Skuba v. Lizarraga
Filing
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ORDER DENYING 1 Petition for Writ of Habeas Corpus filed by Stewart L. Skuba. Signed by Judge James Donato on 10/13/15. (lrcS, COURT STAFF) (Filed on 10/13/2015)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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STEWART L. SKUBA,
Case No. 14-cv-03758-JD
Petitioner,
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v.
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JOE A. LIZARRAGA,
Respondent.
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS AND
DENYING CERTIFICATE OF
APPEALABILITY
United States District Court
Northern District of California
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This is a habeas corpus petition filed by Stewart Skuba, a pro se prisoner, pursuant to 28
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U.S.C. § 2254. The Court ordered respondent to show cause why the writ should not be granted
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and respondent filed an answer and lodged exhibits with the Court. The petition is denied.
BACKGROUND
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On December 16, 2011, a Santa Cruz County jury convicted Skuba of first degree murder
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and robbery, and found true a robbery-murder special circumstance. Mem. of Points and
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Authorities in Support of Answer, at 1. On February 23, 2012, the trial court sentenced Skuba to
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life in prison without the possibility of parole. The California Court of Appeal affirmed the
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judgment of conviction, and the California Supreme Court denied review.
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The California Court of Appeal summarized the facts of the crime as follows:
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A. Prosecution’s Case
The prosecution alleged that Skuba and his friend Adam Hunt
robbed Elias Sorokin in Skuba’s Santa Cruz home on or about July
20, 2009. After the robbery, Skuba and another friend Kenneth
Clamp moved an unconscious Sorokin to the bed of Sorokin’s pickup truck, drove north on Highway 1, and threw Sorokin off a cliff.
Sorokin’s body was not recovered at the time of trial. Skuba was
charged with first degree felony murder (Pen.Code, §§ 187, 190.2,
subd. (a)(17)), second degree robbery (Pen.Code, § 211), and
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kidnapping (Pen.Code, § 209). The prosecution presented testimony
from four witnesses who were at Skuba’s home when the robbery
occurred: Skuba’s close friend Kristin Roberts, Roberts’ father
George Roberts, Sr. (Senior), Roberts’ younger brother George
Roberts, Jr. (Junior), and a friend Timothy Wentzel. The testimony
of each is summarized below as it relates to this appeal.
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1. Roberts’ Testimony
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In July 2009, 19–year–old Roberts was living with Skuba at his
home on Felix Street. Skuba, who was about 30, shared his groundfloor bedroom with Roberts without charging her rent. Roberts was
an alcohol and methamphetamine addict. She started using alcohol
excessively when she was 16. In 2009, she drank continuously and
was intoxicated most of her waking hours. She smoked
methamphetamine a lot, sometimes with Skuba. Roberts’ alcohol
and methamphetamine use “blurred things” from that time period.
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Before July 20, 2009, Skuba had bragged to Roberts about a friend
from Los Angeles who was a “big time pot dealer.” Two days
before Sorokin was murdered, Skuba told Roberts someone from
Los Angeles was going to visit, either with marijuana or to buy
marijuana. On July 20, Skuba told Roberts someone was coming
from Los Angeles and “we are going to jack him for his weed.”
Also on July 20, Roberts found a small bottle wrapped in tape in
Skuba’s bedroom. Skuba told her it was chloroform and could be
used to knock a person out.
During the evening of July 20, Skuba and his friends Adam Hunt
and Timothy Wentzel smoked methamphetamine in Skuba’s
bedroom, and Roberts “hung out” with them drinking. Roberts had
been drinking whiskey from the time she woke up. She felt the
effects of the alcohol but was able to walk and converse. At some
point Skuba asked Roberts and Wentzel to go upstairs so he could
“handle some business.” After watching television in the upstairs
living room for about 30 minutes, Roberts heard sounds of a
struggle from downstairs and someone saying “Please don’t. Stop.”
Roberts was upset, turned up the television, and said “No Stewart.”
Senior entered the living room from the bedroom he shared with
Junior. He was upset and dialing 911 on his phone. Roberts thought
Skuba was doing what he had told her earlier—“jacking some guy
for his weed”—and she wanted to protect him so she told Senior not
to call the police. Senior acceded to his daughter’s wishes and left
the house with Junior. About 15 minutes later Skuba came upstairs
sweating and appearing freaked out. He continued to the third floor
carrying the clothes he had been wearing earlier, and Roberts heard
the washing machine start. Skuba returned to the second floor and
told Roberts it was okay to go back downstairs.
Roberts and Wentzel went downstairs and Wentzel left the house.
Roberts knocked on the bathroom door. She heard running water
and Hunt say “I’m in here.” She joined Skuba on the porch and
smoked a cigarette. Skuba told Roberts the chloroform did not
work, that he and Hunt got into a fight with “him,” that “he” was
knocked out, and not to go into the garage. Roberts went outside
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and saw Sorokin’s truck in the driveway. She climbed inside
looking for something to steal, but found nothing she wanted. Skuba
told her to get out of the truck and she returned to the house with
him.
Appearing upset, Skuba told Roberts that Hunt had left. Skuba
called his friend Kenneth Clamp and said “Hey home boy, get over
here. I need your help.” Not long afterward, Clamp arrived. When
he saw Roberts, Clamp said “What the hell is she doing here?”
Clamp asked Skuba if he could live with this for the rest of his life.
Freaked out, Skuba responded “Yes. He knows where my mom
lives.” As Skuba grabbed a blue blanket from his closet, Clamp told
Roberts to clean up the blood after they left. Skuba left through the
back door with the blue blanket, Clamp left through the front door,
and Roberts went upstairs to the living room balcony. From the
balcony Roberts heard the garage door opening and closing, a
dragging sound from the area of the garage, a tailgate opening, a
thump, a tailgate closing, and trucks leaving.
After Skuba and Clamp left in the trucks, Roberts cleaned up blood
in the bathroom. She went to Skuba’s bedroom and saw items she
had not seen before, including a wallet, a laptop, a guitar, boxes
containing marijuana pills, and ten bags of marijuana in the closet.
She looked through the wallet and saw Sorokin’s driver’s license
and credit cards. She entered the garage and cleaned up more blood.
She saw drag marks near the front of the garage.
Skuba and Clamp returned after being gone for at least an hour, and
Hunt reappeared about 30 minutes later. Clamp divided the bags of
marijuana equally among the men and gave one bag to Roberts. The
group also divided up the marijuana pills and may have divided up
the credit cards. Skuba and Hunt spoke about the fight they had
with Sorokin. After Clamp and Hunt left the house, Skuba told
Roberts he and Clamp had driven up the coast toward Davenport–
Skuba in Sorokin’s truck and Clamp in his own-and that “[t]hey
threw him off a cliff.” Skuba told Roberts “he could hear the body
go thudding down.”
The next day Roberts left Skuba’s house with Senior and Junior for
a motel. On July 22 Roberts went to a Target store in Watsonville
with Skuba and attempted to purchase over $500 in merchandise
using one of Sorokin’s credit cards. The card was refused. A few
days later, after seeing missing person flyers identifying Sorokin,
Roberts told Senior that Sorokin was at Skuba’s on July 20 and that
she had cleaned up the blood. When she confided in Senior, she had
no bad feelings for Skuba, but she was scared of Clamp. Senior
advised her to call the police.
On July 30, Roberts and Skuba were passengers in a stolen car
pulled over by the police. The group was headed to Watsonville to
sell marijuana. Roberts was arrested and asked to speak with a
detective, whom she told about the murder because she did not want
it on her conscience. She told police that Skuba, Hunt and Clamp
were involved in the murder, and she eventually admitted that she
had cleaned up the blood.
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Roberts pleaded guilty to the robbery in this case and had not been
sentenced at the time of Skuba’s trial. A condition of her plea
agreement required her to testify truthfully. Roberts acknowledged
a felony forgery conviction from July 2009, which involved her
cashing two checks stolen from one of Skuba’s roommates. She
also acknowledged a conviction for driving under the influence of
alcohol, an incident which involved an accident in which a third
party was injured.
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2. Senior’s Testimony
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Senior came to Santa Cruz in July 2009 to help Roberts who was
having problems with alcohol and the law. Because Senior was
financially strapped, Skuba opened his home to Senior and his 17–
year–old son. On the night of Sorokin’s murder, father and son
shared an upstairs bedroom. Senior knew that Roberts drank
abusively and smoked methamphetamine.
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On July 19 or 20 Senior observed a small container wrapped in what
looked like electrical tape in Skuba’s bedroom. Skuba told Senior it
was chloroform, and Senior joked about using the chloroform on a
landlord to whom he had lost a deposit.
On the night of the murder Senior was awakened by Junior shaking
him and telling him it sounded like someone was being beaten or
killed. Senior heard crashing around, as if someone was having an
argument and was pushed into furniture. He heard muffled voices
and what appeared to be cries for help. The noise came from
Skuba’s room which was under the kitchen next to the garage.
Senior entered the living room about to call 911, but Roberts told
him not to. Senior gathered some things and, followed by Junior,
left the house because of the noise. He went to his car parked on the
street. Before falling asleep he saw a red pickup truck enter the
driveway. He also saw Sorokin’s truck and the red truck pull out of
the driveway.
Reentering the house the next morning, Senior smelled very fresh
marijuana coming from Skuba’s room and a big black bag in front
of Skuba’s closet. He had not smelled marijuana in the house
before. Skuba and Roberts both gave Senior marijuana from the
bag. Senior also saw a black guitar case in the room and Sorokin’s
credit cards on Skuba's bed. Roberts offered one of the credit cards
to Senior, but he would not take it. Senior did not notice the bottle
that Skuba earlier had said contained chloroform. Senior left
Skuba’s home for a motel with Roberts and Junior. Several days
after the murder Roberts told Senior what had happened. She told
Senior she knew something was going to happen but she was not
there when it happened, and that “they” made her clean up blood in
the garage. She was crying hysterically and scared for her life.
3. Junior’s Testimony
Junior was 17 and homeless when he met Skuba in July 2009.
Skuba was kind to Junior and protected him, and Junior considered
Skuba a true friend. Two or three days before Sorokin's murder,
Skuba, Senior, and Junior had a conversation about chloroform.
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Junior did not remember who brought up the subject, but Senior
joked about using chloroform on a landlord who had cheated him
out of some money.
On the night of the murder, when Junior was in his bedroom laying
next to his sleeping father, he heard a muffled male scream and
banging as if someone were fighting. Concerned, he awakened
Senior who said he would call 911 but ultimately did not because
Roberts told him not to. Instead, Senior and Junior left the house.
Catching up with Junior outside, Skuba told him to stop crying and
said something like, “I just did something to help you guys so please
calm down. Everything is going to be alright.” Junior joined Senior
in the car for the night. He saw a red truck arrive and later the red
truck and another truck leave.
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The next day before Junior left for the motel, Skuba gave him the
acoustic guitar that was in his bedroom. Roberts showed Junior a
black bag in Skuba’s closet containing clear plastic bags. Each clear
bag contained a pound or two of marijuana. Roberts gave Junior
and Senior some of the marijuana.
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4. Wentzel’s Testimony
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In July 2009, Wentzel had known Skuba for a couple of months and
Roberts for about a month. He bought methamphetamine from
Skuba, smoked with him, and became friends with him. Wentzel
also smoked methamphetamine with Roberts, but she drank more
than she smoked.
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The night of the murder Wentzel went to Skuba’s house to buy
methamphetamine. He joined Skuba, Roberts and Hunt in Skuba's
bedroom. Roberts, who was drinking hard alcohol from a bottle,
was drunk and slurring her words. Wentzel and Skuba smoked
methamphetamine for about an hour while Roberts drank. At some
point Skuba asked Wentzel and Roberts to go upstairs because he
had “some business” to handle. While Hunt remained in Skuba’s
bedroom, Wentzel and Roberts went upstairs and watched
television.
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Wentzel heard a commotion downstairs, as if two people were
rough-housing or throwing things across the room. The ruckus grew
louder and sounded like a fight. Roberts, emotional with tears in her
eyes, said “Oh, Skuba, no. Skuba, no. Don’t.” Twice she turned up
the television to drown out the sounds. Wentzel also was trying to
“tune it out.” Senior came out of the bedroom and argued with
Roberts. He did not like the noise and, followed by Junior, went
downstairs. Wentzel and Roberts remained in the living room until
an out-of-breath Skuba came upstairs and told them they could go
downstairs because his “business” was finished. Wentzel left the
house.
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B. The Defense’s Case
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Skuba befriended Sorokin through large-scale marijuana dealings. In
2008, Skuba earned about $70,000 selling marijuana. That same
year Sorokin rejected an offer to buy several pounds of marijuana
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from Hunt because the marijuana was grown outdoors.
Skuba met Roberts when she was 17 and homeless. They were good
friends and involved romantically “off and on.” Roberts drank
excessively and sold drugs.
Although he had smoked
methamphetamine daily in the past, Skuba was smoking
methamphetamine less frequently-a couple of times per week-when
Roberts started staying with him in May 2009.
Senior came to Santa Cruz in July 2009 to help Roberts with
upcoming court appearances. Shortly after Senior arrived, Roberts
was arrested for cashing a bad check. When Roberts was in jail,
Skuba invited Senior to stay at his house through the end of the
month.
On July 17, Skuba’s friend Dominic fronted Skuba ten pounds of
marijuana, which Skuba put in his bedroom closet. The marijuana,
valued at $30,000, emitted no odor because it was sealed in turkey
bags. Skuba had only $1,800 at the time, and was planning to sell
the marijuana to Sorokin, with whom he was in close contact. In
arranging the July 20 visit, Skuba also told Sorokin he would pay
him back $500 if he came to Santa Cruz.
On the night of the murder, Roberts, Hunt, and Wentzel were with
Skuba in his bedroom when Sorokin called. Skuba walked two
blocks to the 7–Eleven to meet Sorokin. They returned in Sorokin’s
truck where Sorokin waited while Skuba told Roberts and Wentzel
to go upstairs. Skuba first testified that Sorokin arrived about 11:00
p.m., but later said it might have been after 12:31 a.m., when cell
phone records showed Sorokin placed his last call to Skuba.
Sorokin came inside with his guitar and laptop. He, Skuba, and
Hunt socialized for at least an hour or so on the back patio. Later,
when confronted with phone records showing Hunt called him at
12:58 a.m. and 1:12 a.m., Skuba testified he was not sure how long
he and Hunt socialized with Sorokin. It may have been only 35
minutes but it felt longer.
Skuba showed Sorokin a pound of the marijuana from his closet and
told him ten pounds were available. He then returned the pound to
the front of his closet, leaving the other nine pounds in a large bag.
Skuba gave Sorokin the $500 he owed him, and Sorokin gave Skuba
three boxes of medical marijuana pills that were given to him as
samples and he no longer wanted.
Hunt then went outside to “holler at” Sorokin because he was upset
about their 2008 failed marijuana deal. Skuba could not see them,
but he heard Hunt talking about $30,000 and getting stuck with ten
pounds of marijuana. Skuba went to the porch and suggested they
move their discussion to the garage so as not to disturb the
neighbors. Hunt and Sorokin went into the garage and Skuba
listened to music in his room over surround sound speakers. He was
high on methamphetamine, not listening for noise, and heard
nothing from the garage.
Hunt returned a few minutes later, washed blood off his hands in the
bathroom, and threatened Skuba with a gun. Hunt told Skuba he
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would kill him if he called the police, and he knew where his family
lived and would kill them too.
Skuba entered the garage where he found a dead Sorokin. Skuba
had no idea Hunt was going to kill Sorokin. Skuba went back inside
but Hunt was gone. Skuba followed Junior outside and told him
“Something crazy just happened. I’ve got a lot going on right now.”
He returned to the house with Roberts, whom he had found in
Sorokin’s truck. Skuba did not call the police because he was afraid
for himself and his family. He thought Hunt would kill him.
Instead, Skuba called his friend Clamp, a “big bad dude” who has
been to prison for attempted murder and who Skuba thought could
protect him from Hunt.
When Clamp arrived he confirmed that Sorokin was dead. Skuba
told Clamp what happened (except he did not tell him that he had
arranged a marijuana deal for Sorokin) and asked Clamp for advice.
Clamp told Skuba he could either “clean it up” or call the police.
Clamp told Skuba he had to make a decision that would affect the
rest of his life. Skuba told Clamp “he knows where my parents
live,” but he was referring to Hunt, not to Sorokin who was dead.
Hunt then returned and told Clamp he killed Sorokin because
Sorokin had disrespected him. When asked by Clamp whether he
took anything, Hunt told him he took $500 from Sorokin’s pocket,
and he also mentioned that Sorokin had come to buy marijuana that
was in the closet. To the horror of Skuba, Clamp discovered the
marijuana in Skuba’s closet and decided to keep it. Clamp took
control of the situation, went into the garage with Hunt, and loaded
Sorokin’s body in the back of Sorokin’s truck. Clamp and Hunt
returned to Skuba’s room, where Clamp asked Roberts if she would
remain solid and told her they would give her marijuana if she
cleaned up the blood in the garage. Hunt gave her a bottle of cleaner
from his backpack. Clamp told Skuba to drive Sorokin’s truck up
the coast, he would follow, and Hunt would stay behind and watch
Roberts.
As they left Santa Cruz, Clamp took the lead. They turned off
Highway 1 and drove into the mountains, but ended up back on
Highway 1 near the ocean, where Clamp told Skuba to switch
vehicles. Skuba waited in Clamp’s truck for about a half hour, and
when Clamp returned they drove back to Skuba’s home.
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Skuba and Clamp returned to find Hunt and Roberts in his bedroom
going through Sorokin’s credit cards and laptop bag. Clamp and
Hunt each took four pounds of marijuana and gave the remaining
pound to Roberts. Clamp, Hunt, and Roberts each took a box of
marijuana pills. Clamp and Hunt took Sorokin’s credit cards. Skuba
took nothing. After Clamp and Hunt left, Skuba cried and told
Roberts he could not believe what had happened. The next day
Skuba gave Junior Sorokin’s guitar because Junior played it well
and Skuba did not know what else to do with it. That evening
Senior, Junior and Roberts left for a motel after Skuba told Roberts
they would be safer there and he gave her money to pay for a room.
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On July 22, Clamp and Roberts arrived at Skuba’s home where
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Clamp gave Skuba three of Sorokin’s credit cards and told Skuba to
buy him things as more compensation for what had happened. That
evening Skuba and Roberts attempted to purchase $546 in
merchandise from Target but the card was declined. Skuba felt
awful using the credit cards but felt he had no choice.
Before he was arrested, Skuba discussed the stolen marijuana
situation with his supplier, Dominic, who was unhappy but accepted
the loss because he knew Skuba would work off the debt. When
arrested on July 30, Skuba had two bags of marijuana in his laptop
bag, including the one-pound sample he had shown to Sorokin.
Skuba did not hear from Dominic after he was arrested and taken
into custody.
The jury watched a DVD of Skuba’s July 30 interview with the
police. Skuba testified that almost everything he told the police
during the interview was untrue. He lied to the police because he
had been smoking methamphetamine, was sleep deprived, was
scared of Hunt and Clamp, and was not thinking straight. Among
his lies, Skuba told the police that Sorokin had a concussion but was
conscious after the fight with Hunt, that Hunt left for the hospital in
Sorokin’s truck with Sorokin, who was alive at that point, and that
he tried to call Sorokin several times after the assault.
Skuba testified that he never told Roberts that he was going to jack a
guy from Southern California for his weed. Skuba never spoke to
Roberts about chloroform and he never had chloroform in his room.
The only mention of chloroform was by Senior, when he told Skuba
about a bad experience with a landlord. Skuba never went upstairs
after the fight to tell Roberts and Wentzel they could come
downstairs. He did not use the washing machine after the fight. He
never told Roberts that he and Hunt had fought someone who was
unconscious in the garage. He never told her that Sorokin’s body
went thudding down the cliff.
People v. Skuba, No. H037984, 2013 WL 6229134, at *1-6 (Cal. Ct. App. Dec. 2, 2013).
STANDARD OF REVIEW
A district court may not grant a petition challenging a state conviction or sentence on the
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basis of a claim that was reviewed on the merits in state court unless the state court’s adjudication
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of the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable
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application of, clearly established Federal law, as determined by the Supreme Court of the United
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States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in
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light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). The first
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prong applies both to questions of law and to mixed questions of law and fact, Williams v. Taylor,
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529 U.S. 362, 407-09 (2000), while the second prong applies to decisions based on factual
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determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
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A state court decision is “contrary to” Supreme Court authority, that is, falls under the first
clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to that reached by
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[the Supreme] Court on a question of law or if the state court decides a case differently than [the
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Supreme] Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13.
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A state court decision is an “unreasonable application of” Supreme Court authority, falling under
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the second clause of § 2254(d)(1), if it correctly identifies the governing legal principle from the
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Supreme Court's decisions but “unreasonably applies that principle to the facts of the prisoner’s
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case.” Id. at 413. The federal court on habeas review may not issue the writ “simply because that
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court concludes in its independent judgment that the relevant state-court decision applied clearly
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established federal law erroneously or incorrectly.” Id. at 411. Rather, the application must be
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“objectively unreasonable” to support granting the writ. Id. at 409.
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Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual determination will
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not be overturned on factual grounds unless objectively unreasonable in light of the evidence
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presented in the state-court proceeding.” See Miller-El, 537 U.S. at 340; see also Torres v.
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Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). Moreover, in conducting its analysis, the federal
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court must presume the correctness of the state court’s factual findings, and the petitioner bears the
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burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
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The state court decision to which § 2254(d) applies is the “last reasoned decision” of the
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state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d
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1085, 1091-92 (9th Cir. 2005). When there is no reasoned opinion from the highest state court to
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consider the petitioner’s claims, the court looks to the last reasoned opinion. See Nunnemaker at
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801-06; Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000).
DISCUSSION
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As grounds for federal habeas relief, Skuba asserts that: (1) the trial court failed to properly
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instruct the jury regarding felony murder; and (2) the trial court violated the Confrontation Clause
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of the Sixth Amendment by excluding evidence about the prosecution’s principal witness that
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could be used for impeachment purposes.
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I.
FELONY MURDER JURY INSTRUCTION
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Skuba alleges that his due process rights were violated in that the trial court failed to sua
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sponte instruct the jury on the escape rule, California Criminal Jury Instruction (“CALCRIM”)
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3261, or alternatively, that the trial court failed to sua sponte modify CALCRIM 549 on the
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“continuous transaction rule.” Skuba alleges that this resulted in incomplete instructions on a key
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element of felony murder, and thus violated his constitutional rights and due process.
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a. Background
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As noted above, after the victim was knocked unconscious during the course of the
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robbery, Skuba and Clamp loaded him into a truck and drove up the coast. They then disposed of
the unconscious victim by throwing him over the side of a cliff, where he fell to his death. The
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state court determined as a factual finding that Skuba was attempting to dispose of the
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unconscious victim and not fleeing the scene or escaping.
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CALCRIM 3261 provides that “the crime of robbery continues until the perpetrator has
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actually reached a place of temporary safety.” The perpetrator has reached a place of temporary
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safety if the jury finds that (1) he or she has successfully escaped from the scene; (2) he or she is
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no longer being chased; (3) he or she has unchallenged possession of the property; and (4) he or
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she is no longer in physical control of the person who is the target of the robbery. Skuba asserts
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that the trial court erred in not giving this jury instruction. According to Skuba the trial court also
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erred by not modifying CALCRIM 549, the instruction that was given. CALCRIM 549 provides
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that to show felony murder, the prosecution must prove that the robbery and the act causing the
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victims death were part of one “continuous transaction.” Skuba argues that this instruction should
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have been modified because, according to him, the evidence supports the fact that he was fleeing
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the scene, and thus the escape rule applies.
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Cal. Penal Code § 189 provides that murder is in the first degree when the killing is “in the
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perpetration of, or attempt to perpetrate,” a robbery. Under California law, the phrase “in the
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perpetration of” includes a killing that occurs during the perpetrator’s flight or escape from the
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scene of a robbery. The rule is in place to determine the outer temporal bounds of liability under
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felony murder, and concludes that any killing that occurs after a perpetrator reaches a place of
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temporary safety is not committed in the perpetration of the robbery and does not constitute felony
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murder. Cal. Penal Code § 189.
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b. Legal Standard
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A state trial court’s refusal to give an instruction does not alone raise a ground cognizable
in federal habeas corpus proceedings. See Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir.
6
1988). The error must so affect the trial that the defendant was deprived of the fair trial
7
guaranteed by the Fourteenth Amendment. See id. Due process requires that “‘criminal
8
defendants be afforded a meaningful opportunity to present a complete defense.’” Clark v. Brown,
9
450 F.3d 898, 904 (9th Cir. 2006) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)).
10
Therefore, a criminal defendant is entitled to adequate instructions on the defense theory of the
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United States District Court
Northern District of California
5
case. See Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 2000) (error to deny defendant’s request
12
for instruction on simple kidnapping where such instruction was supported by the evidence).
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Due process does not require that an instruction be given unless the evidence supports it.
14
See Hopper v. Evans, 456 U.S. 605, 611 (1982); Menendez v. Terhune, 422 F.3d 1012, 1029 (9th
15
Cir. 2005). The defendant is not entitled to have jury instructions raised on his or her precise
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terms where the given instructions adequately embody the defense theory. United States v. Del
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Muro, 87 F.3d 1078, 1081 (9th Cir. 1996); United States v. Tsinnijinnie, 601 F.2d 1035, 1040 (9th
18
Cir. 1979), cert. denied, 445 U.S. 966 (1980).
19
Whether a constitutional violation has occurred will depend upon the evidence in the case
20
and the overall instructions given to the jury. See Duckett v. Godinez, 67 F.3d 734, 745. An
21
examination of the record is required to see precisely what instruction was given and what
22
instruction was refused and whether the given instructions adequately embodied the defendant’s
23
theory. Tsinnijinnie, 601 F.2d at 1040. In other words, a review of the record allows a
24
determination of whether what was given was so prejudicial as to infect the entire trial and
25
therefore deny due process. See id.
26
The omission of an instruction is less likely to be prejudicial than a misstatement of the
27
law. See Walker v. Endell, 850 F.2d at 475-76 (citing Henderson v. Kibbe, 431 U.S. at 155).
28
Thus, a habeas petitioner whose claim involves a failure to give a particular instruction bears an
11
1
“‘especially heavy burden.’” Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (quoting
2
Henderson, 431 U.S. at 155). "'[T]he significance of the omission of such an instruction may be
3
evaluated by comparison with the instructions that were given.'" Murtishaw v. Woodford, 255
4
F.3d 926, 971 (9th Cir. 2001) (quoting Cubb v. Naughton, 414 U.S. at 156); see id. at 972 (due
5
process violation found in capital case where petitioner demonstrated that application of the wrong
6
statute at his sentencing infected the proceeding with the jury’s potential confusion regarding its
7
discretion to impose a life or death sentence).
8
c. Discussion
9
The California Court of Appeal denied this claim:
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United States District Court
Northern District of California
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Here, the evidence is undisputed that Sorokin [the victim] never
reached a place of temporary safety but instead remained under the
control of Skuba and/or Clamp until he was thrown from a cliff.
Under the prosecution’s version of events, with Skuba present when
Sorokin was thrown from a cliff, Ramirez would preclude an escape
instruction because Sorokin remained under Skuba’s control. And
under the version of events with Skuba waiting alone in Clamp’s
truck while Clamp disposed of Sorokin, an escape instruction would
be unnecessary under Cavitt because, with Sorokin under the control
of Clamp, any escape efforts by Skuba would be irrelevant. (Cavitt,
supra, 33 Cal.4th at p. 209.)
In sum, Skuba was not entitled to an escape instruction in any form
because Sorokin was under Skuba’s control, or the control of
Clamp, until he was killed. Skuba’s outing was a callous trip to
dispose of Sorokin, not an escape from the scene of the robbery.
The trial court committed no error by not instructing the jury with
any aspect of the escape instruction. Because we find no error, we
do not address Skuba’s arguments regarding prejudice and
ineffective assistance of counsel.
Skuba, 2013 WL 6229134, at *10.
The state court’s decision was not an unreasonable application of Supreme Court authority
nor was it an unreasonable determination of the facts. The evidence showed that the victim never
reached a place of temporary safety; instead, it demonstrated that Skuba participated in taking the
victim to throw him off the cliff. While generally a perpetrator could be found to have reached a
place of temporary safety if he no longer has physical control of the person who is the target of the
robbery, that was not the situation in this case. Skuba was not escaping from the scene, he was
disposing of a body and this finding by the state court was not unreasonable. An escape jury
12
1
instruction was not supported by the evidence and was not appropriate under these circumstances.
2
Skuba has failed to demonstrate that the failure to sua sponte give this instruction violated due
3
process.
4
Moreover, as the court of appeal found, even if there was an error it was harmless. The
5
standard is “whether error had substantial and injurious effect or influence in determining” the
6
jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619 (1993). If the trial court had given an escape
7
instruction, the fact that Skuba left the scene of the robbery in order to throw the victim off a cliff
8
could not have led a reasonable juror to conclude that Skuba’s liability was somehow reduced.
9
For all these reasons he is not entitled to relief on this claim.
10
II.
CONFRONTATION CLAUSE
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United States District Court
Northern District of California
Skuba next argues that the trial court violated the Confrontation Clause of the Sixth
12
Amendment by excluding impeachment evidence that the prosecution’s principal witness, Kirstin
13
Roberts, lied about her identity to police officers.
14
a. Legal Standard
15
The Confrontation Clause of the Sixth Amendment provides that in criminal cases the
16
accused has the right to “be confronted with the witnesses against him.” U.S. Const. amend. VI.
17
This federal confrontation right applies to the states through the Fourteenth Amendment. Pointer
18
v. Texas, 380 U.S. 400, 403 (1965).
19
The ultimate goal of the Confrontation Clause is to ensure reliability of evidence, but it is a
20
procedural rather than a substantive guarantee. Crawford v. Washington, 541 U.S. 36, 61 (2004).
21
It commands not that evidence be reliable, but that reliability be assessed in a particular manner:
22
by testing it in the crucible of cross-examination. Id.; see Davis v. Alaska, 415 U.S. 308, 315-16
23
(1974) (noting a primary interest secured by the Confrontation Clause is the right of cross24
examination). The Confrontation Clause thus reflects a judgment, not only about the desirability
25
of reliable evidence, but about how reliability can best be determined. Crawford, 541 U.S. at 61;
26
see, e.g., United States v. Medjuck, 156 F.3d 916, 919 n.1 (9th Cir. 1998) (Confrontation Clause
27
serves purposes of ensuring that witnesses will testify under oath, forcing witnesses to undergo
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1
cross-examination, and permitting the jury to observe the demeanor of witnesses.); Wood v.
2
Alaska, 957 F.2d 1544, 1549 (9th Cir. 1992) (the right to confrontation includes the right to cross
3
examine adverse witnesses and to present relevant evidence).
4
Confrontation Clause claims are subject to harmless error analysis. United States v.
Nielsen, 371 F.3d 574, 581 (9th Cir. 2004) (post-Crawford case); see also United States v. Allen,
6
425 F.3d 1231,1235 (9th Cir. 2005). For purposes of federal habeas corpus review, the standard
7
applicable to violations of the Confrontation Clause is whether the inadmissible evidence had an
8
actual and prejudicial effect upon the jury. See Hernandez v. Small, 282 F.3d 1132, 1144 (9th Cir.
9
2002) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)); Webb v. Lewis, 44 F.3d 1387,
10
1393 (9th Cir. 1994) (same). The standard on direct review of federal criminal convictions is
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United States District Court
Northern District of California
5
“harmless beyond a reasonable doubt.” Nielsen, 371 F.3d at 581.
12
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b. Discussion
Here, the trial court barred evidence that on November 27, 2009, Kirstin Roberts gave a
14
false name when stopped by the police, finding it more prejudicial than probative under California
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Evidence Code section 352. The California Court of Appeal rejected Skuba’s claim that the trial
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court violated the Confrontation Clause:
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Roberts was presented as an accomplice to the robbery in this case.
She had pleaded guilty to the robbery, and as a condition of her plea
agreement, she promised to testify truthfully.
The jury heard evidence that Roberts was abusing alcohol and
methamphetamine in July 2009. Indeed, the prosecutor admitted in
closing argument that Roberts’ memory was compromised by
alcohol abuse. Evidence was also presented that Roberts looked for
something to steal from Sorokin’s truck, offered Sorokin’s credit
card to Senior, and tried to purchase personal items from Target
using one of Sorokin’s credit cards. She also admitted to a felony
forgery conviction-cashing forged checks stolen from Skuba’s
housemate, including one for about $750-and a conviction for drunk
driving involving an injury. She testified that she lied to the police
during her initial questioning regarding her involvement in the
robbery. For example, Roberts initially told police she saw Skuba
move Sorokin from the garage to the bed of the pick-up truck. But
she retracted that statement at trial, explaining she could not see the
front of the garage or the pick-up truck from her position on the
balcony, but only heard sounds of Sorokin’s body being moved from
the garage to the truck.
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Given the extent of Roberts’ testimony on these subjects, we reject
Skuba’s assertions that her testimony presented a false aura of
veracity to the jury. We further reject Skuba’s argument that the
omitted evidence would have established a pattern of dishonesty and
would have left the jury with a different impression of Roberts’
credibility. (Chatman, supra, 38 Cal.4th at p. 372.) Thus, no
confrontation clause violation resulted, nor did the trial court abuse
its discretion, by excluding evidence that Roberts falsely identified
herself to police in November 2009.
Skuba, 2013 WL 6229134, at *12.
6
In Delaware v Van Arsdall, 475 U.S. 673 (1986), the Supreme Court noted that “trial
7
judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable
8
limits on cross-examination based on concerns about, among other things, harassment, prejudice,
9
confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally
10
relevant.” Id. at 679. The clause guarantees “an opportunity for effective cross-examination, not
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United States District Court
Northern District of California
cross-examination that is effective in whatever way, and to whatever extent, the defense might
12
wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985).
13
In this case, the trial court’s actions were reasonable because the evidence that was
14
excluded, that Roberts had previously lied to police and given a false name when pulled over, was
15
cumulative and only marginally relevant. The trial court had already allowed extensive
16
impeachment of Roberts by Skuba for her prior convictions of forgery and drunk driving causing
17
injury, evidence that she was an accomplice to the robbery, evidence that she had a severe drug
18
and alcohol problem that impaired her memory, and perhaps most importantly, that she had lied to
19
the police about important details of this case when she was first questioned. Skuba was given
20
ample opportunity for cross-examination, and the trial court excluded only one of many attacks on
21
Roberts. There was a great deal of evidence that was admitted to impeach her. As the state court
22
noted, she did not present a “false aura of veracity” to the jury, as Skuba alleges, and a pattern of
23
dishonesty was already established in her testimony. Skuba, 2013 WL 6229134, at *12.
24
Moreover, any possible error was harmless. The jury would have had to disbelieve the
25
three other witnesses who testified to the same events as Roberts. Their testimony all supported
26
Roberts’ testimony in the key aspects of Skuba’s involvement in the robbery and murder, and thus,
27
even if it was error for the court to exclude the evidence that she gave a false name to the police,
28
15
1
the error was harmless. Skuba has not shown that the jury would have reached a more favorable
2
result had it heard that Roberts had lied about her identity during the traffic stop, given the
3
overwhelming evidence of Skuba’s guilt. The exclusion of impeachment evidence did not violate
4
the Confrontation Clause, and the state court’s denial of this claim was not an unreasonable
5
application of Supreme Court authority.
6
III.
CERTIFICATE OF APPEALABILITY
7
The federal rules governing habeas cases brought by state prisoners require a district court
8
that issues an order denying a habeas petition to either grant or deny therein a certificate of
9
appealability. See Rules Governing § 2254 Cases, Rule 11(a).
10
United States District Court
Northern District of California
11
12
A judge shall grant a certificate of appealability “only if the applicant has made a
substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and the
certificate must indicate which issues satisfy this standard. Id. § 2253(c)(3). “Where a district has
13
rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is
14
straight forward: [t]he petitioner must demonstrate that reasonable jurists would find the district
15
court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.
16
473, 484 (2000). Here, petitioner has made no showing warranting a certificate and so none is
17
granted.
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CONCLUSION
19
For the foregoing reasons, the petition for writ of habeas corpus is DENIED. A Certificate
20
of Appealability is DENIED. See Rule 11(a) of the Rules Governing Section 2254 Cases.
21
IT IS SO ORDERED.
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Dated: October 13, 2015
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________________________
JAMES DONATO
United States District Judge
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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STEWART L. SKUBA,
Case No. 14-cv-03758-JD
Plaintiff,
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v.
CERTIFICATE OF SERVICE
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JOE A. LIZARRAGA,
Defendant.
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United States District Court
Northern District of California
11
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
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That on October 13, 2015, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.
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Stewart L. Skuba ID: AK-9172
Mule Creek State Prison
P.O. Box 409060
Ione, CA 95640
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Dated: October 13, 2015
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Susan Y. Soong
Clerk, United States District Court
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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO
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