Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Luebbers v. California Department of Corrections and Rehabilitation

United States District Court, E.D. California

September 23, 2019

JOHN HAROLD LUEBBERS, Petitioner,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Respondent.

          FINDINGS & RECOMMENDATIONS

          KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his April 2012 conviction for first degree murder. Petitioner was sentenced to fifty years-to-life in state prison. Petitioner claims that trial counsel was ineffective for failing to call witnesses that could testify to facts supporting second degree murder and voluntary manslaughter, that petitioner was prepared to testify as to his state of mind, that counsel provided ineffective assistance of counsel for the court’s failure to instruct the jury regarding voluntary manslaughter, and that trial counsel was ineffective for conceding intent to kill and malice aforethought during closing arguments to the jury. After careful review of the record, this court concludes that the petition should be denied.

         II. Procedural History

         On April 24, 2012, a jury found petitioner guilty of first degree murder (Cal. Pen. Code, § 187(a)) and found true three separate gun use enhancements (Cal. Pen. Code, § 12022.53(b)-(d)). On June 15, 2012, petitioner was sentenced to fifty years-to-life in state prison. (LD 1; see also LD 7 at 601-602 & LD 8 at 8-9.)

         Petitioner appealed the conviction (LD 7 at 604) to the California Court of Appeal, Third Appellate District. (LD 15-17.) The California Court of Appeal for the Third District affirmed the conviction on May 6, 2014. (LD 2.)

         Petitioner filed a petition for review in the California Supreme Court, which was denied on August 13, 2014. (LD 3-4.)

         On November 12, 2015, petitioner filed the instant petition. (ECF No. 1.) Respondent moved to dismiss the petition as untimely and as presenting both exhausted and unexhausted claims. (ECF No. 7.) Petitioner opposed the motion, arguing it was timely due to a court holiday, and asked this court to stay the proceedings pending exhaustion of certain claims in the state courts. (ECF No. 13.) In response, respondent withdrew the motion to dismiss (LD 14) and petitioner filed a motion to stay these proceedings on May 2, 2016 (LD 16).

         Meanwhile, on May 18, 2016, petitioner filed a petition for writ of habeas corpus with the El Dorado County Superior Court. (LD 18.) That court denied the petition on May 25, 2016. (LD 19; see also ECF No. 18.)

         On June 13, 2016, the undersigned recommended the motion to stay be granted (LD 20) and the district judge issued an order staying these proceedings on August 8, 2016 (LD 21).

         Thereafter, on December 30, 2016, petitioner filed a habeas corpus petition with the California Court of Appeal, Third Appellate District. (LD 20.) The state appellate court denied the petition on March 10, 2017. (LD 21.)

         Finally, on or about June 29, 2017, petitioner filed a petition for writ of habeas corpus with the California Supreme Court. (LD 22.) The state’s highest court denied the petition on October 25, 2017. (LD 23.)

         The stay of these proceedings was lifted by order dated November 7, 2017. (ECF No. 23.)

         Respondent filed its answer to the petition on February 5, 2018 (ECF No. 27) and petitioner filed a traverse on March 7, 2018 (ECF No. 29).

         III. Facts[1]

         In its unpublished memorandum and opinion affirming petitioner’s judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

Prosecution Case–in–Chief
Louisiana Schnell School is an elementary school located in Placerville. Joy Fausel was the school secretary. Dawn Cooper was the office clerk. Kara Tracy was a paraeducator (instructional aide) and food service worker. Sam Lacara was the school principal. Defendant was the janitor.
A. Monday, January 31, 2011
On Monday, January 31, 2011, defendant was “in a fairly good mood.” Cooper and Tracy recalled defendant joking and laughing and recounting his golf game with Lacara the previous day.
That same day, Fausel, Lacara, defendant, and Superintendent Nancy Lynch prepared for interviews that were scheduled for the next day. The interviews were for the position of night janitor. Defendant was the day janitor.
B. Tuesday, February 1, 2011
On the morning of Tuesday, February 1, 2011, interviews for the night janitor position were conducted off campus at the district office. The interview panel included Lynch, Fausel, Lacara, and defendant. At the conclusion of the interviews, there was disagreement about who should be offered the position. Tension developed. Lynch, Fausel, and Lacara preferred one candidate, but defendant said he would not work with that person. Defendant preferred a different candidate. Later that morning, Lacara telephoned the candidates' references. To his surprise, neither candidate's references checked out.
In the early afternoon, defendant and Lacara had a confrontation outside the multipurpose room. Cooper and Fausel saw the confrontation from the main office. Defendant was yelling and pointing fingers; Lacara was angry too. They argued for five to 10 minutes.
Cooper spoke to defendant after the argument. He was visibly angry and initially waved her off but she went over and spoke with him. Defendant said that the politicians in the school district were “fucking liars” and that he was tired of them messing with things. He said, “they don't know who they are messing with but they will.” Cooper said, “that's enough” and left.
Tracy spoke to defendant at the end of her kitchen shift while he was cleaning the multipurpose room. Defendant looked angry and his face was red. Defendant was angry at Lacara, Fausel, and Lynch because they did not choose the candidate he preferred. Defendant said he would “show” Lacara.
C. Wednesday, February 2, 2011
Typically, Lacara would arrive at 7:30 a.m., spend time in his office, and then go to the front of the school to greet students from 8:30 a.m. to 9:00 a.m. On the morning of February 2, 2011, he did not go out to greet the students. He spoke with Fausel in his office for five to 10 minutes. Then he went to a location Fausel did not know.
Around 9:40 a.m., as Tracy was walking with children to a classroom, she heard defendant and Lacara arguing in defendant's office. She heard defendant loudly say “fuck” or “fucking.” She quickly moved the children away. When she got to her classroom, she saw defendant walk towards her building and then turn between two buildings and head toward a parking area. She heard him enter his truck, start the engine, and drive away. To drive from the school to defendant's residence takes approximately 11 to 13 minutes.
Later, back in the office, Lacara told Cooper and Fausel, “I've just had an argument with [defendant]. I've taken away his keys and sent him home to cool off.” Lacara then went to the cafeteria to get things ready for lunch. Lacara did not say that he had fired defendant, and Cooper never heard anyone assert that defendant had been fired. Although Lacara was the principal, he did not have the authority to terminate a school district employee without using an existing process.
Sometime later, while Cooper and Fausel were in the main office, they heard Lacara's office telephone and his cellular telephone ringing in succession; the successive ringings repeated approximately four times. Then Cooper's telephone rang and she answered it. The caller was defendant. He said, “hey Coopie, is Sam there?” Defendant did not sound angry and the conversation seemed normal. Defendant wanted to speak to Lacara, so Cooper put defendant on hold and contacted Lacara in the cafeteria by way of walkie-talkie. Lacara returned to the office and spoke with defendant on the telephone. The conversation started off quiet but, as it progressed, Lacara became angry and his tone of voice elevated while responding to defendant. Lacara said that he “was not a fucking politician” and “was not a fucking liar.” Fausel shut the door to Lacara's office to give him some privacy.
After the telephone call, Lacara left the office and went to Tracy's classroom for a scheduled classroom observation. He told the teacher for whom Tracy works that he was not going to do the observation and that he had other issues to take care of.
Around 10:30 a.m., Lacara's office telephone rang again. Then Cooper received a second telephone call from defendant. His demeanor again seemed normal. Defendant again asked to speak to Lacara. Cooper again contacted Lacara by walkie-talkie, and Lacara again returned to his office to take the call. Like the previous conversation, this one started out quiet and grew louder. Lacara said that he was “not a fucking liar, nor was he a fucking politician, ” nor was he “a political sellout.”
Seconds after the conversation ended, defendant entered the school office through a side door. His left hand was holding a cellular telephone up to his ear. His right hand was holding a gun. Defendant walked with a brisk and purposeful stride toward and into Lacara's office. Lacara was sitting behind his desk. Defendant positioned himself in front of the desk, held the gun with two hands, and pointed the gun at Lacara. Defendant said words to the effect of, “this is for you, mother fucker.” Defendant then fired three shots at Lacara. After the third shot, Fausel saw defendant leaning over Lacara's desk with his gun pointed downward.
Defendant turned around and saw Fausel. He said to her, “You fucking bitch” or “this one[']s for you, bitch” or “you're a part of this too, bitch.” He started to approach her with his gun pointed at her face. Fausel started to close her door and noticed a kindergarten student sitting at a desk outside her door. She grabbed the child and said, “come with me.” Then she pulled him into her office, pushed him onto the ground behind her, and slammed and locked the door.
Cooper, who sat in the main office, went under her desk. After a few moments Fausel and Cooper heard the side door open and close. Then it was quiet. Fausel crawled to the other side of her desk and telephoned 9–1–1.
Cooper went to Lacara's office to check on him. Lacara was lying on his stomach and forearms. He was moaning and trying to push himself up on his elbows. Cooper knelt beside him and tried to comfort him. She attempted to activate the school's lockdown alarm but it did not work. Then she placed a telephone call to all the rooms on campus. When the call ended she heard breath “whoosh” out of Lacara's body. As she stood there, she saw the first police officer arrive at the office door. Fausel opened the door for the officer.
Placerville Police Officer Duskin Franz was the first to arrive. He saw Lacara lying on the floor, unresponsive.
El Dorado County Sheriff's Detective Richard Strasser learned from radio broadcasts that defendant was the suspect. He drove to defendant's residence where he and other officers took defendant into custody. Defendant appeared lucid.
Placerville Police Officer Brody Jordan was the crime scene investigator. He collected a yellow notepad from Lacara's desk. Written on the notepad, in Lacara's handwriting, was the following:
“Opened door John I bought that toilet seat this morning.
“‘I don't give a fuck.’ John
“Then he proceeded to call me a (unintelligible) fucking politician, that I had it all planned out in interviews yesterday to take the district's choice,
“‘No I didn't that is not true, after all I've been through with you, you think I'm lying.’
“‘Yes you are a (unintelligible) lying politician’
“I responded with give me your keys that's out of line.
“He called the office and said what you are saying, your [sic] taking my job.
“(unintelligible) no (unintelligible).”
Officer Jordan saw a bullet hole in the top of Lacara's desk. An expended copper jacket round was under the desk.
Officer Jordan also collected evidence at defendant's residence. He collected a .357 magnum handgun from the master bedroom. Three expended shell casings and three live rounds were found in a trash can in the garage. Additional unfired ammunition was found in a small safe in the master bedroom. The shell casings in the trash can had the same manufacturing markings as the rounds found inside the safe. The round found in Lacara's office was the same bullet type as the other ammunition.
Criminalist Robert Wilson examined the handgun collected from defendant's residence. It did not have any malfunctions. The gun had fired the three expended shell casings found in the trash can.
Dr. Stephany Fiore, a forensic pathologist, performed an autopsy on Lacara. She found three bullet wounds: one nonfatal, one probably fatal, and one definitely fatal.
Defense
The defense rested without presenting evidence or testimony.

(People v. Luebbers, slip op. at 2-7.)

         IV. Standards for a Writ of Habeas Corpus

         An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

         Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.