Kimberly Long v. Deborah K. Johnson

misrepresentation speci acts of fraud 1182(a)(5)(A) (7)(A). §

fied 8 U.S.C. 1227(a)(1)(H)(i)(II). Tag- § One of

See removability for cannot be

gar’s grounds discretionary decision

waived Therefore, the Board

Attorney General. determining Taggar err inadmissibility. for a waiver of

ineligible DENIED.

Petition

Kimberly LONG, Louise Petitioner-

Appellant, JOHNSON, Warden, K.

Deborah

Respondent-Appellee.

No. 12-55820. Appeals,

United States Court of

Ninth Circuit.

Argued July and Submitted Dec.

Filed Alissa Simpson (argued)

Alexander Project, Bjerkhoel, California Innocence CA, Petitioner-Appellant. Diego, San Sevidal, Attorney Deputy A. Arlene Harris, D. At- (argued), Kamala General California, L. torney Julie Gar- General General, corpus. In this Attorney tion for a writ of habeas land, Assistant Senior court, argues that the district Vienna, Deputy At- Petitioner Supervising and Kevin evidence adduced court erred because the General, torney Respondent-Appellee. for a rational permit at trial was insufficient to guilty beyond find her a reasonable Reviewing de novo the district doubt. a deny petition for court’s decision corpus, Blodgett, of habeas Lambert v. writ (9th Cir.2004), affirm. 393 F.3d GRABER, P. Before: SUSAN RAWLINSON, and PAUL B. JOHNNIE STATEMENT OF FACTS WATFORD, Judges. J. Circuit boyfriend Petitioner and her Conde lived 5, 2003, Petitioner, together. On October

ORDER Conde, Jeffrey Dills1 and their friend GRABER, Judge: Circuit spent day riding motorcycles and bar, heavily. at a Petition- drinking While July disposition The Memorandum filed argued about flirtatious- er and Conde her redesignated as an authored is toward other men. Petitioner be- ness Graber, by Judge with modifica- opinion upset came and rode to her house with a opinion The is to be filed concur- tions. friend of Dills’. Dills and Conde followed rently with this order. separately motorcycles. on their When petition panel rehearing for Appellant’s home, continued the ar- Conde arrived he rehearing en banc filed petition and for driveway. gument with Petitioner 7, 2013, are DENIED as moot. August very angry because Petitioner was still filing petition rehearing time for for The had her in front of Conde embarrassed rehearing petition and en banc shall yelled at people. pushed She anew as of the filed date of the start and told him that he was a “loser” Conde opinion. job pay who had no and did not his fair him share and that she wanted out of her OPINION her house. Petitioner hit Conde with hand, helmet, motorcycle Kimberly purse, A convicted Petitioner her her novelty carrying, hat Long second-degree Louise murder for and a that she was boyfriend, things death of and then threw at him.2 Dills be- bludgeoning her “Ozzy” might in the home that came concerned that Conde hit Peti- Oswald back, they stepped The courts tioner so he between them. shared. California state Dills, depart decided to appeal, affirmed her conviction Petitioner peti- they her left for his house. federal district then denied addition, ex-husband, motorcycle In 1. Dills died in accident after nose. hearing preliminary but before the trial. His Bugarski, argu- Joe one preliminary hearing testimony was read to ment, Bugarski bicy- Petitioner tackled off his jury. propriety procedure of that is cle, her, slapped which he and she hit after challenged not here. phone and him in the head with a cordless threat- retrieved a butter knife with which she also 2. There was evidence occasion, ened him. On another physically been violent with Conde in the plate ex-husband and threw a of food past. example, For one of Conde's children threatened him with a baseball bat. punched told the Petitioner once face, leaving bloody him with a Conde any person to Petitioner or blood on her and Dills had At Dills’ clothing. contin- spa. into his got a drink paying about complain Conde’s

ued to the officers went into the house When had a sexual Then she and Dills his share. sitting found Conde encounter, abruptly by which she ended injury They with an to his head. searched to return home Dills that she had telling the house to ensure that no one else was that her ex- forgotten she had a.m. present. Paramedics entered 2:20 drop to off then- supposed husband was and ascertained that Conde was dead. children, that this though knew even coagulation tempera- From the blood and dressed, true. was not While rigidity body, they ture and of his deter- mad at Conde she that she was so she said mined that he had not died within the could “kick his ass.” to arrival. It later prior minutes was Petition- determined that Conde died from blunt dropped that he Dills estimated head, caused three 1:20 and 1:30 force trauma to the at her house between er off eight implement to blows. The used was a ap- 2003. As he a.m. on October stick, bat, object golf like a long, off his slender the Dills turned proached coasted, healthy could have inflict- Any as not to awak- club. adult motorcycle and injury, the coroner deter- ed the which neighbors. or the en Conde have rendered him uncon- cell Dills turned mined would phone. could not find her bushes, immediately and resulted in into the where scious almost headlight up within 2 to 20 minutes. Conde was things thrown at Conde ear- death Petitioner had found, lier, attacked where he was help phone. her find the Dills then through the couch. He bore no defensive wounds. her enter the house watched silhouetted inside front door and saw her that the The officers’ search revealed away Dills drove and returned the house. sliding glass door from the kitchen to the home, noticed, he while to his own where no yard open, back was but found alarm, that it 1:36 a.m. The setting an entry. The in the back signs spa of forced house to Dills’ house trip from Petitioner’s uncovered, running, and warm. yard was to three miles and took was two and a half coins, and a cordless tele- glass, Broken neighbor A of Petition- 10 to 15 minutes. kitchen floor. phone were scattered on the motorcycle going down heard a loud er’s phone cell were on clip, purse, A hair and 1:20 and the road at some time between sandals, pairA of the kitchen counter. motorcycle driving 1:30 a.m. and saw the helmet, near the a hat sat on the floor and away from Petitioner’s house.3 jacket A couch where Conde died. rug on a.m., hat were found on a throw Petitioner called 911 to another At 2:09 home, nearby. blood was found on had-“just” the floor No report that she returned baseball bats any of those items. Two something happened had face, because of blood appeared, near the door that he had blood all over his them, to have been spatter patterns to her house. something happened Blood at the time of the murder. called back. Officers there hung up the all four was found on at the house at 2:14 a.m. and found evidence arrived street, body, a table near fran- around Conde’s in the middle of the walls television, curtains, him, and door any injury officers did not notice tic. The one, property. onto her After including neighbors, not know went 3. No murder, howled at the Otto barked and dog of the heard her Otto bark on investigator. He when someone he murder. barked Police interviewed Petitioner on October But no blood was found the couch. behind again had made on October where Petitioner interview, officers con- discovering During Conde’s second call after phone fronted her about inconsistencies leading hall to the bed- body, or in the story and contradictions between what she rooms. reports said and the of others- who were garage, the house and of search day. with her that Petitioner said that she cars, yard, Petitioner’s and Conde’s forgot things happened sometimes nearby and the neighborhood, immediate when she was drunk and admitted nothing more of evi- yielded storm drains “fuzzy” on' some the details weapon dentiary value.4 The murder interviews, day. During both she told golf But clubs and never found. Conde’s ex-girlfriend them that Conde’s would found, either; an bat were not one baseball something have done like this because she had seen one club acquaintance previously property had vandalized their and had bats near the resting next to three baseball against made Petitioner and Conde threats door, bag golf there had been a of past.6 garage. in clubs the police took Petitioner to a sta- Petitioner’s account of the Officers during investigation the at her home. murder was when she returned from tion house, with her not Dills’ in The officer who sat did notice she walked and saw Conde any person lying on Petitioner’s or cloth- on the couch. knew that some- blood She Among thing wrong, the ing.5 things, Petitioner men- was she turned on light injured. that her house had been and saw that he was tioned ransacked She mess, although police party and was a the did carried two hats inside with her and be so. Ac- not find that to Petitioner also said kicked off her shoes as she entered.7 Petitioner, cording checked the house and was wor- gurgling, that she Conde was children, thought breathing she could not find her so she that he was ried when phone. 911 on although subsequently Although she said she called her home an emergency was not worried because she knew that was room nurse trauma, experienced treating with her in were ex-husband. head she mall, trial, police strip suggested not a a At search either her school, (including or a YMCA their trash ex-girlfriend may ex-husband or Conde's have dumpsters), very which were located within a committed the murder. Petitioner's ex-hus- short distance of Petitioner’s house. asleep band introduced evidence that he was girlfriend's girlfriend at and son his sig 5. The absence of blood on Petitioner was parents’ girlfriend house. His testified nificant because one of the first officers on the slept- edge the the she on outside of bed and scene that there was blood on the in no one the house was disturbed ground behind the which was difficult night. ex-girlfriend Conde's introduced stepping to avoid in. Petitioner testified that a evidence that she was on date that ended in and out of the house at least went between 12:45 a.m. and 1:15 a.m. on the twice, house, frantically throughout ran 6, 2003, morning of October which she after trial, put on Conde. At hands Whittier, dropped her date off at his home in pulled body by testified that she Conde's about 30 from Petitioner’s home. miles up.” hand so hard that he- "lifted But there bloody were no tracks in the house. Petitioner testified that she removed her shoes facing 7. But the shoes were found the front and called 911 barefoot from the door, away from it. found, glass where broken was there also was no evidence that her feet were cut.

895 she had killed Conde. render aid to Conde because The California Court of did not upset. ran around the Appeal People was drunk and affirmed the conviction. v. 911, ran screaming, hung up E039986, Long, house No. 2008 WL 4958575 outside, again. 2008) 911 She then 21, then called (Cal.Ct.App. (unpublished). Nov. again, ran where found her. outside response sufficiency In to the challenge, “ police that a num- Petitioner later told the ‘whether, considered after missing, including were ber of items viewing the in evidence most kept inside her bedroom clos- shotgun she prosecution, any favorable to the rational (which only family the immediate knew et trier of fact could have found the essential about), keys,8 her car and the center con- beyond elements of the crime a reasonable acknowledged sole what doubt,’” at *4 (quoting People id. jewelry in cheap a stereo. None of the 1149, Young, 24 Cal.Rptr.3d 34 Cal.4th $10,000, than which was worth more (2005)); 105 P.3d 501-02 accord taken, guitar nor were bass Virginia, Jackson v. 443 U.S. sitting flat-screen television that were (1979), S.Ct. L.Ed.2d plain view. explained length why at the circumstantial evidence permit sufficed story self-contradictory guilty beyond to find Petitioner For al- reason- respects. example, several doubt, Long, able *4- though she had told Dills that she was still 2008 WL 12. court angry petition that she could “kick The denied for re- [Conde’s] ass,” initially police hearing. Supreme told she California Court happy happy to be home and that Conde review. denied was there. She lied about the sexual en- Having exhausted her claim before the Dills. that she counter with She testified courts, petition state Petitioner filed a in phone had found her cell the bushes in corpus writ of habeas the federal dis- off, her told dropped when Dills but again trict argued court. She that she was that she could not find the cell process denied due because the evidence at trial phone. She also admitted guilt beyond insufficient to her prove during police, her interviews with she was a reasonable doubt. The district court truthful level of violence that about the courts’ of that held that the state denial displayed she had toward Conde to, contrary nor it in- claim was not argument on the of the murder. of, application volve an unreasonable clear- ly established federal law as determined PROCEDURAL HISTORY Court, nor Supreme States United A California convicted Petitioner of was it an unreasonable determination murder, second-degree a violation of Cali- Accordingly, facts. under 28 U.S.C. § denying fornia Penal Code 187. After 2254(d), grant- § relief could not be habeas trial, her motion for a new the state trial ed, and the court dismissed the action with prison sentenced Petitioner to a term prejudice. years of 15 to life. issued a certifícate of appealed her conviction and The district court sufficiency issue. Pe- argued, among things, appealability that the evi- appeal. timely titioner filed a notice of dence was insufficient to establish hers, hanging were as never found Petitioner testified that she on keys, jury reasonably tattoos and a shamrock found her car could she had shamrock them, motorcycle keys her helmet. find that the with a shamrock on period minutes), DISCUSSION of 39 to 49 head, could have struck in Conde considering When Petitioner’s washed in spa herself changed out claim premised insufficiency of the evi clothes, of her bloodied disposed inquiry governed by dence—an Jackson— murder weapon beyond and clothes in must view the evidence perimeter search, of the police before call- prosecution. most favorable to the Boyer (2) 911; Cir.2011),- ing that Petitioner had access to a (9th Belleque, 659 F.3d — weapon, such as the missing golf club and denied, -, rt. U.S. ce (3) bat; third baseball that Petitioner’s (2012). S.Ct. 183 L.Ed.2d 78 Be anger sustained at motive;-9 Conde created cause this case arises in the context of a (4) that Petitioner’s lies to investigators petition habeas filed after enactment of the (5) evidenced consciousness of guilt; Penalty Antiterrorism and Effective Death (AEDPA), attempted appear, Act of 1996 we owe a to make it “double falsely, dose of that a robbery deference”’to state courts. in Id. occurred is, (6) murder; That we must resolve connection doubts with the that Peti- prosecu about evidence favor of the tioner was willing arguments to settle and, addition, tion violence, must examine the such as her violent confrontation through state courts’ decisions .the lens of with Conde day earlier that and her histo- relief, AEDPA. grant To habeas “we ry of domestic against violence Conde and must conclude that the state deter court’s (7) ex-husband; that the intruder was mination could -have known due to lack of defen- found that there was sufficient evidence of wounds; sive signs the absence of of forced guilt ... objectively unreasonable.” entry, and the fact that dog Id. at 965. was not barking heard on the night of the (8) murder; who, people that the two applied law,

The state courts the correct defense, according to the might have com- examined the evidence under mitted the murder the Jackson standard. had solid alibis. pivotal ques- tion, then, is whether the California Court presented the evidence at trial Appeal, which issued the last reasoned yield inference, could an alternative we decision, state-court unreasonably applied respect “must province the exclusive Jackson in affirming Petitioner’s convic- [jury] to determine credibility of wit tion for second-degree Boyer, murder. nesses, conflicts, evidentiary resolve 659 F.3d at 965. draw reasonable proven inferences from Archdale, facts.” United

Viewing States v. the evidence in the 229 (9th 861, Cir.2000) (internal F.3d most 867 prosecution, quo favorable to the the Cal omitted). And, ifornia tation Appeal Court of marks reasonably although held find, circumstantial, that a could evidence was beyond a a conviction— doubt, reasonable may that Petitioner even solely mur rest on such murder — dered Snow, Conde. There was People evidence from evidence. See v. 30 Cal.4th (1) 43, which the rationally could Cal.Rptr.2d find: 132 65 P.3d 761 (2003) curiam) that Petitioner opportunity, (per (holding that circum (a between 1:20 or 1:30 a.m. and 2:09-a.m. stantial evidence supported alone the de Investigators empty champagne found an rized that angrier Petitioner became when she cup bottle and a in the trash at Petitioner's birthday found that Conde had consumed the . champagne house. The being saved for champagne. birthday, Petitioner's prosecutor theo-

897 conviction); sometimes encounter convictions see also will murder fendant’s mistaken, they but that Barajas, believe to be v. Cordova States United Cir.2004) (9th (holding uphold.” Cavazos v. must nonetheless F.3d — Smith, U.S.-, can be evidence alone “circumstantial 132 S.Ct. curiam). (2011) a defendant’s demonstrate (per sufficient L.Ed.2d 311 guilt”). might have enter- jury, we the

Were sit- doubt. Were we

tained a reasonable ap- on direct reviewing court

ting as the the evidence to might have found

peal, we AEDPA, under which insufficient. But

be deference, limited we are

demands double courts the California deciding whether JONES, Debtor, Appellant, Jerry Alan They did unreasonably applied Jackson.

not. AFFIRMED. EUGENE, TRUSTEE, Appellee. U.S. No. 12-35665. WATFORD, concurring: Judge, Circuit about whether grave I have doubts Appeals, Court of United States right person in this has convicted the State Ninth Circuit. fact stem from the case. Those doubts 5, 2013. Argued and Submitted Nov. virtually impossi- have that it would been commit the crime for the defendant to ble Filed Dec. all traces of her involvement and eliminate a.m., arrived home at 1:20 even if she had contends, rather than around

as State a.m.,

2:00 as defendant I the fact

trial. am also troubled placed who the defendant only witness early 1:20 a.m. never actual-

at home as as This testimo-

ly testified at trial. witness’s case so

ny was so critical—and State’s said he would judge

thin —that the trial go to the have allowed the case

not even it. Yet the was left

jury without credibility of this witness based

assess the transcript, hearing preliminary

on a cold intangible than all the subtle

rather into account when juries

factors take the wit- testimony, because

evaluate live

ness died before trial commenced. join I misgivings,

Despite these notes, the court disposition. As

court’s consequences of the the inevitable

one of standard of review

doubly deferential judges AEDPA “is that apply under

must

Case Details

Case Name: Kimberly Long v. Deborah K. Johnson

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 2, 2013

Citation: 736 F.3d 891

Docket Number: 12-55820

Court Abbreviation: 9th Cir.