Schuster v. Espinoza

LARISSA SCHUSTER, Petitioner, v. JANEL ESPINOZA, Respondent.

Case No. 1:12-cv-01482-AWI-SAB-HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

December 20, 2019

FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS

(ECF No. 4)

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

I.BACKGROUND

On December 12, 2007, Petitioner was convicted after a jury trial in the Fresno County Superior Court of first-degree murder.¹ The jury also found true the special allegation that the offense was carried out for financial gain. (17 CT² 5046). Petitioner was sentenced to life in prison without the possibility of parole. (LD³ 1). On February 28, 2011, the California Court of Appeal, Fifth Appellate District affirmed the judgment. People v. Schuster, No. F055692, 2011WL 680211 (Cal. Ct. App. Feb. 28, 2011). The California Supreme Court denied Petitioner's petition for review on June 8, 2011. (LDs 3, 4).

On September 7, 2012, Petitioner commenced the instant proceeding by filing a petition for writ of habeas corpus. (ECF No. 1). On December 14, 2012, Respondent filed a motion to dismiss the petition as untimely. (ECF No. 15). On March 28, 2016, the Court granted the motion to dismiss and dismissed the petition as untimely. (ECF No. 59). The Ninth Circuit reversed the judgment and remanded the case for further proceedings. (ECF No. 67).

In the petition, Petitioner raises the following claims for relief: (1) Miranda violation; (2) instructional errors; (3) ineffective assistance of counsel; (4) erroneous discharge of juror; and (5) cumulative error. (ECF No. 4). Respondent filed an answer, and Petitioner filed a traverse. (ECF Nos. 130, 136).

II.

STATEMENT OF FACTS⁴

PROSECUTION EVIDENCE

As of early 2002, Schuster resided in Clovis with her husband and their son, T. Their daughter either had been sent, or soon would be sent, to live with Schuster's parents in Missouri. Schuster owned a business, Central California Research Laboratories (CCRL), in Fresno. Timothy was a manager in the cardiology department at Saint Agnes Medical Center (Saint Agnes).

Schuster and Timothy separated acrimoniously in 2002. For a while, they maintained separate living quarters in the family residence. Schuster complained about this arrangement. From the time of the separation on, Schuster also acted as if the house and business were hers, and she did not want Timothy to have custody of T., or a relationship with him. She often said that she would like to see Timothy dead.

Around July 4, 2002, Timothy moved out of the house and into a condominium. Schuster was enraged that he left and took items from the house while she was on a trip. At one point, Schuster told a neighbor that she sometimes thought she should just kill Timothy and be done with it. She twice asked someone who came to her house to work on a barbecue if he would help her enter Timothy's residence and retrieve some property.

On August 8, 2002, Schuster had Leslie Fichera, a chemist at CCRL, rent a storage unit at Security Public Storage, which was a couple miles from the lab. Schuster said she wanted to store some things that she wished to keep hiddenfrom Timothy. Fichera rented unit A-182 in her own name, then turned the entry code and instructions over to Schuster.

On August 10, 2002, Timothy returned home from a trip to find his residence ransacked and items he had shared with Schuster gone. Also missing was a report he had been using to document his involvement with T. for custody purposes. Schuster subsequently admitted to various people that she and Fagone were responsible.⁵ Schuster laughed about it. She told her manicurist that she had gone back a couple of times because it gave her a feeling "better than sex" to sit in a chair and see what she had done to the place. She also said she keyed Timothy's pickup, and that it was like a trophy and gave her a happy feeling every time she saw the key mark on the side of the truck.

After the break-in, the couple's relationship deteriorated further. Timothy moved to a house in Clovis that was equipped with an alarm system and motion sensors. He expressed concern about Schuster and obtained a handgun and concealed weapon permit.

Schuster told her manicurist that she prayed every night that Timothy would die. She asked Fichera if Fichera's boyfriend knew anyone who could rough up somebody. Schuster told a fellow member of her church choir that she would do everything in her power to keep Timothy from getting the business. She asked the barbecue repairman if he would go to Timothy's house, stun him to the ground with a stun gun when he answered the door, and then flag her down, where she would be waiting a couple of houses away.

On April 30, 2003,⁶ a blue 55-gallon barrel was purchased and sent to CCRL, although it was not the type of barrel the lab normally used. Schuster said it was for yard clippings, although she asked a lab employee if he thought a body would fit in it. A couple of times, Schuster told this same employee that if she could kill Timothy and get away with it, she would, and she once asked if the employee knew anyone who would rough up Timothy or kill him. The employee took these various remarks as jokes.

Although CCRL had hydrochloric, sulfuric, and acetic acid on hand, very little was used. In Fichera's experience, probably no more than one bottle of hydrochloric acid would be used in an entire year. Between June 13 and July 2, however, CCRL purchased, through orders placed by Schuster, three cases of hydrochloric acid and one case of sulfuric acid. Each case contained six 2.5-liter bottles.

In June, Schuster told her manicurist that she could kill Timothy and get away with it, and that she knew people who could do it. That same month, a neighbor saw Schuster moving a blue barrel to the side of her garage.

Around July 9, Timothy and his good friend and coworker, Mary Solis, lost their jobs at Saint Agnes. Schuster laughed when she heard the news. On the evening of July 9, Timothy had dinner with Mary and Bob Solis and Victor Uribe, Jr. The Solises arranged to meet Timothy the next morning, and he left their home around 10:00 p.m. He, however, did not meet them the next morning or show up for his scheduled exit interview at the hospital.

Uribe went by Timothy's house; Timothy's pickup was in the garage, but no one answered the door. The police were summoned. A cursory search of the house revealed nothing overtly suspicious. Although there were no signs of forced entry or a struggle, the Solises' concern grew upon learning Timothy was not in the house, but his cell phone was on the dresser. Timothy would not be late to something as important as the exit interview, and he always carried his cell phone in case his children needed him. Nevertheless, the Solises were told they had to wait 24 hours to file a missing person report.

Around this same time, a CCRL employee noticed the blue barrel was gone. He also noticed a bottle of chloroform on top of the acid cabinet. When he asked, Schuster confirmed it was what doctors used to soak rags in to knock people out.

When Schuster arrived at work on Thursday morning, July 10, she was complaining about her shoulder. She said she had hurt it by working out earlier that week. That evening, Timothy did not show up for the scheduled exchange of custody of T. Schuster told her manicurist that she had a feeling the divorce was finally going to go her way.

The next morning, Friday, July 11, Robert Solis filed a missing person report with the Clovis Police Department. In response, Officer John Willow went to Timothy's house. He found a gun underneath a cushion on a chair near the front door. Locating a cell phone in the bedroom, he called every number to see if anyone had had contact with Timothy. When he contacted Schuster that afternoon, she said she had not heard from Timothy. After Willow had contact with Schuster's manicurist, who provided information regarding the volatile divorce that was pending, the matter was turned over to detectives for further investigation.

When Detectives Vincent Weibert and Larry Kirkhart entered Timothy's house later that afternoon, they found some damage to the "pony wall" behind the chair on which the gun was found, as if the chair had been forcibly pushed into the wall. Inside a briefcase in the same room was a microcassette recorder and tape.⁷ The caller ID record for the telephone in the master bedroom showed only one call received, at 2:02 a.m. The call was from Schuster's cell phone number. Kirkhart subsequently arranged for Schuster to come to the police department to speak with the detectives. She was accompanied by a friend.

During the interview conducted by Kirkhart and Weibert, Schuster related that she and Timothy were going through a divorce and had a difficult time communicating verbally.⁸ They sometimes went for three weeks without talking or exchanging e-mails. Schuster stated that the last message she got from Timothy was on Tuesday the 8th, and it said he was planning to pick up T. at 6:00 p.m. on Thursday. When Timothy did not show, Schuster and T. both tried unsuccessfully to contact him. Schuster noted that she was leaving with T. on Sunday morning for a two-week vacation, and Timothy always gave her trouble whenever she wanted an extra day.

Schuster related that she learned that Thursday evening about Timothy losing his job. Concerned, she called him again around 8:30 p.m. and left a message asking him to call. The last time she called Timothy that night was around 10:30 p.m. She drove by his house and knocked on the door at about 10:30 or 10:45 p.m., after which she did not try to contact him further at his home or by telephone. Schuster related that she last saw Timothy in person on Saturday, July 5, and spoke to him last about a month or two before that.

When asked where she was on Wednesday, the last day the Solises saw Timothy, Schuster replied

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