Adams v. Hornbeak, 1:10-cv-02110-OWW-DLB (HC)

SUZE ADAMS, Petitioner,

v.TINA HORNBEAK, Respondent.

1:10-cv-02110-OWW-DLB (HC)

Doc. 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: July 21, 2011

FINDINGS AND RECOMMENDATION

REGARDING PETITION FOR WRIT OF

HABEAS CORPUS

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

RELEVANT HISTORY

Following a jury trial in the Stanislaus County Superior Court, Petitioner was convicted of two counts of arson of an inhabited structure (Cal. Penal Code¹ § 451(b)), murder (§187), and three counts of attempted murder (§§ 664/187.) For the murder and attempted murder charges, the jury found true the allegation that the crimes were premeditated. The jury also found true the special circumstance allegation that the murder was committed during an arson (§ 190.2(a)(17)). Petitioner was sentenced to life without the possibility of parole for special circumstance murder (§§ 187, 190.2(a)(17)). Petitioner was sentenced to a consecutive five-year term for arson of an inhabited structure (§ 451(b)) and a consecutive life term with the possibility of parole for each of the attempted murder (§§ 664, 187) counts, to run concurrent to each other.

Petitioner appealed to the California Court of Appeal, Fifth Appellate District. The Court of Appeal affirmed the judgment in a partially published opinion on December 30, 2008 (People v. Adams, 169 Cal.App.4th 1009 (2008); Lod. Docs. 4, 5 and Exs. 1 [partially published opinion] and 2 [full opinion].)

On January 16, 2009, Petitioner filed a Petition for Rehearing in the California Court of Appeal. On January 26, 2009, the Court of Appeal denied the Petition for Rehearing.

On February 24, 2009, Petitioner filed a Petition for Review in the California Supreme Court. The California Supreme Court summarily denied the petition on April 7, 2009.

Petitioner filed the instant petition for writ of habeas corpus on November 5, 2010. On March 17, 2011, Respondent filed an answer to the petition. Petitioner filed a traverse on July 11, 2011.

STATEMENT OF FACTS²

Prosecutor's Case

A. The Fires

On March 25, 2004, Jerry McDaniel, the fire marshal for the City of Turlock, was dispatched to the scene of a fire. The fire was already out, and McDaniel spoke with the fireman in charge, Captain Becker. McDaniel and Becker determined that the fire originated from the wooden front porch and front wall of the house. McDaniel originally concluded that the cause of this fire was "undetermined" because "cigarette butts in the area" could have accidentally ignited the fire.

On June 18, 2004, McDaniel was dispatched to the same house, again meeting with Becker, who related that a young man at the scene had advised that his mother was still inside the home. McDaniel did a "brief walk around" and "clearly" saw "there were two separate fires set" at the house, one at the backdoor and one on the front porch. Both fires grew "up and out," extending into the house until intersecting, consuming much of the house and causing the front porch, the roof, and "all the floorboards" in the house to collapse. The reason the second fire was "much more intense" than the first was a heavier "fuel content" or "fuel package" on the front porch, in that a large stuffed chair and recliner caught fire. The fire at the back door started where "[i]gnitable fluid was poured." The body of the young man's mother was found in the bathroom.

Found in some trash cans in the area were two "one gallon Ziplock seal-a-meal type bags" containing what looked like pine needles. The bags emitted an"odor of a cleaning fluid or paint thinner." Samples of the contents of these bags were sent to the Department of Justice for analysis, and the samples were determined to be "rosemary and alcohol."

McDaniel concluded that both the March 25 and June 18 fires were the result of arson.

B. The Victims and the Suspect

Witness interviews showed that the deceased female, Kristina Soult, was in the home at the time both fires were started. Present at the time of the first fire were Soult, Joseph Lopes, and Lopes's girlfriend. They managed to escape through the back door of the house. Present for the second fire were Lopes, Andrea Marr, who was Soult's friend, and J.V., who was Soult's grandson and Lopes's nephew.

During the second fire, Lopes stated that he was asleep on a couch when he was awakened "by heat and light coming through the front window." He got up, woke up everyone else in the house, and tried to get them out. He last saw his mother in the hallway, when she handed J.V. to Andrea. He, Andrea, and J.V. exited the house through the back door, which was "already hot to the touch." Upon opening the door, the "fire rolled in on the floor making it difficult to get out." After exiting the house, he realized his mother was still inside.

Turlock Police Detective Morgan attended Soult's autopsy on June 18, 2004. Later that day, he got an anonymous telephone call from a woman subsequently determined to be the wife of David Jaen. The next day, he got an anonymous telephone call from a man who was subsequently determined to be Jaen. He met with Jaen and, as a result, came to consider Adams a suspect in Soult's death.

Both Jaen and Adams were Cooks who worked at the same restaurant in Turlock. Jaen also had worked with Soult around 2002 or 2003, in another restaurant. According to Jaen, Adams never told him that she was scared of Soult. Shortly after the first fire at Soult's house, Jaen learned about it from Soult's son, Joseph Lopes. He mentioned to Adams that someone had tried to burn Soult's home, and she responded that the "[s]econd time around she'll do better." About a week before the second fire, Soult came into the restaurant and ate, which made Adams "furious." After the second fire, Jaen immediately suspected Adams because of her statements about the first fire.

Detective Morgan determined that the distance between Adams's and Soult's homes was about "a mile and a half." On June 20, 2004, he searched Adams's residence pursuant to a search warrant and found "numerous rosemary needles throughout" the home. He interviewed Adams on June 20, 2004. Adams told him that Soult had phoned her repeatedly and followed her, but she denied being afraid of Soult, who she thought might have been mentally ill. She admitted that her boyfriend, Fortino Godoy, still had contact with Soult before Soult died and that "she didn't like it."

On June 21, 2004, Detective Morgan searched the dumpster next to Adams's apartment and found a "bundle of branches of rosemary, ... wrapped with a piece of twine or cord. He later learned that Adams had picked up her paycheck, and that she had left that day for Tijuana.

On July 2, 2004, Detective Morgan again interviewed Adams who indicated that had just returned from Tijuana. He saw that she had put her hair in a "bob" and bleached it blond.

C. The Polygraph Examination

On August 4, 2004, Jeannie Brandon, a polygraph examiner with the California Department of Justice, conducted a voluntary and videotaped polygraph examination of Adams. A DVD of the interview was played for the jury, which was also provided with copies of the transcript of the interview.

According to the transcript, Brandon advised Adams at the outset of her "constitutional rights," obtained Adams's agreement to waive those rights, and informed Adams that she could change her mind and terminate the polygraph exam at any time. Brandon informed Adams that the polygraph exam was being given in conjunction with the investigation into the death of Soult. Brandon warned Adams that it was not wise to try to life and beat the polygraph. Brandon stated that although the case was classified as a homicide, it was possible that whoever started the fire did not intend to kill Soult, but intended only to scare her.

Adams told Brandon that she did not know Soult that well and was acquainted with her only because Soult had previously dated her boyfriend, Godoy. Adams stated that Godoy had pretty much stopped seeing Soult when he started dating her, but was still seeing Soult sometimes. Adams initially denied setting a fire at Soult's home on the night of June 18, 2004, and denied knowing who did. When asked if she suspected anyone, she mentioned Soult's youngest son's friend.

Brandon mention ed an earlier fire at Soult's home and stated that someone had phoned the police with a tip, suggesting that Adams had made comments that Adams had started the first fire, and that next time, she would do it more professional, such as by means of Molotov cocktail. Adams initially claimed to have no idea what this tip was about, then denied making any comment about a Molotov cocktail, then claimed that all she said was that "'if" she was to do it, she would do it right." Adams claimed that she was merely joking or

bragging.

Brandon suggested that "two sets" of "pretty good" fingerprints had been left at the crime scene, and Adams denied they were hers. Adams stated that she did not known who killed Soult or why, but expressed doubt that Soult's death was intended. Adams related that Soult did not take it well when Godoy broke up with her, stating that Soult "used to call my house and threaten me all the time." Adams claimed that she would "simply hang up." Soult "sometimes" phoned Adams on a daily basis, and the most recent call was about a week before Soult's death. Adams "should have" called the police.

Adams told Brandon that she was afraid of Soult. Soult had followed her home from work in a car and had called her "Susie Q." Soult also had followed her to work when she was being driven by Godoy. Soult even had come to Adams's workplace a few times, most recently on the Monday before the fatal fire, but did not say anything.

Adams initially claimed to have worked on the night of June 17, 2005. Godoy had picked her up from work and they watched a movie at her apartment,then went to sleep together, getting up the next morning at around 9:00 or 9:30

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