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Olvera v. Long

United States District Court, Ninth Circuit

September 20, 2013

GUILLERMO OLVERA, Petitioner,
v.
DAVID LONG, Warden, Respondent.

ORDER

WILLIAM Q. HAYES, District Judge.

The matters before the Court are the Report and Recommendation (ECF No. 16) issued by United States Magistrate Judge Mitchell D. Dembin recommending that the17 Court deny the Petition for Writ of Habeas Corpus (ECF No. 1), and the Objections18 (ECF No. 20) and Application for Certificate of Appealability (ECF No. 19) filed by19 Petitioner Guillermo Olvera.

BACKGROUND FACTS[1]

I. Prosecution Evidence

Maria Ortega and her husband Gabino Rosas hosted a party in the courtyard of their apartment building. Among the attendees were Ortega's brothers; Ortega's sister and her family, including her common-law husband Jose Velasquez; and [Petitioner] and his family, including his common-law wife, his two brothers, and his brother-in-law. Ortega's teenage neighbor, D.F., and her family also attended the party. Rosas, [Petitioner], Velasquez, and most of the other men at the party were drinking beer. A neighbor thought everyone appeared drunk.
At some point, several men, including Rosas, [Petitioner]'s brothers, and [Petitioner]'s brother-in-law, started pushing and punching one another. There was conflicting evidence about whether [Petitioner] and Velasquez joined in the fight. There was no dispute, however, that both [Petitioner] and his wife attempted to break up the fight, that [Petitioner] was ultimately successful in ending it, and the parties reconciled.
After the fight, Ortega told her brothers and Velasquez to leave. They and Ortega's sister went out to the alley. [Petitioner], his brothers, and his brother-in-law went to [Petitioner]'s apartment. [Petitioner]'s father, who also lived there, told [Petitioner]'s brothers and brother-in-law to leave and escorted them outside. [Petitioner] left with them.
Meanwhile, D.F. and her family started cleaning up the courtyard. [Petitioner]'s wife subsequently joined them. While they were cleaning, they heard a loud crash coming from the front of the apartment building. D.F. went with [Petitioner]'s wife to see what happened. D.F. saw Velasquez on his knees. She also saw [Petitioner] punch Velasquez in the back and shoulder on the left side about five times. D.F. did not see a knife, weapon, or anything else in [Petitioner]'s hand. There were three other men in the area, including [Petitioner]'s brother-in-law. One of them, [Petitioner]'s father, tried to pull the other two away.
D.F. briefly turned away because she did not want to see what was happening. When she looked back again, she saw Velasquez, who was bleeding, stand up and then fall sideways. [Petitioner] and the other men were gone....
Around the same time D.F. and her family were cleaning up the courtyard, Loc Lai arrived to visit a friend who lived in an apartment building across the street from [Petitioner]'s apartment building. Lai saw a woman standing by the passenger side of Velasquez's truck. The two were talking loudly with each other through the open passenger side window. A man ran from the parking lot of [Petitioner]'s apartment building to the driver's side of the truck. The man spoke briefly to Velasquez and then punched Velasquez through the driver's side window. A short time later, two other men came running to the truck from the same direction as the first man. They also punched Velasquez and tried to pull him out of the truck.
As they were doing that, the first man ran over to the passenger side. He tried to open the passenger side door and punch through the now-closed passenger side window with his elbow. Velasquez tried to back up the truck and almost hit another car. The men then pulled Velasquez from the still running truck and started hitting and kicking him.
Velasquez did not fight back. He tried to get up and get away, but one of the men knocked him down by striking him in the head with a metal bar as the other men continued hitting and kicking him. The three men then ran to the parking lot of [Petitioner]'s apartment complex. Two of the men got into a van and drove off. The other man got into a sedan and drove off in the same direction as the van. The woman got into another car and drove off, following them....
When police officers arrived at the scene, they found Velasquez lying face down in the street. Velasquez had blood coming from his mouth and on his chest. Police officers found a baseball cap and a closed folding knife lying in the street approximately five feet from Velasquez.[2] Both items had blood on them. In addition, police officers found a trail of blood from Velasquez's body to the bedroom in [Petitioner]'s apartment, and a set of bloody footprints leading from the apartment to the parking lot. They also found a two-foot-long metal bar in the bushes near [Petitioner]'s apartment. Velasquez was the major contributor to the DNA mixture in the blood on the folding knife and he could not be excluded as a source of the DNA on the shaft of the metal bar. [Petitioner] was excluded as a source of the DNA on the shaft of the metal bar; however, his DNA matched the DNA in the blood on the baseball cap and in the blood trail.
While police officers were investigating what happened to Velasquez, a man reported a collision involving a sedan two blocks down from [Petitioner]'s apartment building. When police officers arrived at the collision scene, [Petitioner] was sitting in the driver's seat of the sedan, bleeding from his right leg. The trauma surgeon who treated [Petitioner] testified [Petitioner] had a stab wound on his right leg about two inches above the knee on the outside of his thigh. He had no defensive or other wounds. His blood alcohol level at the time of treatment was.15 percent. Although he was slightly drowsy, he could answer questions appropriately and did not appear to have any neurologic deficit. His Glascow Coma Score, which is used to evaluate mental status, was 15. This is the best possible score and is given to someone awake like all of us.'
In the front driver side of the sedan, police officers found a 13-inch knife with blood on it. Velasquez's DNA matched the DNA in the blood on one part of the knife blade. Neither Velasquez nor [Petitioner] could be excluded as contributors to the DNA mixture in the blood on another part of the knife blade. [Petitioner] was excluded, but Velasquez could not be excluded as a contributor to DNA found on the knife handle.
Police officers also found blood on [Petitioner]'s shirt and shoes. [Petitioner] was included as a major contributor and Velasquez was included as a minor contributor to the DNA mixture in the blood on [Petitioner]'s shoes. Velasquez's DNA matched the DNA in two bloodstains found on the front of [Petitioner]'s shirt. Velasquez was included as a major contributor to the DNA mixtures in bloodstains found on the lower left front, the left shoulder, and the right sleeve of the shirt.
A deputy medical examiner determined Velasquez died from multiple stab wounds to the torso. The wounds included a two and three-quarter inch deep stab wound on his abdomen, a six and one-quarter inch deep stab wound on his left back near his shoulder, and a nine and three-quarter inch deep stab wound slightly below his left nipple that went through his heart and into his left lung. In addition, he had been struck in the head twice with a blunt object consistent with being the metal bar that police found in the bushes near [Petitioner]'s apartment. Velasquez also had several scrapes, bruises, and knife cuts, which were consistent with being defensive wounds. The knife found in the sedan [Petitioner] was driving was consistent with having caused Velasquez's stab wounds and knife cuts, as well as the stab wound on [Petitioner]'s leg.[3]
Velasquez's blood alcohol level when he died was.26 percent. He also had.02 milligrams per milliliter of cocaine and.06 milligrams per milliliter of methamphetamine in his ...

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