United States District Court, S.D. California
DOROTHY G. MARAGLINO, Petitioner,
v.
J. ESPINOZA, Warden, Respondent.
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 ...