United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The action proceeds on the third amended petition, ECF No. 33, which presents three claims challenging petitioner's 2007 conviction for second degree murder and possession of a firearm by a felon. Respondent has answered, ECF No. 40, and petitioner has filed a traverse, ECF No. 43.
Petitioner and co-defendant Zachary Beck were charged in San Joaquin County Superior Court with the murder of nineteen year old Jennifer Holland. Petitioner was also charged with discharging a firearm and being a felon in possession. Petitioner and co-defendant Beck were tried jointly.
The prosecution presented the following evidence:
On the morning of August 3, 2006, Jennifer Holland's body was found in an asparagus field in San Joaquin County. She had been shot in the head and her body burned. Evidence showed that she had been dumped in the area sometime after 10:00 p.m. the night before.
That evening police searched the Finck Road ranch property where Jennifer sometimes stayed with friends. Several people were present. There were a couple of trailers and a run-down house on the property; the police also discovered a methamphetamine lab. Conrado Zavala lived in one of the trailers, and Alfredo Lopez sometimes stayed in his trailer. Several witnesses indicated that Conrado was primarily responsible for the meth lab. When police officers told Conrado that Jennifer had been killed, he attempted to flee but was apprehended. Despite his attempt to flee, Conrado did not thereafter refuse to answer questions and officers found him to be forthcoming and truthful.
The police interviewed Alfredo. He and Jennifer had dated for a short time. She had stayed at Conrado's trailer for a while in July. Jennifer had abruptly "dumped" Alfredo shortly before her murder, and had gotten back together with petitioner. (According to Jennifer's brother, she and petitioner had dated about a year earlier.) Alfredo last saw Jennifer on July 31 outside a local store, where she was standing with petitioner until she got in a car and drove off with Conrado. On the morning of August 2 Alfredo telephoned Jennifer to remind her about a court date, and she said that unspecified friends were giving her a ride. Alfredo made five or six other phone calls to Jennifer later that day, but she neither answered nor returned his calls.
Angela Galli had spent the night of August 2 at the trailer talking and smoking methamphetamine with Alfredo. According to Angela, she and Alfredo were the only ones in the trailer that night. According to Alfredo, Conrado was also there but left in the early hours of August 3. At some point during that night while Angela was outside the trailer, Alfredo saw Conrado bring in a.45-caliber semiautomatic handgun. Officers found such a gun in the trailer.
Based on information obtained from Conrado, Alfredo and Angela, police also searched the home of 17-year old Zachary Beck on Tracy Blvd., a rural property where petitioner had been staying with Beck. Maria Jimenez, who had recently begun dating petitioner, said that cushions which had been on Beck's couch the week before were missing on August 2. Beck told her he had spilled Kool Aid on them. Maria also noticed what she thought was a fresh stain on the carpet. During the search, officers noticed what appeared to be bloodstains or smears on the frame of the couch, on the carpet, and on walls and doorframes in the kitchen and laundry room. Outside the modular home, the officers found a black plastic trash bag containing a sock, a shirt, a towel and a rag that all appeared to be bloodstained. In a nearby shed, another trash bag was found containing a woman's small purse with a $50 bill inside, Jennifer's court citation for her August 2 appearance, three bloodstained rags, and a bloodstained pillow case. A can of camp fuel was found next to the shed. About 20 feet from the house was a dumpster that contained the two cushions missing from the living room couch. On August 4, Maria helped petitioner gather his belongings from Beck's house. Beck's landlord testified that Beck had been told prior to Jennifer's murder that he was not allowed to have friends living with him.
Jennifer had checked into an Extended Stay Motel in Tracy on August 1 with Conrado. They registered for thirty days, and Conrado paid for seven days in advance pursuant to motel policy. Various acquaintances of the two agreed that Conrado and Jennifer had not rented the room as a couple; Conrado was simply helping Jennifer out because she needed a place to stay, and he expected to use the room himself with another girl. A motel clerk saw Jennifer with Conrado only at check-in. He saw Jennifer at the motel with petitioner more than once, however. Jennifer's brother Michael last saw her on the morning of August 2 in the motel parking lot. She was with a Hispanic man who spoke good English and who was not petitioner.
Jennifer's blood was found in the trunk of petitioner's blue Honda. The interior of the Honda bore petitioner's fingerprints and those of Maria Jimenez; additional prints were not useable for identification purposes. The Honda's tires were visually consistent with tracks found in the asparagus field near her body. A second set of tracks was consistent with a Sebring Chrysler belonging to Cynthia Goddard, which had been at the Finck Road property on August 3. (Cynthia had been there with her boyfriend Belen Zamora, an associate of Conrado and Alfredo.) Jennifer's blood was confirmed on the couch at Beck's house, the missing couch cushions, the carpet and a comforter found in the house. Cell phone records showed that Jennifer and petitioner spoke several times on August 1 and 2. The last outgoing call Jennifer made was to petitioner on the morning of August 2.
The gun used to kill Jennifer, almost certainly a.38 revolver, was never recovered. A beer can found near her body bore traces of male DNA that did not come from petitioner or Beck; it was not tested against Conrado Zavala or Alfredo Lopez.
The defense maintained that Conrado had killed Jennifer. When the police arrived at the Finck Road property on August 3, Conrado fled because, as he told Officer Ramos upon his apprehension, "I don't want to be implicated in no homicide." According to Alfredo, Conrado had told him that he was upset because Jennifer was using him for drugs. Conrado had once said he would kill anyone who stole from him. Alfredo testified that Conrado had a reputation as someone not to "mess with."
At trial, Conrado asserted his Fifth Amendment right and refused to answer almost every question, notwithstanding having been offered a limited immunity deal. Outside the jury's presence, the trial court held Conrado in contempt and sentenced him to five days in jail. The defense argued to the jury that Conrado's refusal to testify indicated his guilt.
On May 4, 2007, the jury found petitioner not guilty of first degree murder but guilty of second degree murder. The jury found not true the allegation that petitioner had personally discharged a firearm. Petitioner was found guilty on the felon in possession charge. Co-defendant Beck was acquitted on all counts. On June 25, 2007, petitioner was sentenced to an aggregate term of fifteen years to life, plus eight months.
Petitioner timely appealed, and the California Court of Appeal for the Third Appellate
District affirmed the conviction in an unpublished opinion filed December 31, 2008. Lodged Doc. 4. Petitioner's timely petition for review was denied by the California Supreme Court on March 31, 2009. Lodged Doc. 6.
On January 26, 2010, petitioner filed a petition for writ of habeas corpus in the San Joaquin County Superior Court. Lodged Doc. 7. That petition, which alleged ineffective assistance of trial counsel, was denied on March 4, 2010, on grounds that petitioner had failed to include copies of reasonably available documentary evidence. Lodged Doc. 8.
On February 9, 2010, while his superior court petition was pending, petitioner filed a habeas petition in this court. ECF No. 1. Because the petition contained one exhausted claim and two unexhausted claims, the court ordered petitioner to file either a motion to stay or an amended petition presenting only his exhausted claim. ECF No. 6. Petitioner sought a stay of the proceedings pending further exhaustion, which was granted on June 1, 2010. ECF No. 9 (order administratively staying the case).
On April 21, 2011, petitioner filed another habeas petition in the San Joaquin County Superior Court. Lodged Doc. 9. It was denied on July 6, 2011 in a written order. Lodged Doc. 10. Petitioner next filed a habeas petition in the California Court of appeal, Lodged Doc. 11, which was denied without comment or citation on December 15, 2011, Lodged Doc. 12. Petitioner thereafter filed a habeas petition in the California Supreme Court on February 6, 2012. Lodged Doc. 13. That petition was denied without comment or citation on May 23, 2012. Lodged Doc. 22.
During the midst of his state court proceedings, on December 9, 2011, petitioner filed a Second Amended Petition in this court. It included the three claims petitioner was pursuing in state court but omitted the one claim that had been previously exhausted on direct appeal. On respondent's motion, the claim of ineffective assistance of appellate counsel was dismissed with prejudice as untimely. ECF No. 32 (Findings and Recommendations), ECF No. 35 (order adopting Findings and Recommendations). Petitioner was granted leave to file a third amended petition.
The operative Third Amended Petition, ECF No. 33, contains the insufficiency of the evidence claim that was exhausted on direct appeal and the Confrontation Clause and ineffective assistance of trial counsel claims that were exhausted in state habeas during the stay of proceedings in this court. Respondent has answered these claims on the merits, asserting no procedural defenses. ECF No. 40.
STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA
28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides in relevant part as follows:
(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.
The statute applies whenever the state court has denied a federal claim on its merits, whether or not the state court explained its reasons. Harrington v. Richter , 131 S.Ct. 770, 785 (2011). State court rejection of a federal claim will be presumed to have been on the merits absent any indication or state-law procedural principles to the contrary. Id. at 784-785 (citing Harris v. Reed , 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis)). ...