Chitwood v. Gipson

JEFFREY PAUL CHITWOOD, Petitioner, v. GIPSON, Warden, Respondent.

Case No. 1:13-cv-00502 AWI MJS (HC)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

December 29, 2014

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. Respondent is represented by Doris A. Calandra of the office of the California Attorney General. The parties have not consented to Magistrate Judge jurisdiction under 28 U.S.C. § 636(c). (ECF Nos. 8, 10.)

I. PROCEDURAL BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Kern, following his conviction by jury trial on June 24, 2010, of first degree murder with the personal use of a firearm resulting in death. (Clerk's Tr. at 1115-16.) On July 19, 2010, the trial court sentenced Petitioner to serve an indeterminate term of life without the possibility of parole and twenty-five years to life. (Id.)

Petitioner's direct appeal, filed with the California Court of Appeal, Fifth Appellate District, was denied on February 23, 2012. (Lodged Docs. 1-4.) Petitioner filed a petition for review with the California Supreme Court. (Lodged Doc. 5.) The Supreme Court summarily denied the petition on May 9, 2012. (Lodged Doc. 6.)

Petitioner proceeded to file post-conviction collateral appeals in the form of petitions for writ of habeas corpus in the Kern County Superior Court, the California Court of Appeal, Fifth Appellate District and the California Supreme Court. The petitions were denied on September 21, 2012, November 7, 2012, and November 13, 2013, respectively. (Lodged Docs. 7-10, 15-16.)

Petitioner filed the instant federal habeas petition on April 5, 2013. (Pet., ECF No. 1. ) Petitioner proceeded to file an amended petition on September 18, 2013. (Am. Pet., ECF No. 17.) In his amended petition, Petitioner presents five claims for relief: (1) that his Fourth Amendment rights were violated during the search of Petitioner during his arrest; (2) that his Fourth amendment rights were violated as he was subject to an unlawful arrest and illegal car stop; (3) that trial counsel was ineffective for failing to hire a DNA expert to test or retest physical evidence in light of possible cross-contamination; (4) that trial counsel was ineffective for failing to hire a DNA expert to test DNA for third-party culpability; and (5) that the court erred in admitting the testimony of the prosecution's DNA expert.

Respondent filed an answer to the petition on March 21, 2014, and Petitioner filed a traverse on April 25, 2014. (Answer & Traverse, ECF Nos. 27-28.)

II. STATEMENT OF THE FACTS¹

FACTS

Chantha Meas worked as a clerk at the Shell gas station and food mart located at 1508 Airport Drive near Norris Road in Bakersfield. The store was just a quarter mile from the Kern County Sheriff's Department, and it was the only convenience store in the immediate area. Many of the deputies who investigated her homicide had regularly patronized the gas station and store because it was so closely located to their office, and they were familiar with Meas as one of the clerks who worked there.

Meas and her husband, Odom Chap, lived in a rental house which was immediately adjacent to the Shell store. The house was owned by the same person who owned the gas station. Chap worked at another convenience store located in a different part of town.

The Shell store was not open 24 hours a day. Meas had the morning shift and she was responsible for opening the store in the morning. She usually arrived around 3:00 a.m. to prepare the store to open at 4:00 a.m. on weekdays. Meas's usual custom was to call the store's owner once she had opened the store.

The Shell station and store were equipped with video surveillance cameras and recording equipment. The cameras covered the gas pumps, the store's exterior, the alley which was between the store and Meas's adjacent house, and part of the house itself.

Defendant's activities before the homicide

Defendant lived on Airport Drive directly north of the Shell store.

The records from Log Cabin Florist showed that defendant ordered flowers from his home address for delivery to the Shell store on August 26, 2008. He placed another order on a different date. The flowers were delivered to Meas at the store.

Jennifer Isbell lived near Meas's house on Airport Drive and described an incident which had occurred one evening a couple of weeks before Meas was killed. On that particular evening, Isbell was sitting on the front porch of her own house and saw a man walk up and down the street. The man was not wearing a shirt. Isbell thought the man was "creepy" and looked like a drug addict. At trial, Isbell identified defendant as the man.

Isbell and her sister got into a car and followed defendant as he continued to walk up and down the street. Defendant stared at Meas's house and opened Meas's mailbox. Defendant walked through the adjacent alley. Isbell drove around the Shell station and met defendant as he emerged from the alley. Isbell flashed the car's bright lights to illuminate defendant, and he hid behind a pole.

The Shell station's surveillance videotapes showed that on October 12, 2008, the day before Meas was killed, defendant visited the Shell store at 4:37 a.m., and he repeatedly returned.[FN3]

FN3. Kern County Sheriff's Detective Lackey testified that after the homicide, he met with the owner of the Shell station, who played the surveillance videotapes for him and explained the time-stamps were two hours later than they should have been. Lackey extensively reviewed the entirety of the videotapes for any suspicious activity.

On October 12, 2008, defendant purchased an expensive policescanner from an electronics store.

Last contact with Meas

Around 9:00 p.m. on October 12, 2008, Chap (Meas's husband) left their residence to head to his night shift at the store where he worked. Meas was still asleep when he left. She was scheduled to open the Shell store early the next morning.

At 2:30 a.m. on Monday, October 13, 2008, Chap called the house to wake up Meas so she would be ready for her morning shift at the Shell store. Meas answered the telephone and said she was getting dressed.

Neighborhood witness

Bridget Bachman lived directly north of Meas's house. Around 3:30 a.m. on October 13, 2008, Bachman heard a woman screaming, "'Get the f*** out of my yard.'" Bachman did not recognize the woman's voice, but the sound seemed to come from the direction of Meas's house. Bachman went outside but did not hear anything. After about five minutes, Bachman went into her house but then heard somebody hitting something that sounded like metal. Bachman again went outside, but she could not distinguish the sound because of the noise from passing vehicles.

Meas is taken from her house

The Shell station's security videotapes revealed the following activities on October 13, 2008. Shortly before 3:00 a.m., a man walked near Meas's garage and through the alley that was adjacent to the store and Meas's house. At 3:12 a.m., the videotape showed Meas struggling with a man. The man took Meas away from the house on foot, while she continued to struggle and resist. They went out of the video frame, and the other security cameras did not pick up their further movements.

Meas's disappearance

In the early morning hours of October 13, 2008, the Shell store's owner never received the expected call from Meas to report that she had opened the store. At 5:00 a.m., Melissa Chao, the owner's wife, went to the store to check on the situation, and discovered that Meas was not there, and the store was still closed. Chao went to Meas's house, but she was not there. Chao called Chap and told him that Meas was not at work.

Around 6:00 a.m., Chap contacted the sheriff's department and reported that his wife was missing.

Discovery of Meas's body

Around 6:15 a.m. on October 13, 2008, Larry Clouser, a general contractor, was driving to his workplace in the rural oil fields located north of the Shell store. Clouser drove north on Airport Drive, which turned into Granite Road, and he continued through the intersection of Round Mountain Road. He pulled onto an access road and found a woman's body lying in the dirt. Her head was surrounded by a dark liquid which appeared to be blood.

The deputies and detectives who responded to the desolate area recognized the victim as Meas, the missing clerk, based on their prior transactions at the Shell store. Meas was wearing her Shell uniform shirt. The zipper on Meas's blue jeans was partially down.

Defendant's activities

At 5:00 a.m. on October 13, 2008, Lloyd Hatfield reported for work as a crane operator at a construction company's main yard on Airport Drive off Highway 33. Hatfield met defendant there for the first time that morning. It was defendant's first day of work, and defendant was assigned to Hatfield's crew.

On October 14, 2008, defendant failed to show up for his job, and he was never seen again at the construction yard.

Forensic evidence

There was one live nine-millimeter round and one spent shell casing found in the dirt near Meas's body. Both items had been loaded into and extracted from the same firearm. The impression from the firing pin was consistent with the impression left by a nine-millimeter Glock.

There were fresh tire prints in the only "turnaround" area of the dirt access road. There were also drag marks in the dirt that led to the Meas's body, which indicated the victim had been dragged to the location where her body was found. The drag marks were inconsistent with a struggle. A nylon rope or cord was found in close proximity to the tire prints.

The pathology evidence

The pathologist determined Meas had been shot twice in the head. The first gunshot caused an entrance contact wound to the left cheek, which indicated the weapon's barrel had been placed

...