Brazil v. Davison

• Decision Date: 25 July 2009
• Docket Number: Case No. CV 06-5708-SJO (JWJ).
• Citation: Brazil v. Davison, 639 F.Supp.2d 1129 (C.D. Cal. 2009)
• Parties: Darlene BRAZIL, Petitioner, v. Dawn DAVISON, Warden, Respondent.
• Court: U.S. District Court — Central District of California

Page 1129

639 F.Supp.2d 1129

Darlene BRAZIL, Petitioner, v.Dawn DAVISON, Warden, Respondent.

Case No. CV 06-5708-SJO (JWJ).

United States District Court, C.D. California, Western Division.

July 25, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Roger S. Hanson, Roger S. Hanson Law Offices, Santa Ana, CA, for Petitioner.

J. Conrad Schroeder, CAAG—Office of the Attorney General of California, Los Angeles, CA, for Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

S. JAMES OTERO, District Judge.

Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court has reviewed the Petition for Writ of Habeas Corpus and other papers along with the attached Report and Recommendation of the United States Magistrate Judge, and has made a de novo determination of the Report and Recommendation.Further, the Court has engaged in a de novo review of those portions of the Report to which Petitioner has objected.

IT IS ORDERED that a Judgment be issued dismissing the instant Petition for Writ of Habeas Corpus with prejudice.

IT IS FURTHER ORDERED that the Clerk shall serve forthwith a copy of this Order and the Judgment of this date on the petitioner and counsel for respondent.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

JEFFREY W. JOHNSON, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable S. James Otero, pursuant to 28 U.S.C. § 636andGeneral OrderNo. 05-07 of the United States District Court for the Central District of California.For the reasons discussed below, it is recommended that the Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254("Petition") be denied and the action dismissed with prejudice.

I.PROCEDURAL HISTORY

PetitionerDarlene Brazil is a California state prisoner serving two concurrent terms of 15-years-to-life for her 1987 conviction by plea agreement for the second degree murders of her four-year-old and one-year-old sons.(SeePetitionat 2; Lodgments 1-3.)Petitioner, represented by counsel in the current action, challenges a November 29, 2005 decision by a panel of the California Board of Prison Hearings("Board") which found Petitioner unsuitable for parole under California Penal Code § 3041(b), resulting in a one-year parole denial.¹(SeePetitionat 1, 5-6;see alsoPetition Memorandum of Points and Authorities ("Petition Mem.")at 1-37; Lodgment 3.)This appears to have been the fifth such denial by the Board; Petitioner's minimum eligible parole date was January 14, 1996.²(SeePetition Mem.at 5-6;Lodgment 3at 26-27.)

Petitioner sought collateral review of the Board's decision before the state superior, appellate, and supreme courts, in that order.(Lodgments 4-6.)Each state court denied relief, with the last such denial issued by the California Supreme Court on August 16, 2006.(Id.)Petitioner filed the present Petition on September 11, 2006.(Petitionat 1.)On December 7, 2006, Respondent filed her Answer to the Petition.(Answerat 1-10;see alsoMemorandum of Points and Authorities in Support of Answer ("Answer Mem.")at 1-12.)Petitioner filed her Traverse to the Answer on December 21, 2006, as well as additional briefing on March 21, 2007.(SeeTraverseat 1-23;Notice of Newly Published Ninth Circuit Authorityat 1-5.)

The matter stands submitted and ready for decision.For the reasons that follow, the Magistrate Judge recommends that the Court deny the Petition and dismiss this action with prejudice.

II.FACTUAL HISTORY

The following factual background underlying Petitioner's murder convictions is taken from Petitioner's probation report, which was adopted and incorporated by reference, in part and without objection by Petitioner or her hearing counsel, by the Board for its statement of the offenses.(Lodgment 2at 8-11;seeLodgment 3at 40)(citingid. at 8-9(original page numbers 4-5).)

El Dorado County Sheriff's reports indicate officers Chaucer and Mays were dispatched to 1111 Excelsior Road, Placerville, at 2:45 a.m. on May 20, 1986, regarding a homicide.Upon arrival they were met in the driveway by Phillip Dore who reported the crime.He directed the officers inside the residence where they observed two adult women on a "hide-a-bed" in the living room.At that time Deputy Chaucer directed the emergency medical technicians to the room.

Deputy Chaucer asked the two women (Myrtle Norcom and [Petitioner]) to move out of the way for the E.M.T.'s and he saw two young boys on the bed.They were motionless.He moved [Petitioner] to the kitchen.He observed blood on her clothing and her right wrist appeared to be cut.Deputy Chaucer asked her what happened and she stated, "My husband was going to take my kids and I suffocated them and was going to kill myself to be with them."

[Petitioner] was placed under arrest for the crime of murder and transported to Marshall Hospital for medical treatment.William Joseph Dingess, age four, was dead at the scene.Brian Douglas Adolph, Jr., age one, was transported to Marshall Hospital where he was pronounced dead.Later autopsies revealed both children died of "probable asphyxia"(suffocation).

Detectives Schmalz and Wilson arrived at the scene at 3:30 a.m.They observed the livid body of Billy Dingess on the bed, and saw spots of blood and mucus on the sheet near the body.A white pillow was also observed on the bed.A blood stained, wood-handled kitchen knife was located on a couch near the hide-a-bed.

Myrtle Norcom and Philip Dore, the owners of the residence, stated they were awakened by screams coming from the living room.When they entered the room they saw [Petitioner] lying on the bed next to the children with a leather belt secured around her neck.Dore removed the belt and observed the bleeding cut on the inside of her right wrist.Norcom indicated she asked [Petitioner] why and she stated "Fred (Dingess) said he didn't want to see me anymore and I don't want to live without him."Norcom then observed the children and knew something was wrong; Dore was telephoning 911 at that time.Norcom picked up one-year-old Brian and could see he was not breathing; [Petitioner] stated, "I'm sorry, I'm sorry".She then rolled over and hugged four-year-old Billy stating, "I love you, I'm sorry".Witness Norcom indicated she has been friends with [Petitioner] for some time and her relationship was somewhat like mother-daughter with [Petitioner] and as grandmother-sons with the victims.

At 5:20 a.m. [Petitioner] was interviewed by Detectives Schmalz, Wilson and Hennick after she had been booked into custody at the jail.[Petitioner] stated that on the previous night, May 19, 1986, she was in her ex-husband's (Fred Dingess) car with a friend and her children when she observed him in front of Raymond's Liquor Store.They argued for a period of time after which she took her friend home.As she was driving to the residence on Excelsior Road the vehicle broke down in front of the 49er Liquor Store on Main Street, Placerville.Dingess pulled up near her with her vehicle and subsequently exchanged cars.As she left with her children to return home she stated to Dingess, "No matter what happens, we all still love you".

She stated she returned to the residence on Excelsior Road at approximately 11:00 p.m.After everyone else went to bed she obtained a knife from the kitchen sink.She stated she was sitting on the bed, the knife near her, when her son, Billy, began to awaken.She said she told him she loved him and that they would always be together.She indicated he stated that he loved her [too].She stated she took one of the white pillows from the bed, placed it over Billy's face and held it there until he stopped struggling.At this point the other child, Brian, began to wake up and she gave him a baby bottle to quiet him.After Billy stopped struggling, she took a pillow and did the same to Brian.She indicated she then took the leather belt, placed it around her neck and tightened it.She related she took the knife and cut her right wrist three times.She believes she lost consciousness and then awoke screaming.[Petitioner] stated to the detectives that the reason she killed her children was because she saw no use in life and wanted the children to be with her.[Petitioner] has been in custody since May 20, 1986.

A later interview by the detective with Frederick Dingess, [Petitioner's] ex-husband, confirmed the argument near Raymond's Liquor Store and the exchange of vehicles near the 49er Liquor Store.An interview with Myrtle Norcom confirmed the troubled relationship between [Petitioner] and her ex-husband and the circumstances of the crime scene upon her arrival that night.

(Lodgment 2at 8-11.)

The probation report noted also that, in her statement to the probation officer who prepared the report, Petitioner's description of "the events of the night and early morning hours of this offense was quite similar to her statement to detectives on the day of her arrest."(Id. at 11-12;see alsoid. at 12-13(summarizing Petitioner's statement).)

At her parole hearing, Petitioner also described the course of events which culminated in the murders.(Lodgment 3at 40-50.)Petitioner's account was largely similar to the factual summary set forth above but offered additional detail regarding the content of her argument with her former husband in the hours before the murders and why that argument, as she has claimed, led her to decide to kill both of her sons.(Id.)

According to Petitioner, when she encountered her former husband, "he had a girl with him."(Lodgment 3at 40-41.)He then "said some words to me about the girl that he had, and that he's been with her and that she was better in bed and all that stuff.I got very distraught."(Id. at 41.)Petitioner recalled "crying very, very, very much" at a later car exchange with her ex-husband and that, before she drove back to the nearby residence where sh...