Schuster v. Espinoza

          FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS (ECF NO. 4)

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         I.

         BACKGROUND

         On December 12, 2007, Petitioner was convicted after a jury trial in the Fresno County Superior Court of first-degree murder.^[1] The jury also found true the special allegation that the offense was carried out for financial gain. (17 CT^[2] 5046). Petitioner was sentenced to life in prison without the possibility of parole. (LD^[3] 1). On February 28, 2011, the California Court of Appeal, Fifth Appellate District affirmed the judgment. People v. Schuster, No. F055692, 2011 WL 680211 (Cal.Ct.App. Feb. 28, 2011). The California Supreme Court denied Petitioner's petition for review on June 8, 2011. (LDs 3, 4).

         On September 7, 2012, Petitioner commenced the instant proceeding by filing a petition for writ of habeas corpus. (ECF No. 1). On December 14, 2012, Respondent filed a motion to dismiss the petition as untimely. (ECF No. 15). On March 28, 2016, the Court granted the motion to dismiss and dismissed the petition as untimely. (ECF No. 59). The Ninth Circuit reversed the judgment and remanded the case for further proceedings. (ECF No. 67).

         In the petition, Petitioner raises the following claims for relief: (1) Miranda violation; (2) instructional errors; (3) ineffective assistance of counsel; (4) erroneous discharge of juror; and (5) cumulative error. (ECF No. 4). Respondent filed an answer, and Petitioner filed a traverse. (ECF Nos. 130, 136).

         II.

         STATEMENT OF FACTS^[4]

         Prosecution Evidence

As of early 2002, Schuster resided in Clovis with her husband and their son, T. Their daughter either had been sent, or soon would be sent, to live with Schuster's parents in Missouri. Schuster owned a business, Central California Research Laboratories (CCRL), in Fresno. Timothy was a manager in the cardiology department at Saint Agnes Medical Center (Saint Agnes).

Schuster and Timothy separated acrimoniously in 2002. For a while, they maintained separate living quarters in the family residence. Schuster complained about this arrangement. From the time of the separation on, Schuster also acted as if the house and business were hers, and she did not want Timothy to have custody of T., or a relationship with him. She often said that she would like to see Timothy dead.

Around July 4, 2002, Timothy moved out of the house and into a condominium. Schuster was enraged that he left and took items from the house while she was on a trip. At one point, Schuster told a neighbor that she sometimes thought she should just kill Timothy and be done with it. She twice asked someone who came to her house to work on a barbecue if he would help her enter Timothy's residence and retrieve some property.

On August 8, 2002, Schuster had Leslie Fichera, a chemist at CCRL, rent a storage unit at Security Public Storage, which was a couple miles from the lab. Schuster said she wanted to store some things that she wished to keep hidden from Timothy. Fichera rented unit A-182 in her own name, then turned the entry code and instructions over to Schuster.

On August 10, 2002, Timothy returned home from a trip to find his residence ransacked and items he had shared with Schuster gone. Also missing was a report he had been using to document his involvement with T. for custody purposes. Schuster subsequently admitted to various people that she and Fagone were responsible.^[5] Schuster laughed about it. She told her manicurist that she had gone back a couple of times because it gave her a feeling “better than sex” to sit in a chair and see what she had done to the place. She also said she keyed Timothy's pickup, and that it was like a trophy and gave her a happy feeling every time she saw the key mark on the side of the truck.

After the break-in, the couple's relationship deteriorated further. Timothy moved to a house in Clovis that was equipped with an alarm system and motion sensors. He expressed concern about Schuster and obtained a handgun and concealed weapon permit.

Schuster told her manicurist that she prayed every night that Timothy would die. She asked Fichera if Fichera's boyfriend knew anyone who could rough up somebody. Schuster told a fellow member of her church choir that she would do everything in her power to keep Timothy from getting the business. She asked the barbecue repairman if he would go to Timothy's house, stun him to the ground with a stun gun when he answered the door, and then flag her down, where she would be waiting a couple of houses away.

On April 30, 2003, ^[6] a blue 55-gallon barrel was purchased and sent to CCRL, although it was not the type of barrel the lab normally used. Schuster said it was for yard clippings, although she asked a lab employee if he thought a body would fit in it. A couple of times, Schuster told this same employee that if she could kill Timothy and get away with it, she would, and she once asked if the employee knew anyone who would rough up Timothy or kill him. The employee took these various remarks as jokes.

Although CCRL had hydrochloric, sulfuric, and acetic acid on hand, very little was used. In Fichera's experience, probably no more than one bottle of hydrochloric acid would be used in an entire year. Between June 13 and July 2, however, CCRL purchased, through orders placed by Schuster, three cases of hydrochloric acid and one case of sulfuric acid. Each case contained six 2.5-liter bottles.

In June, Schuster told her manicurist that she could kill Timothy and get away with it, and that she knew people who could do it. That same month, a neighbor saw Schuster moving a blue barrel to the side of her garage.

Around July 9, Timothy and his good friend and coworker, Mary Solis, lost their jobs at Saint Agnes. Schuster laughed when she heard the news. On the evening of July 9, Timothy had dinner with Mary and Bob Solis and Victor Uribe, Jr. The Solises arranged to meet Timothy the next morning, and he left their home around 10:00 p.m. He, however, did not meet them the next morning or show up for his scheduled exit interview at the hospital.

Uribe went by Timothy's house; Timothy's pickup was in the garage, but no one answered the door. The police were summoned. A cursory search of the house revealed nothing overtly suspicious. Although there were no signs of forced entry or a struggle, the Solises' concern grew upon learning Timothy was not in the house, but his cell phone was on the dresser. Timothy would not be late to something as important as the exit interview, and he always carried his cell phone in case his children needed him. Nevertheless, the Solises were told they had to wait 24 hours to file a missing person report.

Around this same time, a CCRL employee noticed the blue barrel was gone. He also noticed a bottle of chloroform on top of the acid cabinet. When he asked, Schuster confirmed it was what doctors used to soak rags in to knock people out.

When Schuster arrived at work on Thursday morning, July 10, she was complaining about her shoulder. She said she had hurt it by working out earlier that week. That evening, Timothy did not show up for the scheduled exchange of custody of T. Schuster told her manicurist that she had a feeling the divorce was finally going to go her way.

The next morning, Friday, July 11, Robert Solis filed a missing person report with the Clovis Police Department. In response, Officer John Willow went to Timothy's house. He found a gun underneath a cushion on a chair near the front door. Locating a cell phone in the bedroom, he called every number to see if anyone had had contact with Timothy. When he contacted Schuster that afternoon, she said she had not heard from Timothy. After Willow had contact with Schuster's manicurist, who provided information regarding the volatile divorce that was pending, the matter was turned over to detectives for further investigation.

When Detectives Vincent Weibert and Larry Kirkhart entered Timothy's house later that afternoon, they found some damage to the “pony wall” behind the chair on which the gun was found, as if the chair had been forcibly pushed into the wall. Inside a briefcase in the same room was a microcassette recorder and tape.^[7] The caller ID record for the telephone in the master bedroom showed only one call received, at 2:02 a.m. The call was from Schuster's cell phone number. Kirkhart subsequently arranged for Schuster to come to the police department to speak with the detectives. She was accompanied by a friend.

During the interview conducted by Kirkhart and Weibert, Schuster related that she and Timothy were going through a divorce and had a difficult time communicating verbally.^[8] They sometimes went for three weeks without talking or exchanging e-mails. Schuster stated that the last message she got from Timothy was on Tuesday the 8th, and it said he was planning to pick up T. at 6:00 p.m. on Thursday. When Timothy did not show, Schuster and T. both tried unsuccessfully to contact him. Schuster noted that she was leaving with T. on Sunday morning for a two-week vacation, and Timothy always gave her trouble whenever she wanted an extra day.

Schuster related that she learned that Thursday evening about Timothy losing his job. Concerned, she called him again around 8:30 p.m. and left a message asking him to call. The last time she called Timothy that night was around 10:30 p.m. She drove by his house and knocked on the door at about 10:30 or 10:45 p.m., after which she did not try to contact him further at his home or by telephone. Schuster related that she last saw Timothy in person on Saturday, July 5, and spoke to him last about a month or two before that.

When asked where she was on Wednesday, the last day the Solises saw Timothy, Schuster replied that she had worked all day. As her shoulder was bothering her, she and T. watched a Weird Al Yankovic movie that evening. She fell asleep on the couch. When she awoke, it looked like her cell phone had been dialed, and she thought she must have rolled over and hit a button or something. Asked if she had Timothy's number on speed dial, Schuster said she thought so. Schuster denied talking to Timothy or calling him intentionally. Weibert asked if her cell phone was handy, but she said it was at home.

Weibert then informed Schuster that the last incoming call at Timothy's house was from her cell phone number. He suggested that if she had some conversation with Timothy about child custody or money, that, together with his losing his job, might have been enough to push him over the edge. Schuster insisted that she had no information and did not have a conversation with him.

After a discussion concerning whether Schuster had someone to help her through this and whether the police chaplain might help, Kirkhart offered to give Schuster a ride home. She responded that she had her car. Kirkhart then offered her water and left the room to get it for her. Weibert also left the room.

Weibert thought Schuster's story of accidentally making the telephone call while asleep was unusual, as was her statement that she had not brought her phone. He went to speak with the friend who had accompanied Schuster, but found no one. The only vehicle parked in front of the police department was Schuster's Lexus. Looking through the car window, Weibert saw a cell phone on the center console. When he called Schuster's number, the cell phone rang. Weibert informed Kirkhart.

Kirkhart told Schuster about finding her cell phone and asked if he could confirm her story about the speed dial. She agreed and accompanied detectives to the car. At her request, she was allowed to retrieve the phone. Walking back to the interview room, however, she appeared nervous. Her hands were shaking and she was trying to manipulate the phone. Concerned that she might try to change some of its contents, Weibert asked if he could see it. Schuster handed it to him.

Back in the interview room, Weibert determined that none of the speed dial numbers belonged to Timothy. Schuster asked for water; the detectives left the room but monitored her from another location. She apparently retrieved her messages.

When Weibert returned, Schuster claimed that she had found Timothy's number under T.'s name, but had accidentally just deleted it. Later, however, she admitted that she had made the call to Timothy's house. She explained that she just wanted to make sure there would be no trouble on Saturday, because she was afraid Timothy would not return T. from visitation in time for the trip. Schuster said Timothy was kind of asleep, and she estimated the call was less than 30 seconds long. Schuster said she had made a mistake by not telling the detectives, denied being deceitful about anything else, and stated she did not know what could have happened between the time of the phone call and the time of Timothy's appointment. After further discussion about a church Schuster and Weibert had both attended, how the detectives could reach Schuster while she was out of town, and how she had been praying for Timothy, arrangements were made for Schuster to bring Kirkhart a notebook she discovered that Timothy had been keeping about her. The interview then ended.

The next morning, Tami Belshay, who had accompanied Schuster to the police department, went to Schuster's house. Schuster was upset that the police had caught her in a lie and worried that they might tap her phones or put a tracking device on her car. She said that if they did, they would know she went to the lab at about 2:00 or 3:00 that morning. Schuster said she had gone to put on a sample run for Fichera.

When Belshay informed Schuster that the police could get search warrants for the lab and her home even though Schuster would be on vacation, Schuster asked Belshay to stay while she went to Fagone's and got T.'s bicycle. When she got there, she told Anthony Fagone, Fagone's father, that she had come to talk to Mrs. Fagone about some baskets she had ordered. Told Mrs. Fagone was not home, Schuster insisted that she wanted to talk to Fagone and almost tried to force her way in before getting the bicycle and leaving.

When Schuster returned home, Belshay remarked that the police would take Schuster's computers and that anything deleted would still be on the hard drives. Shortly after, Schuster asked Belshay to watch T. while Schuster went to the lab to pay some bills. She seemed harried and frantic. Belshay stayed at Schuster's house until 2:20 p.m. Sometime between noon and 2:00 p.m., Fagone came by. He walked in without knocking or ringing the bell, went upstairs, came back down very quickly, and then left. He did not respond when Belshay spoke to him, and he looked pale and sick.

After going to the lab, Schuster contacted Fichera and asked for help finding a truck with a lift gate. Schuster said she needed it to loan a rototiller to a friend. Ultimately, they went to the U-Haul location on Blackstone between Bullard and Sierra, and Fichera rented a truck in her own name. They left the U-Haul location separately, with Fichera driving the rental truck.

Schuster met with Kirkhart at approximately 4:00 p.m. at Herndon and Blackstone to give him Timothy's notebook. She was under surveillance at the time. She drove home at a high rate of speed. Once there, Fagone arrived with T. Schuster then left, again driving so fast that surveillance had to be terminated for safety reasons.

Schuster picked up the rental truck from Fichera. Schuster was in a rush. About 50 minutes later, she called Fichera and told her to meet her at the U-Haul place. Security Public Storage records showed an entry into and exit from unit A-182 during the time Schuster had the rental truck. No other entry was made into that unit between July 9 and 14.

At the U-Haul place, Fichera observed that Schuster was thirsty and dirty, had scrapes on her shins, and had blood on her shoe from what Schuster said was a smashed toe incurred while loading the rototiller. Fichera also noticed that the truck's hand dolly had been used and that only 15 miles had been put on the truck. Schuster could not have driven the truck from Fichera's residence to Clovis and back and had it register only 15 miles.

Schuster and T. left on their trip on Sunday morning, July 13. She told an acquaintance coincidentally on the same flight that she had gone to the lab early that morning because she had forgotten something. On Monday, July 14, Fichera found an envelope on her desk at the lab, on which Schuster had written “‘thanks.'” Inside was a check, dated July 8 and signed by Schuster, in the amount of $510.25. The memo portion indicated it was reimbursement for travel and lodging, but the only money Schuster owed Fichera was approximately $40 for the rental truck.

Fichera and Belshay went to the police on July 14. That evening Kirkhart obtained search warrants for the storage unit, the lab, and Schuster's house.

Inside the storage unit was a blue 55-gallon barrel that contained human remains. They were subsequently identified, through DNA testing, as those of Timothy. Only the lower half of the body remained; it had been placed into the barrel head down and was floating in fluid that contained hydrochloric acid. The body was in a state of early decomposition, with the time of death possibly being July 9 through 11. Tissue samples tested positive for chloroform, an anesthetic type of substance that can cause rapid loss of consciousness and incapacitation.

The cause of death was the probable combined effects of acute chloroform exposure and hydrochloric acid immersion, although it was very possible that death resulted solely from the chloroform. It could not be determined whether Timothy was alive when he was placed in the barrel.

A can of Lysol air freshener was found on a refrigerator inside CCRL. Such a product would not be used in the lab for fear of contaminating the analyses being performed. Toward the bottom of the dumpster in a locked enclosure behind the lab was a case of six empty bottles of hydrochloric acid. Forensic analysis of Schuster's office computer showed that on June 13, Internet searches were conducted for the terms “‘acid digestion tissues, '” “‘acid digestion animal tissues, '” and “‘sulfuric acid.'”

Schuster was arrested on July 16. In her possession were two receipts from a store about halfway between CCRL and Security Public Storage. Both showed purchases made just after 7:30 p.m. on Saturday, July 12, including Lysol and other air fresheners. Also in Schuster's possession was a card with the storage facility entry instructions and a code number.

Defense Evidence

The thrust of Schuster's defense was that Fagone killed Timothy.

The manager of Security Public Storage told a defense investigator that she saw a U-Haul truck drive in on Saturday, July 18. She was positive it contained two males. The driver was in his early 20's; the passenger was younger and had a skimpy beard. When she checked the dumpster later that day, she smelled the same smell as when the storage unit was first opened by the police. She believed the smell was coming from a black plastic garbage bag that she thought contained body parts and that she felt had come from the U-Haul.

Dr. Paul Herrmann, a medical doctor specializing in forensic pathology, reviewed various materials and photographs in connection with this case. In his opinion, Timothy's body was cut in half before it was immersed in acid, and the other half was not dissolved in the barrel. Herrmann questioned the completeness of the police investigation, particularly the lack of forensic evaluation to determine if there was blood residue at Schuster's or Timothy's residence.^[9]

A couple of months before Fagone's arrest, he told a friend that someone wanted him to chloroform her husband and rob him. He never implied, however, that Schuster wanted him to kill her husband. Fagone also took this friend to the Tower District to show him a house he had rented. He said Schuster had helped him obtain the house and was going to pay for his rent.

In May or June, Fagone asked another friend to go up to Timothy's door, knock, and then taser Timothy in the neck. Fagone wanted to knock Timothy out and tie him up so that he could rob him. Although Fagone said Schuster was paying him to do this, he never said she wanted him to kill Timothy.

Matthew Crowder, another of Fagone's friends, recalled Fagone joking about chloroforming someone or disposing of someone in a barrel of acid. These were running jokes within the group of friends. Although Fagone never said anything about Schuster wanting to hurt her husband, he said Schuster was upset because her husband was taking all her money and property. Fagone also was upset because he was siding with Schuster. In June, Fagone was injured in a motorcycle accident. In light of his physical condition, Crowder did not believe he could personally subdue a person such as Timothy. In Crowder's opinion, Timothy was fairly passive and nonviolent and easily could be led by people he felt had more power and prestige. Fagone said Schuster was a powerful person with the money and means to be able to do stuff.

Dr. Stephen Estner, a forensic psychiatrist, opined that Schuster manifested battered spouse syndrome (BSS) in the context of this case. He concluded she was “traumatized to an enormous degree, ” and that there was emotional abuse that caused physical symptoms.^[10]

Schuster testified and denied killing Timothy, whom she married in 1982. She detailed the early, happy days of their marriage, followed by the deterioration of their relationship and her ultimate decision to file for divorce in 2002. She also described heart palpitations and other physical symptoms she suffered due to stress, as well as her feelings about, and response to, Timothy's moving out of the family home while she was gone and taking community property when a property division had not been decided. She admitted she broke into his home and took things in August of 2002 out of retaliation, although she denied keying his truck. She also related how Timothy attempted to use the child custody order against her on a number of occasions.

Timothy first introduced Schuster to Fagone's parents in 2001 or 2002. Fagone went to work for Schuster at CCRL and later became T.'s babysitter. He also did things in and around the house for her, so he had a key. Schuster trusted him, and she paid him for his work.

Schuster admitted talking to a number of people concerning how she felt about Timothy. When she said that she wished he were dead and similar things, she did not mean it literally. She also vented about the situation to Fagone, as venting was her escape from the enormous pressures she was under at the time.

In 2003, she was concerned most about Timothy's threat to try to get sole custody of T. Timothy also had demanded $1 million for his half of the business. These subjects were discussed when Schuster vented to Fagone and others. As of July 9, Fagone had not expressed to Schuster any hostility toward Timothy.

Around June, Schuster made plans to take T. on a long vacation trip to Texas, Florida, and Missouri. They were scheduled to be gone for approximately two weeks beginning July 13. The trip was extremely important to both of them. It was a dream vacation for T. The custody agreement gave Schuster the right to two weeks of vacation every summer, but she expected Timothy to try to undermine the trip at the last minute.

On July 9, Schuster received a telephone call from her attorney's office asking her to stop by the next day to sign a stipulation and order concerning her vacation period with T. Schuster had had no idea Timothy's attorney was going to prepare something, but it made her feel like things would be okay with the trip. She was still worried, however, that Timothy would not bring T. back from visitation in time for them to make their 6:30 a.m. flight on July 13.

July 9 was a normal workday for Schuster. That evening Fagone came over and they all watched a Weird Al Yankovic movie. Fagone left sometime after midnight.

Schuster placed a call to Timothy around 2:00 a.m. on July 10. She called because she still was upset about the stipulation and order. She wanted to make sure Timothy did not have anything “up his sleeve” and that T. was going to be back in her custody so they could get on the plane Sunday morning. Timothy and Schuster had a very brief conversation. Schuster initially forgot about making this call when she was interviewed by the police; when she remembered, she was dishonest because she feared the police would detain her and make her a suspect. This was within 24 hours of leaving on the trip, and she knew she could not, under any circumstances, deny her son that vacation.^[11]

On Thursday, July 10, Schuster went to her attorney's office to sign the stipulation and then on to work. Fagone was with T. most of the day. Schuster had a standing appointment to get her nails done every Thursday at 5:30 p.m. T. went with her to the nail appointment, but Timothy failed to pick him up at the nail salon as per the standing visitation arrangement. As Schuster and T. were leaving the salon, Schuster ran into a friend who told her that Timothy and Mary Solis had lost their jobs at Saint Agnes earlier that week. This came as a shock to Schuster. She and T. both made a number of calls to Timothy's home and cell phone, trying to find out what was going on. Schuster went by Timothy's house between 10:30 and 11:00 p.m., even though she felt uncomfortable doing so given that they were not getting along well.

Friday, July 11, was another workday for Schuster. She heard nothing with regard to Timothy's whereabouts. She was concerned and did not know what was going on or whether he was trying to undermine the trip. She was focusing on T. and his trip and trying to do everything possible to make sure he was not going to be disappointed.

At some point that day, Schuster was asked to talk with members of the Clovis Police Department. She agreed to do so. She arrived at the police station around 10:00 p.m., after she had made arrangements to have Fagone look after T. She did not leave the police station until between 1:00 and 2:00 a.m. She was physically exhausted. Emotionally, she was very upset. She was angry because she thought this could be something Timothy was trying to do to undermine the vacation and that she was not going to be able to go with T. She also was scared that, if this was a disappearance as the police said, they were going to detain her and keep her from going on the trip.

When Schuster got home, she believed T. was in bed, asleep. Fagone was there, and she told him what took place at the police department and how she felt they were trying to make her a suspect and about her anger that the trip might be jeopardized. Fagone was talking at the same time she was ranting and venting, and she heard him say something like there had been an accident and Timothy was dead and that “they” had killed him. She thought it was a sick joke, then realized she had heard correctly. When Fagone said Timothy's body had been stashed in her garden shed on the side of her house, she became almost hysterical. She considered reporting it to the authorities, but she was not thinking logically. She told Fagone that he had to move the body now, and she did not care how he did it. She believed Fagone left shortly after.

Schuster received a telephone call from Belshay early on the morning of July 12. Belshay then came to the house. While Belshay was there, Schuster went to the home of Fagone's parents, which was nearby, and retrieved T.'s bicycle. She also wanted to make sure Fagone had taken the body out of her shed. Fagone told Schuster that he had put the body in a barrel in the warehouse section of her lab. Schuster considered notifying the police, but feared she would be prevented from going on the trip. In hindsight, she knew she made some bad decisions, but she was overwhelmed at the time.

Schuster told Fagone that the barrel could not stay at the business. He said the only way he could move it was if she helped him get a truck with a lift gate. She agreed to try. Frantic, she called Fichera for help. They eventually obtained a rental truck, which Schuster picked up from Fichera after giving Kirkhart Timothy's journal and going home briefly.

Schuster drove the truck to the lab, where Fagone was waiting with a couple of other individuals. Schuster and Fagone went into the warehouse, and she cleared a pathway so he and his companions could get the barrel out of there. She then went to her office and did other things. Fagone had mentioned that he did not know where to take the barrel, so Schuster suggested temporarily taking it to her storage unit. She made him promise, however, that he would take care of moving it somewhere it could not be found. He assured her that he would do that.

When the truck left for the storage facility, Schuster followed in Fagone's car and waited near the facility. The truck came out of the storage facility, Schuster and Fagone traded vehicles, and she went directly to the U-Haul center. Fichera met her there. At some point, Schuster stopped at a store to get some cleaning supplies and air freshener, as she had noticed an odor from the barrel in the warehouse area of the lab.

When Schuster returned home, T. was there. Schuster said nothing to him about his father. She knew she would have to be accountable at some point, but was just thinking a day at a time.

Schuster denied purchasing large quantities of acid in the spring of 2003 in order to dispose of Timothy's body. Instead, they were for an exhaustive project that had to be done occasionally involving cleaning all of the glassware in the lab. Schuster ran the Internet searches because she was looking for information on which acids would remove inorganic and organic materials.^[12]

Schuster denied purchasing the blue barrel in order to dispose of Timothy's body. She did not recall ordering it, although she remembered it coming into the lab. She was surprised that it was bigger than she thought she had ordered. One of her employees, who knew the stress she was under from the divorce, jokingly said he thought a body might fit in it. Schuster never took it home.

After Schuster learned of Timothy's death, she allowed T. to go with Fagone in Fagone's vehicle. Schuster felt she probably was not making sound judgments that day, but Fagone had said Timothy's death was an accident, and Schuster never believed he would hurt T. The plan was for Fagone to take T. to a picnic and then meet Schuster at the lab to move Timothy's body.

An abstract of judgment dated February 20, 2007, showed Fagone was convicted of first degree murder and residential burglary. He was sentenced to life in prison without the possibility of parole. Fagone did not testify in Schuster's trial.

Schuster never solicited Fagone to talk to his friends about robbing or chloroforming or using a stun gun on Timothy. Fagone never told her that he purchased a stun gun from Herb Bauer's Sporting Goods on June 20.^[13] She never directed Fagone to kill Timothy. She did not provide him with chloroform. She did not recall ever discussing the substance or its effects with him.^[14] She never told him that she would pay for the house he found in the Tower District, although she gave him a $2, 000 cash advance against the work he did for her, such as watching T. and the house, so he would be able to move in.

Schuster, 2011 WL 680211, at *1-9 (footnotes in original).

         III. STANDARD OF REVIEW

         Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that she suffered violations of her rights as guaranteed by the U.S. Constitution. The challenged convictions arise out of the Fresno County Superior Court, which is located within the Eastern District of California. 28 U.S.C. § 2241(d).

         On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). The instant petition was filed after the enactment of AEDPA and is therefore governed by its provisions.

         Under AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner can show that the state court's adjudication of his claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 97-98 (2011); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 413.

         As a threshold matter, this Court must “first decide what constitutes ‘clearly established Federal law, as determined by the Supreme Court of the United States.'” Lockyer, 538 U.S. at 71 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is “clearly established Federal law, ” this Court must look to the “holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. “In other words, ‘clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Id. In addition, the Supreme Court decision must “‘squarely address [] the issue in th[e] case' or establish a legal principle that ‘clearly extend[s]' to a new context to the extent required by the Supreme Court in . . . recent decisions”; otherwise, there is no clearly established Federal law for purposes of review under AEDPA. Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (quoting Wright v. Van Patten, 552 U.S. 120, 125 (2008)); Panetti v. Quarterman, 551 U.S. 930 (2007); Carey v. Musladin, 549 U.S. 70 (2006). If no clearly established Federal law exists, the inquiry is at an end and the Court must defer to the state court's decision. Musladin, 549 U.S. 70; Wright, 552 U.S. at 126; Moses, 555 F.3d at 760.

         If the Court determines there is governing clearly established Federal law, the Court must then consider whether the state court's decision was “contrary to, or involved an unreasonable application of, [the] clearly established Federal law.” Lockyer, 538 U.S. at 72 (quoting 28 U.S.C. § 2254(d)(1)). “Under the ‘contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13; see also Lockyer, 538 U.S. at 72. “The word ‘contrary' is commonly understood to mean ‘diametrically different,' ‘opposite in character or nature,' or ‘mutually opposed.'” Williams, 529 U.S. at 405 (quoting Webster's Third New International Dictionary 495 (1976)). “A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases.” Id. If the state court decision is “contrary to” clearly established Supreme Court precedent, the state decision is reviewed under the pre-AEDPA de novo standard. Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc).

         “Under the ‘reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 413. “[A] federal court may not issue the writ simply because the 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.” Id. at 411; see also Lockyer, 538 U.S. at 75-76. The writ may issue only “where there is no possibility fair minded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents.” Richter, 562 U.S. at 102. In other words, so long as fair minded jurists could disagree on the correctness of the state court's decision, the decision cannot be considered unreasonable. Id. If the Court determines that the state court decision is objectively unreasonable, and the error is not structural, habeas relief is nonetheless unavailable unless the error had a substantial and injurious effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

         The Court looks to the last reasoned state court decision as the basis for the state court judgment. Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this Court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption may be overcome by a showing “there is reason to think some other explanation for the state court's decision is more likely.” Id. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).

         Where the state courts reach a decision on the merits but there is no reasoned decision, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. While the federal court cannot analyze just what the state court did when it issued a summary denial, the federal court must review the state court record to determine whether there was any “reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98. This Court “must determine what arguments or theories . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Id. at 102.

         IV. REVIEW OF CLAIMS

         A. Miranda Violation

         In her first claim for relief, Petitioner asserts that the statements she made to police in her July 11-12, 2003 interview were taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966). (ECF No. 4 at 21).^[15] Respondent argues that the state court reasonably denied relief on Petitioner's Miranda claim. (ECF No. 130 at 22).

         This claim was raised on direct appeal to the California Court of Appeal, Fifth Appellate District, which denied the claim in a reasoned opinion. The California Supreme Court summarily denied Petitioner's petition for review. As federal courts review the last reasoned state court opinion, the Court will “look through” the California Supreme Court's summary denial and examine the decision of the California Court of Appeal. See Wilson, 138 S.Ct at 1192.

         In denying Petitioner's Miranda claim, the California Court of Appeal stated:

Prior to trial, Schuster unsuccessfully sought to suppress the statements she made to police in the interview of July 11 through 12 as having been taken in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).^[16] On appeal, she contends the interview became custodial when detectives discovered her cell phone in her car; hence, Miranda advisements should have been given at that point, and failure to do so should have resulted in suppression of all evidence of statements and events occurring after that point. We disagree.

The Trial Court Proceedings ^[17]

At the hearing on the suppression motion, Weibert testified that on the evening of July 11, he and Kirkhart were investigating Timothy's disappearance. Timothy had been reported as a missing person, and the detectives were trying to find out what had happened to him. At that point, they did not know if he had left town, become the victim of foul play, or possibly harmed himself.

The detectives wanted to talk to Schuster about some of the things they had found in the search of Timothy's home. Accordingly, Kirkhart contacted her by phone and made arrangements for her to come down to the police department to speak to them. Weibert initially understood Schuster had obtained a ride from someone, but later determined she drove herself. She arrived at the police department about 10:00 p.m. and was ushered into the interview room. At no time was she advised of her Miranda rights.

At the time the detectives were conducting the interview, they knew that the last phone call Timothy had received was from Schuster's cell phone. When Schuster was asked to come to the police station, she was not a suspect, however, because the detectives did not know what had happened to Timothy. Their concern with the last phone call was that Timothy might have said something to Schuster that would shed light on where he could have gone or on his state of mind.

During the interview, Schuster was asked specifically whether she had brought her cell phone with her, and she said she had not. When Weibert discovered the phone was in her car, he believed it was possible Schuster had not been truthful about bringing it, but she also could have forgotten.

Schuster and the two detectives walked outside. Schuster unlocked her vehicle and retrieved the cell phone. The detectives were speaking with her about it when her demeanor changed. She began to appear nervous. Her hands began shaking and her voice changed pitch. She began to open the cell phone and acted as if she were going to manipulate it. Concerned that she might try to change or delete entries in the phone, Weibert asked if he could see it and she handed it to him. Weibert asked politely; he did not order or demand it.

Weibert began checking the speed dial numbers programmed into Schuster's phone as the three were walking back to the interview room, because of Schuster's statement that she had Timothy's number on speed dial and had accidentally called him. He completed his inspection while they were inside. He estimated that the entire process of retrieving and checking the phone took no more than five to 10 minutes. During that time, Schuster never expressed a desire to end the interview, nor did she ask Weibert to return the phone to her.

Eventually, Schuster admitted having made the call and that what she previously told the detectives was not true. Prior to that, Weibert remembered Schuster saying she was tired, but did not recall her indicating a desire to leave. Schuster did say she had taken some Vicodin that day and had no moisture in her mouth. Both detectives encouraged her to speak with a chaplain concerning this matter. Before she admitted making the phone call, Schuster asked if the chaplain was coming in, was assured by Weibert that he would be there soon, and asked for some water. The interview ended when the police chaplain came into the room.

When Schuster admitted having made the phone call and previously being untruthful with the detectives, Weibert still was looking at the possibility that Schuster might have said something to Timothy that evoked a response from him or that some foul play could have befallen him and she might know something about it. To say Schuster was a suspect when the detectives did not know they had a crime “might be a little premature, ” however.

Weibert believed that the chaplain spoke with Schuster for a while. Weibert was not present and did not know how much longer Schuster stayed at the police department. He believed the interview lasted about two to two and a half hours. At no time was Schuster in custody or not free to leave.

At the conclusion of the hearing, the trial court found (1) Schuster's encounter with the police was consensual, (2) a reasonable person in the same situation would have understood he or she was free to go, and (3) Schuster understood she was free to go and was going to leave when the interview was over. Because there was no custodial interrogation, no Miranda warnings were required. The trial court then ruled the statements were admissible in the prosecution's case-in-chief.

Analysis

In Miranda, supra, 384 U.S. at page 444, the United States Supreme Court held that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.... Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”^[18]

Schuster's claim that Miranda was violated rests on her assertion that she was subjected to an unwarned custodial interrogation from the point at which police discovered her cell phone in her car. We assume, and the People do not dispute, that the interview constituted “interrogation” within the meaning of Miranda. (See Rhode Island v. Innis (1980) 446 U.S. 291, 301.)

“ ‘Absent “custodial interrogation, ” Miranda simply does not come into play.' [Citation.]” (People v. Ochoa (1998) 19 Cal.4th 353, 401.) “[C]ustodial interrogation” means “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way.” (Miranda, supra, 384 U.S. at p. 444.) “Whether a person is in custody is an objective test; the pertinent inquiry is whether there was ‘ “ ‘a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.' ”' [Citation.]” (People v. Leonard (2007) 40 Cal.4th 1370, 1400.) “Two discrete inquires are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.” (Thompson v. Keohane (1995) 516 U.S. 99, 112, fn. omitted.)

“In deciding the custody issue, the totality of circumstances is relevant, and no one factor is dispositive. [Citation.]” (People v. Boyer (1989) 48 Cal.3d 247, 272, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; see California v. Beheler (1983) 463 U.S. 1121, 1125.) Important considerations include the site of the interrogation, whether objective indicia of arrest were present, and the length and form of the questioning. (People v. Boyer, supra, at p. 272.) What matters are the objective circumstances of the interrogation, not the subjective views harbored by the interrogating officers or the person being questioned. (Stansbury v. California (1994) 511 U.S. 318, 323.)

“Whether a defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] When reviewing a trial court's determination that a defendant did not undergo custodial interrogation, an appellate court must ‘apply a deferential substantial evidence standard' [citation] to the trial court's factual findings regarding the circumstances surrounding the interrogation, and it must independently decide whether, given those circumstances, ‘a reasonable person in [the] defendant's position would have felt free to end the questioning and leave' [citation].” (People v. Leonard, supra, 40 Cal.4th at p. 1400; see People v. Mayfield (1997) 14 Cal.4th 668, 733.)

We conclude, after independently considering the totality of the circumstances, that a reasonable person in Schuster's position would have felt free to terminate the interview and leave at all times during questioning.

Schuster came voluntarily to the police station and provided her own transportation, and no one suggested that she was, or might be placed, under arrest. (Compare Yarborough v. Alvarado (2004) 541 U.S. 652, 664, Oregon v. Mathiason (1977) 429 U.S. 492, 495 and People v. Stansbury, supra, 9 Cal.4th at pp. 831-832 with People v. Esqueda (1993) 17 Cal.App.4th 1450, 1481.) The interview having occurred at the police department does not, without more, render it custodial. (California v. Beheler, supra, 463 U.S. at p. 1125; People v. Stansbury, supra, at p. 833; People v. Boyer, supra, 48 Cal.3d at p. 272.) The video of the interview shows that when both detectives were present, Schuster was seated in a corner of the interview room with one detective sitting to either side, forming a sort of triangle. Neither detective ever was positioned between Schuster and the door or in such a way as to make her feel hemmed in.

Of course, “[i]f an individual voluntarily comes to the police station ... and, once there, the circumstances become such that a reasonable person would not feel free to leave, the interrogation can become custodial.” (United States v. Kim (9th Cir.2002) 292 F.3d 969, 975.) Here, however, although the detectives never told Schuster she was free to leave, they implied this was so even after her cell phone was discovered in the car by telling her that the chaplain was on the way.

The chaplain was not used as a ruse to keep Schuster talking; she was asked if she wanted to speak to him and, if so, whether she wanted to do it that night and at home or at the police station. The decision to speak to him that night at the station, although made before she was told her cell phone had been discovered, was hers alone. Also, after Weibert went through the numbers programmed into the speed dial positions on the phone, Schuster was left alone to make calls or retrieve her messages, further indications that she was not in custody. (Compare People v. Leonard, supra, 40 Cal.4th at p. 1401 with People v. Esqueda, supra, 17 Cal.App.4th at p. 1481.)

Significantly, even after Schuster's deception came to light, the detectives remained polite and their tones of voice were conversational rather than accusatory. Even when Weibert expressed skepticism about Schuster's story that she accidentally dialed Timothy's number in her sleep, his tone was not harsh or intimidating.

Rather than expressly accusing Schuster of lying, Weibert suggested she had made a mistake and it would be worse if she lied about it. He did not threaten her with arrest and prosecution, but rather urged her to tell the truth, especially for T.'s benefit. (See Yarborough v. Alvarado, supra, 541 U.S. at p. 664.) He did not suggest that her deception had made her a suspect, but instead explained that he wanted to know the reason behind the call, and that maybe she ...