Suniga v. McDonald

• Decision Date: 14 March 2012
• Docket Number: 1:10-CV-00090 LJO GSA HC
• Parties: ALERED SUNIGA, III, Petitioner, v. MIKE McDONALD, Respondent.
• Court: U.S. District Court — Eastern District of California

ALERED SUNIGA, III, Petitioner,

v.MIKE McDONALD, Respondent.

1:10-CV-00090 LJO GSA HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: March 14, 2012

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is represented in this action by David R. Mugridge, Esq.

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 Tulare, following his conviction by jury trial on March 14, 2007, of two counts of murder and enhancements for personal use and intentional discharge of a firearm causing death. (CT¹ 225-226.) On April 11, 2007, Petitioner was sentenced to life without parole plus twenty-five years. (CT 225.)

Petitioner filed a timely notice of appeal. On July 3, 2008, the California Court of Appeal, Fifth Appellate District ("Fifth DCA"), modified the judgment by striking one of the multiple-murder special findings but affirmed Petitioner's judgment in all other respects in a reasoned decision. (See Resp't's Answer, Ex. 1.) Petitioner then filed a petition for review in the California Supreme Court. (LD² 4.) The petition was summarily denied on October 1, 2008. (LD 5.)

On December 29, 2009, Petitioner filed a federal habeas petition in this Court along with a motion for stay and abeyance of proceedings to allow Petitioner to return to state court to exhaust two claims that had not been previously presented to the state courts. On February 9, 2010, the Court determined Petitioner had shown good cause for a stay and granted the motion. Over the course of the next year and a half, Petitioner failed to comply with multiple court orders with respect to the stay. Petitioner was repeatedly warned that continued failure to comply would result in vacating the stay. On July 29, 2011, after Petitioner persisted in failing to abide by court deadlines, the Court vacated the stay nunc pro tunc to February 9, 2010, and dismissed the unexhausted claims. Respondent was directed to file an answer to the remaining claims. On November 2, 2011, Respondent filed an answer. On December 2, 2011, Petitioner filed a traverse.

STATEMENT OF FACTS³

Prosecution Evidence

At approximately 1:00 a.m. on December 30, 1998, Detective Meek was dispatched to the Goshen area to assist then-Deputy Boudreaux, who was attempting to catch a suspect who had fled from a vehicle stop Boudreaux had initiated following a citizen's report of a female in need of help. After a pursuit, the vehicle came to a stop. The driver-[Petitioner]-ran a short distance and then turned, as if to fight. Although Boudreaux sprayed him with pepper spray, [Petitioner] managed to run again. He was taken into custody within 10 to 20 minutes, and spontaneously stated he pushed her down, and she deserved it. His breath smelled strongly of alcohol and his voice was slurred.

Meek was then directed to make contact with Cindy Baldiviez, ^FN1 who reportedly was the victim of spousal abuse. Cindy was crying and very upset, and she appeared afraid. She advised that the suspect was [Petitioner], her live-in boyfriend at the time and the father of their son, Alfred. Cindy related that she and [Petitioner] had both been at home. [Petitioner] had been drinking for a few hours, when a man Cindy had never met before showed up at the house. The men wanted to go for a ride, but Cindy did not want [Petitioner] to, because they had been drinking. They ended up going for a ride in a van. [Petitioner], who was driving, was very drunk and all over the road, and she told him to pull over so that she could drive, as she was sober. [Petitioner] became very angry and started calling her names. Eventually, he pulled over. The argument continued, and he told her to get out of the van. When she refused, he tried to pull her out of the van by her hair, then began punching her in the head. When she fell to the ground, he kicked her several times. She ran off. This incident occurred around midnight, and Meek observed a goose egg on Cindy's forehead.

FN1. To avoid confusion, we refer to various individuals by their first names. In addition, we refer to Cindy and [Petitioner]'s son, Alfred Suniga IV, as Alfred. No disrespect is intended.

As of the time of the homicide, Cindy and [Petitioner] had been a couple for approximately 10 years, and had been married for part of that time.

Around 1999 or 2000, Katrina Murillo lived with her grandmother, Olivia Baldiviez; her aunt, Cindy Suniga; and Cindy's husband, [Petitioner]. Cindy and [Petitioner] had their own room. There were many times when Cindy and [Petitioner] argued, but on one particular occasion, the arguments escalated, and Murillo heard loud yelling and what sounded like [Petitioner] hitting Cindy. Murillo heard Cindy tell [Petitioner] to stop hitting her. When Murillo went into the room, Cindy and [Petitioner] both appeared angry, and Cindy was crying. This was something that happened over and over again and that Murillo heard many times.

At approximately 7:15 a.m. on July 1, 2001, Visalia Police Officer Pree was dispatched to a residence on Copper Court, where he contacted Cindy, who was crying and afraid. She related that she had returned home just prior to Pree's arrival, and had found unknown people at her home and numerous beer bottles lying around. She went inside and was telling the people to get out, when [Petitioner] told her to leave. At one point, he produced a shotgun, racked the action, and pointed the weapon at her. He told her that if she was not going to leave, he would make her leave, and, as far as he was concerned, she did not have a house anymore. Cindy then left the residence and contacted the police. Although [Petitioner] was not there, officers found a .12-gauge, pump-action shotgun in the house.

At approximately 2:50 a.m. on July 29, 2002, Visalia Police Officer Alfano responded to a minimart following a call from a woman saying she had been involved in a disturbance with her husband. Upon arrival, he contacted Cindy, who was crying and upset and appeared afraid. She said [Petitioner] had come home intoxicated and accused her of cheating on him. The argument had become heated, and he had pushed her around the room, pulled her hair, and called her names. Alfano responded to the residence, but did not find [Petitioner].

Pauline Baldiviez was Olivia Baldiviez's daughter and Cindy's sister. On September 18, 2005, she and her boyfriend Joe Cruz, Cindy and [Petitioner], and Joe's sister Christina Cruz and her boyfriend Daniel Nanez, left Olivia's house around 7:00 or 8:00 a.m., to go to an Oakland Raiders football game. They traveled in a van. Joe drove. [Petitioner] had a couple of beers and Daniel was also drinking. Although the game didnot start until 5:30 p.m., they left early to make sure they had plenty of time, as they planned to tailgate before the game.

They arrived in Oakland around 2:00 p.m., and had to wait in line to get into the stadium parking lot. While the van was in line, [Petitioner] and Cindy got out at a store. Pauline kept watching for them as the van moved along in line. At one point, the sisters waved at each other. When [Petitioner] and Cindy got back into the van, Pauline heard them arguing. [Petitioner] was upset because he thought Cindy had been waiving at someone else. Cindy was angry. This type of misunderstanding occurred a lot when [Petitioner] was drinking: he would get a little jealous of Cindy or not be quite sure what was going on. [Petitioner] tended to act very inappropriately toward Cindy when he drank, and he frequently cursed at her.

Once inside the parking lot, the group barbecued for a couple of hours. Everyone except Pauline was drinking, and Pauline observed [Petitioner] to have approximately four beers. FN2 At some point, he and Cindy walked away. They seemed fine and were gone for abut 20 or 30 minutes. When they returned, it was time to eat. [Petitioner] just stood by Cindy and did not interact with the others.

FN2. Joe Cruz estimated the group took two or three cases of beer with them to the game. He, [Petitioner], Daniel, and Christina were sharing that beer while they were tailgating. By Daniel's own account, he got "pretty wasted" and "was gone." Joe described his own intake in the parking lot as "[q]uite a few" beers, and he "was wasted" by the time they drove home.

A little before 5:00 p.m., the group started cleaning up in preparation for entering the stadium. Pauline and Cindy got into the van to touch up their makeup. The sliding door was open, and [Petitioner] was standing outside the van, right next to Cindy. Pauline heard them arguing and saw Cindy start to cry. [Petitioner] then struck Cindy in the nose with his closed fist. Pauline told him to stop hitting her sister. He did not say anything.

Pauline finished her makeup and went to the back of the van, where everyone was standing. Apparently around this time, Christina saw Cindy sitting in the van, crying. Cindy said she and [Petitioner] were fighting because he was accusing her of looking at all the men who where there in the parking lot. About 10 minutes later, when Pauline went to call Cindy to go, [Petitioner] was gone. Cindy just said he left. The group waited at the van for 10 or 15 minutes. Cindy was crying and seemed nervous. When [Petitioner] failed to return, the group got in line to enter the stadium. They were in this line about 10 minutes, but [Petitioner] still did not come. Cindy had his ticket and she kept looking around, hoping he would come, but eventually the group went on inside.

It was loud inside the stadium, and Pauline did not hear her cell phone ring. When she looked at it, she saw that she had missed [Petitioner]'s call, and that he had left a voice mail message saying he needed to talk to Cindy. Pauline informed Cindy, who tried to call [Petitioner] back, but

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