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Boode v. Johnson

United States District Court, N.D. California

May 1, 2015

D. K. JOHNSON, Warden, Respondent.


EDWARD M. CHEN, District Judge.


Shawndra Star Boode filed this pro se action for a writ of habeas corpus under 28 U.S.C. § 2254. The Court issued an order to show cause why the writ should not be granted as to four claims asserted in the petition. Respondent has filed an answer and Ms. Boode has filed a traverse. For the reasons explained below, the petition will be DENIED.


A. The Crimes

The California Court of Appeal described the events that led to Ms. Boode's conviction for murder and other crimes.

The prosecution's theory of the case was that on or about January 17, 2004, appellants shot and killed David and Catherine Brooks (Dave and Cathy), with whom they were acquainted, in order to steal approximately $380, 000 Dave had recently received in settlement for an on-the-job injury. The victims rented out rooms in their Hayward, California home to help with the rent. Boode rented a room from the couple. The victims told many people, including Boode, that they were expecting to receive a large sum of money. Each victim died from a gunshot wound to the head at close range.
Two of the prosecution's chief witnesses, Peter Elisary and Jeffery DeTar, each played a role in the murders and testified under grants of immunity.
Peter Elisary knew Rodriguez growing up and knew that he was one of the leaders of a criminal street gang. Elisary met Boode, who was also gang affiliated, in January 2004 while taking drugs with other people. At one time, he had a sexual relationship with her.
Boode told Elisary that Dave and Cathy were receiving a settlement check and that she planned to rob them. Elisary initially refused Boode's invitation to participate in the robbery, but he eventually relented because he had "feelings for her." Boode also asked Rodriguez to participate in the robbery. It was agreed that Rodriguez would be "the muscle" or the "enforcer, to handle everything."
On the night of the murders, Elisary and appellants ingested methamphetamine and discussed the robbery for about an hour. At about "two, three, four in the morning, " appellants, accompanied by Elisary, set out to commit the robbery. Elisary drove a white Camaro, which was borrowed from Rodriguez's sister. Boode was armed with a.357 revolver. Elisary parked the Camaro on a side street, out of sight from Dave and Cathy's residence. Appellants both got out of the Camaro and walked toward the residence while Elisary waited in the car.
Ten to fifteen minutes later, appellants "speedwalk[ed]" back to the Camaro and got into the car. Rodriguez appeared "[n]ervous" and Boode appeared "nervous and scared." Elisary drove the Camaro back to Rodriguez's residence. Boode immediately took a shower and Rodriguez showered next.
Boode described the murder to Elisary. Boode said she demanded money from Dave and then "she shot Dave in the back." She then heard a noise in the kitchen, turned and saw Cathy, chased Cathy into the bedroom, and "just shot her" in the "neck or facial area." Later, Rodriguez recounted his version of events to Elisary. Rodriguez stated he "went behind Dave and was choking Dave" with a string or cord. Rodriguez let Dave go, and Dave tried to attack Rodriguez. In an attempt to "make it look like a murder-suicide, " Rodriguez took the.357 revolver, cleaned it, and "put it in Cathy's hand and took a spent casing and put it on her hand."
Jeffery DeTar also had a role in the murders and testified at trial under a grant of immunity. During the relevant timeframe, he rented a room from Dave and Cathy in their residence. DeTar testified that Boode was present when Dave discussed the large disability settlement check he was expecting to receive. When the certified letter addressed to Dave arrived on January 14, 2004, DeTar answered the door and signed for it. Dave opened the letter and saw two checks. He then put the checks into a desk drawer. The next day, DeTar drove Dave to a liquor store to cash one check for $15, 073. DeTar drove Dave and Cathy to stores to buy clothes, cell phones, and video games.
Boode said she wanted to take the couple's money. DeTar agreed to assist Boode, who he was trying to impress, by alerting her when the couple was home alone. Nonetheless, DeTar warned the couple that Boode and Elisary planned to rob them but they just "blew it off that they wouldn't do it."
On Saturday, January 17, 2004, the couple returned from another shopping spree, and DeTar helped them unload. Thereafter, DeTar called Boode on her cell phone to report that the couple had arrived home and that DeTar planned to leave.
Later, DeTar took a telephone call from Boode, who said, "I got that bitch." DeTar also received four to five text messages from Boode. One text message received from Boode stated "777, " referencing a jackpot.
When they were face-to-face, Boode reported to DeTar "[t]hat she had had a wrestling match with Cathy in the hallway and that she had gotten her, that she had got her in the bedroom." Boode said that Dave "had been shot also." She explained "[t]hey didn't want anybody to be able to I.D. anybody." Boode claimed they had found a check for $500, 000.
After speaking with Boode, DeTar went to Dave and Cathy's residence and knocked on the door, but received no response. DeTar looked through the window of Dave and Cathy's bedroom and saw "blood and stuff on the wall" and a body "in between the dresser and the bed." Later, when the police were conducting an investigation, Boode instructed DeTar to tell police that there was a fight between Cathy and Dave, that Dave hit Cathy, and "it looked like a murder-suicide type thing."
At trial, Rodriguez's sister, Ana Rodriguez, claimed not to remember key portions of her out-of-court statement given to police about the murders. Specifically, Ana testified that she did not recall telling Sergeant Mark Stuart, the lead investigator in the case, that: (1) on the night of the murders, appellants and Elisary left in the white Camaro after Ana loaned them the car; (2) she saw Boode with a black gun; (3) she observed appellants and Elisary return in the white Camaro in the early morning hours of January 17, 2004; (4) after they returned, she observed Boode take her clothes off and put them into a garbage bag; (5) her brother, Rodriguez, told her that he was the lookout, that the victims were awake, that things got out of hand, and that the victims were screaming; (6) Boode showed her a check for over $200, 000; and that (7) Rodriguez tore up the check after Ana told him it was no good and that he should get rid of it.
The prosecution presented physical evidence that when the coroner's office moved Dave's body, they found a white telephone cord under his head and a black wool cap under his body. The knit cap yielded a "mixed DNA profile, " which meant that the DNA from multiple contributors was found on the cap. Rodriguez could not be excluded as a possible contributor to the DNA profile from the knit cap.
Neither appellant testified at trial. In appellants' defense, they argued that the prosecution witnesses had made numerous conflicting statements about the events in question, and could not be trusted to give reliable testimony. They characterized the prosecution's chief witnesses as longstanding methamphetamine users, whose testimony should be viewed as unreliable, self-interested, and otherwise untrustworthy. To support that theory, the defense presented the expert testimony of Dr. Stephen Pittel, a forensic psychologist, regarding the effects of methamphetamine abuse on a person's memory, perception, and general reliability. Dr. Pittel testified that long-term users of methamphetamine are "very, very unreliable in their memories because of the effect of the drug." He explained "their attention is wandering all over the place and they're constantly seeing and hearing things that other people aren't seeing and hearing."

Resp. Ex. A, California Court of Appeal Opinion ("Cal.Ct.App. Opinion"), ¶. 2-5.

B. Procedural History

A jury trial was held for Ms. Boode and Mr. Rodriguez in Alameda County Superior Court in 2010. Following the jury trial, Ms. Boode and Mr. Rodriguez were convicted of two counts of first degree murder. The jury also found true for both defendants the allegations of special circumstances of murder committed in the course of a robbery and with multiple victims, which elevated both counts to special circumstances murder for sentencing purposes. The jury also found true the allegations that Ms. Boode personally used a firearm in the commission of the murders, personally and intentionally discharged a firearm and caused great bodily injury on another person. Ms. Boode was sentenced to 120 years to life plus life in prison without the possibility of parole.

Ms. Boode appealed. The California Court of Appeal affirmed the judgment of conviction. See Resp. Ex. B. The California Supreme Court denied Ms. Boode's petition for review. See id.

Ms. Boode then filed this action. Her petition asserts four claims for federal habeas relief.


This Court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the petition concerns the conviction and sentence of a person convicted in Alameda County, California, which is within this judicial district. 28 U.S.C. §§ 84, 2241(d).


This Court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).

The Antiterrorism And Effective Death Penalty Act of 1996 ("AEDPA") amended § 2254 to impose new restrictions on federal habeas review. A petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's 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." 28 U.S.C. § 2254(d).

"Under the contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).

"Under the unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. "A federal habeas court making the unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable.'" Id. at 409.


A. Claim 1: Failure To Grant Requested Continuance

Ms. Boode's first claim concerns the trial courts' refusal to grant her motion for a continuance so that her new attorney could have more time to prepare for trial. In her original federal habeas petition, Ms. Boode identified this as a claim for "ineffective assistance of counsel." In her traverse, she identified this as a claim for a violation of her Sixth Amendment right to effective assistance of counsel and her Fourteenth Amendment right to due process. Compare Docket # 1 at 7 with Docket # 15 at 3, 9. In the California Supreme Court, however, she had identified the claim as one for a violation of her Fourteenth Amendment right to due process and had conceded that "counsel's eventual performance did not rise to the very high level of constitutionally ineffective' counsel set by Strickland v. Washington, " 466 U.S. 668 (1984). See Resp. Ex. B, Petition For Review, pp. 6, 12.

1. Factual Background

On October 20, 2009, Deborah Levy substituted in as counsel for Ms. Boode.[1] The judge promptly focused on trial preparation, as the codefendant was no longer waiving time on his right to a speedy trial. Ms. Levy stated that she had "a very small part of the discovery" from Ms. Boode. Resp. Ex. C at RT 2. Ms. Boode's former counsel (Mr. Giller) promised to deliver three boxes of discovery in four days and counsel for Mr. Rodriguez (Mr. Thews) promised to lend to Ms. Levy two binders containing the police reports the next morning so she could begin preparing her case. Although there were duplicate documents in the files, Mr. Giller estimated he had about three boxes of material, Mr. Thews estimated he had two boxes "and a couple of overflows, " and the prosecutor said he had about six boxes of materials, including one or two boxes of transcripts. See Resp. Ex. C at 1-5. The court asked how long Ms. Levy thought she would need to get through the materials for a first time, and Ms. Levy estimated it would be three to four weeks. The court said he wanted to have another hearing in two weeks, on November 4, "and we'll see how far away from a trial we are." Id. at RT 5. The court made findings that there was good cause to go beyond the sixtieth day of speedy trial time based on the substitution of counsel and the volume of material in the file.[2]

On November 4, 2009, the court again made a finding of good cause to go beyond the statutory speedy trial time limits, set a hearing on December 3 "for informal readiness, " and said that there would be a courtroom ...

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