Beames v. Cullen

Filing 37

ORDER Regarding Briefing of Claim 11 in Federal Petition, signed by Chief Judge Anthony W. Ishii on 07/29/2011. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN MICHAEL BEAMES,

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Petitioner,
vs.
MICHAEL MARTEL, Acting Warden
of San Quentin State Prison,

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Respondent.
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Case No. 1:10-CV-01429-AWI-P
DEATH PENALTY CASE
Order Regarding Briefing of
Claim 11 in Federal Petition

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On July 27, 2011, Petitioner John Michael Beames (“Beames”) filed his

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petition for writ of habeas corpus in the Eastern District of California.

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Concurrently, Beames filed a second petition for habeas relief with the California

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Supreme Court, presenting claims which were included in the federal petition

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but were unexhausted. See Case No. S195127. In Claim 11 of his federal petition,

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Beames alleges trial counsel Rothbaum failed to contest the central factual

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allegation of the prosecutor’s case: that Cassie had been killed by a blow to the

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midsection that severed her liver and caused a fatal hemorrhage. Beames

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contends the jury never learned that a competent autopsy and forensic analysis

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would have established a completely different cause of death with very different

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legal implications, that in fact, Cassie died from malnutrition and a systemic

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infection and not from any act of violence, and that her transected liver and

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broken ribs were sustained post-mortem, likely as the result of Beames’ attempts

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at resuscitation.

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Beames alleges the jury never heard this evidence because Rothbaum

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failed to obtain and present it; did not consult a forensic expert regarding cause

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of death; failed to identify the gross defects in autopsy methodology that

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contributed to the state’s incorrect conclusions; failed to educate himself about

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autopsy protocol for suspected child abuse homicide cases; and failed to

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investigate the backgrounds of the state’s experts or discover glaring patterns of

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professional error and incompetence. See Claim 11.

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Beames contends a competent expert would have described how sub-

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standard the testifying pathologist’s methodology was in his case, and that

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contrary to Cassie being tortured to death, she in fact died of malnutrition,

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ultimately succumbing to a massive, fatal infection, and that as such, he is at most

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guilty of manslaughter. Further, Beames argues that prejudice from Rothbaum’s

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failure to adequately defend against the state’s assertion of Cassie’s cause of

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death was exacerbated by his refusal to request instructions of lesser included

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offenses, forcing the jury into an all-or-nothing decision.

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Dr. Dollinger, who performed Cassie’s autopsy and testified at trial to the

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cause of her death and other signs of abuse, was subsequently disciplined by the

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California Medical Board for misdiagnosing the cause of death of five other

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infants around the same time. See Exhibit 2. Beames’ expert submits that Dr.

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Dollinger failed to take critical measurements, failed to create and analyze tissue

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slides to accurately diagnose the manner of death and the timing of injuries.

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Beames asserts that had Rothbaum consulted his own expert concerning

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pediatric pathology, there is a reasonable possibility the result would have been

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different since a reasonable doubt could have been raised concerning many

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elements of first degree torture murder, the torture murder special circumstance,

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and the substantive crime of torture.

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Further, the other two prosecution experts, Doctors Bennett and Stephens,

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were not present at the autopsy and merely based their conclusions on Dr.

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Dollinger’s autopsy. Beames alleges evidence to impeach both their testimonies

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was readily available had Rothbaum investigated.

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Beames asserts this claim was presented to the California Supreme Court
in his first state habeas petition. See Case No. S153603.

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In light of these allegations and the possibility that resolution in Beames’

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favor will result in a grant of the writ as to his conviction, the following schedule

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is established:

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1.

The Warden shall file an answer as to Claim 11 on or before August 31,

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2011. The answer shall address the allegations in this claim and be filed

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without points and authorities, consistent with Rule 5 of the Rules

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governing § 2254 Cases, meaning it should respond the allegations and

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frame the issues in dispute. See Williams v. Calderon, 52 F.3d 1465, 1483 (9th

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Cir. 1995). The answer also shall allege and raise all substantive and

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procedural affirmative defenses the Warden intends to pursue with regard

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to this claim.

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2.

Following the filing of the answer, the parties shall meet and confer

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regarding the exhaustion status of this claim, and to propose a schedule for

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merits briefing, and further factual development if necessary, of this claim.

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A Joint Statement regarding exhaustion and briefing of Claim 11 shall be

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filed by September 30, 2011. Concurrently, Beames shall file under seal a

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proposed budget necessary to complete the briefing for this claim.

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IT IS SO ORDERED.

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DATED:

July 29, 2011

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/s/ Anthony W. Ishii

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Chief United States District Judge

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