United States District Court, E.D. California
FINDINGS & RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
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
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.)
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.)
filed a petition for review in the California Supreme Court,
which was denied on August 13, 2014. (LD 3-4.)
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).
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.)
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).
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.)
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.)
stay of these proceedings was lifted by order dated November
7, 2017. (ECF No. 23.)
filed its answer to the petition on February 5, 2018 (ECF No.
27) and petitioner filed a traverse on March 7, 2018 (ECF No.
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:
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
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
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”
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
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
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
“‘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
“‘Yes you are a (unintelligible) lying
“I responded with give me your keys that's out of
“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
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.
The defense rested without presenting evidence or testimony.
(People v. Luebbers, slip op. at 2-7.)
Standards for a Writ of Habeas Corpus
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).
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 ...