Larsen v. Paramo

CHAD ANDREW LARSEN, Petitioner, v. DANIEL PARAMO, Warden, Respondent.

Case No. 13-cv-04884-JST (PR)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

February 23, 2015

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY

Chad Andrew Larsen, a California prisoner, has filed this pro se action seeking a writ of habeas corpus under 28 U.S.C. § 2254. Respondent has filed an answer to the petition, and Petitioner has filed a traverse. The matter is now before the court for consideration of the merits of the habeas petition. For the reasons discussed below, the petition is denied.

I. BACKGROUND

On September 9, 2008, the Humboldt County District Attorney filed an information charging Petitioner and his father, Dennis Larsen, with conspiracy to commit murder, Cal. Penal Code § 182(a)(1). Clerk's Transcript on Appeal ("CT")¹ at 631-32. Petitioner was charged separately with two counts of solicitation to commit murder; one count was later dismissed by the district attorney prior to trial. CT at 631-33, 1137.

Pursuant to a plea agreement, Dennis Larsen pled no contest to one count of solicitation to commit murder and was granted probation. Reporter's Transcript ("RT")² at 851. On March 25, 2010, following a jury trial, Petitioner was found guilty of conspiracy to commit murder andsolicitation to commit murder. CT at 1238-45. Petitioner was sentenced to a term of 25 years to life for the conspiracy charge, and to a term of 9 years for the solicitation charge, to run concurrently with the sentence for conspiracy. 3 CT at 1323-26.

Petitioner directly appealed the judgment in the California Court of Appeal. Docket No. 5, Ex. D. On April 30, 2012, in a reasoned opinion, the California Court of Appeal affirmed the judgment. Docket No. 5, Ex. G. On August 8, 2012 the California Supreme Court denied the petition for review. Docket No. 5, Ex. I.

The instant petition was filed on October 22, 2013.

II. STATEMENT OF FACTS

The following background facts describing the crime and evidence presented at trial are from the opinion of the California Court of Appeal³:

In January of 2008, defendant was arrested and subsequently charged with felony violations of unlawful sexual intercourse and oral copulation with a minor (Pen. Code, §§ 261.5, subd. (c), 288a, subd. (b)(1)), 16-year-old Jane Doe.¹ While defendant was held in the Humboldt County Jail awaiting trial, his father, Dennis Larsen (Dennis) regularly visited him. To avoid the recording devices on jailhouse phones, defendant would often communicate with Dennis by holding up handwritten notes to the glass partition in the visiting room.

Fn 1. Subsequent statutory citations are to the Penal Code unless otherwise indicated.

During the first visit defendant told Dennis he "wasn't guilty of what he was charged with," and did not want the case "to go forward." Defendant expressed apprehension to Dennis that should Jane Doe testify against him, he would be convicted.² He hoped she would not testify because he feared going to prison and being required to register as a sex offender.

Fn 2. Defendant had been previously convicted of unlawful sex with a minor in 2006, and was on probation at the time of the 2008 sex offenses.

Dennis soon realized that defendant "had had sex with a minor." Defendant "was very concerned about scientific evidence" that may "support the charge against him of ... statutory rape." He repeatedly asked Dennis to "wipe down the front seat" of his truck by rubbing a "tri-tip roast" into the seat to eliminate "DNA evidence" linking him to Jane Doe. Dennis complied, using a towel soaked in tri-tip or other meat juice.

Evidence was presented that defendant contacted several fellow jail inmates with proposals to kill Jane Doe to prevent her from testifying at trial. Between February and June 2008, at defendant's request Dennis sent two $500 money orders to two Humboldt County Jail inmates at different post office boxes, each addressed to "our friend."

Defendant also approached fellow Humboldt County Jail inmate Scott Schwartz with a scheme for him to go to the victim's residence, kick the door in, "pretend [to be] police and kill everybody in the house so she couldn't testify." In May of 2008, defendant enlisted Dennis to pay Schwartz, who by then had been released from jail, $1,500, and give him a ride to San Francisco, in exchange for carrying out the murder of Jane Doe.³ Dennis gave Schwartz the money and drove him to San Francisco, but Schwartz failed to perform the murder, and subsequently tried to blackmail Dennis and defendant.

Fn 3. Dennis later claimed the money was for a motorcycle defendant was buying from Schwartz, but the sale never took place.

On several occasions defendant offered another inmate he met in the "same tier" of the county jail, William Lenard, money to kill Jane Doe to prevent her from testifying. Defendant referred to the victim as a "little drug addict whore that didn't deserve to live," and feared that he "would be sent to prison for a long time" if convicted. Over the course of two weeks, defendant first offered Lenard $1,500, then raised the price to $2,000, to "make sure his witness couldn't testify." Lenard finally told defendant, "I don't want to hear it no more. "

Lenard testified that he overheard defendant talk to "other people" in the common area of the facility, one of them Schwartz, "about having the victim killed" and burying her on property he owned. Defendant often discussed "different ways" they could kill the victim and "get away with it," and mentioned that if the victim "can't show up," they "don't have a case." When he was released from custody in May 2008, Lenard reported defendant's murder proposals to his probation officer and a district attorney investigator.

Brian Ekker was defendant's cell mate in Humboldt County Jail. Defendant told Ekker that he was "worried about" Jane Doe's testimony. Defendant wanted to pay someone "on the outside" to "get rid of her" so she "would not testify." He offered Ekker $1,000 and a "broken down three wheeler" to kill Jane Doe. Defendant suggested Ekker drive by Jane Doe and shoot her. Ekker refused the offer. Ekker testified that defendant told him he had asked other inmates, including Schwartz, to murder Jane Doe, but they "took the money" and failed to do the job.

In late April or early May 2008, defendant met inmate Carlton Wallace in the jail. Defendant told Wallace he feared being convicted, and had offered Jane Doe money not to testify, to no avail. Defendant asked Wallace to murder Jane Doe for money. Defendant offered Wallace $5,000, saying Dennis would give him the money. Defendant told Wallace if he murdered Jane Doe he also could be defendant's partner in a marijuana growing operation he was planning on his father's farm. Wallace believed defendant's proposal was serious.

Defendant suggested that Wallace befriend Jane Doe, who defendant claimed was a drug addict, and give her a bag of "bad drugs" to kill her. According to defendant's plan, Wallace would then take her body to Dennis's farm on Port Kenyon Road in Ferndale. Wallace would place the body in a trough tied down with straps, pour concrete over the body, and deposit it under a concrete slab on the property. Defendant drew detailed maps showing where Jane Doe lived and gave them to Wallace. He also gave Wallace a detailed description of Jane Doe and wrote out detailed, step-by-step instructions for Wallace to carry out the murder plan. Defendant provided blueprints of the ranch showing Wallace the location of the materials defendant wanted him to use to conceal the body. Wallace, who was due to be released soon, was to contact Dennis and tell him, "I was the guy that would carry out the ... plan." Defendant also directed Wallace to tell Dennis to visit him in jail immediately.

In what Wallace described as "the final plan," he was to meet with Dennis to receive $200 and a "bag of bad drugs" to be given to Jane Doe. Once he received the drugs, Wallace was supposed to convince Jane Doe to call her mother and say she was going to San Francisco for a week or two with some friends and "didn't want to be bothered," and post a similar message on her "My Space page." Wallace was then to remove the battery from Jane Doe's cell phone, and tell her to accompany him to San Francisco to bring "back some drugs to Humboldt," in exchange for drugs and cash she would receive. Wallace was to give Jane Doe tainted drugs "that was supposed to kill her." If that "didn't kill her," Wallace was directed to snap her neck with "four pounds of pressure" necessary to "break someone's neck."

After Jane Doe was dead, the plan called for Wallace to take the body to the Ferndale farm where he would find shovels to dig a hole, a trough, some tie-down straps, and some fast-drying concrete. Defendant said he would arrange through Dennis to have the shovels and other materials there. Wallace was to strap Jane Doe's body into a fetal position with the tie-down straps to make her more compact to fit into the trough, fill the trough with concrete, and bury it under a concrete slab, covering the hole with debris. Defendant told Wallace he would wait a year or two after he was released, dig up the body, put it in his boat, and dump it in the ocean. Defendant professed to Wallace that "he'd be safe," and they would both "be rich" marijuana growers.

Defendant drafted a "blueprint of everything" for Wallace, including a drawing of the trough and a note stating exactly what Wallace was to say to Dennis. The note read as follows: "I know who your son knows and have spent two months with him. I'm the friend he mentioned.... To further your son's, yours, and my own goals, I am going to need seed money and for your—and for you to gather enough QUIKRETE to have fill that gray trough so that I may build a support and the cement ramp and fill the hole. I have legitimate need myself to do this, and I will do it. I have no wire, no blackmail,

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