Davis v. Johnson (359 F. Supp. 3d 831, 2019)

HAYWOOD S. GILLIAM, JR., United States District Judge

Pending before the Court is Petitioner Shemeeka C. Davis's second amended petition for a writ of habeas corpus, filed under 28 U.S.C. § 2254, challenging the validity of a conviction obtained against her in state court. Dkt. No. 20 ("Pet."). Respondent Deborah K. Johnson, Warden, filed an answer, Dkt. No. 23 ("Ans."), and Petitioner filed a traverse, Dkt. No. 31 ("Trav."). For the following reasons, the Court DENIES the petition.

I. PROCEDURAL HISTORY

On July 6, 2010, the Contra Costa County District Attorney charged Petitioner by information with one count of murder ( Cal. Penal Code § 187 ); two counts of torture ( Cal. Penal Code § 206 ); and two counts of felony child abuse ( Cal. Penal Code § 270a(a) ). Pet. at 2. Petitioner pled not guilty on July 19, 2010, and pled not guilty by reason of insanity on March 4, 2011. Id.

On June 7, 2011, a jury returned a verdict of guilty on all counts and found the murder to be of the first degree. Id. Following the sanity phase of the trial, the jury found Petitioner sane. Id.

On January 6, 2012, the trial court sentenced Petitioner to 32 years to life in prison. Id.

Petitioner appealed her conviction to the California Court of Appeal, First District. On July 9, 2014, the court affirmed Petitioner's convictions in an unpublished opinion. See Pet. Exh. A. Petitioner sought review from the Supreme Court, but her petition was denied without comment on October 1, 2014. See Ans. Exhs. 9 (petition), 10 (denial of review).

On August 18, 2014, proceeding pro se , Petitioner filed in this Court a petition for a writ of habeas corpus. See Dkt. No. 1. On May 17, 2016, the Court appointed an attorney to represent Petitioner in her federal habeas challenge. See Dkt. No. 14. Counsel filed a first amended petition for a writ of habeas corpus on behalf of Petitioner on July 26. See Dkt. No. 17.

Following the Supreme Court's decisions in Johnson v. United States , --- U.S. ----, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) and Welch v. United States , --- U.S. ----, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), Petitioner filed a petition for a writ of habeas corpus in the California Supreme Court on July 13, 2016, asserting that she was entitled to relief under those decisions. See Pet. Exh. C. The California Supreme Court denied the petition without comment on September 14, 2016. See id.

On September 15, 2016, Petitioner moved for leave to file a second amended petition for a writ of habeas corpus. See Dkt. Nos. 20, 21. The Court granted Petitioner's motion on October 14. See Dkt. No. 22.

II. STATEMENT OF FACTS

The following background facts describing the evidence presented at trial are from the opinion of the California Court of Appeal:

Prosecution Case

Shortly after 3:15 p.m. on September 2, 2008, Antioch Police Officer Trevor Schnitzius was dispatched to a medical emergency at a residence in Antioch. Family members, including appellant, directed the officer to a room upstairs, where he found the body of 15-year-old Jazzmin D. [FN 2] Her naked body was extremely emaciated and covered with open sores and scars. The body was also cold, and rigor mortis had begun in the extremities.

[FN 2] The other part of the wooden dowel or closet rod was found in the upstairs hall closet.

That same day, police officers obtained a search warrant and, over several days, executed it at appellant's house. The rooms on the second floor of the house included a bathroom; a bedroom Jazzmin shared with her brother J.D.; the bedroom of appellant's young daughter J.T.; and the master bedroom, where appellant slept. Between Jazzmin's and J.T.'s rooms, there was also a small linen closet.

The entire second floor had a very strong putrid odor, consistent with the smell of blood, urine, and cleaning products. Jazzmin's bedroom had minimal furniture in it, including a bunk bed, a crate-type item that contained only boys' clothes, a TV stand and small television, and a fan. Jazzmin's body had many fresh, open wounds on it. No blood was dripping from the wounds, although there was a bandage made from a piece of a bed sheet wrapped around her knee. There was no blood on the carpet around her, but the carpet was wet, smelled like a cleaning product, and appeared to have been recently shampooed. The carpet under Jazzmin's body was wet and scented and, except for one small stain, appeared clean. When the carpet was pulled up, however, there was blood on the bottom that had soaked through from the top of the carpet. There were dripping lines of clear liquid running down the walls, and it appeared that the walls had been wiped down. But there were still hundreds of very small blood spots all over the walls, ceiling, and furniture, including the bed. There was powder sprinkled on the carpet in the hallway, near the wall and doorway into the bedroom. Police also found empty containers of carpet cleaner and a bottle of Spic 'n Span cleaner in the upstairs hallway. There were holes and patched holes in most of the upstairs rooms, along the stairway leading upstairs, and in the living room and laundry room on the first floor.

The smell of blood, urine, and cleaning products, as well as feces, was particularly strong in a small closet in Jazzmin's room. The closet contained nothing except for a shelf on a wall and a loose piece of carpet on the floor. The clothes rod had been removed from the closet. The closet's doorknob had been removed but, from marks on the door, it looked like, in addition to a deadbolt, some kind of securing device had previously been attached. Over 400 small bloodstains were found in the closet. Some were diluted, as if cleanup had been attempted. There were pieces of hair or biological matter in a few of the stains. There were also apparent bloodstains on the wood floor under the carpet. The bloodstains in the bedroom and the carpet appeared to have been deposited "over some course of time."

In the master bedroom, police found several crumpled plastic bags with wadded up clear packing tape stuck to them. The tape had what appeared to be blood and hair on it. Forensic testing subsequently matched the blood and hair to Jazzmin and a fingerprint on one of the bags to appellant. The hair had long, thick roots, which indicated that it had not fallen out naturally, but that some sort of force had been used.

Also in the master bedroom, police found a large trash bag that contained a blood and urine soaked mattress cover, blue jeans with blood on them, and bloody baby wipes. They also found a container with more bloody wipes in them, a deadbolt lock, an iron, part of a wooden dowel with the words "B ASS Stick" written on it in black marker; [FN 3] two pieces of stained carpet tack strip with clumps of hair on them, and several belts, including one with a bloody padlock tied to it, and another that appeared to have been configured into handcuff-type restraints.

[FN 3] The other part of the wooden dowel or closet rod was found in the upstairs hall closet.

The master bedroom was filled with "massive amounts" of clothing, overflowing from the closet or neatly stacked, much of it new. There were hundreds of bottles of lotion from Bath & Body Works all over the room and 20 or more bottles of perfume. There was also an abundance of hair accessories and makeup. Finally, there was food and cases of soda throughout the master bedroom.

On the first floor, the kitchen pantry and refrigerator were well-stocked with food. The living room, dining room, and family room carpets were covered with sheets of plastic.

The pathologist who performed an autopsy on Jazzmin testified that the cause of death was severe malnutrition compounded by chronic injury. She was extremely underweight, her thymus and thyroid glands were abnormally small in size due to malnutrition, and her large intestine was smaller than her small intestine, which was very unusual and reflected that she had eaten little for weeks or months. She was 5 feet, 7-1/2 inches tall and weighed 78 pounds.

Jazzmin's body had hundreds of scars and open sores, in various stages of healing, all over her body, "pretty much from head to foot, front and back, arms and legs." The most profuse number of recent injuries were located on the top and left side of her head. The scars and injuries were of so many distinct stages of healing and irregular shapes that it appeared that Jazzmin had been struck by various objects over an extended period of months or years. A few of the injuries could have been inflicted within 12 hours of her death. Some wounds could have been pressure sores, caused by Jazzmin lying on her back and in other unusual positions for long periods. Several scars on Jazzmin's lower chest and abdomen appeared to have been burns from a clothes iron. Puncture holes on her scalp were consistent with her having been struck with a hard object with tacks protruding from it.

Based on the first responder's description of the state of Jazzmin's body, the pathologist believed she had been dead for about two hours when police first arrived at the house.

J.D., who was 18 years old at the time of trial, testified that, although appellant was his aunt, he only learned that she was not his real mother when he was close to 10 years old, and he still considered her his mother after that. He and his twin sister Jazzmin had always lived with appellant, who was their foster mother until she sought legal guardianship, shortly before Jazzmin's death. Other children, including appellant's two older sons and younger daughter, also grew up in the same house with J.D. and Jazzmin.

When J.D. and Jazzmin were eight or nine years old and they got in trouble, appellant began to "whup" them with belts, wooden spoons, and knotted electrical cords. He did not remember any whuppings before that age. Appellant also used a closet clothes rod or stick, primarily to hit Jazzmin. Appellant had written on the stick with black permanent marker, and she hit Jazzmin all over her body, until at one point, it broke during a beating. She also hit Jazzmin with a carpet tack strip and hit them both with a belt with a padlock attached to it. She would wrap the belt around her hand and hit them with the swinging padlock. Appellant used a chain with a different padlock to tie them up.

Shortly before Jazzmin's death, appellant hit her with a stick, which made a hole in her leg, and which appellant bandaged. After that, Jazzmin could not really walk anymore, but she still had chores she had to do. When she had trouble doing the chores, appellant would beat her. Jazzmin would cry when she was being beaten. Appellant also burned J.D. once and Jazzmin more than once with an iron. J.D. acknowledged that, when he talked to police, there were burns on his body he did not even remember that he had.

In the year before September 2008, appellant whupped Jazzmin two or more times a week and whupped J.D. once or twice a week. The reason appellant gave for the beatings was that J.D. and Jazzmin were destroying her property. She accused them, and primarily Jazzmin, of this "all the time." J.D. never saw Jazzmin do any of the things of which she was accused. At some point, appellant started locking both twins in a closet. Even when appellant locked them in the closet, she would accuse Jazzmin of breaking out and destroying things, although Jazzmin could not have done anything because she had been in the closet the whole time. He and Jazzmin initially denied doing the things appellant accused them of, but she would keep beating them until they admitted doing what she said they had done.

In April or May 2008, appellant accused J.D. and Jazzmin of messing up her clothing and said she was going to do to them what they had done to her clothes. Appellant then burned J.D. on his body with an iron; when he jumped back and screamed, she said, " 'Don't run because it will get worse.' " Appellant then sent J.D. into the closet while she burned Jazzmin. Appellant kept J.D. home from school for a while after the burning incident.

When asked how he felt about being punished this way, J.D. testified, "I just felt like I must have done something wrong. I didn't know exactly what it was, but I just thought I did something wrong." He did not feel like it was wrong for appellant to punish him in that way; he thought it was just how it was supposed to be.

Appellant never took them to a hospital for treatment after she injured them, although she would give them creams for their burns and cuts. J.D. had sickle-cell anemia, and was supposed to be going to the doctor for regular checkups. When he was younger, appellant did take him to the doctor and he also stayed in the hospital at times. Later, appellant would tell him, "you're lucky you have sickle-cell so I'm not going to hit you that bad," because she did not want to have to take him to the hospital.

In the year before Jazzmin died, appellant did not typically give them the same food she gave her other children. She would usually give them cereal in the morning and cup of noodles and frozen burritos later in the day. They would have to eat their food in the closet. They would get more food before the social worker's visits. Towards the end, Jazzmin would hallucinate and think she had eaten her food even though she had not.

The last school year before Jazzmin died, 2007 to 2008, J.D. was still going to school but Jazzmin was not. J.D. tried to bring food home from the cafeteria to give to Jazzmin, who would eat it. During that year, appellant started locking Jazzmin in the closet in their bedroom for a couple of weeks at a time. Before J.D. turned 15 in February 2008, appellant falsely accused him of letting Jazzmin out of the closet, so she began locking him inside also. When J.D. got home from school, she would lock him in the closet until the next day. Appellant also accused the twins of tampering with the lock while they were in the closet, but this was not true. Appellant used dead bolt locks and, when she thought they had tampered with one, she would get another.

To use the bathroom while they were locked in the closet, J.D. and Jazzmin would have to knock on the wall and wait for appellant to come and let them out. If she did not come, they would go the bathroom on themselves. Appellant would then accuse Jazzmin of doing it on purpose, and would beat her while making her clean it up. With J.D., appellant would say she knew he did not do it on purpose. Appellant sometimes left them in the closet for more than one day without letting them out to go to the bathroom. The closet originally had a light in it, but appellant took it out, saying they "were wasting her PG & E." There had been a rug on the closet floor, but appellant took that out too. Appellant allowed J.D. to have a pillow and blankets in the closet, but not Jazzmin. J.D. would share his blanket with Jazzmin. He also shared his clothes with her because Jazzmin did not have any.

J.D. noticed a pattern where, every time the social worker was going to come, appellant would make the twins clean the closet and put everything back inside. Also, in addition to giving them more food before the social worker visits, appellant would be nicer and apologize to them, saying she was not going to hit them anymore. She gave them clothing and makeup as well, to cover up their injuries, and sometimes took Jazzmin to the mall. Shortly before Jazzmin died, appellant was trying to get guardianship of them, and she said that after she became their guardian, the social worker would be gone. During the social worker visits, which took place every six months or so, the social worker would mostly talk to the twins downstairs. J.D. did not tell her what appellant was doing to them because he thought it was normal. He also feared that, if he told her what was going on and she did not take them away immediately, it would just get worse with appellant. J.D. heard appellant complaining to the social worker about Jazzmin's behavior, but he never heard her tell the social worker, neighbors, or her lawyer that she was afraid for her safety because of Jazzmin or J.D.

The summer before Jazzmin died, J.D. and Jazzmin were in the closet "for good." Once the 2008 to 2009 school year started, neither child was allowed to go back to school.

The day Jazzmin died, appellant accused her of "messing with the thermostat" while appellant was at work. They were in the twins' bedroom, and appellant started hitting Jazzmin, who was naked, as she often was. Appellant told J.D. to go downstairs and get some trash bags and hot water. Appellant had previously thrown hot water on them and put trash bags over their heads. She would "just basically torture us" by pulling the bag tight until they could not breathe before ripping it off.

When J.D. brought the bags and a tea kettle full of hot water up to the bedroom, appellant complained that the water was not hot enough, but she still threw the water on Jazzmin. J.D. had felt the water and it was hot. Appellant then wrapped Jazzmin in a blanket and made her stand in one trash bag and put the other one over her head. As she continued to hit Jazzmin, she told J.D. to go take a shower, which he did. As he left the room, Jazzmin was still alive and was talking, although he did not hear what she said.

J.D. was in the bathroom for about 30 minutes. When he turned off the water in the shower, he heard appellant screaming his name. He ran into the bedroom and appellant, who was crying, said there was something wrong with Jazzmin. Jazzmin was lying on the floor in their room and appellant was performing CPR on her.

Appellant asked J.D. to help her get the bags off of Jazzmin. J.D. tried to touch Jazzmin, but appellant would not let him. Appellant had him get some ice, which she put on Jazzmin's chest. J.D. asked appellant if she was going to call the police, but she just cried and said, "there's only one thing I can do to make this right.... I have to kill myself." She also said, " 'Why did you guys have to do this to me? Why did I have to do this to you guys? I'm so sorry,' " and " 'I'll never do it again, just don't die, don't die.' "

Appellant then called her mother, who came to the house. Appellant's mother washed clothes and picked things up to throw away, including a teakettle, some blankets, and a bag with clothes in it. Appellant said they should put clothes on Jazzmin. She also asked her mother to wait to call the police until she had finished changing her clothes and putting on makeup. But her mother said, "you have to call the police now. You can't just leave her laying here." At some point, appellant's mother called the police and the police arrived at the house.

J.D. talked with the police after they arrived, but he did not tell them everything because he was afraid of what would happen if he told the truth. For example, he said that a burn on his arm came from a barbecue grill when it actually came from an iron. Subsequently, in 2010, J.D. spoke to a police officer and told her the truth about what had happened.

J.D. testified that he loved appellant and, even after Jazzmin's death, still loved her.

On cross-examination, J.D. testified that shortly after appellant's daughter J.T. was born, when he and Jazzmin were nine or ten, they found out that appellant was not their biological mother. This news seemed to upset Jazzmin and she started getting into more trouble at home and at school. Appellant began accusing Jazzmin of doing things, such as stretching out J.T.'s clothes, ruining everyone's clothes, putting chemicals or poisons in appellant's lotion bottles, cutting J.T.'s hair, stealing money, wiping her feces on walls in various parts of the house, and damaging the kitchen sink and appellant's car, even though Jazzmin was locked in the closet at the times of the supposed misdeeds. Appellant also accused Jazzmin of flushing cash down the toilet, stealing jewelry, messing with things in appellant's room, and punching holes in the walls of the house. She accused both twins of picking the lock on the closet door and escaping. They would admit to having escaped, even though they had not, to avoid punishment. Appellant also placed a baby monitor in the twins' bedroom.

Appellant got angry at Jazzmin, who had intense body odor, for not bathing enough. Jazzmin stopped wearing clothes when she was around 15 years old, after appellant took them away from her. After appellant accused Jazzmin of peeing on things in the house, J.D. heard Jazzmin say, " 'I just wanted the house to stink so you guys would have to smell it.' " J.D. also testified that, at a certain point, Jazzmin stopped crying or acting as if it affected her when appellant beat her. This lack of reaction seemed to upset appellant.

Linda Ware, appellant's maternal aunt and the sister of appellant's mother, Irma Gamble, testified that, early in the afternoon of September 2, 2008, she came home and found some voice mail messages from her sister, Irma. Irma sounded very upset, like she was crying.

Ashley L., who attended Antioch Middle School during the 2006 to 2007 school year, testified that she went to school that year with J.D. and Jazzmin. Jazzmin often wore long-sleeved shirts and Ashley once saw her with bruises on her arm and a cut on her head. Ashley also saw her with her arm in a sling. Jazzmin was very thin and Ashley and some friends sometimes offered to get J.D.

and Jazzmin food from the snack bar at school. The twins would always take the food that was offered. Ashley did not see Jazzmin at school at all during the 2007 to 2008 school year.

Gloria Dodson was a neighbor of appellant's who lived on the same street in Antioch until moving away in March 2008. Dodson testified that she used to see Jazzmin going in and out of the house, but starting in about March 2007, she never saw Jazzmin at all. Appellant had previously told Dodson that Jazzmin and J.D. were not outside much because they were "bookworms." During the summer of 2007, Dodson asked appellant where her oldest daughter was, and appellant said that Jazzmin was her niece, that she had " 'a smart mouth and attitude,' " and that she " 'was living with a relative.' "

Dr. James Crawford, medical director of the Center for Child Protection at Oakland Children's Hospital, testified as an expert in pediatrics, including the forensic examination of child abuse and neglect. Two days after Jazzmin died, on September 4, 2008, Crawford examined J.D. His body was covered with scars of various patterns and burn marks, which were consistent with him being "literally struck all over his body" with various items and being "burned in a lot of places" by an iron. J.D. was also malnourished and pathologically underweight. He weighed only 90 pounds, which was 20 to 25 pounds less than he should have weighed, given his height and age.

J.D.'s medical records reflected that he was diagnosed with sickle-cell anemia when he was an infant. As a youngster, J.D. came to the hospital for checkups and was also admitted to the hospital four times between 1993 and 1996 due to pain crises. Until 2001, when J.D. was eight years old, he attended all of his medical appointments. Thereafter, he began missing more and more of his appointments, until 2005, when he stopped coming to the hospital at all.

Defense Case

Appellant's son, A.T., who was 20 years old at the time of trial, testified that, until September 2008, he lived in the Antioch home with appellant, his brother Michael and sister J.T., Jazzmin, J.D., and his stepfather, Jackie T. A lot of tension developed between appellant and the twins because Jazzmin and J.D. did not listen to appellant when she gave them orders to do things, such as clean up. Appellant also described things they did, like making holes in the wall in the stairway, damaging the air conditioner and the fireplace in appellant's bedroom, and keeping their bedroom a mess. In particular, "the closet Jazzmin was staying in, it was a mess. It was dirty. It smelled nasty." Appellant complained to A.T. that Jazzmin was tampering with her and J.T.'s body products. He often saw appellant checking her soaps and lotions for contaminants. Appellant also complained that Jazzmin was stretching out J.T.'s clothes and rubbing feces and menstrual blood into them. Appellant said Jazzmin was stretching out the rest of the family's clothes as well. He never saw Jazzmin or J.D. do anything to anyone's clothing. Appellant also said Jazzmin had done something to mess up her car.

Appellant put an ironing board behind her door when she went to sleep, and also tied electrical cords between the twins' bedroom, the bathroom, and her bedroom so they could not get out of their room. She put "booby traps," such as baby lotion or bells, inside her bedroom door, to see if anyone had been in her room. Appellant put a baby monitor in the twins' bedroom whenever Jazzmin was in the closet, and kept the other part of the monitor with her wherever she was.

On cross-examination, A.T. acknowledged that, when he spoke to police on the night of Jazzmin's death, he did not mention that appellant had put "booby traps" on her door, that she checked her and J.T.'s lotions for tampering, or that she believed Jazzmin or J.D. had done anything to try to hurt anyone in the family. Instead, he said that appellant would get upset with them for not cleaning their room and not taking showers, and that she would punish them with " 'a whupping.' " A.T. was mostly downstairs when appellant whupped the twins, so he rarely saw the whuppings hapPenal But he did hear them, and they sometimes lasted for 15 or 20 minutes.

Over the two- or three-year period before Jazzmin died, A.T. noticed a change in appellant. She seemed to stop caring about herself as much and seemed really depressed and sad all the time. She stayed locked in her bedroom a lot and focused her attention on Jazzmin and J.D. more than on the other children. A.T. stayed away from home as much as he could, to be away from "all the problems that were in the house."

Appellant's first cousins, Rosalind Lazarte and Anthony Stingley, testified that they had known appellant since she was a child and described the challenges she faced growing up. As a child, appellant seemed withdrawn, anxious, and sometimes hostile. She initially lived with her mother, Irma Gamble, but Irma was a heroin addict and sometimes locked her children out of the house. At some point, appellant went to live with her grandmother, Martha Gamble, because of her mother's drug use and because she was not getting proper care. At her grandmother's house, appellant's clothes and toys were kept in a locked room because appellant's mother had tried to steal them to sell for drug money. Appellant was "very guarded" with her belongings, "always accusing people of touching or moving or messing with her stuff." Both appellant's mother and grandmother kept their houses immaculately clean and, as an adult, appellant did the same. Her grandmother would discipline her by hitting her with a switch. Appellant's father was killed when appellant was about seven years old. At some point, as a preteen, appellant stopped communicating for a time.

Appellant's cousins described the father of appellant's two sons, as controlling and bossy with appellant. Stingley saw appellant with a black eye and bruises while she was with him. They broke up about a year after their younger son, A.T., was born.

For some months before Lazarte's wedding in March 2008, she and appellant spoke on the phone regularly. Appellant told Lazarte that she was overwhelmed and worried because Jazzmin was doing dangerous things, such as putting urine and chemicals into her and J.T.'s food and drink. At one point, appellant told Lazarte that she thought she was going crazy. Stingley last saw appellant a year or so before Jazzmin died, and appellant did not say, then or earlier, that she was afraid of Jazzmin or J.D.

Three experts testified for the defense, one regarding Jazzmin's psychological and behavioral issues and two regarding appellant's mental illness.

Dr. Andrew Pojman, a clinical and forensic psychologist, testified as an expert in the field of psychology. Dr. Pojman reviewed many records related to the case, including social service, therapy, and medical reports and school records, and concluded that Jazzmin suffered from attention deficit hyperactivity disorder (ADHD) and conduct disorder. There was evidence of hyperactivity from the time she was four years old. She had a pattern of "not being able to focus, intruding, causing behavior difficulties" that existed throughout her years at school, including 54 instances of being disciplined for her behavior. At age seven, Jazzmin tested in the 98th percentile for hyperactivity and in the 99th percentile for conduct disorder.

Jazzmin apparently met with an intern at a family therapy center for some months in 2004. The intern's notes reflected that Jazzmin told her that "she likes to do things she's not supposed to do" because she either "just wants to" or "to get back" at appellant. There were also notes about Jazzmin putting on her sister's underwear and shredding them, as well as problems with her personal hygiene. Dr. Pojman testified that having a child with ADHD can be very challenging for a parent, especially if that parent has his or her own psychological problems.

Dr. Karen Franklin, a clinical and forensic psychologist, testified as an expert in the field of forensic psychology. She conducted an evaluation of appellant, meeting with her over four days during a month-long period and reviewing thousands of pages of records in the case. Dr. Franklin diagnosed appellant with borderline personality disorder, obsessive-compulsive disorder, major depression, and delusional disorder.

Dr. Franklin based her diagnosis of borderline personality disorder on evidence of appellant's binge-spending and binge-eating; her recurrent suicidality; her mood swings, anger, difficulty controlling her temper, and lack of predictability; stress-induced paranoia; and dissociating. Dr. Franklin based the diagnosis of obsessive-compulsive disorder on appellant's frequent washing of herself and her home, her irresistible urge to check that everything was okay, her need to put things in order, and her hoarding of things, such as body lotions and perfumes. The diagnosis of major depressive disorder was based on a prior depression diagnosis in about 2000 and appellant's feelings of hopelessness, helplessness, fatigue, insomnia, and mounting stress.

The diagnosis of delusional disorder was based on the fact that appellant "had a whole set of beliefs about Jazzmin that were clearly not factual-fact-based-." Appellant believed that Jazzmin "had some evil intention toward her and toward her youngest daughter J.T. and specifically that she was trying to poison them...." Appellant believed that "Jazzmin would sneak around the house and contaminate things, contaminate medicines," as well as engage in other tampering behaviors related to urine and feces. Appellant had an "obsessive, overpowering belief that ... Jazzmin's main goal in life is to tamper with her things and that she has to try to catch her."

Appellant's psychological problems were likely exacerbated by the severe mistreatment and neglect she had experienced as a child; J.D.'s and, particularly, Jazzmin's physical and behavioral issues resulting from crack cocaine withdrawal as babies; and the lack of support she received as an adult from family, friends, or social services. Appellant's obsessions and depression worsened after the birth of J.T., who had a serious heart condition. Around that same time, under pressure from a social worker, appellant told Jazzmin and J.D., who had been with her since they were three months old, that she was not their mother.

This news upset Jazzmin, whose acting out then became worse.

There was also evidence that appellant routinely smoked marijuana and had used methamphetamine. Dr. Franklin learned after she completed her evaluation that appellant had a positive toxicology report for methamphetamine when she was arrested. She did not believe appellant's condition was consistent with methamphetamine psychosis, but acknowledged that methamphetamine use can cause anger, impulsive behavior, mood swings, and paranoid states of mind. Dr. Franklin also acknowledged that there was nothing in the records of the agency monitoring the twins' placement with appellant that reflected any complaints from appellant that Jazzmin or J.D. was trying to poison or otherwise harm appellant or her children.

Dr. Martin Blinder, a forensic psychiatrist, testified as an expert in the field of psychiatry. He met with appellant twice, conducted psychometric testing on her, and reviewed many documents related to appellant and the case. He concluded that appellant was "a very emotionally fragile individual," who had numerous stressors in her life, especially Jazzmin, who was herself a very troubled child. Appellant's problems were exacerbated by her abusive and chaotic childhood. Dr. Blinder believed that appellant had a thought disorder with delusions that centered around Jazzmin being "somehow demonic." Appellant's "profoundly disturbed thoughts coupled with her ... increasing inability to control her emotions and find a constructive way of dealing with Jazzmin, led to the kind of brutal conduct that eventually led to Jazzmin's death." Someone with appellant's thought disorder could have done the various things appellant did to Jazzmin due to the mistaken belief that such a child is dangerous enough to harm that individual or another child.

Dr. Blinder did not believe appellant suffered from methamphetamine psychosis in that appellant's delusions were not triggered by methamphetamine use but by Jazzmin's own psychiatric problems, with which she could not cope. Finally, Dr. Blinder did not see anything in the social service reports reflecting that appellant had informed the social worker that Jazzmin was trying to poison anyone in the family.

Prosecution Rebuttal

Appellant's aunt, Linda Ware, testified that appellant had mentioned problems she had with Jazzmin, such as cutting J.T.'s hair or wearing and stretching out J.T.'s leggings, but Ware did not see any problems. Appellant never said anything about Jazzmin being dangerous.

Antioch Police Officer Michael Mortimer testified that he interviewed appellant's son, A.T., on the night of Jazzmin's death. A.T. initially said that appellant disciplined the children by taking away television privileges, but later acknowledged that Jazzmin and J.D. received additional punishment in the form of "whuppings," where appellant would hit them once or twice. A.T. said they deserved the physical punishments they received for such things as being unclean. He persisted in this opinion even after being told that Jazzmin may have died as a result of appellant's punishments. A.T. never said anything about the twins attempting to poison anyone in the house or putting chemicals in medicines or lotions.

Diana Christensen, a manager at San Francisco Child Protective Services (CPS), had reviewed CPS's records related to J.D. and Jazzmin. Appellant had been their foster parent until she became their legal guardian on August 27, 2008. Once a guardianship is established, CPS's responsibility for monitoring a case, including social worker visits, ends.

Sanity Phase Evidence

During the sanity phase of the trial, two of appellant's family members testified that appellant had behaved bizarrely during the final year of Jazzmin's life.

Jackie T., J.T.'s father, testified that he lived with appellant between 1995 and 2008, and was in a long-term relationship with her. He had a drug problem that led him to be away from the house for days at a time. Jackie testified about appellant's beliefs related to the twins' supposed stealing, poking holes in walls, urinating in the house, and sneaking into her room. He never saw the twins do any of these things, but he did hear them admit doing so to appellant. According to Jackie, when appellant kept the twins locked in the closet, she always made sure they had food to eat.

While appellant was normally a loving person, when she got angry, her face would go blank and she "wasn't herself." For example, in 2008, a day or two before Jazzmin's death, appellant was mad at Jackie because he had been gone for several days. She told him to leave because she did not want drugs in the house. Then while he was in his car trying to leave, appellant came at his car with a knife, which she used to slash several of his tires and to scratch the word "bitch" on top of the car.

Appellant physically disciplined Jazzmin and J.D., and Jackie would tell appellant she did not need to whup them that hard. Jackie also testified that Jazzmin told the social worker that she had been spanking the twins for urinating on the floors and picking holes in the walls, and the social worker said she would spank them too if they were doing that in her house. Appellant also "begged" for help from Jackie and from social workers because she was depressed and felt overwhelmed with the children, but no one helped her.

On cross-examination, Jackie admitted that he had lied to police during an interview on the night of Jazzmin's death because he had been on a drug binge, was still high, and was paranoid and scared. Because of this, he told police he had not seen Jazzmin in a year when, in fact, he had seen her a week before she died. He also said he had not seen appellant beating the twins, when in fact he had.

Appellant's son, A.T., testified that appellant would have him check the locks on the closet and also search inside for a key or anything else Jazzmin might have in there. He never found anything. A.T. had seen some of the whuppings appellant gave the twins and, in addition to a spoon and a belt, he saw her use an electrical cord on them.

Also during the sanity phase, appellant's two expert's, Dr. Franklin and Dr. Blinder, reiterated their guilt phase testimony that appellant was mentally ill and further opined that she was insane when she tortured both twins and murdered Jazzmin.

Dr. Franklin based her finding of insanity on her opinion that appellant's delusional belief system prevented her from knowing "the nature and quality of her act, and she didn't know that it was morally wrong." According to Dr. Franklin, appellant "genuinely," but wrongly, "believed that Jazzmin was doing a number of things to her and to her younger daughter J.T. that were harmful to her. And, in fact, that Jazzmin's primary goal in life was to wreak havoc and have a nightmare situation in her life and puts her and her younger daughter in danger."

Although J.D. was more difficult as a very young child due to the cocaine exposure both children experienced in utero, Jazzmin's behavior became much more challenging as she got older. Dr. Franklin believed that a diagnosis of oppositional defiant disorder that Jazzmin received at age seven in 2000, shortly before J.T. was born, contributed to appellant's subsequent delusional belief system in that it affected her attitudes about Jazzmin as a bad, defiant child. In addition, the social worker's conclusions, for example in a 2003 report, that Jazzmin behaved badly at school because "she does not take school seriously," made it seem as if Jazzmin's problems stemmed from the fact that she did not want to be good, which also likely played into appellant's delusional belief system. For appellant, who came from a family where harsh physical discipline "is the number one line of defense for misbehaving children," she would naturally think that "if Jazzmin continues to be bad and negative at home and at school, and it's thought by [appellant] and the social worker and the doctor that it's just because of a negative character trait, then I think [appellant] felt if she could only discipline her better, Jazzmin would stop and the problem would go away."

Also playing into the dynamics of the case was the social worker's insistence, in 2004, that appellant tell the twins that she was not their real mother, after which Jazzmin became much more difficult to handle and care for. Jazzmin also became very jealous of J.T., who was three years old at that time, destroying and wearing her clothes. In 2006, Jazzmin, whom the social worker described in a report as "out of control," had some individual therapy, which apparently did not help much. Appellant reportedly told the social worker around that time that she was considering giving up the children because of the difficulties. Then, in 2008, when she applied for legal guardianship, the social worker's report reflected that appellant was still expressing concerns, but they were "not as critical" as they were earlier. From early on in the dependency proceedings, the records reflected "a repeated theme" that appellant "was begging and begging for help," such as respite assistance, from Child Protective Services, but no such assistance was ever offered.

Dr. Franklin explained that most women who kill their children are psychotic at the time, and she described appellant as an "organized psychotic" type: a mother who "is fairly functional, can parent, hold jobs, be in a relationship, things like that, but ultimately end[s] up falling apart under stress and becoming psychotic with the psychosis typically focusing on the particular child that ends up being killed." Appellant's preexisting mental disorders and extreme stress became cumulatively overwhelming and contributed to her psychosis. Dr. Franklin also believed that appellant dissociated while disciplining such that "she kind of lost herself in it" and did not really remember exactly what she was doing.

Dr. Franklin believed that appellant not only did not realize that what she was doing to Jazzmin was morally wrong, but she in fact "thought it was morally right" because she was defending herself and her family, as well as trying to save Jazzmin. Dr. Franklin acknowledged that, after her arrest, appellant was crying and blaming herself for what had happened; she kept repeating to police, "I was wrong." However, although appellant "had some awareness that what she was doing might [not be] the best course of action, ... she was not aware of the full extent of it, and she certainly didn't intend the result that happened. And when she realized what happened, she kind of came to her senses and felt horrible."

Appellant's other expert, Dr. Blinder, based his opinion that appellant was insane at the time of the offenses on appellant's delusional thinking and misinterpretations of Jazzmin's conduct, due to her significant mental disability. Jackie's testimony that, when appellant hit the twins, she had a "blank stare," was significant to Dr. Blinder's finding of insanity in that it was "suggestive of dissociative episodes, that is, she's stepped outside herself and her basic person which is to be a loving, caring mother to these kids and now has become temporarily somebody else because of a short circuit ... in her mind." Her delusional thinking about Jazzmin and her level of stress caused her to dissociate. Dr. Blinder also testified that it was not unusual that appellant functioned normally in most areas of her life. He explained, "If you step outside her areas where she's mentally ill, she can function perfectly normally." The fact that she could work part-time did not change his opinion regarding her sanity.

Two other experts, Dr. Marlin Griffith and Dr. Paul Good, were appointed by the trial court in 2011 to evaluate appellant and determine whether she was sane. Both experts believed appellant was mentally ill, but also believed she had been sane when she committed the crimes.

Dr. Griffith, a clinical and forensic psychologist, testified as an expert in the field of forensic psychology, including the determination of sanity and insanity. Dr. Griffith met with appellant, conducted psychological testing, and reviewed various documents related to appellant and the case. He concluded that appellant had a chronic major depressive disorder and that she likely had an underlying personality disorder. He believed that Jazzmin was an acutely disturbed child and, at the time of the offenses, appellant was overwhelmed and lacked the resources to manage Jazzmin's behavior. He believed that appellant reverted back to the practices of her own upbringing in dealing with Jazzmin.

Dr. Griffith further believed that appellant became paranoid in her thinking and suffered from a delusional disorder, persecutory type. But he also believed that appellant was unconsciously exaggerating her psychotic symptoms due to her depression. He found that her statements to police and her psychological evaluations at the jail after her arrest indicated that, although she was quite depressed, she did not at that time present with a thought disorder, hallucinations, or delusions. Instead her mental state "was relatively lucid and clear." Dr. Griffith also believed that appellant was exaggerating her low intelligence.

Dr. Griffith opined that appellant was sane when she committed the offenses. He based this opinion on the statements appellant made after her arrest, in which she took responsibility for her actions, indicated that the punishment she inflicted on the twins was abusive, and detailed how she had abused them. That appellant concealed the extent of the abuse from everyone indicated to Dr. Griffith that she understood what she was doing was both legally and morally wrong. He further opined that, even if appellant's conduct was the result of delusions, with no malingering, she still understood both the nature and quality of her actions and the moral and legal wrongfulness of her actions. On cross-examination, Dr. Griffith acknowledged that appellant had told him that, although she now knew what she had done was wrong, at the time, she felt the punishment she inflicted on the twins was necessary and appropriate.

Dr. Good, a clinical and forensic psychologist, testified as an expert in the area of forensic psychology, including the determination of criminal insanity. In April 2011, the trial court appointed Dr. Good to conduct a psychological evaluation of appellant, related to the question of insanity. Dr. Good interviewed and administered psychometric tests to appellant, met with the prosecutor and defense counsel, and reviewed documents relevant to the case, including the report of Dr. Franklin.

Based on the interviews, testing, and materials he reviewed, Dr. Good opined that appellant was sane at the time of the offenses in that she appreciated the nature and quality of her actions against Jazzmin and J.D. and knew, understood, and appreciated their legal and moral wrongfulness.

Dr. Good diagnosed appellant with various disorders, including major depression, obsessive-compulsive disorder, borderline personality disorder, and substance abuse disorders for marijuana and methamphetamine. Although appellant expressed some paranoia about Jazzmin, Dr. Good did not diagnose delusional disorder, partly because Jazzmin's behavioral issues reflected the reality of some of appellant's concerns. Moreover, even if he believed that appellant suffered from a delusional disorder, as Dr. Franklin did, that would not alter his opinion that appellant was sane at the time of her offenses because she still knew the nature and quality of her actions and understood that what she was doing was wrong. [FN 4] In light of her mental health issues, there would have been "some dissociation," but appellant did not describe going into a dissociative state in which she was not aware that she was beating the twins.

[FN 4] On cross-examination, Dr. Good explained that, while appellant might have had moments when she would lose touch with reality, as part of her borderline personality disorder, she would then come back. He did not believe this was consistent with an ongoing delusional disorder.

Appellant had told Dr. Good that, at the times she was punishing Jazzmin, she was "very angry and upset with Jazzmin for Jazzmin's behavior at home. She perceived herself as disciplining the girl, but when I asked her about the whipping and the hitting, she acknowledged that she may have taken them too far." In particular, she said she recognized she may have gone too far with the whippings and using the closet rod. She did believe that locking the children in the closet was appropriate.

The fact that the abuse occurred over many months contributed to Dr. Good's finding of sanity in that he found it "hard to believe that in each and every one of the instances of abuse or torture that she did not know, at least at some point, that what she was doing was wrong." In addition, there were indications that appellant attempted to keep the abuse, the twins' injuries, and the emaciation of Jazzmin out of sight. For example, she told police that she had held back on telling her mother details about the abuse and there was evidence that members of the household were not aware of the full extent of what was occurring. J.D. also had described to police the actions appellant took to cover up the twins' injuries and buy them new clothes prior to the social worker's visits, and a neighbor had said appellant had told her Jazzmin had gone to live with another relative. Hence, "[e]ven in spite of her suspicions and her fears and her paranoia, she still retained a sense that this was wrong."

Also factoring into Dr. Good's sanity determination was appellant's actions at the time of Jazzmin's death showing she was aware that Jazzmin was in serious danger. Moreover, after her arrest, appellant responded to a detective's question regarding whether she had thought she would be arrested someday for abusing the children, with the statement, " 'I figured-I mean, honestly, I would figure eventually, yeah, but I just don't know why I couldn't stop.' " Also, the fact that, following her arrest, the mental health staff at the jail found no signs of psychosis was important evidence for Dr. Good's sanity finding, as was appellant's ability to understand and answer questions in a fairly cogent way and express that she felt bad about what had happened and knew what she did was wrong.

Finally, methamphetamine, for which appellant tested positive after her arrest, "is widely understood to increase the risk of violent behavior." Dr. Good did not believe appellant had methamphetamine psychosis, but did believe it was possible that methamphetamine she might have taken around the time of Jazzmin's death "may have been something that pushed her over the line." [FN 5]

[FN 5] A criminalist testified that appellant tested positive for methamphetamine on the day Jazzmin died, which indicated that she had used methamphetamine within the previous two to four days.

On cross-examination, Dr. Good acknowledged that this was a "close case" with which he had struggled. He felt compassion for appellant but, in the final analysis, he felt confident in his opinion that her psychological problems were not severe enough to prevent her from knowing right from wrong.

Also on cross-examination, Dr. Good explained that appellant's IQ of 80 fell in the low-average range, which, combined with her depression, caused her to lose some ability to find alternative ways of dealing with Jazzmin. He also acknowledged that Jazzmin's many problems "would have tried the patience and the abilities of any parent" and was a very difficult child to raise. He testified that, at times, appellant's despair and borderline personality features led her to "act in rigid, angry, and psychotic ways." [FN 6] Appellant had told him that she thought Jazzmin was endangering her and J.T. in various ways. Dr. Good believed that appellant's actions were an attempt to punish Jazzmin to improve her behavior.

[FN 6] Dr. Good noted that it is possible to be psychotic and still meet the criteria for sanity, since the legal and clinical criteria are different.

Dr. Good further acknowledged that appellant told him she had kept Jazzmin out of school to keep her from getting in more trouble. She also said she had brought Jazzmin food, but Jazzmin sometimes refused to eat as a way of defying appellant, who did not notice how thin Jazzmin had become. Dr. Good did not believe appellant was malingering during the psychological testing.

People v. Davis , No. A134565, 2014 WL 3353242, at *1-13 (Cal. Ct. App. July 9, 2014).

III. STANDARD OF REVIEW

A petition for a writ of habeas corpus is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). This Court may entertain such a petition "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).

A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d) ; Williams v. Taylor , 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Additionally, habeas relief is warranted only if the constitutional error at issue " 'had substantial and injurious effect or influence in determining the jury's verdict.' " Penry v. Johnson , 532 U.S. 782, 795, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (quoting Brecht v. Abrahamson , 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) ).

Section 2254(d)(1) restricts the source of clearly established law to the Supreme Court's jurisprudence. "[C]learly established Federal law, as determined by the Supreme Court of the United States" refers to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams , 529 U.S. at 412, 120 S.Ct. 1495. A state court decision is "contrary to" clearly established Supreme Court precedent if it "applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases," or if it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [its] precedent." Id. at 405-06, 120 S.Ct. 1495. "Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411, 120 S.Ct. 1495. "A federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme Court] is, at best, ambiguous." Mitchell v. Esparza , 540 U.S. 12, 17, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003).

The state court decision to which Section 2254(d) applies is the "last reasoned decision" of the state court. See Ylst v. Nunnemaker , 501 U.S. 797, 803-04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) ; Barker v. Fleming , 423 F.3d 1085, 1091-92 (9th Cir. 2005). Because the California Supreme Court summarily denied Petitioner's state habeas petition, the California Court of Appeal, in its opinion on direct review, was the only state court decision to address the claims Petitioner raises in the instant petition. The Court thus reviews the decision of the Court of Appeal, the highest state court to have reviewed the claims in a reasoned decision.

IV. DISCUSSION

Petitioner asserts seven grounds for federal habeas relief: (1) there was insufficient evidence of the required mental state to support her convictions for torture, Pet. at 24-31; (2) there was insufficient evidence of the required mental state to support her conviction for first-degree murder, Pet. at 31-32; (3) the term "for any sadistic purpose" in the torture statute was unconstitutionally vague under Johnson v. United States , --- U.S. ----, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), Pet. at 32-34; (4) the trial court refused to instruct the jury on voluntary manslaughter, Pet. at 34-36; (5) the prosecutor misstated the law during closing argument, Pet. at 36-40; (6) the finding of sanity violated due process because no rational trier of fact could have disregarded the compelling evidence of insanity, Pet. at 41-46; and (7) her effective life without parole sentence was unconstitutionally cruel and unusual, Pet. at 46-48. The Court addresses each claim in turn.

A. Insufficient Evidence for Torture

Petitioner contends that her convictions for torture must be vacated because there was insufficient evidence to support the verdicts. See Pet. at 24-31. More specifically, Petitioner asserts that, given her mental illness and low intelligence, the California Court of Appeal unreasonably found that she acted "for the purpose of revenge, extortion, persuasion, or for any sadistic purpose." See id. at 26.

i. State Court Rejection of Claim

The state court rejected Petitioner's claim as follows:

Appellant contends her two convictions for torture were not supported by substantial evidence and violated due process.

"In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.]" ( People v. Mincey (1992) 2 Cal.4th 408, 432 [6 Cal.Rptr.2d 822, 827 P.2d 388], fn. omitted ( Mincey ).)

Section 206 defines torture as follows: "Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury ... upon the person of another, is guilty of torture...." Torture under section 206 thus focuses on the mental state of the perpetrator, i.e., his or her specific intent to cause cruel or extreme pain for one of the listed purposes. ( People v. Massie (2006) 142 Cal.App.4th 365, 370-371 [48 Cal.Rptr.3d 304] ( Massie ).) "In this respect, revenge, extortion, and persuasion are self explanatory. Sadistic purpose encompasses the common meaning, ' "the infliction of pain on another person for the purpose of experiencing pleasure." ' [Citation.] While sadistic pleasure is often sexual, the statute does not require a sexual element. [Citation.]" ( Id. at p. 371 [48 Cal.Rptr.3d 304].)

In arguing insufficiency of the evidence of torture, appellant cites People v. Steger (1976) 16 Cal.3d 539, 548 [128 Cal.Rptr. 161, 546 P.2d 665] ( Steger ), in which the evidence showed that the defendant had beaten her stepchild repeatedly due to frustration with the child's behavior, which ultimately caused the child's death. Our Supreme Court reduced the defendant's first degree torture murder conviction to second degre