Foreman v. Allen

1

PRENTICE FOREMAN, Petitioner, v. TRENT ALLEN, Respondent.

No. 1:23-cv-00390-JLT-EPG-HC

United States District Court, E.D. California

November 7, 2023

FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS AND DENIAL OF PETITIONER'S REQUEST TO STAY

Petitioner Prentice Foreman is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed herein, the undersigned recommends denial of the petition for writ of habeas corpus and denial of the motion to stay.

I. BACKGROUND

On June 5, 2019, Petitioner was convicted by a jury in the Kern County Superior Court of first-degree murder. (6 CT^[1] 1677.) On July 10, 2019, Petitioner was sentenced to an imprisonment term of twenty-five years to life. (Id.) On February 24, 2022, the California Court of Appeal, Fifth Appellate District affirmed the judgment. People v. Foreman, No. F079645, 2022 WL 558250, at *31 (Cal.Ct.App. Feb. 24, 2022). On May 11, 2022, the California Supreme Court denied Petitioner's petition for review. (LD^[2] 14.)

On March 10, 2023, Petitioner filed the instant federal petition for writ of habeas corpus, raising the following claims for relief: (1) erroneous exclusion of third-party culpability evidence; (2) erroneous denial of continuance; (3) erroneous admission of expert testimony; (4) erroneous admission of DNA testimony; (5) erroneous admission of hearsay evidence; (6) unlawful conviction under the felony-murder theory; and (7) cumulative error. (ECF No. 1 at 46.)^[3] Respondent filed an answer and Petitioner filed a traverse. (ECF Nos. 17, 23.) In the traverse, Petitioner also requested to stay the instant proceedings pending the outcome of his motion for DNA testing in state court. (ECF No. 23 at 14-16.)

II.

STATEMENT OF FACTS^[4]

The victim, 18-year-old Dawn Koons, moved to Bakersfield from New York in the fall of 1978. She came to Bakersfield after her high school sweetheart, S.,^[5] had moved there several months before. When she first arrived, Dawn lived with S., but their relationship ended after only a few weeks and she moved out into her own apartment.

Around 6:15 p.m. on Tuesday, January 16, 1979,^[6] Bakersfield police officers entered Dawn's apartment and found her dead inside the bathroom. There were no signs of forced entry. Dawn's nude body was in the bathtub with her hands tied behind her back and a pillowcase covering her head. There was also a ligature around her neck. The wrist and neck ligatures were telephone cords cut from Dawn's apartment telephone. Her body lay in the bathtub with her head under the faucet, and her legs were splayed widely open, exposing her vagina. Her apartment looked “lived in,” but not messy or in disarray. However, the bed sheets were “very rumpled,” and part of the mattress was exposed. One of her bed pillows was missing its pillowcase.

Dawn's “best friend,” Diane D., testified about Dawn's activities in the days before she was found dead. Diane D. and Dawn worked together at a local restaurant. Diane D. said she last saw Dawn on Friday night January 12. In the afternoon on Friday, January 12, Diane D picked Dawn up from her apartment to go to work. While inside the apartment, Diane D. noticed Dawn's bed was not messed up. Diane D. explained Dawn kept her apartment “spotless.” Diane D. and Dawn worked their shift and got off around 8 p.m., after which the two went to a restaurant. Diane D. said Dawn had French fries and may have had a glass of wine. After they left the restaurant, Diane D. dropped Dawn off at her apartment around 10 or 10:30 p.m. and watched her walk inside.

Diane D. and Dawn had plans to go horseback riding the next morning. However, Dawn did not answer the phone and did not come to her door that morning when Diane D. knocked. Diane D. tried looking into Dawn's apartment but the curtains were shut. Dawn did not show up for work on Saturday or Sunday.^[7] Diane D. continued trying to contact Dawn by phone and knocking on her door, and left a note on Dawn's door, “probably” on Sunday, asking Dawn to call her.^[8]

Diane D. testified about a Black man who had been following Dawn and “creeping her out.”^[9] Diane D. testified she and Dawn would see the man in various places in the apartment complex; the man “seemed to show up wherever [they] were.” Dawn told Diane D. the man was creeping her out and following her around. Diane D. felt the man was following Dawn, not Diane D., because of the way the man would look at Dawn. Diane D. stated that one time she and Dawn were in the apartment clubroom when he came in, and they left.

The prosecutor asked Diane D. if she recognized Foreman in court. Diane D. initially said, “I can't see where he's at at the present time.” Foreman then waved at Diane D.. Diane D. then said, “I'm legally blind in my left eye now, but I wasn't back then. That's why I couldn't see him.” She then said, “I'm pretty sure that's him.”

Diane D. was extensively cross-examined about her prior police statements (in 1979, 2012, and 2017) as to whether Dawn had said anyone had been harassing her. Diane D. first testified she could not recall what she told police. Then, after reviewing police reports, she claimed the police had inaccurately documented her statements. She eventually acknowledged that in 1979 and 2012 she did not mention the race of the man who had been harassing Dawn. She testified, however, that she called police in 2017 after seeing Foreman on television and realizing he was the person who had been bothering Dawn. She also testified on cross-examination that she recalled being introduced to Foreman by another man in the clubroom of Dawn's apartment complex in 1978 or 1979. He was introduced to her with a one-syllable name that she could not remember. Diane D. denied that she would have said anything about Dawn being harassed by her exboyfriend.

On redirect, Diane D. testified for the first time that she saw Foreman as she dropped Dawn off on Friday night, January 16. She stated her car headlights swept across him as she pulled in. On recross-examination, she said she did not know if she told police this, but stated it seemed to her that she would have. But pressed further, she admitted she did not tell this to police in 1979.

The defense called the detective who interviewed Diane D. in 2017. Diane D. told the detective Dawn had introduced her to a Black man at the apartment complex who Diane D. thought was “nice.” Diane D. told the detective she thought Dawn's “ex-boyfriend” might have been the man who had been creeping her out. Diane D. specifically said to police, “There was some guy creeping her out. I don't-she didn't-I-I'm thinking it was, like, her ex-boyfriend or something.”

Dawn's ex-boyfriend, S., also testified for the prosecution. He testified he and Dawn were high school sweethearts. He moved to Bakersfield in the summer of 1978, and Dawn followed him in the fall. The two lived together for a few weeks before they broke up and Dawn moved out. S. said he “made sure she got to a nice apartment,” and he gave her everything he could to “get her started.”

S. described his “communications” with Dawn after their breakup as “cordial” “most of the time.” They would telephone each other from time to time to see how the other was doing. He stated they would each hang up on each other sometimes in the middle of calls.

S. testified Dawn told him a Black man was harassing her at the mailboxes at her new apartment. According to S., Dawn said the Black man told her he wanted to “fuck” her, which upset her. S. said Dawn called him at one point and said the Black man was in her apartment and would not leave. S. told Dawn to call police. Dawn responded, “Call the police?” And S. heard a male voice say, “Oh, no. No, not the police.” S. said the man then apparently left. S. testified Dawn had a habit of leaving the door unlocked, and he said he told Dawn to lock her door. He knew about this habit because there were a couple of occasions where he arrived at her apartment, knocked on the door, turned the doorknob and the door opened. He explained she was not used to locking her door because in New York she lived on the sixth floor of an apartment building with a locked lobby.

S. testified that, on another occasion less than a week after the phone call when the man was in Dawn's apartment, he was over at Dawn's apartment when she went out to get her mail. S. said she came back and was “shook up” because she said the Black man was there and had really scared her. Dawn said, “You know that guy I was telling you about? He's out there right now. That man really scares me.” S. testified he looked out the window and saw the man. S. identified Foreman in court as the man he saw out of the window. Asked how S. knew Foreman was the man he saw all those years ago, S. stated, “Because I can still see his face when he was 21 years old.”^[10]

S. said he saw Foreman one other time when he pulled into the parking lot of the apartment complex. Foreman was outside near the mailboxes, staring at Dawn's apartment. S. entered Dawn's apartment and said, “He's out there.” S. looked through the window blinds and waited for Foreman to leave, but Foreman continued to stand there, staring. Foreman then started walking away and went a little out of sight. S. went outside to see where Foreman was going. S. watched Foreman as he walked into apartment 50, which was behind and upstairs from Dawn's apartment.

S. stated he spoke with police in 1979 and told them about the Black man in apartment 50 who had been harassing Dawn at the mailboxes and who had been inside of Dawn's apartment without permission. S. said he gave this information to Detective Louis Bayus the day after Dawn's body was discovered. He also

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