United States District Court, E.D. California
FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF
PETITION FOR WRIT OF HABEAS CORPUS (ECF NO. 4)
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
December 12, 2007, Petitioner was convicted after a jury
trial in the Fresno County Superior Court of first-degree
murder. The jury also found true the special
allegation that the offense was carried out for financial
gain. (17 CT 5046). Petitioner was sentenced to life in
prison without the possibility of parole. (LD 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).
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).
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.
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
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. 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,  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
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. 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. 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
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
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
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
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
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
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
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
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
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.
The thrust of Schuster's defense was that Fagone killed
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
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
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
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.
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
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
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
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
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
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
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
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.
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
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 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. 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. 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
STANDARD OF REVIEW
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).
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
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;
(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.
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.
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)
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).
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)).
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.
REVIEW OF CLAIMS
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). Respondent argues that the state court
reasonably denied relief on Petitioner's Miranda
claim. (ECF No. 130 at 22).
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
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). 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
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
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.
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
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.
“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 ...