Duvardo v. Giurbino
| Citation | 649 F.Supp.2d 980 |
| Decision Date | 06 January 2009 |
| Docket Number | No. C 05-5428 MHP (pr).,C 05-5428 MHP (pr). |
| Parties | Jeffrey Lee DUVARDO, Petitioner, v. George GIURBINO, warden, Respondent. |
| Court | U.S. District Court — Northern District of California |
Jeffrey Lee Duvardo, Calipatria, CA, pro se.
Joan Killeen, Office of the Attorney General, San Francisco, CA, for Respondent.
ORDER DENYING HABEAS PETITION
Petitioner Jeffrey Duvardo filed this pro se action seeking a writ of habeas corpus under 28 U.S.C. § 2254. The matter is now before the court for consideration of the merits of the amended petition. For the reasons discussed below, the amended petition will be denied.
Petitioner challenges his conviction for murdering his parents. The California Court of Appeal gave a very lengthy description of the circumstantial evidence, Cal. Ct.App. Opinion, pp. 1-19, which this court only summarizes briefly here, although much of the evidence is discussed later as it relates to the various claims asserted by Petitioner.
Petitioner lived in the city of Valencia, north of Los Angeles. His parents, Mary Ann and Donald Duvardo, lived in the town of Nice in Lake County, California. (First names are used for clarity because many of the people involved have the same last name.) Mary Ann and Donald were murdered in their home. Donald had been stabbed about 15 times in the chest. Mary Ann had been stabbed and slashed several times, had her carotid artery or jugular vein slit, and had been hit in the eye. Their bodies were discovered on April 6, 1999. The prosecution theorized that, on March 31, 1999, the 43-year old Petitioner drove from Valencia to Nice, killed his parents, and drove home the same day. The prosecution theorized that Petitioner killed his parents to avoid repaying a $30,000 loan from them and to keep secret from his second wife the fact that the loan existed and the fact that he was still married to his first wife. The prosecution presented evidence regarding Petitioner's motive, opportunity, and financial difficulties. Petitioner presented an alibi defense that he was at work in Southern California when his parents were killed in Lake County, and contended that the victims could not have been killed on the date the prosecution theorized because their bodies were not sufficiently decomposed when found six days thereafter.
Following a jury trial in Lake County, Petitioner was convicted of two counts of first degree murder and two counts of elder abuse. See Cal.Penal Code §§ 187, 368(b)(1). The jury found true the multiple murder special circumstance allegation. See Cal.Penal Code § 190.2(a)(3). Although the district attorney had earlier announced his intention to seek the death penalty, that was dropped after the guilty verdicts were returned. On May 16, 2002, the court sentenced Petitioner to two concurrent terms of life imprisonment without the possibility of parole for the murders and stayed the sentences for the elder abuse convictions.
Petitioner appealed. The California Court of Appeal affirmed the conviction and the California Supreme Court denied the petition for review. Petitioner filed unsuccessful state habeas petitions.
Petitioner then filed this action, seeking a writ of habeas corpus. The case was stayed while Petitioner exhausted state court remedies as to some claims. After exhausting state court remedies, Petitioner filed an amended petition that had seven claims: (1) Petitioner's right to due process was violated because the evidence was insufficient to support the verdicts, (2) his right to due process was violated by the admission of "victimology" expert opinion evidence, (3) his right to due process was violated by the admission of impermissible character evidence, (4) his rights to effective assistance of counsel and due process were violated by counsel's failure to submit critical items of evidence to proper forensic testing and/or examination, (5) his right to due process was violated by the exclusion of evidence about cars seen near the victims' home, (6) cumulative error, and (7) his rights to due process and effective assistance of appellate counsel were violated by appellate counsel's failure to raise critical issues in the original appeal. The court found the federal constitutional claims to be cognizable and issued an order to show cause why the petition should not be granted. Respondent filed an answer and Petitioner filed a traverse. The matter is now ready for a decision on the merits of the amended petition.
This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in Lake County, California, within this judicial district. 28 U.S.C. §§ 84, 2241(d).
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c). The parties do not dispute that state court remedies were exhausted for the claims in the amended petition.
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
"Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495. Id. at 411 120 S.Ct. 1495. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409, 120 S.Ct. 1495.
Petitioner contends that there was insufficient evidence to support the murder convictions. Specifically, he challenges the adequacy of the proof that he was the person who murdered his parents and that the killings occurred on March 31, 1999. The date of death was critical because that March 31 was the only day on which the prosecution tried to show he had time to make the trip to the site of the murders.
The California Court of Appeal rejected the insufficient evidence claim:
The various threads of circumstantial evidence combine to make a quilted pattern of guilt. Viewed in the light most favorable to the judgment, the evidence shows the Duvardos were killed on the morning of March 31-and it was defendant who killed them.
The Duvardos were last seen March 30. From about 7:00 on the morning of March 31, they did not answer their phone, use their e-mail, or follow their habit of picking up their mail and newspapers each day at 11:30 a.m. On the last morning of their lives they had had their coffee, but had not yet cleaned the coffeepot. The clock in the bedroom had fallen to the floor when the home was ransacked and had stopped at 10:25. The medical evidence of time of death was inconclusive, but consistent with the People's theory of the case—that, as Safarik opined, the Duvardos were killed sometime on March 31 between 7:30 and 10:20 or 10:25 a.m.
No signs of forced entry were found, meaning the Duvardos knew their assailant and let him in their home. Two experienced law enforcement officers, a detective and an FBI expert in crime scene reconstruction, believed the crime scene was staged. The expert opined the staging was done because the killer would be an obvious suspect and wanted to divert the attention of the investigation to a hypothetical anonymous burglar.
Defendant was an early riser, accustomed to getting up at 3:45 or 4:00 a.m. He had sufficient time to rise, drive the six or so hours to his parents['] house, kill them at 10:20 or 10:25 a.m., and drive back to southern California— where he placed a call from his home phone at 6:26 p.m. On March 31 he already had the rental car, which he had secured the day before—when he had rented the car for two days while putting his own car in the shop for two hours' work. He put 1,128 miles on the rental car, which was roughly equivalent to the round trip between the rental agency and his parents' house. Defendant knew that Wednesday, March 31, he would not have his typical...
To continue reading
Request your trial
-
Hughes v. Biter
...of the accused and are [neither] arbitrary [n]or disproportionate to the purposes they are intended to serve." Duvardo v. Giurbino, 649 F.Supp.2d 980, 1007 (N.D.Cal. 2009). The Holmes Court began its analysis by citing legal encyclopedias to recall the basic evidentiary rules concerning adm......
-
Matthews v. Neven
...to 'ensure that any and all scientific testimony ... is not only relevant, but reliable.'" (citations omitted)); Duvardo v. Giurbino, 649 F.Supp.2d 980, 996 (N.D.Cal.2009) ("Because this is a federal habeas case, this court does not determine whether the expert's testimony was properly admi......
-
Darosa v. Foulk
...of the accused and are [neither] arbitrary [n]or disproportionate to thepurposes they are intended to serve." Duvardo v. Giurbino, 649 F.Supp.2d 980, 1007 (N.D. Cal. 2009). The Holmes Court began its analysis by citing legal encyclopedias to recall the basic evidentiary rules concerning adm......
-
People v. Scott
...as in Mikes. While it has been suggested that the analysis in Mikes applies equally to "DNA only cases," (e.g., Duvardo v. Giurbino (N.D.Cal 2009) 649 F.Supp.2d 980, 987-988), the parties have not briefed this issue except to mention it in passing. Therefore, without deciding the issue, we ......