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Foley v. Kernan

United States District Court, S.D. California

September 1, 2017

GREGORY FOLEY, Petitioner,
SCOTT KERNAN, Secretary, et al., Respondents.


          Hon. Bernard G. Skomal United States Magistrate Judge.

         Gregory Foley (hereinafter “Petitioner”) is a state prisoner proceeding pro se and in forma pauperis with a Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. (ECF No. 1.) He challenges his San Diego Superior Court convictions for two counts of elder abuse likely to cause great bodily injury (one involving his mother and the other his father), and one count of resisting an officer with violence, which included jury findings that he used a deadly or dangerous weapon in all counts and inflicted great bodily injury on his mother, for which he was sentenced to twelve years and four months in state prison. (Pet. at 1-2.)[1] Petitioner claims there is insufficient evidence to show he attacked his father with force likely to cause great bodily injury (claim one), the trial court erred in finding his mother incompetent to testify (claim two), the hammer he used to strike his father was illegally seized (claim three), his brother testified falsely (claim four), the arresting officers used excessive force and committed perjury (claim five), the chain of custody of the hammer was improper (claim six), and he received ineffective assistance of trial counsel (claim seven).[2] (Id. at 26-60.)

         Respondent has filed an Answer and lodged portions of the state court record. (ECF Nos. 26-27.) Respondent contends that claim one is the only claim which was adjudicated on the merits in state court, and argues that the state court adjudication is neither contrary to, nor involves an unreasonable application of, clearly established federal law, and is not based on an unreasonable determination of the facts. (Memo. of P&A in Supp. of Answer [“Ans. Mem.”] at 11-13.) Respondent argues that the remaining claims are unexhausted because they were presented to the state supreme court in a petition for review on direct appeal without first being presented to the appellate court, thereby depriving the state court of a fair opportunity to address them, but they should be denied notwithstanding the failure to exhaust because they are without merit. (Id. at 13-18.)

         Petitioner has filed a Traverse. (ECF No. 36.) He requests an evidentiary hearing and presents new claims of cumulative error and ineffective assistance of trial counsel. (Traverse at 7-55.) Petitioner did not explicitly identify a federal basis for his claims in the Petition, and clarifies in the Traverse that his claims are based on violations of his rights under the Fourth, Fifth, Sixth and Fourteenth Amendments. (Id.)

         For the following reasons, the Court finds that the state court adjudication of claim one is neither contrary to, nor involves an unreasonable application of, clearly established federal law, and is not based on an unreasonable determination of the facts. The Court finds that the remaining claims should be denied irrespective of a failure to properly present them to the state court because they fail under a de novo review. Finally, the Court finds that an evidentiary hearing is not warranted, and recommends denying the Petition.


         In a four-count amended information filed in the San Diego County Superior Court on July 23, 2014, Petitioner was charged with attempted murder in violation of California Penal Code §§ 187(a) and 664 (count one), two counts of willful cruelty to an elder or dependent adult with great bodily injury in violation of Penal Code § 368(b)(1) (counts two and three), and resisting an officer in violation of Penal Code § 69 (count four). (Lodgment No. 1, Clerk's Transcript [“CT”] at 5-7.) The amended information alleged that Petitioner personally inflicted great bodily injury during the commission of counts one and two within the meaning of Penal Code § 12022.7(c), and personally used a deadly or dangerous weapon (a hammer during the commission of count three and a knife as to all other counts) within the meaning of Penal Code § 12022.3(b)(1). (Id.)

         On August 6, 2014, the jury indicated they were deadlocked on attempted murder, and a mistrial was declared as to count one. (CT 189.) The jury found Petitioner guilty on all remaining counts and returned true findings on all of the great bodily injury and weapon use allegations. (CT 187-89.) On September 4, 2014, he was sentenced to twelve years and four months in state prison. (CT 191.)

         Petitioner appealed, raising claim one presented here. (Lodgment No. 4.) The appellate court affirmed. (Lodgment No. 6, People v. Foley, No. D066567, slip op. (Cal.App.Ct. Aug. 12, 2015).) Petitioner filed a pro se petition for review in the state supreme court presenting all of the claims raised in his Petition here, which was summarily denied on November 24, 2015. (Lodgment Nos. 7-8.)


         Presentation of evidence at Petitioner's trial began with the jury hearing recordings of two 911 emergency calls placed by Beverly Foley, Petitioner's mother, on September 1, 2013. (Lodgment No. 3, Reporter's Tr. [“RT”] at 111-12.) Transcripts are in the record. (Lodgment No. 2, Supplemental Clerk's Tr. at 7-13.) In the first call, placed at 5:08 p.m., Beverly asked the police to respond because her son is “acting up and threatening as usual.” (Id. at 8.) In the second call, placed at 6:09 p.m., Beverly is heard saying that her son had attacked her with his fists, that he had a knife, and that she was bleeding to death. (Id. at 11-12.) A male voice can be heard in the background just before the call is disconnected saying: “You're dead. You're fucking dead.” (Id. at 12.)

         Petitioner's trial counsel requested a competency hearing to establish Beverly Foley's competence to testify at trial, contending that at the preliminary hearing she was unable to recall the events of September 1, 2013, had difficulty tracking questions, gave inappropriate responses, and believed she still lived at home despite the fact that she currently lived in a secure dementia facility. (CT 19.) The Court held a competency hearing outside the presence of the jury at which Beverly Foley testified. (RT 21-45.) Beverly identified Petitioner as her son but asked several times “why are we here?” and “what's this all about?”, asked if Petitioner was “on trial for something?”, did not know what day of the week it was, thought her husband was at home although he had died six months earlier, was not aware that she lived in a secure dementia facility or that she had been diagnosed with dementia, and did not remember the events of September 1, 2013. (RT 23-37, 42.) The trial judge determined that she no longer had any personal knowledge of the events at issue, and would be permitted only to identify Petitioner as her son, which she did in front of the jury. (RT 49, 68.)

         The parties stipulated that Milford Foley, Petitioner's father, died at the age of 86 on January 11, 2014, of natural causes unrelated to the September 1, 2013 incident. (RT 439.) His preliminary hearing testimony was read to the jury. (RT 106-07.) The appellate court noted that Milford “had some difficulty testifying, ” and that “his testimony was not entirely clear . . . [and] . . . was problematic and somewhat inconsistent.” (Lodgment No. 6, People v. Foley, No. D066567, slip op. at 3-5.) Milford testified that he was in his bedroom half asleep about 6:30 p.m. on September 1, 2013, rather than in the living room, because his son, who he identified in court as Petitioner, had been drinking rum and coke, and every time Petitioner drinks rum and coke he ties a sheet to the banister and tries to kill himself. (Lodgment No. 9, Preliminary Hearing Tr. at 49-50.) Milford said he locked himself in his bathroom that day, which was inside his bedroom which he had also locked, and that Petitioner broke both locks and “had a God damn knife or a hammer and beat on me. And I bit him on the left arm” which caused him to drop the hammer. (Id. at 51-53.) He said Petitioner stabbed him in the back, hit him with an old claw hammer from the garage, and then put his knee on his neck and pinned him to the floor which caused him to pass out. (Id. at 53-56, 58-59, 64-65.) When he awoke, the police were there. (Id. at 56.) Milford said he tried to warn his wife downstairs but was unable to do so. (Id. at 58.)

         Christopher Foley testified that Petitioner is his brother, Beverly Foley is his 82 year old mother, his father Milford Foley is dead, and that he and Petitioner have a younger sister and an older half-sister. (RT 70-72.) He said Beverly and Milford purchased a house at 4525 Milano Way in Oceanside, California in the mid-1990s, and that Petitioner moved in with them in January 2013. (RT 71-72.) Christopher said Beverly currently lives in a secure dementia ward because she requires constant monitoring, and although Beverly had begun showing signs of dementia prior to September 2013, her dementia became much more severe as a result of the events of September 1, 2013. (RT 75-76.) He said Milford had a stroke in June 2013, and thereafter had severe difficulty speaking. (RT 76-77.)

         Christopher said Petitioner was currently in line to inherit twenty-five percent of Beverly's estate upon her death, about $250, 000, and he did not want Petitioner “to have a single nickel” of the money because of “what happened in this case.” (RT 77-78.) On September 2, 2013, Christopher, his girlfriend and his sister went to his parents' house to “clean up all the blood.” (RT 79.) He said his girlfriend found a hammer at the foot of Petitioner's bed with blood and several of his mother's hairs on the handle, which they immediately placed into a bag and turned over to the police. (RT 79-81, 88.) On September 9, 2013, Christopher took Beverly to the emergency room after she had thrown a glass of water at Milford, and because she was threatening to hurt relatives and strangers. (RT 85-86.) He never had to take her to the hospital for aggressive behavior before, and noticed a decline in her mental health after September 1, 2013. (RT 90.)

         Mary Altomare testified that she has lived in the house next to Beverly and Milford Foley for thirteen years and has known the Foleys for twelve years. (RT 92.) She said they were an elderly couple whose arguments were a regular occurrence, with Beverly typically yelling at Milford. (RT 93, 103.) On one occasion, in April or May of 2013, Altomare was in her bedroom looking down on the Foley backyard when she heard Beverly yell at Milford that he was not pruning a tree properly, and then saw Beverly strike Milford in the face and knock off his glasses. (RT 93-94.) She never saw Milford yell at or strike Beverly. (RT 94.) Altomare said Petitioner moved in with the Foleys in early 2013, and in May or June of 2013 she saw Petitioner walk into the garage and heard Milford, who was just inside the garage, tell him: “You've been drinking. I told you you're not allowed to come in the house if you're drinking.” (RT 95-98.) Altomare then saw Petitioner shove Milford aside with two hands on Milford's chest and enter the house, and then heard yelling inside the house. (RT 99-101.)

         Mark Wheeler, an Oceanside Police Officer, testified that he responded to 4525 Milano Way in Oceanside on September 1, 2013, just after 5:08 p.m. (RT 115.) Beverly Foley, an elderly female, answered the door, appeared uninjured, and said “they're at it again, ” which he took to be a reference to her husband Milford Foley and her son Petitioner. (RT 116.) Officer Wheeler spoke to Petitioner, who appeared uninjured and said he had been in a verbal argument with his father. (RT 117.) Milford was not cooperative but did not appear injured. (RT 118.) After ensuring that everyone was safe and advising Beverly that she could obtain a restraining order against her son if she wished to have him removed from the house, Officer Wheeler left. (RT 119.)

         Officer Wheeler responded to the house again about an hour later in response to a second 911 call, and was the first officer on the scene. (RT 119-20.) Beverly was leaning against a vehicle inside the open garage, covered in blood with a swollen face and multiple cuts. (RT 122-23.) He asked her who had done that to her, and she said it was her son. (RT 125.) Officer Wheeler's supervisor Lieutenant Cosby arrived and moved Beverly to a police car for safety. (RT 123.) Officer Wheeler remained standing about five feet outside the open garage waiting for backup when Petitioner opened the front door. (RT 124.) Office Wheeler ordered Petitioner to come outside, and he responded: “Fuck you. Come in and get me, ” and slammed the door. (RT 125.) Officer Wheeler was concerned that Petitioner had a weapon because Beverly looked as though she had been slashed with a knife, so he waited for back up to arrive. (RT 126-27.).

         Officer Wheeler drew a diagram of the interior of the house for an entry team based on his previous visit that day, and the house was surrounded. (RT 127.) Attempts were made to have Petitioner and Milford exit the house, including telephone calls which went unanswered and loudspeaker announcements which were ignored. (RT 129.) After those attempts failed, Officer Wheeler remained at the front door as an entry team entered the house. (RT 128.) During the ensuing thirty to forty-five seconds he heard continuous verbal commands of: “Oceanside police. Get down. Stop, ” heard four or five 40-millimeter non-lethal rounds being fired, which he said are essentially small rubber balls, and heard one rifle shot. (RT 128-30.) Officer Wheeler then entered the house and saw the entire entry team struggling with Petitioner in his second floor bedroom. (RT 131-32.) Officer Wheeler kicked in the locked door of Milford's bedroom and found him in his bathroom bleeding from an open wound to his back and scratches on his arms, injuries which Milford did not have when Officer Wheeler had visited an hour earlier. (RT 132-34.) He said that Milford was uncooperative, did not want to show the officers his injuries, and had to be physically removed from the bathroom. (RT 134.)

         Leonard Cosby, a Lieutenant with the Oceanside Police Department, testified that he was the Watch Commander on the evening of September 1, 2013, and responded to a 911 dispatch where he found an elderly woman seated on the back of a vehicle in a garage with blood flowing copiously from the top of her head to her shoulders and dripping on the ground. (RT 165-69.) The woman, Beverly Foley, when asked: “How did this happen?”, told Lieutenant Cosby that: “My son did it with his hands and fists.” (RT 171.) A SWAT team was summoned because there was another potential victim in the house, and the officers unsuccessfully tried to contact the occupants before entering. (RT 173-75.) After the SWAT team entered, Lieutenant Cosby heard three “pops” which he associated with 40-millimeter non-lethal rounds, and then heard a rifle shot. (RT 176.)

         Ronald Nevares, an Oceanside Police Officer, testified that he made the phone calls and loudspeaker announcements in a failed attempt to have the residents of the house come outside. (RT 188-89.) As he was standing in the garage he heard the crisis entry team make announcements to: “Drop the weapon. Drop the knife. This is the Oceanside Police Department with a K9. Put your hands up.” (RT 189.) He heard 40-millimeter rounds fired followed by a rifle shot, and entered the residence where he saw blood and a knife, and saw Petitioner, who looked as though he had been bitten by a police dog, having his wounds treated. (RT 190-91.)

         Larry Weber, an Oceanside Police Officer, testified that he was Officer Nevares' partner on September 1, 2013, and was told by Beverly Foley that her elderly husband was mentally able to comprehend the instructions to exit his house and was physically capable of doing so. (RT 197-98) Officer Weber entered the house with five other members of his SWAT team, which included a K9 officer. (RT 204-05.) The SWAT team consisted of Officer Kaldenbach, the designated lethal-use officer armed with an AR-15 automatic rifle, Officer Weber as the designated less lethal-use officer armed with a 40-millimeter launcher which fires a hard rubber sponge the equivalent of a baton strike, an officer designated to give voice commands, an officer designated to place handcuffs on the suspect, and a K-9 officer, all with the goal of using the least amount of force necessary to end the crisis. (RT 203-07.) Upon entering the house, they observed drag marks through blood on the kitchen floor, and saw Petitioner at the top of the stairs. (RT 209-11.)

         Petitioner was holding a kitchen knife in his right hand raised over his head, and he told the officers: “Get out of my house.” (RT 212.) Officer Weber ordered Petitioner to drop the knife and launched a 40-millimeter round which hit Petitioner in his right leg. (RT 212-15.) The 40-millimeter round had no effect, and two officers went several steps up the staircase ahead of Officer Weber before he fired a second 40-millimeter round. (RT 219-20.) He did not know if the second round hit Petitioner, who was pacing back and forth at the top of the stairs holding the knife and pointing it towards the officers despite repeated commands to drop the knife. (RT 221.) Petitioner was not stumbling or slurring his words. (RT 222.) Officer Weber fired a third 40-millimeter round which again struck Petitioner in his upper leg and again had no effect. (RT 224-25.) Another officer then launched a 40-millimeter round at Petitioner just as Officer Kaldenbach fired his AR-15 rifle, and Petitioner ran into his bedroom. (RT 225-26.)

         Officer Weber said he looked through the open bedroom door and saw Petitioner sitting on his bed with the knife still in his hand raised above his head, and Petitioner again ignored commands to drop the knife. (RT 226.) An officer launched another 40-millimeter round which struck Petitioner in the stomach, which caused him to throw the knife on the bed. (RT 227-28.) Officer Weber said the ensuing struggle to restrain Petitioner was “chaotic” because he was actively resisting being restrained by kicking and throwing punches at the officers, even after the K9 dog had latched on to him, all the while with the knife still within his reach. (RT 228-29.) Officer Weber then struck Petitioner in his torso with the muzzle of his 40-millimeter launcher, which allowed the officers to handcuff him, and they began treating him for the gunshot wound to his back. (RT 229-31.) While Officer Weber was standing next to Petitioner waiting for the medics to arrive, Petitioner said: “I just want to die.” (RT 232.) Officer Weber said he had very successfully shot younger, fitter men with his 40-millimeter launcher in the same manner as Petitioner, and was surprised it had no effect on him. (RT 251-52.)

         Corey Kaldenbach, an Oceanside Police Officer, testified that he made entry into the house with the SWAT team after verbal efforts to evacuate the occupants had failed. (RT 260-61.) While they were clearing the first floor, an officer yelled “suspect” and Officer Kaldenbach looked up the stairs and saw Petitioner with a knife in his right hand. (RT 261-62.) The officers went up the stairs single file with Officer Weber in front and Officer Kaldenbach second. (RT 263.) Petitioner had the knife in his hand, was pacing back and forth at the top of the stairs, and ignored ten or fifteen commands to drop the knife. (RT 263-64.) Petitioner was about four or five feet away from the officers, where he was able with one quick lunge to make contact with them, and repeated several times: “You don't need to be here. I already cut myself. Go away.” (RT 266, 300.) He was not slurring his words or stumbling, but was swiping the air with the knife as five or six 40-millimeter rounds hit him without any effect, which surprised Officer Kaldenbach. (RT 268.)

         Petitioner walked toward the officers, and then turned and walked toward the bedrooms where Officer Kaldenbach had been told Petitioner's father might be, and someone yelled: “Don't let him get to the bedroom, ” so Kaldenbach shot Petitioner in the back left shoulder with his AR-15 rifle. (RT 269-70, 281-82.) Petitioner flinched and crouched down out of sight and the officers pushed forward. (RT 271.) When they reached the landing Petitioner was not there, but they saw him in his room standing with his back to them. (RT 272.) Petitioner was moving the knife in his right hand around the left side of his neck, and was hit in the back with a 40-millimeter round which spun him around. (RT 273-75.) He sat down on the bed and threw the knife on the bed within his reach. (RT 275-76.) He ignored the commands to lay down on the floor with his hands out, and when he reached for the knife he was struck by a 40-millimeter round in the stomach. (RT 276-77.) Petitioner started to close the door, and Officer Trabelsi released the K9 officer named Max. (RT 277-78.) Officer Max latched onto Petitioner's right arm, and Officer Trabelsi grabbed the knife off the bed and threw it across the room. (RT 278-79.) The team attempted to handcuff Petitioner but he kicked and punched the officers, including Max. (RT 280.) Officer Kaldenbach struck Petitioner in the face with his fist two or three times without effect. (RT 280-81.) The officers subdued Petitioner after each officer grabbed an arm and a leg, and then put direct pressure on the gunshot wound to his back shoulder blade. (RT 281-82.)

         Steve Stracke, an Oceanside Police Detective assigned to the Family Protection Unit, testified that he responded to the scene about thirty minutes after the second 911 call was received. (RT 302.) He met Beverly Foley, an elderly woman, who was covered in blood with her right eye swollen shut. (RT 303.) He tried to obtain a statement from her but she was barely conscious and unable to say anything other than her name. (RT 304.) He secured the scene, obtained a search warrant, and accompanied the field evidence technician to collect evidence, which included taking photographs which were shown to the jury. (RT 305-22.) No hammer was found in Petitioner's bedroom, which Detective Stracke said was littered with copious amounts of medical waste. (RT 327-28.)

         Fady Nasrallah, surgical specialist in trauma and critical care, testified that he was called in to consult when Beverly Foley was brought to the hospital on September 1, 2013. (RT 365.) Beverly had three cuts to her scalp, three to her forehead, and two to her right cheek; she had bruising and swelling to the right cheek related to a fracture of the right cheekbone and a fracture of the right eye socket. (RT 366-67.) She had a minor cuts to her left hand, deeper cuts to her right hand, and a deep cut to her left elbow, all which appeared to be defensive wounds. (RT 367, 383.) Dr. Nasrallah said that Beverly suffered from concussion and dementia. (RT 393-94.)

         That same day, Dr. Nasrallah treated Petitioner for a gunshot wound to his shoulder, a dog bite to his forearm, and small superficial knife cuts to his neck. (RT 376-78.) He had an entry wound from a bullet, but no exit wound, and a CAT scan revealed eight bullet fragments in his body, which Dr. Nasrallah said was typical when a bullet hits a bone. (RT 387-88.) Petitioner had a blood alcohol content of .23 percent, which could cause a person unaccustomed to drinking to be “falling over and peeing on themselves, ” but Dr. Nasrallah, who had treated severely intoxicated persons before, said Petitioner did not appear to be drunk, which could be explained if he had acquired a tolerance to alcohol. (RT 394-95.)

         Neil Tomaneng, an emergency physician, treated Beverly Foley on September 9, 2013. (RT 333-34.) Beverly was brought in by her son Christopher and her daughter for a psychiatric evaluation because they said she had become violent and was exhibiting angry mood swings ever since she had been attacked a week earlier. (RT 334-37.) They said she had been exhibiting combative and unusual behavior for the past year and a half, but had become more hostile toward her husband and their guests in the past week, and had started carrying a knife around with her. (RT 337-38.) Dr. Tomaneng said Beverly did not know why she had been brought to the hospital, and was transferred to a psychiatric facility where she was diagnosed with acute traumatic stress disorder. (RT 338-39.) He opined that Beverly had suffered a concussion which exacerbated her dementia. (RT 341.)

         Petitioner had a prior misdemeanor conviction for elder abuse of his parents arising from events several months earlier, and evidence leading to that conviction was presented to the jury. Johnathan Kislingbury, an Oceanside Police Officer, testified that he responded to the Foley house about 8:05 p.m. on April 19, 2013, in response to a call of a family disturbance. (RT 347.) As he approached the front door, he heard a male voice yell: “Be quiet, go to bed.” (RT 348.) Beverly Foley, an elderly woman, answered the door; she appeared scared and upset, and motioned Officer Kislingbury into the house where he saw a broken flower pot on the floor and Petitioner in the kitchen. (RT 348-49.) Beverly seemed afraid to speak in front of Petitioner, so Officer Kislingbury took her to another room, where she spoke quietly and seemed confused and frustrated that he would not just take Petitioner into custody. (RT 351-52.)

         Officer Kislingbury went upstairs and encountered Milford Foley, an elderly man holding a flashlight looking scared. (RT 352-53.) Milford walked from his bedroom very slowly and deliberately and told Officer Kislingbury that he did not want to be around Petitioner because he was verbally abusive and threatening when he has been consuming alcohol. (RT 354.) Milford lifted his sleeves and showed Officer Kislingbury injuries he said were caused by Petitioner, including contusions, bruises, and skin tears on both arms. (RT 355.) When asked if he was afraid, Milford said no, not really, because he was able to lock himself in his bedroom to avoid Petitioner. (RT 356.) Petitioner then yelled at Beverly that if he was arrested he would have no choice but to put her and Milford in a nursing home, which upset Beverly, who immediately asked Officer Kislingbury not to arrest Petitioner. (Id.) The parties stipulated that on April 22, 2013, Milford and Beverly Foley contacted the San Diego District Attorney's office and made the following request: “We wish to drop charges. Father partly to blame for trying to get him into his room.” (RT 359.) The People rested. (RT 397.)

         The parties stipulated that DNA testing of blood stains found on the handle and blade of the knife matched Petitioner's DNA profile and excluded Beverly and Milford Foley, and blood stains on the head of the hammer matched the DNA profiles of Beverly and Milford and excluded Petitioner as a contributor. (RT 447-48.) Petitioner testified that four or five years before he moved in with his mother and father in January 2013, his mother came to him, showed him bruises, and said her husband had been hitting her for most of their marriage. (RT 449-50.) Petitioner said the property and assets of his parents are in an irrevocable trust benefiting Petitioner and his brother Christopher only, Beverly having removed their two sisters as beneficiaries several years earlier due to a conflict between the sisters and Beverly. (RT 451.) He said that when he first moved in with his parents, they got along fine for the first couple of months, but then began arguing about Beverly wanting to go places and Milford wanting to stay home. (RT 452.) Petitioner said his mother suffers from dementia, and that his father exhibits similar strange behavior, such as hiding in his closet at times. (RT 452-53.)

         Petitioner said that on the evening of April 19, 2013, when the police were called to their home and arrested him, his parents had been arguing all day and he was trying to be a go-between, but Beverly did not like him doing so for some reason. (RT 453.) Petitioner said Milford's injuries that day were caused by Beverly grabbing and hitting him. (Id.) He did not tell that to the police because he was trying to protect his mother, just as he was trying to protect her when he admitted in court on April 24, 2013, that he had willfully and unlawfully caused an elder to suffer in that incident. (RT 453, 481-82.)

         Petitioner said that on September 1, 2013, his parents had been arguing all day, but without any physical violence, and he was in his bedroom that afternoon drinking 7-up and rum when he heard them arguing in the backyard. (RT 456-57.) He attempted to mediate the dispute but Beverly insisted Milford do yard work in the backyard, which Milford did not like to do, so Petitioner watched television downstairs and continued drinking. (RT 457-58.) They resumed arguing a couple of hours later, and when the police arrived in the late afternoon for the first time that day he thought they were there because of their arguing. (RT 458-59.) Petitioner told the police to speak to his parents, and they left. (RT 459.)

         Petitioner said that about half an hour later his parents started arguing again in the backyard, much louder, and they came in the house screaming at each other. (RT 459-60.)

         Petitioner said he went into the kitchen and saw them struggling over a kitchen knife, with Beverly holding the knife and bleeding, and Milford trying to grab her hands. (RT 460.) Petitioner was afraid someone was going to be killed, so he grabbed Milford, told him to leave the kitchen, and told Beverly to give him the knife. (RT 460-61.) Beverly had a frightening look in her eyes, as if she was looking at Petitioner but could not see him, and she did not answer him, so he pushed her on the shoulder. (RT 461-62.) She spun around, hit a rounded corner of a counter and dropped the knife. (RT 462.) Petitioner kicked the knife aside and tried to help Beverly to her feet, but she replied: “No. Leave me alone. I'm calling the police.” (RT 462-63.) Beverly called the police from the kitchen as Petitioner picked up and held the knife to make sure it was “secure.” (RT 463-64.) He denied ever having a hammer. (RT 464.) When Beverly spoke to the 911 operator, instead of accusing her husband like he assumed she would, Petitioner was shocked to hear her tell the police that he had attacked her. (RT 463-64.) Petitioner said he got mad at that point, which is why his voice can be heard on the 911 tape saying: “You're dead. You're fucking dead.” (RT 465.) He said it was just a figure of speech and he never intended to hurt her, but was just upset and had “had enough.” (RT 465, 493.) He denied ever punching her or cutting her with the knife. (RT 464-65.)

         Petitioner said he knew the police were coming so he went upstairs, still holding the knife to keep it “secure, ” and looked for Milford in Milford's bedroom, but did not see him. (RT 466.) He went to his own bedroom, looked in the mirror, and decided that: “I didn't want to live anymore. . . . I didn't want to deal with it any longer. I was trapped.” (RT 466.) He said he stuck the knife in his throat but it was too dull to cut very deeply, and then he heard Milford yell: “Get out of my house.” (RT 466.) He said he did not remember going to the front door and telling the police officers to “fuck off and come and get me, ” and did not hear the loudspeaker announcements. (RT 467.)

         Petitioner said that when he came out of his room he encountered Milford standing by the stairs telling Petitioner to “get out of my house, ” and saw several police officers lined up halfway up the stairs. (RT 468.) The officers told Milford to go to his room and lock the door, which he did, and Petitioner stuck the knife in his throat again because he wanted to die. (Id.) He was then shot in the leg and stomach with rubber bullets, and because he had had “enough, ” he turned around, walked into his bedroom, and threw the knife on the floor up against the closet. (RT 468-69.) He knew it was over so he got on his knees, laid his torso across the bed with his hands behind his back, and was attacked by a dog. (RT 469, 480-81.) The dog grabbed his right arm and began shaking him like a rag doll while he gave no resistance whatsoever. (RT 470.) The officers did not enter his room, apparently because they did not want to be in there with the dog either, but stood at the threshold. (RT 470-71.) The dog was eventually removed, the officers entered, and while Petitioner was giving “absolutely” no resistance to being restrained, he was shot in the back from two feet away. (RT 472-73, 509.) He asked the officer: “Why did you shoot me, asshole?”, and passed out. (RT 472.) He woke up as the paramedics were strapping him to a board, passed out again, and woke up in a helicopter. (RT 472-73.) Petitioner admitted that Beverly's dementia was worse when she testified at trial than before she was injured on September 1, 2013, and denied shoving Milford in the garage as described by their neighbor Mary Altomare. (RT 486-89.) The defense rested. (RT 512.)

         Mark Lavake, an Oceanside Police Detective, was called on rebuttal and testified that an officer-involved shooting investigation confirmed that Officer Kaldenbach's .223 caliber AR-15 discharged one round on September 1, 2013, and that no other officer's firearm fired a round that night. (RT 515-16, 527.) He testified that he would expect to see an exit wound in someone shot at close range with a .223 caliber AR-15 rifle. (RT 515.) He said that no bullet holes were found in Petitioner's bed or bedroom floor. (RT 516.) Although a bullet was not recovered from anywhere in the house, bullet holes were found in a wall and a ceiling of the house on a trajectory exactly as testified to by Officer Kaldenbach, that he shot Petitioner while Petitioner was on the upper landing of the stairs and Officer Kaldenhach was on the stairs looking up. (RT 517-22.) Detective Lavake said those bullet holes were consistent with the AR-15 rifle bullet fragmenting when it hit Petitioner. (RT 520.)

         After deliberating about a day and a half, the jury informed the court they were deadlocked on count one (attempted murder of Beverly), and a mistrial was declared as to that count. (CT 184-89.) The jury found Petitioner guilty of: (1) elder abuse likely to cause great bodily injury to Beverly Foley (count two), and found he personally used a deadly or dangerous weapon (a knife) during the commission of that crime, and personally inflicted great bodily injury on her; (2) guilty of elder abuse likely to cause great bodily injury to Milford Foley (count three), and found he personally used a deadly or dangerous weapon (a hammer) during the commission of that crime; and (3) guilty of resisting an officer with violence (count four), and found he personally used a deadly or dangerous weapon (a knife) during the commission of that crime. (CT 126-28.) Petitioner was sentenced to four years on count two, with a consecutive five-year enhancement for the weapon use finding and a consecutive one-year enhancement for the great bodily injury finding; a consecutive one-year term for count three, with a consecutive four-month enhancement for the weapon use finding; and a consecutive eight-month term on count four, with a consecutive four-month term for the weapon use finding, for a total term of twelve years and four months in state prison. (RT 713-15.)


         Petitioner claims that the evidence is not sufficient to support the conviction for elder abuse of his father because there is no evidence he attacked Milford in a manner likely to cause great bodily injury, and no evidence Milford sustained great bodily injury (claim one); the trial judge erred in finding his mother was not competent to testify because she was able to answer a few questions correctly and because competency is for the jury to decide (claim two); the hammer was illegally seized because his brother, his sister, and his brother's girlfriend were trespassing when they found it (claim three); his brother testified falsely because: (a) he testified he was present when the hammer was found despite a police report indicating he said he was downstairs when it was found, which also made his testimony regarding the finding of the hammer improper hearsay, (b) an object that size could not have been missed in the police search, and (c) he wished to prevent Petitioner from inheriting from their mother (claim four); the arresting officers used excessive force by using a rifle against an unresisting 150-pound, 56 year old man, and committed perjury regarding the shooting because he still has a 9 millimeter bullet in his body from that night, and their testimony and the crime scene evidence should have been excluded as “fruit of the poisonous tree” (claim five); the chain of custody of the hammer was improper and unprofessional because it was picked up with bare hands which contaminated it, and then put in a bag and left overnight on a counter (claim six); and he received ineffective assistance of trial counsel when counsel failed to challenge the police officers' false statements about the type of weapon he was shot with, and failed to object to the introduction of the photographs of blood at the scene because the source of the blood had not been established by scientific testing (claim seven). (Id. at 26-60.)

         Respondent answers that the adjudication of claim one by the state appellate court is neither contrary to, nor involves an unreasonable application of, clearly established federal law, and is not based on an unreasonable determination of the facts. (Ans. Mem. at 11-13.) Respondent argues that the remaining claims are unexhausted because they were presented to the state supreme court for the first and only time in the petition for review, ...

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