MICHAEL W. FITZGERALD, District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition") and all of the records herein, including the September 17, 2018 Report and Recommendation of United States Magistrate Judge ("Report and Recommendation"), petitioner's November 5, 2018 objections to the Report and Recommendation ("Objections") and petitioner's November 27, 2018 Motion to Expand the Record ("Motion to Expand"). The Court has further made a de novo determination of those portions of the Report and Recommendation to which objection is made. The Court concurs with and accepts the findings, conclusions, and recommendations of the United States Magistrate Judge and overrules all of the Objections. The Court further denies the Motion to Expand as moot because consideration of the matters as to which expansion is sought would not alter this Court's determination that denial of the Petition and overruling of the Objections is appropriate.
Petitioner argues that the Magistrate Judge failed to consider that the "only" evidence "opposing" his motions for acquittal, made near the close of the prosecution's case (before dog scent evidence was admitted) and at the close of the prosecution's case, was the allegedly false testimony that is the subject of petitioner's
Contrary to petitioner's argument, there was other circumstantial evidence not related to the evidence on which petitioner bases his
In light of this evidence, petitioner's Objections are overruled. Petitioner has demonstrated no prejudice to support his
Petitioner also argues that the Magistrate Judge failed to consider his suggestion that, without the "only" evidence presented at the preliminary hearing (i.e., the allegedly false testimony that he turned his cell phone off), the dog scent evidence would not have been admitted at the preliminary hearing and he would not have been bound over for trial.
Detective Patterson testified at the preliminary hearing about the pattern of calls for petitioner's cell phone and the relative lack of activity on June 10. (CT 79-81, 119-20). Patterson also testified about the pattern of phone calls for Oudin's cell phone which was tracked as traveling from Lakewood to La Quinta on June 10, and Oudin's admission upon being confronted with this evidence that he had traveled to La Quinta that day. (CT 69-73). Patterson testified about Vera Chernick's report that she had seen two men (one matching the Oudin's description) at Munson's house on the day of the murder. (CT 62-64). Patterson testified about Oudin's "strained" relationship with Munson. (CT 64-65). Patterson testified about petitioner's admission, upon being confronted with cell phone evidence, that he was at Oudin's house in Lakewood on June 10, and about evidence gathered concerning petitioner's subsequent purchase of a car for $3,000 and payment of over $4,000 to an Arizona court — at a time when petitioner was unemployed and when a bag of Munson's cash was found in Oudin's home. (CT 82-87).
When Patterson was asked about dog scent evidence relating to this case, petitioner's counsel objected for lack of foundation. (CT 87-93). The court allowed the evidence subject to a motion to strike on cross-examination. (CT 93). Patterson then testified about the dog scent evidence linking petitioner to the clothes Munson was wearing when she was killed. (CT 93-95). At the close of the preliminary hearing, petitioner's counsel moved to strike the dog scent evidence for lack of foundation, which the court denied. (CT 138-39). Counsel for both defendants argued there was insufficient evidence linking the defendants to the crimes to hold them to answer the charges. (CT 139-42). The court found sufficient evidence had been presented to hold the defendants to answer the charges. (CT 145). As summarized at pages 26-27 of the Report and Recommendation, when petitioner's counsel again took issue with the admissibility of the dog scent evidence prior to the start of trial, the trial court found sufficient corroborating evidence from the preliminary hearing to admit this evidence.
In light of this record, petitioner's Objections are overruled. Petitioner has shown no prejudice from the consideration of the allegedly false testimony at the preliminary hearing to support his
Petitioner objects based on respondent's failure to lodge a transcript of Madelyn Oudin's June 22, 2011 interview as "bearing on the merits of petitioner's claims." Petitioner asserts that the transcript would have shown that police witnesses were lying about what Madelyn had said because she assertedly did not say that it "would have been Wes" who was with Oudin.
A transcript of Madelyn's interview was not introduced at trial and not included in the record. As detailed in pages 30-34 of the Report and Recommendation, defense counsel successfully objected to the introduction of any of Madelyn's solo interviews at trial as hearsay. (RT 1944-46, 1950, 1952-53, 1958-64). The trial court permitted Detective Patterson to testify about discrete statements assertedly made by Madelyn to explain actions taken by law enforcement. (RT 1983-97, 2002-03). While the record reflects that defense counsel had a transcript and recording of Madelyn's interview that it could use for impeachment purposes (RT 2980), the transcript was never marked or received in evidence.
Respondent's requirement to lodge records with the Court is based on Rule 5(c) and (d) of the Rules Governing Section 2254 Cases in the United States District Courts, which provides that respondent must "indicate what transcripts (of pretrial, trial, sentencing or post-conviction proceedings) are available," attach to the answer the "parts of the transcript the respondent considers relevant," and lodge copies of briefs on appeal and opinions.
Assuming, arguendo, that a copy of Madelyn Oudin's interview had been lodged with the Court and had shown that Madelyn made no statement about "Wes" being with Oudin as petitioner suggests (Objections at 6), the Court would find no prejudice from the introduction of testimony concerning Madelyn's alleged statement given the limiting instruction the trial court provided to the jury with such testimony.
Petitioner objects to the fact drawn from the Court of Appeal's opinion that police learned from "cell phone tower pings" that Oudin had made a round trip from his home in Lakewood to "Munson's house" in La Quinta and back on June 10.
Cell phone records for Oudin's cell phone placed him traveling from Lakewood in the morning to La Quinta and back in the evening on the day Judy Munson was murdered. (RT 2064-70). Oudin's cell phone records did not specifically place Oudin at Munson's house on the day of the murder. (RT 2064-70). On cross-examination, Detective Patterson admitted that he had no proof of Oudin going to Munson's house on June 10. (RT 2654-55).
While petitioner is correct that the cell phone records established only that Oudin made a round trip between his home in Lakewood and La Quinta, this Court does not view the Court of Appeal's statement referencing Munson's house to be material and notes that Oudin's presence at Munson's house that day may otherwise be reasonably inferred from the record discussed in detail in the Report and Recommendation. Moreover, even assuming, arguendo, that the Court of Appeal's decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings, 28 U.S.C. § 2254(d), for the reasons detailed in the Report and Recommendation, petitioner's claims fail on de novo review.
IT IS HEREBY ORDERED that Judgment be entered denying the Petition on the merits and dismissing the action with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on petitioner and on respondent's counsel.
IT IS SO ORDERED.
