ORDER, FINDINGS AND RECOMMENDATIONS Petitioner, Andrew Wright Gill, is proceeding prose with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of sixty-four years and eight months to life imprisonment after being convicted by a jury of numerous crimes including: (1) kidnapping to commit spousal rape, rape by a foreign object and forcible oral copulation; (2) spousal rape; (3) rape by a foreign object; (4) forcible oral copulation; (5) making criminal threats; (6) attempted rape by a foreign object; (7) infliction of corporal injury on a spouse; (8) cutting a utility line; and (9) residential burglary. Petitioner raises four claims in his amended federal habeas petition; specifically: (1) the trial court erred when it denied Petitioner's motion to disqualify the district attorney ("Claim I"); prosecutorial misconduct ("Claim II"); (3) the trial court erred in allowing Petitioner's statement to police to be admitted into evidence("Claim III"); and (4) Petitioner's preliminary examination was held in violation of California Penal Code § 859(b) which violated Petitioner's Constitutional rights ("Claim IV"). For the following reasons, Petitioner's amended federal habeas petition should be denied.
II. FACTUAL BACKGROUND1
Mark Gantt had lived next door to the Gills for several years and saw them every day or so. On the morning of January 31, 2004, he met defendant for breakfast at Denny's restaurant around 9:00 a.m. Defendant was "very agitated" and told Gannt that T.G. [Petitioners' wife] would not let him back in the house. Gantt tried to calm defendant and advised him to stay away from the house to avoid causing more problems.
Gannt met defendant later that morning at the Home Depot at T.G.'s request. T.G. had given Gantt a suitcase, $50 and a note to deliver to defendant. The gist of the note was "get a job, be accountable, and talk to me." Gantt collected a set of house keys from defendant and returned them to T.G.
Between noon and 1:00 p.m, Gantt observed that defendant had parked his car in front of the house. Gantt spoke with T.G. on the phone. She told him that she was afraid of what defendant might do. Gantt went outside and spoke with defendant for 15 or 20 minutes. According to Gantt, defendant was very upset. Gantt spoke with defendant a second time an hour later, describing defendant as "very, very upset."
At that point, Gantt advised T.G. to call the police and called the police himself. The police officers arrived around 4:00 p.m. and spoke with both defendant and T.G. T.G. asked for an emergency protective order, but the request was denied. The officers suggested to defendant and T.G. that one of them leave in order to avoid any further problems. Defendant responded that it was unfair for him to leave. He told the officers that he intended to wait in his car until T.G. allowed him back into the house.
Defendant telephoned his house around dinnertime in an attempt to resolve things with T.G., but she did not answer. Defendant left a message indicating that, "there was going to be trouble" if T.G. did not speak to him.
Gantt met with defendant in front of the house for a third time later that evening. He urged defendant to leave, but gave him a blanket
in case he decided to stay. Defendant indicated that he planned to stay at a friend's house. Gantt checked around 11:00 p.m. and defendant's car was gone.
The Assault and Kidnap of T.G.:
Just after 1:00 a.m., T.G. heard a loud bang on the front door. [FN 2] She ran to the room of her 10-year-old son D.G., to look out the front of the house. T.G. ran back to her bedroom and heard another loud crash that sounded like glass breaking. She tried to telephone Gantt but the line was dead. [FN 2] T.G's account of the events is taken from her trial testimony, her interview with police detectives on February 1, 2004, and her interview with the deputy district attorneys on February 10, 2004.
A few seconds later, defendant walked into the bedroom, turned on the lights, and said, "[S]urprise." T.G. testified that defendant was "really angry," cursing and calling her a "f —ing bitch." Defendant grabbed T.G. by the hair and slapped her across the mouth. He hit her again when she tried to get a Kleenex to wipe her bloody lip. Defendant pulled T.G. around the room by her hair and kicked her in the side when she fell to the ground. He dragged T.G. to a futon couch near the window and told her that she had "made the biggest mistake of [her] life," and was going to "pay tonight," and was going to "die tonight."
T.G. testified that it was like defendant had "snapped" and it was not the first time it had happened. She could recall three incidents where he yelled and hit her.
Defendant dragged T.G. from the bedroom to the garage. Once there, defendant forced T.G. to lie face down on the floor and take off all of her clothes. He put a rag in T.G.'s mouth and taped it in place by wrapping duct tape around her head. Defendant threatened to cut off T.G.'s right arm with a chainsaw.
Defendant proceeded to sexually abuse T.G. in the garage. First, defendant put his fist up her vagina. He then inserted a flashlight in T.G.'s vagina and tried to insert it in her anus. Next, defendant raped T.G. by inserting his penis in her vagina, but he stopped before ejaculating.
Defendant took T.G. back into the house and continued to threaten T.G., stating, "you're going to pay for what you did to me," and "You're dying tonight." Defendant asked T.G. if she wanted to say goodbye to anyone.
Defendant put T.G. in the backseat of the family car, face down, completely naked. He bound her feet together at the ankles and tied her feet to her wrists with rope. Defendant drove toward
Sacramento.
Eventually, defendant reached back and removed the duct tape from T.G.'s head and the gag from her mouth, tearing out pieces of hair in the process. As they got closer to a snowy area, defendant pulled off the road and got in the back seat with T.G. He forced her to orally copulate him. He ejaculated in T.G.'s mouth and told her to swallow it. T.G. cooperated because she was "scared to death for [her] life." At that point, defendant allowed T.G. to get dressed and join him in the front seat of the car. However, he tied her hands and feet together to prevent her from doing "something stupid up front."
Now that T.G. was sitting upright in the seat, she saw that they were close to Lake Tahoe. It was after 5:00 a.m. As they drove toward Emerald Bay, defendant said, "I'm obviously going to have to end my life today." He told T.G. that she would have to give something up, like a finger or a hand, so that she would "always remember what [she had done] to [defendant]." When they reached an area called Sugar Pine Camp, defendant parked the car and unsuccessfully tried to kill himself with a hunting bow.
Around daylight, defendant drove out of the campground to a small market. He left T.G. in the car while he brought a pack of disposable razors and a banana and bottle of water for T.G. Defendant told T.G. that he was going to take her home, but changed his mind and drove back to the campground. He said, "I can't go home, I'll go to jail . . . there's a warrant for me, I can't wait for that."
Defendant and T.G. sat in the campground while defendant tried to kill himself with a disposable razor. He also placed a plastic bag over his head. These attempts at suicide also failed. According to T.G., defendant appeared to realize that he did not want to kill himself. He started toward home again and T.G. encouraged him. As they were driving, defendant cried and apologized to T.G. for causing her so much pain over the years.
Defendant Turns Himself In:
Back in Stockton, D.G, one of defendant's and T.G's sons, knocked at Gantt's door between 7:30 and 8:00 a.m. He told Gantt that his mother was gone. Gantt and his adult son hurried to the Gill residence. Finding parts of the house in disarray, signs of forced entry, the family car missing, the outside telephone jack removed, and defendant's car parked around the corner, Gantt and his son called the police.
Detective Robert Molthen questioned the children, D.G. and C.G., about what had happened the night before. D.G. told Molthen that he had heard a commotion or arguing in the middle of the night.
During the interview with D.G., Molten [sic] also learned about a prior incident of abuse. D.G. told the detective that when he was five, he had seen defendant push T.G. onto a couch and throw things at her.
Defendant phoned home while Detective Molthen was at the Gill residence. Molthen told defendant to go to the nearest police station. Defendant allowed Molthen to speak with T.G. Molthen asked T.G. if she was okay and she responded, "I don't think so." Molthen then asked T.G. if she was being held against her will, and she said, "[N]o."
A few minutes later, defendant arrived at the police station in Jackson. Defendant was still talking with Detective Molthen on the cell phone when he told Jackson Police Officer Curt Campbell that the Stockton police were looking for him. Molthen talked with Campbell on defendant's cell phone and told Campbell to detain defendant and T.G. Molthen, his partner Detective Eduardo Rodriguez, and two other officers headed for Jackson.
Meanwhile, Officer Campbell instructed defendant to sit on a bench outside the police station. Campbell noticed fresh and dried blood on defendant's neck. When he asked defendant how the injury occurred, defendant did not respond. Campbell also spoke with T.G., who was sitting in the front passenger seat of the car. T.G. told Campbell that defendant cut his neck with the blade from a Bic razor. Campbell also noticed that T.G. had a bloody lip. T.G. told him that defendant had hit her. Campbell retrieved a
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