Kerley v. Diaz

• Decision Date: 27 October 2020
• Docket Number: No. 2:19-cv-02458 JAM GGH P,2:19-cv-02458 JAM GGH P
• Parties: LONNIE JANES KERLEY, Petitioner, v. RALPH DIAZ, Warden, Respondent.
• Court: U.S. District Court — Eastern District of California

LONNIE JANES KERLEY, Petitioner, v. RALPH DIAZ, Warden, Respondent.

No. 2:19-cv-02458 JAM GGH P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

October 27, 2020

CORRECTED FINDINGS AND RECOMMENDATIONS

Introduction and Summary

Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. The matter was referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 626(b)(1) and Local Rule 302.

In a case which initially, it appears, could have come directly out of the script for a Forensic Files episode given the years it took to identify the victim, petitioner, a long time domestic abuser, was convicted of second degree murder and sentenced to 15 years to life imprisonment. Unlike Forensic Files, however, there were no eyewitnesses, very little, if any, forensic evidence linking Kerley to the murder; even the autopsy findings regarding cause of death of the victim were hotly disputed given the years it took to finally complete all the autopsies. Nearly the entirety of the case was premised on prior bad acts which portrayed this petitioner (and correctly so) as a brutal, serial domestic abuser. California law allows the jury to infer that petitioner killed the victim based on prior acts of sexual/domestic abuse misconduct (see infra footnotes 2, 3). In his habeas petition, petitioner brings issues of prejudicial propensity evidence, due process violation with admission of the victim's statements, jury instruction regarding an inference of consciousness of guilt lacking in evidentiary support, and an encore admission of prejudicial evidence issue.

For the reasons that follow, the undersigned recommends the petition be denied.

Background Facts

The California Court of Appeal for the First District (hereinafter "Court of Appeal") issued a lengthy, published opinion in this case, People v. Kerley, 23 Cal. App. 5th 513 (2018). The issues in this case do not require an extensive repetition of the opinion itself, so the undersigned will simply summarize the facts as set forth in the opinion with quoted snippets which exemplify the abuse and evidence at issue.

Petitioner had a long and violent relationship with the victim, Danna Dever (hereinafter "Dever" or "the decedent") commencing in the 1980s. Episodes of violence included, for example the kicking of Dever's pregnant stomach with steel toed boots. The record is replete with ongoing beatings, broken ribs, and the forced cutting of hair. In 1996, the police were called, and when they arrived, Dever yelled:

" 'Help me, help me, save me, save me, he did this.' " Kerley was standing in the doorway, and Mandee was in the back of the room. Officer McCoy carried Dever to his patrol car and put her in the backseat. Dever told Officer Julie Cross that Kerley had "stomped her right hand and foot at the same time, and then he kicked her in her eye with his right foot." Dever said that, when she went to call 911, Kerley told her he would kill her if any police officers came to the house.

People v. Kerley, 23 Cal. App. 5th at 522.¹

As is often the case, the victim, Dever, recanted her initial allegations, but the prosecution refused to drop the case. Just before a scheduled appearance on June 19, 1996, Dever disappeared. What turned out to be Dever's unclothed body (initially designated "Jane Doe No. 7" and only later identified as Dever a decade later) was found on July 8, 1996 in a dry creek bed, partially covered by a blanket. Two forensic pathologists conducted separate investigations into the cause of death of Jane Doe No. 7, opining that the cause of death was not apparent, and that it did not appear that the chest cavity had been traumatized. The right hand was excised from the body in case a fingerprint could later detail the identity of the victim. A fingerprint taken from the right hand did not result in a disclosure of a specific person's identity.

At or about the same time, the Solano County District Attorney's office received an anonymous letter referencing a "Danny's" inculpatory statements regarding Dever. The letter contained details matching the above discussed finding of Dever's body. However, after forensic examination, the writing of the letter (clearly disguised) could not be attributed to petitioner or his mother.

A year later, investigators approached yet another forensic pathologist who was tasked with finding a cause of death. This, time, after nearly a year's long analysis:

Contrary to Dr. Peterson's testimony that he had removed the chest plate during the original autopsy, Dr. Murad testified that the chest plate had not been removed when he received the remains. Dr. Murad testified that he identified two fractures on the left first rib and the ninth right rib which had fully healed at the time of death, and one fracture on the right first rib that was in the process of healing at the time of death, meaning it had most likely been fractured six weeks or less before death.

Dr. Murad also identified fractures on both the left and right side of ribs two through nine that occurred "perimortem," meaning "around the time of death." Dr. Murad also testified that the hyoid bone in the throat was fused on the right side but not the left side, and had been "displaced" and was "laying over on its side." Dr. Murad opined that the damage to the ribs was consistent with being beaten or "stomped" on the chest, and that the manner of death was a homicide.

People v. Kerley, 23 Cal. App. 5th at 525.

The victim, however, remained unidentified. No new facts in the case of any significance occurred in the case until April of 2006. At this time, the police determined from a neighbor that petitioner had been digging in his backyard at the time of Dever's disappearance. When a depressed area was dug up, the remains of a dog were found. However, of interest to this case, items of women's clothing and other woman's items were also found.

A year later in April of 2007, another investigator was assigned to Dever's disappearance. Another attempt at fingerprinting identification of Jane Doe No. 7 resulted in a successful match to Dever. Petitioner remained a person of interest at this time and was questioned by police in 2007, but nothing of significance occurred until July of 2010 when a pubic hair, found in a car petitioner owned prior to 1999, was associated with Dever. Thereafter, petitioner was arrested on October 28, 2010, but not indicted until August 2, 2011.

Trial commenced afterwards, but the only significant evidence to be discussed in this background section is that two defense forensic pathologists totally disagreed with Dr. Murad's analysis:

Haddix opined that Dever's cause of death and manner of death were both undetermined. [fn. 2 omitted]. Haddix also disagreed with Dr. Murad and opined that Dever's chest plate was removed as part of the initial autopsy, as reflected in the autopsy report. Haddix testified that Dever's hyoid bone was not damaged, but merely unfused on one side. Haddix explained that the hyoid bone has three parts, and as an individual grows older, the three parts fuse together. Haddix testified that Dever's hyoid bone was simply fused on one side but not the other, which was "very, very normal" and in no way indicative of a defect or a fracture.

Dr. Allison Galloway, a forensic anthropologist, also examined Dever's remains in 2012, along with Dr. Haddix, on behalf of the defense. In forming her opinion, she reviewed the grand jury testimony, the autopsy report, and the reports of Charles Cecil and Dr. Murad. Dr. Galloway agreed with Dr. Haddix that there was no damage or fracture to Dever's hyoid bone; it was simply fused on one side and not the other, which she characterized as "absolutely normal." Dr. Galloway also opined that certain damage to Dever's ribs postdated her death and was consistent with removal of the chest plate as part of the autopsy, and that this was not even a "close call."

People v. Kerley, 23 Cal. App. 5th at 527.

Further facts will be given in the discussion sections below as deemed necessary.Issues Presented

1. The Use of Abuse Propensity Evidence (Multiple Instances of Abuse by Petitioner);

2. Use of Two of Dever's Statements violated Petitioner's Right to Confrontation; Has Any Federal Claim Been Set Forth;

3. The Consciousness of Guilt Instruction Violated Due Process Because There Was No Evidentiary Link of Evidence Manipulation by Petitioner; and

4. Whether Admission of Evidence Regarding Petitioner's Proclivity for Three Person Sex (Dever Was To Secure One of the Participants) Violated Due Process.

Discussion

A. Admission of Prior Acts of Misconduct

Petitioner contests the admission into evidence through proof of prior acts of misconduct his lengthy history of savaging his long time live-in partner, the decedent in this case.² Thesevoluminous acts are detailed in People v. Kerley, 23 Cal. App. 5th at 521-523; 534-535; 538-539; 544-546; 551-553. There is no doubt that the admission of the evidence concerning the multiple acts of violence and degradation petitioner visited upon Dever was critical evidence due to the highly contested expert evidence on the decedent's cause of death.³ There is further no doubt thatif this evidence was improperly admitted, the admission would have had a substantial and injurious effect on the guilty verdict. Petitioner's problem in this case, governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), is twofold: 1) the Supreme Court has not held that the erroneous admission of overtly prejudicial evidence is a due process violation; and 2) the Ninth Circuit has expressly endorsed its admission in cases involving sexual misconduct.

//// The factual introduction in this Findings and Recommendations indicates the nature of the prior misconduct alleged here. See also People v. Kerley, 23 Cal. App. 5th at 521-523; 534-535; 538-539; 544-546; 551-553. There...