McKinstry v. Chappell, Case No. 1:13-cv-00088 AWI MJS (HC)

• Decision Date: 28 October 2014
• Docket Number: Case No. 1:13-cv-00088 AWI MJS (HC)
• Court: U.S. District Court — Eastern District of California
• Parties: SCOTT P. MCKINSTRY, Petitioner, v. K. CHAPPELL, Respondent.

SCOTT P. MCKINSTRY, Petitioner, v. K. CHAPPELL, Respondent.

Case No. 1:13-cv-00088 AWI MJS (HC)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

October 28, 2014

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent is represented by Tami Krenzin of the office of the California Attorney General. The parties declined magistrate judge jurisdiction. (ECF Nos. 8, 14.)

I. PROCEDURAL BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Merced, following his conviction by jury trial on December 16, 2008, for second degree murder with various enhancements. (Clerk's Tr. at 669-72.) On June 19, 2009, Petitioner was sentenced to an indeterminate term of fifty-one (51) years to life in state prison. (Id.)

Petitioner filed a direct appeal with the California Court of Appeal, Fifth AppellateDistrict, on April 14, 2010. (Lodged Doc. 2.) On March 7, 2011 the appellate court affirmed the conviction. (Lodged Doc. 1.) Petitioner sought review by the California Supreme Court on April 19, 2011. (Lodged Doc. 5.) The petition for review was summarily denied on June 8, 2011. (Lodged Doc. 6.)

Petitioner then sought collateral relief in the form of a petition for writ of habeas corpus filed with the California Supreme Court on September 7, 2012. (Lodged Doc. 7.) The petition was denied on November 20, 2012. (Lodged Doc. 8.)

Petitioner filed his federal habeas petition on January 11, 2013. (Pet., ECF No. 1.) Petitioner raised the following four claims for relief:

1) That the trial court violated his right to a speedy trial under the Sixth and Fourteenth Amendments;

2) The trial court violated his Sixth and Fourteenth Amendment rights by not dismissing a non-English speaking juror;

3) That the trial court violated Petitioner's Constitutional rights by denying Petitioner's motion to unseal personal juror identifying information; and

4) That the trial court erred by instructing the jury on an invalid theory for second degree murder.

Respondent filed an answer to the petition on June 5, 2013. (Answer, ECF No. 17.) Petitioner filed a traverse to the answer on June 19, 2013. (Traverse, ECF No. 19.)

II. STATEMENT OF THE FACTS¹

Defendant and his girlfriend, Stephanie Sarabia Day, lived together in Livingston. They started seeing each other in March 1995. Defendant was a tow truck driver and Stephanie worked at a bank. Defendant knew many Livingston police officers because of his contact with them in the course of his work, such as when officers impounded vehicles and called for a tow.

On October 27, 1995, defendant came into the police department with a gun, a Japanese police model .38 special. He said he had received the gun as payment for a tow, and he wanted to make sure it was notstolen or used in a crime. Officer Harbin, who knew defendant, ran a background check on the serial number, determined the gun was clear, and wrote up a report. Officer Harbin went to his sergeant and asked him what he should do with the gun. The sergeant told him it was payment for services rendered and he should give it back to defendant.

On January 5, 1996, defendant told Shannon Millican he was going to celebrate his birthday that night with some friends at a nightclub in Modesto called Gilligan's. Shannon had met defendant at a pool hall in April 1995, and they had had sexual intercourse at a hotel in October 1995. During the time Shannon knew defendant, he never told her he was seeing someone else, had another girlfriend, or was living with someone. Shannon had his pager number, but not his telephone number. She would page him and he would call her back. Defendant did not invite her to Gilligan's that night, but she and a couple of her friends decided to show up.

At about 10:00 p.m. that night, defendant and Stephanie arrived at Gilligan's with defendant's friend, Officer Paul Carmona, and his girlfriend, Barbara. Officer Carmona and defendant had met through their contact at work. Gilligan's was a large warehouse converted into a nightclub. A lot of people were there and the music was loud. Defendant, Officer Carmona, and Stephanie were all drinking, but Barbara was not. Defendant had several drinks.

Shannon saw defendant with a group of people and she approached and greeted him, then went to another area of the nightclub. At some point, she saw Stephanie in the restroom, and Stephanie told her she was defendant's girlfriend. Shannon did not mention her relationship with defendant, but she left the restroom and confronted him. She approached him and said, "How would your girlfriend like to know about me?" Defendant insisted he did not have a girlfriend and he did not know what she was talking about. Defendant was with John Mardakis, who told Shannon that Stephanie was in fact defendant's girlfriend. Shannon returned to defendant and told him that his friend said Stephanie was his girlfriend. Shannon and defendant screamed and cussed at each other. Defendant screamed at Shannon that he did not have a girlfriend, that everybody was mistaken, that he did not live with her, and that they had just dated at one time. Over the course of 30 to 45 minutes, wherever Shannon went in the nightclub, defendant followed and told her again that Stephanie was not his girlfriend and that Shannon did not know what she was talking about. On one occasion, Shannon noticed Stephanie in the vicinity. Shannon and defendant's discussions were getting so loud that the bouncers were noticing them. Shannon was very upset and she was becoming afraid. Her friends escorted her to her car, where she started crying, and then she left by herself. She did not drink any alcohol while she was at the nightclub.

In Officer Carmona's opinion, everything seemed normal between defendant and Stephanie at the nightclub. Officer Carmona, who had experience recognizing the signs of drug use, did not ₁see any signs of methamphetamine use in either defendant or Stephanie.¹ Officer Carmona

did not see either of them arguing with another person, but there were times when he was not with them. He did notice that defendant seemed preoccupied and kept going off to be with other people.

Barbara also thought defendant and Stephanie seemed normal that night. She spoke with Stephanie a little, but the music was loud. There were periods of time that defendant and Stephanie would leave and then return. Defendant had several drinks. All four of them left Gilligan's around 12:00 or 12:30 a.m.

At about 1:47 a.m., defendant called the police. He said, "This is Scot[t]. Someone just shot my girlfriend in the face." The dispatcher, who knew defendant, asked, "On a drive-by Scott or what?" Defendant said, "Yeah I'm at home right now and she's ...." The dispatcher interrupted him to say the police were on their way.

When Officer Broughton arrived at defendant's residence, defendant ran into the road to flag him down. The gates to the driveway were completely open. Defendant was excited and distressed. He said Stephanie had been shot and he led Officer Broughton into the master bedroom, where Stephanie was lying on the bed with a towel or cloth on her head. She was bleeding heavily, but she had a pulse and she was still breathing. She was gurgling, as though liquid was obstructing her airway. She did not utter any words. Officer Broughton and defendant both attempted to keep pressure on her wound. Within five minutes, firemen arrived and moved Stephanie to the floor. Officer Broughton asked for Stephanie's identification. He remembered that defendant left the room at some point, but he did not know who handed him Stephanie's driver's license. In about 10 or 15 minutes, Stephanie was removed from the scene.

Officer Broughton observed a large blood stain on the bed where Stephanie had lain, and he also saw blood on a pillow in the living room.

After the firemen's arrival, Officer Broughton spoke briefly with defendant, who was wearing jeans and a T-shirt. Defendant said he and Stephanie had been out drinking for his birthday. When they got home, Stephanie told him she was going to the store to get something to drink. Defendant went into the house to use the bathroom and he heard what he believed was a gunshot. He ran outside and found Stephanie face down next to the car, which was now facing the street, positioned to leave through the gates. He carried her into the living room and laid her on the floor, then moved her into the bedroom. Defendant said there were only two firearms in the house, a shotgun in the corner of the bedroom and a small-caliber handgun under the mattress.

When Officer Moore arrived, the gates to the property were open

and a compact car was in the driveway pointing toward the street. Officer Moore knew defendant because he interacted with him in the course of his work. Officer Moore secured the front of the residence and stayed outside to control the scene.

Defendant came outside and stood by Officer Moore. Defendant was visibly upset and crying. He told Officer Moore that he and Stephanie had just returned from Modesto, where they had gone drinking with some other people. Defendant fell asleep in the car and woke up when they got home. He opened the gates and Stephanie drove the car in. He got back in and she drove around to the back of the house. As they were getting out of the car, Stephanie said she wanted to go to the convenience store to get something to drink. Defendant went inside to use the bathroom. As he was coming out of the bathroom, he heard a gunshot. He looked out the front door and saw the car, which was still running with the lights on, and Stephanie lying on the ground. When he approached her, he saw she was bleeding. He reached into the car and turned off the lights and engine. He picked up Stephanie, took her into the

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