom of the canyon. The pathologist testified David's injuries could be consistent with jumping out of the truck onto a grassy area just as it started to go down the canyon. David's injuries were inconsistent with jumping out of the truck on the grassy area and then sliding down the vertical cliff to the rocks below, because he would have suffered cuts and scrapes on his hands as he went down the cliff.

Discovery of Flaherty's body

On Tuesday, August 28, 2007, cadaver dogs found Flaherty's body buried under a pile of rocks against the canyon wall, about 100 feet away from the truck. The body was completely covered by numerous rocks, and some were so heavy that two people were needed to remove them. Flaherty's pants had been used to drag the body to the burial site.

Flaherty had five bullet wounds, in the head at the right temple, the left side of his neck, the right and left side of his chest, and left wrist. Four .22-caliber bullets were recovered from his body. The wound in his left wrist went through his body, and was either inflicted by a fifth bullet that was not recovered, or by the same bullet which continued into his left chest or left side of his neck. The head wound was lethal, and the other wounds (except for the wrist injury) would have been lethal if not treated. It was impossible to determine the order of the shots.

The pathologist testified the trajectory of the bullet wounds was inconsistent with the victim walking towards the gunman. The gunshot wound to the right temple could have been inflicted while the victim ducked and turned his head. It was also possible that the victim was shot once or twice, fell down, and additional shots were fired while he was on the ground. Flaherty could have lived for several minutes after he was shot, he would have remained conscious and able to walk after suffering four of the five gunshot wounds, but he would have been knocked unconscious and fallen down once he was shot in the head. He still could have been alive when the truck went into the canyon. His body suffered pre-death scrape marks, consistent with being thrown from the truck and striking the rocks as the truck went down, and post-death marks from being dragged over the rocks to the burial site at the bottom of the canyon.

Flaherty had a blood/alcohol level of .07 percent, just under the legal limit, which indicated he could have consumed a couple of drinks. He tested negative for drugs.

As the officers removed the rocks which covered Flaherty's body, they found pieces of the broken stock from a .22-caliber Marlin rifle. Another piece of the stock was found under the truck's cab. The stock had a squirrel depicted on it, and the rifle was later identified (sic) the weapon which was kept in the car by O'Neill's trailer. The rifle's barrel and magazine were found between the truck and the canyon wall. The magazine would have been able to hold 17 cartridges. There was one .22-caliber cartridge in the rifle's chamber and two unexpended cartridges in the magazine. The expended cartridges found at O'Neill's trailer were later determined to have been fired from this rifle.


Cassidy and Krystal's prior statements

Deputy Spencer Garrett testified that he interviewed Krystal at O'Neill's trailer about two hours after she was detained, and tried to determine the identities of the gunman and the victim. Krystal said she was on parole, she was not happy to be there, and she was not very forthcoming when asked about what happened. Krystal said she arrived at the trailer with Cassidy and "Jon" in his truck. Jon got out but the girls stayed inside his truck. Krystal said she suddenly heard yelling and cursing, and then heard five to 10 gunshots. Krystal and Cassidy ducked down, got out of the truck, and hid behind another vehicle on the property. Krystal said she saw a man in a black shirt and pants, but she did not see the man with a gun or firing a weapon.

Detective Deborah Moss testified about her subsequent interview with Krystal, during which Krystal said that Cassidy made a comment that they needed some money, Shawna had money, and Cassidy wanted to get some from her. Krystal said that Flaherty had been upset because David and Shawna ditched him that day, but he was quiet and did not seem upset when they arrived at the trailer. Krystal said that Flaherty asked for help at some point.

Corporal Kelly Dickson testified that he interviewed Cassidy for two or three minutes at O'Neill's trailer in order to determine the identities of the suspect and the victim. She was handcuffed and in the back of a patrol car. Cassidy was very emotional and said she was shaken by what had happened. Dickson knew Cassidy from previous contacts and described her as "a very hard person" with a "very tough personality to her." Cassidy said they got a ride from a friend, who said that he had to make a quick stop at the trailer. Cassidy said that "[s]hit happened" while they were at the trailer. Cassidy said she grabbed Krystal, threw her under a vehicle on the property, they stayed under the vehicle until two other vehicles left, and then they tried to leave the area. Cassidy said a subject was shot but she did not identify the victim. Cassidy did not say that she saw the shots fired or the victim fall down.

Flaherty's reputation for violence

David introduced evidence that Flaherty was a violent person. Lynn Beenblossom testified that she lived at Flaherty's house and observed numerous instances where Flaherty beat and assaulted his wife, and threatened other people at the house. Flaherty frequently carried a gun, he threatened to kill his wife, and he boasted about killing and burning people and disposing of the bodies. Beenblossom became afraid of Flaherty and moved out in April 2007.

Beenblossom testified that shortly after she moved out, the police searched Flaherty's house and found weapons.FN6 Flaherty wanted Beenblossom to say the weapons belonged to her. Beenblossom admitted she owned one of the shotguns, but she told Flaherty that she would not lie for him in court. Beenblossom believed that Flaherty "was coming for me" because of her refusal to lie for him, and she kept a gun at her house. Beenblossom testified that Flaherty was a monster and "he was coming for me, too. And yes, I would have shot him dead. And I would have called 9-1-1. That is the only difference, because he was coming for me, too."

FN6. On April 11, 2007, Flaherty's house was searched and officers seized a shotgun and a .380-caliber handgun.

Beenblossom knew David was planning to move in with Flaherty and she told David about everything about Flaherty because she was afraid for his safety. David moved in anyway because he was desperate to find a place to live so he could finish school.

Flaherty's wife testified that Flaherty frequently beat and choked her, held her at gunpoint, and threatened to kill her. She told David about these incidents, and warned him that Flaherty was weird and scary when he was on methamphetamine. David was present during some of the assaults and tried to help her. Flaherty once tried to choke David at the house. Flaherty's wife did not see him with his own gun after the police seized his weapons.

David's trial testimony

David testified he was convicted of grand theft when he was 18 years old. He moved into Flaherty's house in April 2007, and Flaherty allowed him to stay for free in exchange for working on some cars. David was warned about Flaherty's violent behavior but he could not afford to live anywhere else. After David moved in, he saw Flaherty beat his wife on several occasions, and their children were removed by county authorities. Flaherty attacked David when he tried to help Flaherty's wife.

David knew the police searched Flaherty's house and removed his weapons, but he saw Flaherty with weapons on subsequent occasions. Flaherty blamed David for the police search and tried to choke him.

David saw Flaherty assault and choke another person who lived at the house, because Flaherty thought that person was a child molester who was after his children. Flaherty bragged about shooting people and said he was not afraid to do it again, but David thought he was bragging and trying to be a tough guy. David changed his opinion after an incident when they drove out to the Wards Ferry Bridge because Flaherty wanted to go shooting. Flaherty pulled out his rifle and looked down into the canyon, where people were rafting down the river. Flaherty said there were people down there but they would not be there for long, and started to shoot at the rafters. David testified he was afraid of Flaherty but he could not find another place to live.

David testified that on August 24, 2007, he was working with Flaherty to repair a car at the home of Flaherty's parents. They finished with the car around 2:00 a.m. on August 25, 2007. Flaherty drove David to Shawna's apartment in his pickup truck, and they spent the night there. Around 10:00 a.m., David and Shawna left to run errands. David told Flaherty he was leaving and he did not know when he would return. Flaherty remained at the apartment.

Around 2:00 p.m., David and Shawna drove to Millard's house and stopped at O'Neill's trailer. David retrieved the .22-caliber rifle that O'Neill kept in the unlocked car because he was going to use it for target-shooting. Shawna wanted to go swimming, so David left the rifle in the second trailer on the property.

David and Shawna used the Beretta that was parked by the trailer, and they drove to the river to go swimming but the water was too low. Flaherty called Shawna's cellphone, David spoke to him, and Flaherty yelled and screamed at David that they needed to return to Shawna's apartment. David hung up and Flaherty kept calling, but they did not answer the calls.

Around 5:30 p.m., David and Shawna drove back to O'Neill's trailer. O'Neill was not there and they decided to wait for him. Just after they arrived at the trailer, David heard the distinctive sound of Flaherty's pickup truck on the driveway. David thought Flaherty was mad at him, and he told Shawna to tell Flaherty that he was not there. David went into the second trailer to hide because he was afraid for his safety, and he did not want to confront Flaherty or leave with him. Shawna was sitting in the passenger seat of the Beretta and the car door was open.

David looked out the trailer's window and saw Flaherty, Krystal, and Cassidy get out of the truck. Flaherty yelled and cursed at Shawna, and demanded to know where David was. Shawna said she did not know. David testified that Flaherty reached into the Beretta, punched Shawna in the head, grabbed her throat, and choked her. Shawna fell back in the car and was screaming.

David testified that he was afraid of Flaherty but decided Shawna's life was in jeopardy. He headed out of the trailer and saw the .22-caliber rifle by the door. He grabbed the rifle and intended to use (sic) "as an intimidation tool." David testified he walked out of the trailer with the gun, and Flaherty was still choking Shawna. David yelled at Flaherty to get off or leave her alone. Flaherty looked up, left Shawna at the car, and ran toward David. Flaherty's "mouth was in a snarl and everything. He was just in a full-blown run."

David believed Shawna was dead because she was not screaming anymore. He was afraid Flaherty was "going to do the same thing to me," or take away the rifle and shoot him. David had been pointing the rifle to the ground, but he raised it in Flaherty's direction and told him to stop. Flaherty did not stop. David waited until Flaherty was within four to six feet of him, and then he started shooting.

David testified he wanted to disable and not kill Flaherty. When asked if he aimed the gun at Flaherty, David testified, "[n]ot really, no." David held the rifle at waist-level and fired three shots in Flaherty's direction. Flaherty turned and moved away from David. David was afraid Flaherty was heading back to his truck to get his own gun and return fire. David raised the rifle a little higher and fired more shots. Flaherty fell into the culvert and David realized he was hit. David did not remember firing a shot into his head.

After Flaherty fell down, David lowered the rifle and freaked out. He put the rifle down by the Beretta and saw Shawna was alright (sic). He decided to take Flaherty to the hospital. He did not see any blood, but Flaherty's eyes were closed and he did not appear to be alive.

David dragged and carried Flaherty to the truck. He did not know if Flaherty was still alive and he never heard Flaherty ask for help. David asked Shawna to help him lift Flaherty into the truck but Shawna just stood there. David testified he never told Shawna to put the rifle into the truck, and she just did that on her own. David lifted Flaherty into the truck bed by himself.

As David drove away, he panicked and could not think straight. He figured Flaherty was dead and he did not want to go to prison. David drove to the Wards Ferry Bridge and just wanted to die because of what happened, and decided to drive off the cliff. He floored the truck but had "a last second change of mind" and slammed on the brakes. David stayed in the truck as it went over the cliff and bounced on the rocks. He opened the driver's door, jumped out, and hit the rocks. David landed on his back and kept sliding down the rocky cliff. The truck went to the bottom of the canyon. When David reached the bottom, he walked to the river and tried to drown himself. He gave up and returned to the truck, and waited to see if law enforcement would arrive. Flaherty's body was lying on the rocks and it made him uncomfortable to see it. He dragged the body away from the truck and covered it up with rocks so no one would find it, and he stayed in the canyon all night.

David testified he suffered cuts and bruises, his pants were torn, and his leg and hip were hurt from falling down the rocks. He took off his damaged clothes and left on his T-shirt and boxer shorts.

David found the kayak which had been in Flaherty's truck. He put his torn clothes in the kayak and paddled out of the canyon the next morning. He passed the officers on the river and waved at them, but they did not pay attention to him. David stayed at the marina until he was arrested.

(LD 1, 3-20.)

V. Standard of Decision and Scope of Review

Title 28 U.S.C. § 2254 provides in pertinent part:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Clearly established federal law refers to the holdings, as opposed to the dicta, of the decisions of the Supreme Court as of the time of the relevant state court decision. Cullen v. Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362, 412 (2000).

A state court's decision contravenes clearly established Supreme Court precedent if it reaches a legal conclusion opposite to, or substantially different from, the Supreme Court's or concludes differently on a materially indistinguishable set of facts. Williams v. Taylor, 529 U.S. at 405-06. The state court need not have cited Supreme Court precedent or have been aware of it, "so long as neither the ...

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