Stankewitz v. Mcdonald
| Decision Date | 02 February 2011 |
| Docket Number | 1:06-cv-01220-LJO-JLT HC |
| Court | U.S. District Court — Eastern District of California |
| Parties | WILLIAM ROBERT STANKEWITZ, Petitioner, v. MIKE McDONALD, Warden, Respondent. |
FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1)
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is in custody of the California Department of Corrections and Rehabilitation ("CDCR") serving an indeterminate sentence up to life, pursuant to a judgment of the Superior Court of California, County of Madera (the "Superior Court"). On November 24, 2003, Petitioner was convicted by jury trial of (1) gross vehicular manslaughter while intoxicated (Cal. Pen. Code § 191.5(a)); (2) driving while having a.08 percent or more blood alcohol level while causing great bodily injury (Cal. Veh. Code § 23153(b)); and (3) driving while under the influence of alcohol while causing bodily injury (Cal. Veh. Code § 23153(a)). (Clerk's Transcript on Appeal ("CT") p. 366). Petitioner admitted three prior strike convictions under California's Three Strikes Law. (CT 321). On December 19, 2003, Petitioner was sentenced to an indeterminate sentence of thirty years to life for the manslaughter conviction, and twenty-five years to life for having a blood alcohol level exceeding.08 percent while causing great bodily harm. (CT 366). The trial court stayed an additional twenty-five-years-to-life term on the driving under the influence while causing bodily harm conviction. (Id.).
Petitioner subsequently filed a direct appeal in the California Court of Appeals, Fifth Appellate District (the "5th DCA"), raising all of the issues alleged by Petitioner in the instant petition. On February 14, 2005, the 5th DCA, in a partially published decision, affirmed Petitioner's conviction. (Lodged Document ("LD") 4).1 On March 2, 2005, Petitioner filed a petition for review in the California Supreme Court. (LD 7). The petition was granted on May 18, 2005, but further action was deferred pending resolution of other cases before the high court. (LD 8). Review was dismissed on September 7, 2005. (LD 9). Petitioner has not filed any state habeas petition in any California court related to his 2003 conviction.
On September 7, 2006, Petitioner filed the instant petition, raising six grounds for relief. Petitioner filed the instant petition on September 7, 2006, raising six grounds for relief. (Doc. 1). On December 18, 2008, the Court ordered Respondent to file a response. (Doc. 8). On January 28, 2008, Petitioner filed a motion to stay proceedings in order to exhaust remedies in state court. (Doc. 12). Before the Court could rule on Petitioner's motion for stay, Respondent filed a motion to dismiss the petition, contending that one of the six claims was unexhausted. (Doc. 13). On July 24, 2008, the Court granted Petitioner a stay of proceedings to permit Petitioner to exhaust his claim in state court. (Doc. 19).
In that order, the Court required Petitioner to file regular status reports regarding his exhaustion efforts. Following the filing of status reports on May 19, 2008, August 15, 2008, and October 3, 2008, Petitioner filed a status report on November 13, 2008 indicating that the California Court of Appeal, Fifth Appellate District ("5th DCA"), had denied his state habeas petition on October 6, 2008. (Doc. 24). In that status report, Petitioner also requested an extension of time of sixty days in which to prepare his "opposition to the appellate denial" of his state petition. (Id.). On November 25, 2008, the Court issued an informational order explaining to Petitioner that he must exhaust his claim in the California Supreme Court and that he must continue to file regular status reports or the stay would be lifted. (Doc. 25).
On January 14, 2010, after fourteen months of silence on the part of Petitioner, during which he failed to file any status reports or other updates with this Court, the Court issued an Order to Show Cause why the stay should not be lifted. (Doc. 26). On March 25, 2010, Petitioner further filed a document indicating that he was "presently exhausting his state remedies in the California Supreme Court as of March 21, 2010, " and that he would file his next status report on or about April 21, 2010. (Doc. 32). The Court, however, was unable to find any evidence in the state court electronic records that Petitioner had filed any document with the California Supreme Court. Accordingly, on May 7, 2010, the Court issued an order lifting the stay of proceedings and making Findings and Recommendations to grant Respondent's original motion to dismiss for lack of exhaustion as to ground six. (Doc. 33). On June 17, 2010, the District Judge adopted the Findings and Recommendations and requiring that Petitioner move to withdraw ground six within fifteen days or face dismissal of the entire petition. (Doc. 34). On July 6, 2010, Petitioner moved to withdraw ground six. (Doc. 35). On July 7, 2010, the Court granted that motion and also ordered Respondent to file an Answer to the remaining five claims. (Doc. 36). On October 5, 2010, Respondent filed the Answer. (Doc. 41). On January 4, 2010, Petitioner filed his Traverse. (Doc. 46).
The Court adopts the Statement of Facts in the 5th DCA's partially published decision:
William Stankewitz (defendant) and his aunt, Wilma Lewis, spent from the morning of June 21, 1999 to the morning of June 22, 1999, driving Lewis's Mercury Cougar in and around the Big Sandy Rancheria, where defendant and Lewis both lived, and in a larger area in Madera and Fresno counties. At around 9:00 or 10:00 o'clock on the morning of June 21, defendant and Lewis began drinking beer as they drove. Defendant's girlfriend and an elderly neighbor rode with them part of the day and also drank beer. The four of them purchased and consumed at least 38 cans of beer. Late that night, defendant and Lewis arrived, both intoxicated, at a relative's house in Fresno. They continued drinking there, and headed back toward the Rancheria in Auberry in the early morning.
On the way, at about 7:00 o'clock in the morning, they were involved in a fatal accident. In a rural area, at an intersection controlled by a stop sign, the Cougar hit another car broadside, killing the driver. Lewis was thrown from the car. As she lay unconscious on the ground, defendant knocked on the door of a nearby house and asked to use the phone. The resident called 911 and spoke to the operator and then handed the phone to defendant, who used it to call a friend. Defendant tried to hide in the yard of the house, and held his finger to his lips to warn the resident not to tell the police of his location. When officers found him, he told them he knew nothing about the accident and did not know the injured woman. He said he was in the area looking for farm work and had spent the night at the intersection sleeping in a van, which had since left. The police arrested him after finding documents bearing his name in the car. His blood alcohol level was.16 percent, double the threshold amount for driving under the influence. (Veh. Code, § 23 152.)
Lewis was injured seriously in the accident. She suffered fractures of her left arm, left ankle, and eighth right rib, a dislocated left knee, and other wounds, including lacerations of her scalp and left leg. At the hospital, Lewis told officers that defendant was the driver.
Defendant appeared uninjured at the scene of the accident. Several days later, while in jail, he reported pain extending from the middle of his lower back to his right ankle and in one shoulder, which he attributed to the accident. He was treated with Motrin.
After the accident, the Cougar was moved to Ron's Towing, a commercial towing yard in Madera. There, it was kept inside a building until July 2, 1999, 10 days after the accident. On July 2, the police informed Ron's Towing that the evidence hold was released, and the car was moved outdoors. Ron's Towing covered the car's open windows with plywood to keep its guard dogs from entering, but otherwise the car was exposed to the elements. An employee of Ron's Towing testified at the first trial that the front bumper, which had come off in the accident, was placed inside the car.
As far as the record discloses, the car was not examined by anyone after the day of the accident until early August 1999, when an investigator from the District Attorney's office and two members of the California Highway Patrol's Multi-disciplinary Accident Investigation Team (MAIT) examined and photographed it. The goal of the MAIT investigation was to determine, based on the damage to the car and the injuries to defendant and Lewis, which of them was the driver.
At about the same time, an investigator with the Public Defender's office also viewed the car. He saw debris inside.
After the MAIT officers' inspection, CHP informed Ron's Towing that it no longer needed the car and it was "released from evidence." Ron's Towing sold the car to Romero's Towing, a dismantler in Los Banos, where it was moved on August 6 or August 7, 1999.
Defendant retained counsel to replace the Public Defender on August 26, 1999. The Public Defender's office incorrectly told defendant's new counsel that the car had been destroyed and was not available for inspection. Nevertheless, defendant's new investigator found the car at Romero's Towing in September 1999. It was outdoors, stacked atop another wrecked car.
Defendant's counsel arranged with the District Attorney's office to return with his investigator to Romero's Towing for an inspection. The inspection did not take place until January 4, 2000. By that time, the car had been moved to another place on the lotand altered in several ways since defendant's investigator first...
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