Maraglino v. Espinoza

          ORDER: (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS; (2) DENYING REQUEST FOR APPOINTMENT OF COUNSEL; AND (3) DENYING CERTIFICATE OF APPEALABILITY

          Larry Alan Burns, United States District Judge

         I. INTRODUCTION

         Dorothy Maraglino (“Maraglino” or “Petitioner”), a state prisoner proceeding pro se, has filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition” or “Pet.”), challenging her San Diego Superior Court conviction in case number SCN304686 for first degree murder with special circumstance, conspiracy to commit kidnapping and kidnapping. (See Pet. at 1-2, ECF No. 3.) The Court has reviewed the Petition, the Answer and Memorandum of Points and Authorities in Support of the Answer, the lodgments, the Traverse and all the supporting documents submitted by both parties. For the reasons discussed below, the Court the Petition is DENIED.

         II. FACTUAL BACKGROUND

         The following statement of facts is taken from the California Court of Appeal opinion, People v. Maraglino, et al., ^[1] No. D69297, slip op. (Cal.Ct.App. Dec. 29, 2017).

         This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from those facts, are entitled to statutory presumption of correctness).

         The appellate court summarized the facts as follows:

On April 13, 2012, [Louis] Perez picked up [Brittany] Killgore from her apartment under the pretext of taking her on a dinner cruise. Ten minutes later, Killgore sent her friend a text message saying, “Help.” Four days later, detectives recovered her nude body near Lake Skinner in Riverside County. Evidence presented at trial suggested Killgore died while defendants were acting out a BDSM kidnapping fantasy. [Footnote 2: The acronym “BDSM” was used throughout trial to refer to “bondage discipline sadomasochism.” As described at trial, the BDSM lifestyle included defined roles of “master” and “slave, ” graphic fantasy writings, and the infliction (and receiving) of pain during “play” sessions.]

Perez, [Dorothy] Maraglino, and [Jessica] Lopez were active participants in the BDSM lifestyle, respectively occupying roles in their household of “master, ” “mistress, ” and “slave.” Perez and Maraglino were in a dominant-submissive relationship wherein Perez was the dominant and Maraglino was his submissive. Perez lived in a separate residence but often visited Maraglino at her home in Fallbrook, California. Lopez was Maraglino's slave and lived in Maraglino's home.

As a masochist, Lopez enjoyed receiving pain; Maraglino would inflict pain on her through BDSM “play.” Although a slave in the Maraglino household, Lopez had been a dominant in the past and in an ongoing online relationship with someone named Bella. Maraglino was a “switch, ” meaning she was submissive with Perez and dominant with Lopez. Maraglino established written procedures, including a “House Manual, ” “Perfect Slave Checklist, ” and slave contract. She controlled everything Lopez did inside and outside the home; Lopez wore a dog collar stating she was Maraglino's property. As Maraglino's master, Perez had control over Maraglino's household, including control over Lopez.

Perez was a sadist and enjoyed inflicting pain on others. In his past relationship, he choked Jonie L. almost every time they had sex and proposed to have her abducted by strangers. He also restrained Jonie L. during sex and dragged a heavy chain and knife across her body. There were times Jonie L. did not want Perez to engage in certain acts but did not feel that using her safe word would be effective. In a different relationship, Perez choked Angela .M. about 25 to 30 percent of the time during sex, either with his hands or with a belt. He told Angelena M. about kidnapping scenarios he had tried with others. One involved a group of men driving around and taking turns having intercourse with a female in the van; Perez asked Angelena M. to act as that female. Although there was testimony Perez was considered a “safe” player in the BDSM community who acted only with consent, detectives found a video of Perez beating a woman with various implements as she begged him to stop and continuing to beat her past the point of consciousness.

All three defendants had BDSM abduction, torture, and murder fantasies. Lopez's diary contained a ciphered writing in which she abducted, tortured, and killed someone she disliked, disposing of the body and dousing evidence with bleach. Maraglino authored a writing about abducting three generations of women, each one “prescribed a method of death” and subjected to sexual torture, torture, and forced suicide. Maraglino authored a separate writing, found in Perez's garage, in which she slit the throat of a woman while that woman was having sex with Perez. Maraglino made a handwritten list of “hunting ground[s]” for vulnerable victims that included ways to dispose of a body and avoid detection. Perez and Maraglino discussed their abduction fantasies with Dora B., another of Maraglino's slaves, on two or three occasions. At one point, Maraglino asked Dora how she would react if a kidnapped woman were brought to the home. Dora worried these fantasies “didn't always take consent into account, ” but she “wanted to believe that it was nothing more than a fantasy.” Perez and Maraglino acted out an abduction fantasy on Nicole A. Without prior agreement, Perez and Maraglino picked up Nicole in a parking lot, blindfolded her, undressed her in the “dungeon” in the basement of Maraglino's home, restrained her, and engaged in BDSM play. Thereafter, Nicole voluntarily joined the household for a short period as Maraglino's slave.

Perez and Maraglino had an open relationship, but Maraglino was paranoid about losing him to another woman. Nicole's relationship with Maraglino soured because Nicole communicated with Perez directly, rather than go through her. As their relationship deteriorated, Maraglino made threatening statements toward Nicole's daughter. When Perez began seeing Marina V., Maraglino talked about killing Marina and wanting her to die a torturous death; in an online forum, she threatened to kill Marina and Marina's daughter. Perez and Maraglino briefly broke up over Marina; they soon rekindled their relationship and in 2011 conceived a child.

Although there was some evidence the relationship between Perez and Maraglino became more conventional after they reunited, there was also evidence they remained involved in BDSM. Lopez remained Maraglino's slave. Maraglino kept her BDSM toys and, on the day of Killgore's disappearance on April 13, 2012, sent Deborah E. a text message about a forced lactation-torture fantasy. [Footnote 3 omitted.] On the day before Killgore's disappearance, Perez texted Alda E. about upcoming plans to engage in BDSM play with someone he did not like, which to Alda E. was a “very big red flag.” Alda E. told Perez not to go through with it, but he said it would give him “control to temper my feelings and not hurt [] someone I want to hurt badly.” Killgore's close friend, Elizabeth Hernandez, became friends with Maraglino in 2011. Hernandez would often visit Maraglino's home and bring Killgore with her. Killgore and Hernandez were not involved in BDSM, but both knew that defendants were. Although Maraglino was initially friendly with Killgore, she became hostile toward her after she perceived Killgore flirting with Perez. Maraglino called Killgore “the disease” and “the herpes” when she was not around; asked why Hernandez and Killgore were always together; and seemingly in jest, offered to get rid of Killgore for Hernandez. There was some evidence Maraglino wanted to recruit Hernandez into the BDSM lifestyle because Hernandez seemed impressionable and easy to control. On April 13, 2012, the day of Killgore's disappearance, Maraglino wrote a letter stating:

“I Dee [Maraglino] do hereby give to Ivan [Perez] all my grudges and revenge from my birth till [sic] now. I release my anger and entrust justice into Ivan's hands. I accept Ivan will decide, design, and dispense the measure of retribution he deems appropriate to my enemies, tormenters, and violators.”

Lopez appeared to have a better relationship with Killgore, but she, like Maraglino, called Killgore “the disease” and “herpes” and joked, on April 13, 2012, that she would make Killgore walk the plank at her pool party the next day.

On the afternoon of April 13, 2012, Hernandez visited Maraglino's home to return a camera charger. She stayed to socialize with Maraglino and Perez; Lopez was not home. Maraglino seemed excited to hear Killgore was going to move to the east coast, saying Hernandez would finally be “free.” Hernandez told Perez and Maraglino about her recent excursion on the Hornblower dinner cruise in San Diego. She said Killgore seemed very interested in going, and she wanted to take Killgore on a cruise before she moved. Hernandez recalled nothing out of the ordinary about her conversation. Perez and Maraglino did not mention having tickets or plans to go on a dinner cruise that evening.

Killgore and Hernandez lived in the same apartment complex on Ammunition Road in Fallbrook, as did friends Channy Tal [footnote 4 omitted] and Jessica Perry. At 4:38 p.m. [footnote 5: All times are p.m., unless otherwise noted.] on April 13, 2012, Perez knocked on Killgore's door. Tal was in the apartment, helping Killgore pack for her upcoming move. Killgore asked Perez how he knew where she lived; Perez replied that he had “asked around.” Perez pressed Killgore to come with him on the Hornblower dinner cruise that night, saying he had two tickets but nobody to go with. Killgore declined. Perez gave Killgore his phone number, and security footage showed him leaving the complex at 4:54. When leaving the apartment, Perez texted Maraglino, “That guy wasn't successful, ” to which Maraglino replied, “Tomorrow is another day.”

A few minutes after Perez left, Killgore texted to ask if he knew anyone who could help move her belongings. At 5:00, Perez texted Killgore, “Party with me tonight & you'll have five guys there in the morning.” Killgore replied that she would welcome help moving but felt “weird about the partying” because she did not think Maraglino would like it.

Killgore told Tal she was uncomfortable accompanying Perez because he was in a relationship with Maraglino. Perez responded to Killgore's text, saying Maraglino was “ok with it” and suggesting at 5:19 that Killgore text her to confirm. Killgore replied at 5:26 that she did not know Maraglino's number and did not think Maraglino liked her. Perez reassured Killgore that was not the case and gave her Maraglino's number. At 5:39, Perez checked in to see if Killgore had contacted Maraglino. Killgore replied two minutes later that she had not but would. At 5:42, Maraglino searched the Internet on her phone for “San Diego dinner cruise.” A minute later, Perez texted Killgore to say he was “dressing up to go to dinner on the hornblower.”

Killgore called Maraglino and left a voicemail message at 5:55. Maraglino called back ten minutes later, and Tal overheard their conversation. Maraglino seemed friendly and was laughing; she told Killgore to go with Perez on the cruise because she was pregnant and would get seasick. After speaking with Maraglino, Killgore decided to go. She told Tal she had no interest in Perez, but thought it would be her last chance to go on the dinner cruise before she moved to Pennsylvania the following week.

Killgore texted Perez around 6:10 agreeing to go, asking what time he would pick her up and when his friends would help her move. At 6:12, Maraglino searched the Internet on her cell phone for “Hornblower San Diego.” Perez sent Killgore texts at 6:15 and 6:19 asking her to be ready at 7:30 that night and stating his friends would help her move in the morning. At trial, the parties stipulated that on April 13, 2012, the Hornblower cruise left the dock in San Diego at 7:00, meaning it would not have been possible to make it if they left Fallbrook at 7:30, and that Maraglino, Perez, and Killgore did not have tickets for the cruise.

Killgore left Tal phone numbers for Perez and Maraglino, saying she still felt unsure about going. She borrowed two dresses from Tal and got ready to leave. At 6:38, Killgore texted Hernandez that Perez had stopped by to ask her out and it was “odd.” Hernandez followed up, and Killgore texted her at 7:30 that Perez was taking her “[t]o the [H]ornblower and a casino” after Maraglino had given permission. Hernandez testified that this plan confused her because Perez and Killgore hardly interacted.

At 7:31, Perez sent Killgore a text message saying, “I'm running late be there in five minutes, can you meet me at the curb? I got stopped at the front gate.” [Footnote 6: At trial, Perez admitted he knew there were surveillance cameras in Killgore's apartment complex, supporting an inference that he tried to park outside their view when picking Killgore up.] Killgore responded, “At the curb? It's raining you know. Id. [sic] appreciate it if you drove into the complex.” Perez responded, “It's not. I don't want to miss our boat.” Perez called Killgore and evidently agreed to drive up to her complex. Surveillance footage showed Perez entering the complex at 7:36. At 7:37, Perez texted Killgore, “I'm here, ” and Killgore responded, “I'm out now.” At 7:39, Killgore texted Perry that she was going with Perez on a dinner cruise and might stop by to visit Perry afterwards. Surveillance footage showed someone getting into the passenger side of Perez's car; the car pulled out of the lot around 7:40. Perez testified that he then drove Killgore to Maraglino's home to pick up a flier, and a neighbor recalled Perez's car swerving up to Maraglino's residence near dusk.

At 7:50, ten minutes after leaving her apartment complex with Perez, Killgore sent Tal a text message that read, “Help.” Killgore's cell phone was closer to Maraglino's house than to her apartment when she sent that text. At 7:57, Perez texted Maraglino, “Kitten?” At that point, Maraglino and Lopez were shopping at a grocery store located just minutes away from Killgore's apartment and about 5 to 15 minutes from Maraglino's home (depending on traffic). Around 7:58, Lopez left the store to retrieve her wallet from Maraglino's home while Maraglino waited at the checkout aisle.

Around 8:00, Tal tried three times to contact Killgore. At 8:05, she received a text from Killgore's phone stating, “Yes I love this party.” Tal was suspicious because the message did not resemble Killgore's texts. She demanded Killgore call her so she could hear her voice. Tal received another suspicious text message from Killgore's phone at 8:07 that said, “In a few hot guys.” Tal insisted Killgore call her immediately, and Killgore's phone made two short calls to Tal at 8:09 and 8:10. Tal texted Killgore that she could not hear her when she called, and Killgore's phone sent Tal a message stating, “Its ok music is too loud.” At trial, Perez admitted using Killgore's phone to call her friends while playing loud background music from his car.

Meanwhile, Maraglino, who remained at the grocery checkout aisle, left missed calls on Lopez's phone at 8:07 and 8:09. At 8:10, Maraglino stepped outside and returned a few seconds later with Lopez. At 8:11, Perez texted Maraglino, “Come home, ” suggesting he was then at Maraglino's home. At 8:12, Lopez and Maraglino were seen on video leaving the grocery store.

Killgore's friends grew very concerned. At 8:14, Hernandez called Killgore; cell location data placed Killgore's phone near Maraglino's house at that time. At 8:21, Hernandez called Maraglino, who lied that she had not spoken to Killgore that day. At 8:30, Tal texted Killgore, demanding she call her. At 8:40, Perry called Perez, who told her he had left Killgore downtown at a club. Perez told Perry he had last seen Killgore talking to some guys outside the club. He kept repeating that Killgore's face looked okay, which struck Perry as odd. Cell location data indicated Perez and Lopez were both in the vicinity of Maraglino's home in Fallbrook up to this point.

Maraglino, who previously worked for a cell phone company, told Perez that cell phones were traceable. Perez then decided to dispose of Killgore's phone in downtown San Diego to corroborate the story he had told Perry. At 9:20, cell location data showed Perez driving southbound from Fallbrook toward San Diego. Perez had Killgore's phone with him. While driving south on the I-15, Perez texted Killgore “Where are you?” and “You're friends are calling me worried.” He texted Maraglino asking about her night, and Maraglino replied that she was having a quiet night at home. Perez later admitted to using Killgore's phone to send text messages to her friends. At 10:10, Tal tried again to call Killgore and texted, “Should I just call the cops.” Killgore's phone responded from a downtown San Diego location, “Im ok.” Perez's license plate was photographed downtown by a San Diego Police Department license reader at 10:34. Perez's phone and Killgore's phone remained downtown until 10:51, when Perry tried again to reach Killgore.

At 11:02, Perez called Perry as he was driving north from San Diego toward Fallbrook. Perez sounded frantic and told Perry he had been driving around looking for Killgore. Perez returned to Maraglino's home after midnight. Thereafter, cell data showed Perez's and Lopez's cell phones moving east toward Temecula. In the early hours of April 14, both Perez's and Lopez's cell phones were traced near Lake Skinner and later traced returning toward Maraglino's home. At trial, Perez explained that he and Lopez wrapped Killgore's corpse in a tarp and put it in a trailer that they hitched to Perez's car. Perez drove the trailer to Lake Skinner, with Lopez tailing his car to cover the trailer's missing license plate, and the two dumped the body near Lake Skinner.

On the morning of April 14, Hernandez confronted Maraglino, saying she knew Maraglino had spoken to Killgore the previous day. Maraglino stuttered and gave the phone to Perez. During the call, Perez changed his story two or three times as to what had happened the previous night.

Tal and Hernandez went to search for Killgore in her apartment; when they did not find her, they called the sheriff's department. Perez called Hernandez around noon and offered to drive her around to look for Killgore; Hernandez told him law enforcement had already arrived. Sheriff's Deputy James Breneman called Perez, who sounded panicked but offered to come talk in person.

Perez drove to Killgore's apartment complex on the afternoon of April 14. After he parked, surveillance footage showed him doing something inside his right rear passenger door. Perez told detectives Killgore was flirty, flighty, and that she had been drinking; Killgore's friends did not agree with these characterizations. Perez claimed he had left Killgore downtown at a club the night before and that Killgore had texted him, “I'm okay.” Deputy Breneman was suspicious when he did not find that text on Perez's phone. He also found it strange that Perez's car was caked with fresh mud, given the heavy rains the night before. Perez agreed to provide a voluntary statement at the sheriff's department and was transported there. He consented to a search of his vehicle and was placed under arrest when deputies found an unlawful weapon inside. Later that afternoon, someone turned in Killgore's phone in downtown San Diego.

Deputies searched Maraglino's home on April 15 and 16. On April 16, Lopez and Maraglino were gone, and some items seen the previous day were missing, as if someone had cleaned up. The sheriff's department authorized a search for Maraglino's truck, which bore the license plate, “Ivnsktn” (“Ivan's Kitten, ” indicating Maraglino was Perez's “Kitten”). Deputies found the truck on April 17 at a hotel parking lot near the San Diego airport. They forcibly opened a room booked under Maraglino's name and found Lopez, bleeding at the neck and half naked after an apparent suicide attempt. In the room were three copies of a seven-page handwritten confession letter by Lopez, with a sign above stating, “Pigs read this.”

In the letter, Lopez used derogatory language, describing Killgore as a “miserable cunt” who had tried to come between Perez and Maraglino. Lopez took complete responsibility for Killgore's death, saying sheriffs had arrested the “WRONG FUCKING PERSON” in Perez. Lopez claimed she alone had grabbed Killgore; slammed her body into the stairs; restrained her wrists, ankles, and mouth; subdued her with a Taser; wrapped rope around her neck to apply and release pressure; attempted to hack up the body with power tools; doused the body with bleach; and dumped the body near Lake Skinner. The letter described injuries that would likely be found on Killgore's body - ligature marks around her neck and wrists, a Taser mark near her neck, and bruising and mutilation marks. [Footnote 7: The letter also contained statements that did not correspond with other evidence, including that the murder happened after 11:15 and that Killgore, who did not drive, appeared suddenly at the residence to demand sex with Perez.] Lopez expressed her love to Maraglino as her slave and pet; sheriffs found a dog collar in the room marking Lopez (alias Rosalin) as “Property of Ms. Dee [Maraglino].” There were three copies of the confession letter in the hotel room, one addressed to “Master Ivan” (Perez), another to “My parents, ” and a third to a local media station. Surveillance video showed the hotel receptionist making copies of the letter for Lopez the previous night. Maraglino was in the hotel when Lopez had her letter copied and departed San Diego on the morning of April 17 to visit family in Virginia. Deputies accompanied Lopez to the hospital, and she was arrested thereafter.

Based on Lopez's letter, deputies focused their search team on the Lake Skinner area in Riverside County. Later that afternoon on April 17, deputies found Killgore's nude body about a mile from Lake Skinner. The medical examiner determined the cause of death to be ligature strangulation, with hemorrhaging in her eyes consistent with pressure being intermittently applied and released over a long period. The cricoid cartilage of Killgore's neck had been fractured, indicating someone had applied more than 33 pounds of pressure on her neck. There were bruises on her legs, a bruise outside her left wrist consistent with the use of handcuffs, two cuts forming a “T” on her left wrist, and five small pinprick marks on the left side of her face, consistent with the use of a stun baton. In addition, there was a deep postmortem cut to Killgore's left knee with marks consistent with the use of a power saw. The lack of maggots was consistent with the wound having been doused with bleach. There were postmortem abrasions on Killgore's back, consistent with the body being rolled down the embankment. There were no internal or external injuries to Killgore's genitalia.

As lead sheriff's detective Brian Patterson was driving to Lake Skinner on April 17, Maraglino called him to say that she and Lopez ordered a movie on cable on April 13 called “Adventures of Rin Tin” and had spent the night in. Her cable records later indicated she rented “Tintin” on April 14 and did not rent any movies on the 13th. Maraglino hung up after Patterson pressed her on inconsistencies with Perez's account, insisting that he could not get her to contradict Perez.

Officers searched Maraglino's home again on April 19. They recovered the roll of plastic mentioned in Lopez's letter and photographed a reciprocating saw blade in a drawer near the hallway. They also recovered various images, videos, documents, and BDSM implements from the home. [Footnote 8: Among these was the “Deed to Dee” and “Perfect Slave” documents, found in the room Maraglino was setting up as a nursery. At trial, Maraglino's counsel presented evidence that the “Deed to Dee” document was found in a broken glass frame at the bottom of a closet to show that Perez and Maraglino had ceased participating in BDSM by April 2012.] Officers recovered a release of liability form in which Maraglino stated she voluntarily engaged with Perez in BDSM activities, including whipping, beating, and asphyxia, and that she relieved Perez of “injuries or loss of life that may result.” They also recovered the April 13, 2012 writing in which Maraglino released her anger to Perez and entrusted him to deliver justice and retribution. Maraglino was arrested in May 2012.

A later search of Perez's vehicle revealed a plastic bag containing food wrappers, disposable gloves, a piece of plastic, and a stun baton in working condition. There was blood on the plastic gloves, pieces of plastic, and the plastic bag matching Killgore's DNA. Swabs from the piece of plastic and the gloves matched Perez's DNA. The stun baton contained Perez's DNA on the straps and handle and Killgore's DNA on the prongs. There was no semen found in Perez's car. Tire treads from Perez's car were a possible match to the treads found near Killgore's body at Lake Skinner.

Sheriff's deputies ultimately found no evidence of blood or semen at Maraglino's home. They recovered a rope and knife from Maraglino's truck but could not connect those items to Killgore's murder. They also recovered from Maraglino's truck a receipt for cleaning products, water, paper towels, and rubber gloves purchased on April 14.

A special agent with the Naval Criminal Investigative Service searched Perez's home on base and found additional BDSM writings, including Maraglino's throat-slit fantasy writing. Maraglino's cell phone was found a year and a half later, cleared of text data, disassembled, and underneath several suitcases in a closet in her brother's house in Missouri. The clothes worn by Maraglino, Perez, and Killgore on April 13 were never recovered.

At trial, Perez admitted he had lied to Perry and detectives about taking Killgore downtown, and he admitted taking Killgore's cell phone downtown to match that story. He claimed he had lied to protect Maraglino but denied doing so to give her more time to clean up. Perez admitted he had misled Killgore into believing they were going on a cruise long after they had already missed it in order to get her into his car. He also admitted telling Becky Z. on October 17, 2013, “everybody had a role to play that night, including myself.” On redirect, Perez explained this statement referred only to his role in the cover-up and that he had also told Becky, “I didn't kill anybody.”

(Lodgment No. 14 at 3-21, ECF No. 16-49.)

         III. PROCEDURAL BACKGROUND

         On May 10, 2013, the San Diego District Attorney's Office filed an amended information charging Maraglino with murder (Cal. Penal Code § 187) (count one), with a kidnapping special circumstance (Cal. Penal Code § 190.2(a)(17)); conspiracy to commit kidnapping (Cal. Penal Code § 182 (a)(1)) (count two); kidnapping (Cal. Penal Code § 207(a)) (count three); torture (Cal. Penal Code § 206) (count four); and attempted sexual battery by restraint (Cal. Penal Code §§ 664, 243.4(a)) (count five). (Lodgment No. 3, Clerk's Tr. vol. 1 at 12-19, ECF No. 16-34.)

         Maraglino was tried by jury, along with her co-defendants Perez and Lopez. The jury was sworn on September 9, 2015. (Lodgment No. 3, vol. 6 at 1524, ECF No. 16- 38.) Deliberations began on October 16 (id. at 1593) and verdicts were returned on October 21, 2015. (Id. at 1599.) The jury found Maraglino guilty on all five counts and found the special circumstance to be true.^[2] (Id. at 1598.) On November 19, 2015, the trial court sentenced Maraglino to life without the possibility of parole plus a term of life with the possibility of parole, plus eight years and six months.^[3] (Lodgment No. 3, vol. 5 at 1419-22, ECF No. 16-37; id., vol. 6 at 1601.)

         Maraglino appealed her conviction to the California Court of Appeal. (See Lodgment No. 6, ECF No. 16-41.) On December 29, 2017, the appellate court affirmed Maraglino's convictions in part and reversed them in part. (See Lodgment No. 14, ECF No. 16-49.) The court reversed Maraglino's convictions for torture and attempted sexual battery by restraint, concluding that there was insufficient evidence to support them. (Id. at 113.) The appellate court affirmed her convictions for first degree felony murder with special circumstance, kidnapping and conspiracy to commit kidnapping. (Id.) The court ordered the abstract of judgment against Maraglino be amended to reflect a new sentence of eight years plus life without the possibility of parole. (See id.)

         Maraglino filed a petition for review in the California Supreme Court, along with Perez and Lopez. (See Lodgment Nos. 15, 16, 17, ECF Nos. 16-50-16-52.) The petitions were consolidated and denied without comment or citation on April 11, 2018. (See Lodgment No. 18, ECF No. 16-53.)

         On February 12, 2019, Maraglino, proceeding pro se, filed the instant Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court. (See Pet., ECF No. 3.) Respondent filed an Answer and Memorandum in Support of Answer on July 22, 2019. (ECF No. 15.) Maraglino filed a Traverse on July 29, 2019. (ECF No. 17.)

         IV. SCOPE OF REVIEW

         Maraglino's Petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320 (1997). Under AEDPA, a habeas petition will not be granted unless the adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002).

         A federal court is not called upon to decide whether it agrees with the state court's determination; rather, the court applies an extraordinarily deferential review, inquiring only whether the state court's decision was objectively unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). In order to grant relief under § 2254(d)(2), a federal court “must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.” See Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004).

         A federal habeas court may grant relief under the “contrary to” clause if the state court applied a rule different from the governing law set forth in Supreme Court cases, or if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. See Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant relief under the “unreasonable application” clause if the state court correctly identified the governing legal principle from Supreme Court decisions but unreasonably applied those decisions to the facts of a particular case. Id. Additionally, the “unreasonable application” clause requires that the state court decision be more than incorrect or erroneous; to warrant habeas relief, the state court's application of clearly established federal law must be “objectively unreasonable.” See Lockyer v. Andrade, 538 U.S. 63, 75 (2003). “[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.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

         Where there is no reasoned decision from the state's highest court, the Court “looks through” to the underlying appellate court decision and presumes it provides the basis for the higher court's denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991). If the dispositive state court order does not “furnish a basis for its reasoning, ” federal habeas courts must conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by Andrade, 538 U.S. at 75-76); accord Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). However, a state court need not cite Supreme Court precedent when resolving a habeas corpus claim. See Early, 537 U.S. at 8. “[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent, ]” id., the state court decision will not be “contrary to” clearly established federal law. Id. Clearly established federal law, for purposes of § 2254(d), means “the governing principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Andrade, 538 U.S. at 72.

         V. DISCUSSION

         Maraglino lists two claims in her Petition. In ground one Maraglino contends she was denied due process when the California Supreme Court failed to overturn her “remaining” convictions based on insufficient evidence.^[4] (See Pet. at 6.) In ground two she claims she was denied due process because there was insufficient evidence to support the jury's true finding that she was a “major participant” in the underlying felony that led to the Killgore's death. (Id. at 7, 15-16.) She argues further in ground two that her sentence to life without the possibility of parole violates the Eight Amendment because the evidence was insufficient to support the special circumstance true finding. (See id.)

         A. Ground One: Sufficiency of Evidence

         In ground one Petitioner argues her due process rights were violated because there was insufficient evidence to support her “remaining three” convictions. (Pet. at 13.) While the bulk of her argument focuses on her conviction for conspiracy to commit kidnapping (count two), Maraglino also argues, as she did on direct appeal, there was insufficient evidence to support her convictions for kidnapping (count three) and first degree felony murder (count one). (See Id. at 13-15, 18.) Although these subclaims are less artfully presented, this Court must construe pro se habeas filings liberally and as such, will address them in turn. See Maleng v. Cook, 490 U.S. 488, (1989); see also see Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005).

         1. Clearly Established Law

         It is clearly established that due process clause is violated “if it is found that upon the evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 (1979); see also Cavazos v. Smith, 565 U.S. 1, 7 (2011) (per curiam); Juan H. v. Allen, 408 F.3d 1262, 1275 (9th Cir. 2005). This Court must review the state court record and view the evidence in the “light most favorable to the prosecution and all reasonable inferences that may be drawn from this evidence.” Juan H., 408 F.3d at 1276 (citing Jackson, 443 U.S. at 319).

         A petitioner faces a “heavy burden” when seeking habeas relief by challenging the sufficiency of evidence used to obtain a state conviction on federal due process grounds. Juan H., 408 F.3d at 1274. The federal habeas court must “apply the standards of Jackson with an additional layer of deference” under Section 2254(d)(1). Id.; see also Coleman v. Johnson, 566 U.S. 650, 651 (2012) (“We have made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference.”). This doubly deferential standard limits the federal habeas court's inquiry to whether the state court's rejection of a sufficiency of the evidence challenge was an objectively unreasonable application of Jackson. Emery v. Clark, 643 F.3d 1210, 1214 (9th Cir. 2011); see also Coleman, 566 U.S. at 651.

         In evaluating a sufficiency of the evidence claim on federal habeas, courts must look to the applicable state law defining the substantive elements of the crime. Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004) (en banc) (stating the Jackson standard “must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.”); see also Juan H., 408 F.3d at 1278 n.14 (citation omitted) (stating that federal habeas courts “look to [state] law only to establish the elements of [the crime] and then turn[s] to the federal question of whether the [state court] was objectively unreasonable in concluding that sufficient evidence supported [the conviction]).” In determining whether the evidence was sufficient, this Court must follow the California courts' interpretation of its own state law. See Bradshaw, 546 U.S. at 76; Emery, 643 F.3d at 1214. However, the “the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law.” Coleman, 566 U.S. at 655.

         The Jackson standard requires a reviewing court “respect the province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts by assuming that the jury resolved all conflicts in a manner that supports the verdict.” Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). “[C]ircumstantial evidence can be used to prove any fact, including facts from which another fact is to be inferred, and is not to be distinguished from testimonial evidence insofar as the jury's fact-finding function is concerned.” See United States v. Stauffer, 922 F.2d 508, 514 (9th Cir. 1990). Mere suspicion or speculation, however, cannot be the basis for creation of logical inferences. See Walters, 45 F.3d at 1358.

         2. Conspiracy to Commit Kidnapping

         Maralingo claims her conspiracy to commit kidnapping conviction was based on insufficient evidence, in violation of her due process rights. (Pet. at 6, 13-15.) Specifically, she contends she did not she did not conspire, or intend to conspire, with Perez to lure Killgore into accepting a date him under false pretenses in order to facilitate her abduction. (See id.) Respondent argues the state court's denial of the claim was neither contrary to, nor an unreasonable application of, clearly established law. (See Mem. P. & A. Supp. Answer at 14-23, ECF No. 15-1.)

         a. State Court Opinion

         Petitioner raised this claim in her petition for review to the California Supreme Court. (See Lodgment No. 16, ECF No. 16-51.) The court denied the petition without comment or citation. (Lodgment No. 18, ECF No. 16-53.) As such, this Court looks through to the last reasoned state court opinion, that of the California Court of Appeal. See Ylst, 501 U.S. at 805-06. The appellate court denied the claim, stating in relevant part:

Perez and Maraglino were convicted of conspiracy to kidnap, in violation of section 182. “Section 182 prohibits a conspiracy by two or more people to ‘commit any crime.' (§ 182, subd. (a)(1).)” (People v. Johnson (2013) 57 Cal.4th 250, 257 (Johnson).) “‘Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act.' [Citations.] Conspiracy separately punishes not the completed crime, or even its attempt. The crime of conspiracy punishes the agreement itself and ‘does not require the commission of the substantive offense that is the object of the conspiracy.'” (Id. at p. 258.) “‘Traditionally the law has considered conspiracy and the completed substantive offense to be separate crimes.'” (Id. at pp. 258-259.) “The gist of the crime of conspiracy . . . is the agreement or confederation of the conspirators to commit one or more unlawful acts . . . .” (Braverman v. United States (1942) 317 U.S. 49, 53.)

“[A]n agreement to commit a crime, by itself, does not complete the crime of conspiracy.” (Johnson, supra, 57 Cal.4th at p. 259; see § 184.) There must be proof of an overt act, for “‘“evil thoughts alone cannot constitute a criminal offense.”'” (Johnson, supra, at p. 259.) Once a conspirator has performed an overt act in furtherance of the agreement, the agreement itself becomes punishable. (Ibid.) Thus, “a conspiracy requires an intentional agreement to commit the offense, a specific intent that one or more conspirators will commit the elements of that offense, and an overt act in furtherance of the conspiracy.” (Id. at p. 266; see CALCRIM No. 415.)

Perez and Maraglino do not challenge the sufficiency of the evidence supporting a finding that one of them committed one of the enumerated overt acts in the amended information. Instead, their argument centers around whether there was sufficient evidence to show an agreement and the requisite intent to kidnap. [Footnote 25 omitted.] Perez claims there was sufficient evidence he and Maraglino tried to get Killgore to go out with him on a date but insufficient evidence they agreed or intended to kidnap Killgore. For example, Perez argues Maraglino's Internet searches for “dinner cruise” and “Hornblower San Diego” merely indicated their interest in Perez taking Killgore on a cruise.

Maraglino likewise tries to recast the evidence in her favor. She focuses on the lack of DNA evidence recovered from her home and suggests as one possibility that Perez killed Killgore in his car. Alternatively, she suggests Perez may have taken Killgore to Maraglino's home and killed her there while Maraglino was still at the grocery store. Maraglino claims her Internet searches for “dinner cruise” and her text to Perez that “Tomorrow is another day” did not demonstrate the formation of a conspiracy. She further argues her fantasy writing about the torture ...