ORDER (1) ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE; (2) OVERRULING OBJECTIONS; AND (3) DENYING MOTION TO EXPAND RECORD (DOCKET NO. 34)

ANDREW J. GUILFORD, District Judge.

I. SUMMARY, FINDINGS AND ORDERS

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 4, 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. In any event, petitioner's trial counsel's speculation — expressly based on rumors — that the prosecutor had been fired at some unspecified time for misconduct (Motion to Expand, Exhibit 1) is inadmissible and the declarations from various witnesses concerning the procedures to enter the gated community where Munson lived (Motion to Expand, Exhibits 2-5) are cumulative of other evidence adduced at trial about what the gate guards required of visitors to enter the community. See, e.g., RT 1299-1305 (testimony from gate guard Jessie Loya). Additionally, as explained herein, the declaration from Madelyn Oudin stating that she did not identify "Wes" for the police investigators (Motion to Expand, Exhibit 7) is not material given the limited use of any testimony regarding Madelyn's alleged statement.

Although the Court has considered and overruled all of petitioner's Objections, the Court further addresses certain of petitioner's Objections below.

II. DISCUSSION OF CERTAIN OBJECTIONS

A. Petitioner's Objections Related to the Trial Court's Consideration of Allegedly False Evidence in Denying Petitioner's Motion for Acquittal Are Overruled

Petitioner argues that the Magistrate Judge failed to consider that the "only" evidence "opposing" his motion for acquittal was the allegedly false testimony that is the subject of petitioner's Brady and Napue claims (i.e., testimony concerning Gibbs's lack of cell phone activity on the day of the murder, Madelyn Oudin's alleged statement that it "would have been Wes" who was helping petitioner, and Detective Patterson's testimony about Munson's jewelry that was not turned over to police). Petitioner argues that his guilt depended on Gibbs being tried and convicted. See Objections at 2-3, 8-9, 11-29 (Objections 1 and 9) (citing, inter alia, Petition Memo at 45-55); see also RT 2762-2800 (acquittal motion and hearing). In denying the defense motions, the trial court found sufficient circumstantial evidence for a jury to conclude that petitioner was guilty without detailing the evidence on which the court relied. See RT 2800 (noting, "I do think there's a lot of coincidence with a lot of circumstantial evidence that cuts both ways, that's pretty clear. But I think there's sufficient evidence for the jury to find [the defendants] guilty beyond a reasonable doubt. So we'll submit it to the jury.").

Contrary to petitioner's argument, there was other circumstantial evidence — not related to the evidence on which petitioner bases his Brady and Napue claims — implicating petitioner in the murder on which the trial court could rely in denying petitioner's acquittal motion. In a recorded jail call that was played for the jury (RT 1502-03), which Gibbs knew was being recorded, Gibbs said to Jason Oudin, "if you talk to your dad just tell him, uh, I haven't talked to anybody. I waitin' [sic] to talk to the attorney." (CT 454-55). Jason later said, "Alls [sic] I know is you should've stayed away from my dad once you — once the restaurant closed down. . . . I knew something bad was gonna happen." (CT 457). Gibbs said, "You are not kidding. Anyhow." (CT 457). Jason continued, "I told you that. . . . [s]omething is gonna go wrong." (CT 457-58). Gibbs said, "I know that," and ended the call telling Jason to let petitioner know he had not talked to anybody, and said, "Whatever we were doin', stick to that." (CT 458).

Gibbs admittedly was with petitioner at petitioner's house on the morning of the day that Munson was murdered. (CT 786; RT 2111 [playing Gibbs's interview for jury]). Petitioner admittedly drove his Chrysler Pacifica to La Quinta on the day that Munson was murdered and stayed there until around 1:00 p.m. (CT 610-12, 637-44; RT 1833, 2078-79 [playing petitioner's and Madelyn's interview for jury]). Gibbs told investigators that petitioner "has to have somebody drive him all the time" because of petitioner's foot. (CT 735-36). Jason Oudin (who was Gibbs's friend) testified that petitioner was handicapped and needed help walking, getting up, and driving, and that Gibbs occasionally drove petitioner around starting in 2010. (RT 1478, 1485-86). Surveillance footage from a CVS Pharmacy in La Quinta showed that Munson was at the CVS from 1:09 p.m. through 1:26 p.m. on the day of the murder, and that a Chrysler Pacifica was driving around the parking lot at around 12:30 p.m. while Munson was next door at a nail salon. (RT 2052-57).

Munson's neighbor Vera Chernick testified that at around 2:00 p.m. on the day Munson was murdered, Chernick saw the front end of a light colored sedan (not matching petitioner's Chrysler) parked at Munson's house, and two unidentified men (i.e., an older man with a walker and a 6' tall, stocky man in his 30's or 40's) exiting the car and walking toward the front door. (RT 915-19, 926-31). Chernick's description of the men she saw arguably was consistent with petitioner and Gibbs, although Chernick did not know either defendant and was unable to identify their photographs from lineups. (RT 942-47; see RT 1040 [another neighbor testifying that he saw petitioner at Munson's house the night Munson's body was found; petitioner used Madelyn's assistance to get up and walk to the restroom, and there was a combination walker/chair present]; RT 1506-07 [Jason testifying that petitioner used a walker to get around from time to time but not one like Chernick described]; RT 1759-62 [Anthony also testifying that petitioner used a walker but not one like Chernick described]; CT 64 [Patterson testifying at the preliminary hearing that during his investigation he had seen petitioner using a walker]; see also Petition Ex. 30 [police report indicating that as of September, 2011, petitioner was 74 years old and Gibbs was 45 years old, six feet tall, and weighed 250 pounds]).

Dog scent evidence arguably placed Gibbs in the vicinity of the shirt Munson was wearing when she died. Deputy Garvin testified that he obtained scent samples from Munson's bloody purple shirt that was in evidence, and that he later presented the sample to his dog Inga at another location where Inga followed a trail Gibbs earlier had walked into a sheriff's station and to Gibbs. (RT 2174-87, 2196-2203, 2223-27, 2231-39; but see RT 1844-47 [officer testifying that a pair of Gibbs's pants were in an evidence bag in the evidence room where Munson's shirt was kept]; RT 2388-89 [defense expert testifying that the scent sample could have been contaminated by the presence of Gibbs's pants in the evidence room]). Gibbs had denied ever having been at Munson's house or in La Quinta, and told police that the last time he was in the Palm Springs area was 1988 or 1989. (CT 757, 781).

In light of this evidence, petitioner's Objections are overruled. Petitioner has demonstrated no prejudice to support his Brady and Napue claims from the trial court's denial of his acquittal motion.

B. Petitioner's Objections Related to the Preliminary Hearing Court's Consideration of Allegedly False Evidence in Admitting Dog Scent Evidence and Binding Him Over for Trial Are Overruled

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 Gibbs turned his cell phone off), the dog scent evidence would not have been admitted at the preliminary hearing and he and Gibbs would not have been bound over for trial. See Objections at 2-3, 29 (Objection 2) (citing, inter alia, Petition Memo at 21-22, 56-59, 61). Contrary to petitioner's argument, the record shows that the preliminary hearing court relied on other circumstantial evidence which was not the subject of petitioner's Brady and Napue claims to hold the defendants to answer the charges and to find the dog scent evidence admissible.

Detective Patterson testified at the preliminary hearing about the pattern of calls for Gibbs'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 petitioner's cell phone which was tracked as traveling from Lakewood to La Quinta on June 10, and petitioner'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 petitioner's description) at Munson's house on the day of the murder. (CT 62-64). Patterson testified about petitioner's "strained" relationship with Munson. (CT 64-65). Patterson testified about Gibbs'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 Gibbs's subsequent purchase of a car for $3,000 and payment of over $4,000 to an Arizona court — at a time when Gibbs was unemployed and when a bag of Munson's cash was found in petitioner's home. (CT 82-87).

When Patterson was asked about dog scent evidence relating to this case, Gibbs'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 Gibbs to the clothes Munson was wearing when she was killed. (CT 93-95). At the close of the preliminary hearing, Gibbs'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).

When Gibbs'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 linking the defendants to the crimes to admit this evidence. See RT 777, 782-83 (noting, ". . . you have evidence that Mr. Oudin generally doesn't drive, and that he did go out to the desert that day, and that he lied to the investigators about some things, and that the person that generally drives Mr. Oudin is either his wife or Mr. Gibbs. And a witness who says she saw a younger man pushing an older man in a wheelchair about the time of death, but she can't identify anybody and specifically excluded Mr. Gibbs from the lineup. [] And Mr. Gibbs lied to the police, which the jury instructions says is consciousness of guilt, and then he suddenly has money to spend that his sons say he has saved up.").

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 Brady and Napue claims.

C. Petitioner's Objections Based on Respondent's Failure to Lodge Madelyn Oudin's June 22, 2011 Interview Transcript Are Overruled

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. See Objections at 6, 30-31 (Objections 6 and 7).

A transcript of Madelyn's interview was not introduced at trial and not included in the record. As detailed in pages 25-28 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. See Rule 5 of the Rules Governing Section 2554 Cases. "Records" in this context means official transcripts — "records" does not mean any evidence that petitioner believes may be relevant to his case. Respondent had no duty to lodge with the Court a transcript of Madelyn Oudin's police interview that was not a part of the record in petitioner's state court proceedings. See, e.g., Buchanan v. Cate, 2011 WL 2066658, at *3 (S.D. Cal. May 24, 2011) (similarly observing that respondent's duty to lodge "records" under Rule 5(c) and (d) is limited), objections overruled, 2011 WL 4381729 (S.D. Cal. Sept. 19, 2011).

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 petitioner as he 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. See Report and Recommendation at 29 (discussing same).

D. Petitioner's Objection to the Facts Drawn from the Court of Appeal's Opinion Is Overruled

Petitioner objects to the fact drawn from the Court of Appeal's opinion that police learned from "cell phone tower pings" that petitioner had made a round trip from his home in Lakewood to "Munson's house" in La Quinta and back on June 10. See Objections at 7 (Objection 8) (citing Report and Recommendation at 6). Petitioner'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). Petitioner's cell phone records did not specifically place petitioner 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 petitioner going to Munson's house on June 10. (RT 2654-55).

While petitioner is correct that the cell phone records established only that he 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 petitioner's presence at Munson's house that day may otherwise be reasonably inferred from the record discussed in detail in the Report and Recommendaiton. 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. See Cone v. Bell, 556 U.S. 449, 472 (2009) (when a state court's adjudication of a claim on the merits is based on an unreasonable determination of facts review is de novo). In short, as a correction to the reference in issue would not alter the outcome of this matter, petitioner's objection is moot and is overruled as such.

III. FURTHER ORDERS

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.