Kendall v. Tampkins, Case No.: 1:13-cv-00209-LJO-JLT

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtJennifer L. Thurston UNITED STATES MAGISTRATE JUDGE
Decision Date14 August 2015
PartiesLEROY E. KENDALL, Petitioner, v. CYNTHIA TAMPKINS, Respondent.
Docket NumberCase No.: 1:13-cv-00209-LJO-JLT

LEROY E. KENDALL, Petitioner,
v.
CYNTHIA TAMPKINS, Respondent.

Case No.: 1:13-cv-00209-LJO-JLT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

August 14, 2015


FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1)

ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY-ONE DAYS

Petitioner was convicted in 2010 of attempted murder, assault with a deadly weapon, inflicting corporal injury on a spouse, and battery on a spouse. (Doc. 15, Lodged Document ("LD") 33, p. 2). The jury also found true a special allegation that Petitioner inflicted great bodily injury, that he personally used a dangerous or deadly weapon and that he personally inflicted great bodily injury during the commission of the battery. Id. he was sentenced to 13 years by the Kern County Superior Court.

I. FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the 5th DCA's unpublished decision1:

I. Prosecution Evidence

A. Victim's Testimony

The victim testified that she married appellant in 2007 and they moved to California the

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following year because her father was sick.

On June 26, the victim was sick with pneumonia and resting in bed. Appellant became angry and threw several objects at her, including a spray bottle, a vacuum and an earring rack. The victim feared that appellant would kill her so she fled out the back door. The victim injured herself jumping over a fence into a neighbor's yard.

The victim's father passed away a few days later. His wake was held on July 7 and the victim spent the day at church. When the victim left home, at approximately 9:00 a.m., appellant was drinking vodka and orange juice with a woman named "Annette" and the victim's brother, Alphonso Fuller (Fuller).

The victim returned home around 5:30 p.m. The house was empty. Appellant and Fuller arrived with a case of beer and a bottle of liquor in a bag. The victim, who was still ill, retired to her bedroom. Appellant and Fuller went into the garage, where they drank alcohol and smoked cigarettes. The victim did not drink any alcohol or take any illegal drugs. She is diabetic and stopped drinking alcohol 25 years ago.

Appellant entered the victim's bedroom and said, "I got your brother to the point where he's not able to defend himself nor you, too." Appellant left the bedroom and went into the kitchen. The victim heard him rummaging in the kitchen drawers. He returned to the bedroom holding a large butcher knife. Appellant called the victim a "black B," and said that he would kill her. The victim was sitting on the side of the bed and she put her right arm up with her palm out to protect herself. Appellant swung the knife at her seven times, stabbing her in the chest, back and arms. Appellant left the butcher knife in her chest and left the bedroom. The victim pulled the knife out of her chest and walked into the living room, where Fuller was asleep. She handed Fuller the knife and collapsed.

The victim was hospitalized for treatment. She suffered serious injuries, including a punctured lung. She was in a great deal of pain and still has scars on her back, arms, chest and stomach.

On the day before the victim testified, appellant gave a photograph of the victim to the victim's mother. Appellant drew handwritten notations on it. They included the phrase "Rejeanie Fuller 666" and several symbols. He drew lines across the image of the victim in the areas where he had stabbed her. [Footnote] The photograph frightened the victim.

B. Other Prosecution Evidence

Fuller testified that he drank beer and hard liquor with appellant before and after his father's wake on July 7. The victim did not drink any alcohol. The mood between appellant and the victim "wasn't good" because they had argued at some earlier point in time. Appellant began to complain about the victim while they were drinking in the garage after the wake. Fuller did not "want to have that conversation" and went inside the house. Fuller checked on his sister and then fell asleep in the living room. Sometime later, the victim woke him up. She was "real bloody" and hyperventilating. He heard a door close and then heard appellant's car start. Fuller took a knife out of the victim's left hand and placed it on a coffee table. He called emergency services; the 911 call was played for the jury.

Jean King testified that appellant arrived at a house in California City where she and several other women had gathered after the wake. He was the only male in the house. A police officer called and directed all the women to go outside. Appellant came up behind her and handed her a set of keys on a key ring. The keys had something red and sticky on them. She dropped the keys. Someone picked them up and handed them to a police officer.

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California City Police Department Sergeant Jeffrey Takeda was designated as the investigating officer. Sergeant Takeda testified that he arrived at the victim's home at approximately 7:00 p.m. The victim was semi-conscious. She told him that "Leroy" stabbed her and confirmed that "Leroy" was her husband. A large, bloody knife was resting on a table in the living room. A knife block in the kitchen had an empty slot for a knife that was of similar size and shape to the one found in the living room. There was a large amount of blood around the victim and a blood trail in the hallway. There were bloodstains on the master bedroom carpet, a large amount of blood on the bed and a "couple of items on the bed that [were] consistent with human tissue."

Sergeant Takeda testified that a family member arrived and told police officers that appellant could be found at another house in California City. Police officers responded to that location and arrested appellant. California City Police Department Officer Jack Craig handed Sergeant Takeda a set of keys that appeared to have blood on them. During the booking process Sergeant Takeda saw "some scratches" on appellant's right forearm.

Officer Craig testified that he placed appellant in a cell. While Officer Craig was walking down the hall, he heard the sound of water running in appellant's cell for an excessive period of time. As Officer Craig returned to the cell and saw appellant attempting to wash something off the right sleeve of the long-sleeved T-shirt that he was wearing. [Footnote] Officer Craig removed appellant from the cell and took the shirt from him. He saw a substance that appeared to be blood on one of the sleeves. Officer Craig also "noticed what [appellant] explained as cuts on his right forearm," and "a spot ... on the left side of [appellant's] abdomen."

Sergeant Takeda testified that he went to Kern Medical Center on July 11 to interview the victim, but she was still unconscious. He measured and photographed the victim's injuries. There was a horizontal stab wound on her right chest, two stab wounds to her upper right arm, a stab wound to her lower right arm, horizontal cut marks on the palm area at the edge of her right hand and bruising around her left wrist. Sergeant Takeda interviewed the victim on July 17. She was still hospitalized. The victim became visibly upset and "stated that it did not make sense why Leroy would do this to her."

Appellant's former wife, Judy Kendall, testified about two incidents of domestic violence that occurred in 1995.

Photographs of the crime scene, the victim's wounds, the knife, the marks on appellant's arm and the photograph of the victim on which appellant drew handwritten notations were admitted into evidence.

II. Defense Evidence

California City Police Officer John Bishop testified that he interviewed the victim on June 26. The victim said "that she got into an argument with [appellant] and that at some point, [appellant] threw several items at her, including a wooden food tray and a plastic tray which held all of her earrings." The victim said that one of the trays hit her in the back and another tray scratched one of her arms and one of her legs. In his report, Officer Bishop wrote that the victim sustained "minor injuries."

California City Police Officer Anthony Flores testified that all of the crime scene photographs were taken on July 7. The date on the photographs is "the time stamp given by the report-writing program that we use when it was uploaded into that report-writing system, not when it was actually taken."

The victim was recalled as a defense witness. She denied informing appellant at any point

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during their marriage that she "had a mental disorder such as by the name of PSD or Post Traumatic Stress Syndrome—disorder." The victim denied drinking any alcohol on July 7 and denied arguing with appellant on that date because he thought she was "abusing [her] prescription drugs." She denied driving to Los Angeles on July 7 where a friend named "Boogey" styled her hair and drank cocktails with her. She denied grabbing the knife by the blade and stabbing appellant in the arm. On cross-examination, she testified that the pill bottles by her bed were medications to treat pneumonia and other medical conditions.

Fuller and King were recalled as defense witnesses. Fuller testified that appellant did not force him to get drunk. Fuller did not recall seeing "a bunch of pill bottles" beside the victim's bed. King testified that appellant, who she knew as "Rujeanie's husband," handed her a set of keys on the evening of July 7.

Sergeant Takeda was recalled as a defense witness. He asked the victim "about her medical problems or any mental problems and she told me the only medical problems she had was her diabetes. She had a heart attack about ten years prior." The victim said that she does not drink because
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