McCarrick v. Pallares

MONICA MCCARRICK, Petitioner, v. MICHAEL PALLARES, Acting Warden,Central California Women's Facility,¹ Respondent.

No. 2:17-cv-02652-JKS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

November 19, 2020

MEMORANDUM DECISION

Monica McCarrick, a state prisoner now represented by counsel, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. McCarrick is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at Central California Women's Facility. Respondent has answered, and McCarrick has replied.

I. BACKGROUND/PRIOR PROCEEDINGS

On March 28, 2011, McCarrick was charged with the malice aforethought murder of her three-year old daughters, L.B. and T.B. The information also charged McCarrick with two counts of assault on a child causing death. McCarrick entered a not-guilty plea and subsequently added a plea of not guilty by reason of insanity. On direct appeal of her conviction, the California Court of Appeals recounted the following facts underlying the charges against McCarrick and the evidence presented at trial during the guilt phase and the sanity phase:

A. Guilt Phase

1. The Crimes and Crime Scene

On the evening of October 12, 2010, [McCarrick] killed her three-year-old twin daughters, Lily and Tori Ball, with a sword. A downstairs neighbor heard loud thumping from [McCarrick's] apartment. An hour or two later, a fire alarm went off, and the neighbor saw smoke coming from one of the windows. He ran upstairs and kicked in the front door, but it was blocked, and he was unable to enter. He succeeded in breaking a sliding glass door; when he entered the apartment, he saw a sword on the floor, covered in blood.

Firefighters arrived and found the door to the apartment slightly ajar but difficult to open. They forced the door open, found a fire in a closet near the front door, and extinguished it. They then found the bodies of Lily and Tori close to the door. One of the bodies had been blocking the door. The girls had both suffered severe lacerations, and were dead. The firefighters found [McCarrick] in the kitchen and carried her out. She was unconscious and had sustained injuries, including cuts to her throat and wrist.

A search of the apartment revealed an assault rifle and a shotgun in the living room and a box with a loaded handgun and additional live rounds. In the hallway was a straight-bladed sword covered with blood. Near it was a lighter with blood on it. Two high chairs had been overturned in the dining room, with their food trays removed. The high chairs were completely soaked in blood. On a table facing the highchairs was a laptop computer playing an animated children's program. In the kitchen, a landline telephone was on the counter; both the telephone and the countertop were covered in blood. Water was running from the bathroom faucet, and blood was in the sink and on the counter. A cell phone was on the bathroom floor, and on a stool was a novel by James Patterson, Double Cross (2007). The book was about a serial killer, and it was open to a page that contained the words, "My daughter is dead."

2. The Injuries

The doctor who performed the autopsies on the two girls testified about their injuries. Tori had 11 cutting wounds to her face, two cutting wounds to her neck, a gaping wound on the front of her neck, nine superficial cutting wounds to her chest, two deep stab wounds on her chest, one of which penetrated her heart and the other her lung, a deep stab wound to her abdomen as well as three small superficial cutting wounds to the abdomen, and wounds on her hands and arms consistent with defensive wounds. Lily had five cutting wounds to her face, four to her neck, and nine to her chest; a large gaping wound to the front of her neck that had severed her larynx and cut the carotid arteries; multiple defensive wounds to her hands and arms; and a six-inch-deep stab wound to her abdomen. Neither girl had inhaled smoke, which meant they were dead before the fire started.

[McCarrick] had multiple injuries and was in critical condition. She had two large lacerations to her throat and multiple cuts and lacerations on her arms and wrists. On one of her arms the tendons that flex the wrist and fingers were severed. She had alarge laceration on her upper thigh and large lacerations on each ankle, which cut the Achilles tendons. Tests for alcohol, cocaine, and methamphetamine were negative.

3. Observations of [McCarrick's] Fiancé

[McCarrick] and her two daughters lived with [McCarrick's] fiancé, Robert Paulson. [McCarrick] and Paulson had known each other about a decade previously and renewed their relationship over Facebook around Thanksgiving of 2009. They became engaged in May 2010, and [McCarrick] and her daughters moved to California from Pennsylvania during the last week of August 2010. Paulson's job required large amounts of travel, and on September 9, shortly after the couple moved into their new apartment, he was called away for a month-long assignment in Minnesota. On October 11, Paulson was told he would have to go to Alaska for five to 10 days after the Minnesota assignment ended, rather than returning home. [McCarrick] was upset when Paulson told her about the extension of his trip.

Paulson and [McCarrick] spoke on the telephone several times on October 12, the day of the killings. One of the calls took place during the evening, on [McCarrick's] cell phone. [McCarrick] was incoherent and "jumbled," and sounded like she was running around the house doing something. Paulson heard [McCarrick] "freaking out," and "hysterical noises going on in the background." She told him, "If Tori and Lily are okay tell them that it was an accident." He heard her say, "It's okay. It's going to be okay. We are going to make a fire. We are going to make a fire"; then he heard a fire alarm go off, and then a scream, and then the call ended. He tried to call the apartment several times but got no response.

4. [McCarrick's] Recent Behavior

On the morning of the day of the killings, the assistant manager of the apartment complex where [McCarrick] lived asked [McCarrick] to move her car because it was blocking other parking spots. At first, [McCarrick] would not open her apartment door. [McCarrick] had a hard time telling the assistant manager what she wanted her to do and why the car was parked the way it was. The assistant manager watched the girls while [McCarrick] moved the car.

On the morning of the same day, the assistant manager had noticed [McCarrick] had a work order to have her locks changed. [McCarrick] later called to ask whether the maintenance department had changed the locks. The girls were crying in the background, and [McCarrick] seemed to want the assistant manager to help her with the girls.

Terry Fay, the paternal grandmother of Lily and Tori, lived in southern California. She spoke with [McCarrick] often by telephone, and she had cared for the girls on occasion. On October 11, 2010, [McCarrick] called Fay and asked, "Who is going to take the girls?" Fay thought [McCarrick] needed someone to take care of the girls. Fay told [McCarrick] that if she brought the girls to her home, Fay and her family would begin proceedings to have custody of them. [McCarrick] did not sound rational during the conversation. She told Fay that Paulson had had a vendetta against her for 10 years and was kicking her out.

5. Defense Evidence

a. [McCarrick's] Fiancé

Robert Paulson was called as a defense witness. He testified that he had previously had a relationship with a woman named Jill who killed herself with one of Paulson's guns in April 2010, several months after their relationship ended.

While [McCarrick] was living in Pennsylvania, she appeared happy and stable. She was working at a dental office and going to school. She was supportive as Paulson coped with Jill's death. When [McCarrick] moved to California, she looked for a school so she could get a license to be a dental assistant in the state. Paulson provided money when [McCarrick] needed it. Paulson thought [McCarrick] was a good mother, and she never did anything to make him think she would harm her daughters.

Paulson noticed that [McCarrick] changed two or three weeks after he left on his business trip, and in the two and a half weeks before the killings they had a series of communications that led Paulson to believe her behavior was "slowly deteriorating." She found a synopsis for a horror movie Paulson was writing with a friend, which he described as a "slasher" film about a man stalking children on a beach, in which "everyone died." [McCarrick] was upset and thought Paulson had written the story about her and that he might hurt her. She repeatedly brought the subject up during their conversations during Paulson's absence and suggested he had resumed their relationship in order to hurt her. [McCarrick] also questioned Paulson about whether he had driven Jill to suicide, accused him of being with another woman, and said his female friends hated her. She expressed her fear of a UPS delivery man and said he had entered the apartment. At times she said she would not leave the apartment because someone was sitting in a car outside. She thought a Facebook post by a friend of Paulson's, which made a joke about breaking up with a girlfriend using "Dobermans, tasers, and rounds," referred to her. Her mood went "up and down"; Paulson would spend hours reassuring her, she would seem fine, and the next day she would be upset again. She also indicated she wanted help with the children.

When Paulson told [McCarrick] he had to go to Alaska for a few days after the Minnesota job, she was upset and they argued. She wanted him to come home and said she missed him. On the evening of the killings, [McCarrick] sent him text messages that caused him concern. One, which he said "made no sense," referred to "robot butterflies" and concluded "u will never have me again!" In another, [McCarrick] told Paulson

...