Archives for category: murder

In this case a person, Sullivan, was shot and killed by the police in an apartment search. The police lost summary judgment at district court and appealed. On appeal the Ninth Circuit affirmed. But in dissent Judge Wu refers to a “ninja” knife

KATHLEEN ESPINOSA, individually and as personal representative of the Estate of decedent Asa Sullivan; ASA SULLIVAN; A. S., by and through his Guardian ad Litem; NICOLE GUERRA, Plaintiffs-Appellees,
CITY AND COUNTY OF SAN FRANCISCO; HEATHER FONG, in her capacity as Chief of Police, Defendants, and JOHN KEESOR, Police Officer; MICHELLE ALVIS, Police Officer; PAUL MORGADO, Police Officer, Defendants-Appellants.

No. 08-16853


598 F.3d 528

Filed – March 9, 2010

Before Judges: Procter Hug, Jr. and Richard A. Paez, Circuit Judges, and George H. Wu, * District Judge.
* The Honorable George H. Wu, United States District Judge for the Central District of California, sitting by designation.

Opinion by Judge Hug; Partial Concurrence and Partial Dissent by Judge Wu.

In the opinion of District Judge Wu, sitting on the Court of appeal by designation, concurring in part and dissenting in part:

I agree with the majority that the district court properly denied summary judgment as to the defendant officers’ claim of qualified immunity in regards to their entering and searching the apartment. However, I disagree with the Opinion’s resolution of the qualified immunity question in the contexts of the unreasonable force and provoking a confrontation issues.


Martin was searched for weapons and a four inch “ninja” knife was located in his back pocket. It did not appear to have any blood on it.


I dissent from the majority’s affirmation of the district court’s denial of the defendant officers’ motion for summary judgment on the basis of qualified immunity as to the issues of excessive force and provoking a confrontation.

It is interesting to note that it is the judicial opinion in favor of the police that refers to the “ninja” knife. What makes a knife a ninja knife… because it is quoted maybe it is testimony but it is uncited in Judge Wu’s dissent.

These pro se petitions by convicted murderers are denied. The facts include reference to a “black ninja mask” worn as they shot and killed from a Saturn car. This is two opinions for the two co-defendants, both authored by the same Magistrate Judge.

MICHAEL MARTEL, Warden, Respondent.

Case No. CV 09-02804 DSF (AN)



Case No. CV 09-00263 DSF (AN)


2010 U.S. Dist. LEXIS 35782
2010 U.S. Dist. LEXIS 35805

Decided February 4, 2010
Opinions by Arthur Nakazato, US Magistrate Judge:

On August 23, 2006, petitioner[s] Jamel Laron Young and his co-defendant, James Kamply Morris, were convicted of one count of first degree murder, in violation of CAL. PENAL CODE § 187(a), and three counts of attempted murder, in violation of CAL. PENAL CODE § 664/187(a), following a jury trial in the Los Angeles County Superior Court (case no. MA028244).


On September 21, 2006, Petitioner [Morris] was sentenced to an indeterminate state prison term of 25 years to life plus one year on count one, a consecutive term of seven to life plus one year on count two, and concurrent terms of life plus one year on counts three and four.

On November 30, 2006, Petitioner [Young] was sentenced to an indeterminate state prison term of 25 years to life plus one year on count one, a consecutive term of seven years to life plus one year on count two, and concurrent terms of life plus one year on counts three and four.

From facts established at trial in people’s evidence:

About 11:30 p.m., Morris put on a black ninja mask. Young drove the Saturn slowly with its headlights off and stopped in front of the Palmdale home. The driver’s side of the Saturn was facing the home. Morris sat on the window sill of the car’s passenger door and shot over the Saturn about four or five times. Cole was lying down in the backseat.

Jonte Stewart was on the porch of the Palmdale home when the shots were fired. He was fatally shot in the head

The opinion finds no error and directs “judgment be entered dismissing this action with prejudice”.

Recall NinjaLaw#70 = “Murder-for-hire by Los Angeles Ninja Hitman”. As described in that prior post, the case was appealed. Both the district court and appellate opinion were described in the prior post and so this post is a placeholder to keep this 80th NinjaLaw case in sequence.
los angeles

This 2009 Habeas petition was denied in a strange story that involves a woman convicting in conspiring with mentally ill Renaissance Fair attendees to kill her father with a ninja sword.

Clara Jane Schwartz, Petitioner,
Gene M. Johnson, Respondent.

1:09cv98 (GBL/JFA)


Decided by August 3, 2009 by United States District Judge Gerald Bruce Lee.

Memorandum Opinion and Order

THIS MATTER is before the Court on Petitioner Clara Jane Schwartz’s Petition for Writ of Habeas Corpus for Prisoner in State Custody, pursuant to 28 U.S.C. § 2254. This case concerns the constitutionality of Ms. Schwartz’s conviction in the Virginia Circuit Court for Loudoun County for murder, conspiracy to commit murder, and two counts of solicitation to commit the murder of her father, Dr. Robert Schwartz. The issues before the Court are whether Ms. Schwartz was deprived of her 6th Amendment right to effective assistance of counsel at trial based on her defense counsel’s: 1) failure to timely and properly object to the introduction into evidence of Mr. Hulbert’s written confession and other inculpatory statements (claim A); and 2) failure to request jury instructions on the lesser included offenses of second degree murder and manslaughter and failure to argue alternative defenses based on the facts presented (claim B). Ms. Schwartz requests an evidentiary hearing to resolve the factual dispute as to whether trial counsel’s performance was informed and reasonable. The Court denies Ms. Schwartz request for an evidentiary hearing because there are no factual disputes to resolve. The Court finds that Ms. Schwartz has not demonstrated that the Supreme Court of Virginia applied the Strickland standard unreasonably or based its decision on an unreasonable determination of the facts because this Court has reviewed the records and determined that the court’s analysis is reasonable on both prongs.


On February 19, 2003, Ms. Schwartz was convicted in the Circuit Court of Loudoun County of murder, conspiracy, and two counts of solicitation to commit murder and sentenced to forty-eight years of imprisonment

In 2001, Ms. Schwartz attended James Madison University as a sophomore. (Trial Tr. 224.) Ms. Schwartz lived in Loudoun County with her father, Dr. Robert Schwartz prior to going to college. (Trial Tr. 204-05.) The Commonwealth presented testimony from Ms. Schwartz friends, Mr. Patrick House and Ms. Kate Inglis, that Ms. Schwartz hated her father, Dr. Schwartz, told her that her father tried to poison her, that she wished he were dead, that he tried to drown her in a pool, that he attempted to molest and kill her, and that she stood to inherit hundred of thousands of dollars upon his death. (Trial Tr. 224, 306-08, 313, 333, 421, 424 430, 498, 553, 714.) In August 2001, Ms. Schwartz began dating Mr. House, and made statements to Mr. House about her desire for him to kill her father. (Trial Tr. 311, 322, 417-18, 427-30.) Ms. Schwartz gave Mr. House a book containing information about poisoning and her collection of journals chronicling the abuse she endured from her father over the years. (Trial Tr. 421, 427.) Mr. House testified that Ms. Schwartz and he had multiple conversations about when he would kill Ms. Schwartz’s father. (Trial Tr. 430-32.)

In September 2001, Ms. Schwartz, Mr. House, Ms. Inglis, and Mr. Michael Pfohl met Mr. Kyle Hulbert at a Renaissance Fair in Maryland. (Trial Tr. 322-23.) Mr. Hulbert was carrying a two-foot sword and dressed in a cat costume. (Trial Tr. 323.) Ms. Schwartz and her friends became friends with Mr. Hulbert. Ms. Schwartz told Mr. Hulbert that her father had abused her and continued to abuse her. (Trial Tr. 286-87.) Ms. Schwartz told Mr. Hulbert that she and her father were planning on going to the Virgin Islands and her father was going to make sure she never came back. (Trial Tr. 288.)

In November 2001 Mr. Hulbert, Ms. Inglis, and Mr. Pfohl visited Ms. Schwartz at college where she further told them how her father abused and poisoned her. (Trial Tr. 332-33.) Ms. Schwartz showed Mr. Hulbert her journals, picking out specific pages for him to read. (Trial Tr. 332-33.) Ms. Schwartz told her friends that she would inherit a substantial amount of money from her father when he died, that she was afraid her father would cut her out of the will, and that she wanted to take a semester off from school, but that her father opposed it. (Trial Tr. 313, 424-27.) At the end of the weekend visit, Ms. Schwartz said to Ms. Inglis, “maybe he [Mr. Hulbert] can help me with my father,” and commented that, if her father died while she was in college, she would take a semester off. (Trial Tr. 350.)

After that visit, Mr. Hulbert and Ms. Schwartz began to exchange instant messages and to speak on the telephone almost daily. (Trial Tr. 710.) Ms. Schwartz arranged for Ms. Inglis to drop off Mr. Hulbert to camp out in the woods surrounding the Schwartz family home during Thanksgiving weekend in 2001. (Trial Tr. 338.) The next day, Mr. Hulbert visited the Schwartz’s residence and introduced himself to Dr. Schwartz and Ms. Schwartz sister Michelle Schwartz. (Trial Tr. 227.) Mr. Hulbert wore a long black trench coat and showed them his sword. (Trial Tr. 226-28.) Soon after that visit, Mr. Hulbert requested that Ms. Schwartz send him $ 60 for gas, a “do-rag”, or head covering, and gloves so that he would not leave any hairs or evidence at the scene. (Trial Tr. 487.) Ms. Schwartz sent Mr. Hulbert the $ 60 check via overnight delivery. (Trial Tr. 340-41, 687-99.) On December 7, 2001, Mr. Hulbert, Ms. Inglis, and Mr. Pfohl used the check to open a bank account for Mr. Hulbert at First Virginia Bank. (Trial Tr. 340-41, 686-87.) On December 8, 2001, Mr. Pfohl and Ms. Inglis gave Mr. Hulbert a ride back to the area near Dr. Schwartz’s home near the same location where they had previously camped. (Trial Tr. 288, 343.) Mr. Hulbert had his sword strapped to his side. (Tr. Tr. 344.) As Mr. Hulbert began to walk in the direction of Dr. Schwartz’s home, he pulled his sword out of its sheath. (Trial Tr. 343.) Mr. Hulbert stabbed Dr. Schwartz over 30 times with the sword. (Trial Tr. 680-81.) When Mr. Hulbert returned to the car he told Mr. Pfohl and Ms. Inglis that he ran him [Dr. Schwartz] through with his sword. (Trial Tr. 345.) On December 9, 2001, Mr. Hulbert called Ms. Schwartz, and told her that he had killed her father. (Trial Tr. 351.) The next day a neighbor found the victim’s body. (Trial Tr. 207-08.) That evening, Loudoun County Investigator Greg Locke traveled to James Madison University to notify Ms. Schwartz and her sister Michelle of their father’s death. (Trial Tr. 470.) Ms. Schwartz provided investigator Locke with information about Mr. Hulbert, Mr. Pfohl, and Ms. Inglis. (Trial Tr. 475-76.) On December 11, 2001, Mr. Hulbert was arrested. (Trial Tr. 300, 302.) At the time of his arrest Mr. Hulbert was carrying a three-page typewritten document that Ms. Schwartz had prepared detailing Dr. Schwartz’s alleged abuse of her. (Trial Tr. 204-05 299, 303, Commonwealth Ex. 35.) Authorities found Mr. Hulbert’s sword at the home of Ms. Inglis and Mr. Pfohl. (Trial Tr. 293-94.) On December 12, 2001, Ms. Schwartz told investigators that she knew Mr. Hulbert was going to kill her father. (Trial Tr. 482-83.) The next day, investigators searched her dorm room and found several journals that were identical to the ones found on Mr. Hulbert at the time of his arrest. (Trial Tr. 504-05, 628, 632-33, 641.) On February 1, 2002, Ms. Schwartz was arrested for the murder of Dr. Schwartz. (Trial Tr. 720.) After her arrest, Ms. Schwartz admitted to fellow inmate Tammie Fitts that her friend Mr. Hulbert had killed her father with a ninja sword. (Trial Tr. 720-22.) Ms. Schwartz also told Ms. Fitts that the plan was for Mr. Hulbert to take the blame for the murder because he was mentally ill. (Trial Tr. 722-23.)

Pre-trial, on June 28, 2002, the Commonwealth filed a motion seeking a ruling on the admissibility of Mr. Hulbert’s written confession. The state habeas court noted that counsel filed a 12-page, “very detailed” and “scholarly” memorandum opposing the Commonwealth’s use of Mr. Hulbert’s written confession. (Tr. Mar. 14, 2008 at 83, 86.) At a hearing on July 10, 2002, defense counsel withdrew their objection to the admission of the statement to allow the admission of the full unredacted confession pursuant to a stipulation with the Commonwealth personally signed by Ms. Schwartz. (Mot. Hr’g Jul. 10, 2002 at 6.) Ms. Schwartz stipulated to the admission of the written confession despite the condition that Mr. Hulbert would not testify and be subject to cross-examination at trial. (Trial Tr. 282-83.) The court noted that the Commonwealth had not satisfied Lilly v. Virginia, which stands for the proposition that a nontestifying accomplice offering statements against the penal interest of the defendant must be allowed to be confronted by the defendant pursuant to the confrontation clause of the 6th Amendment, but there was no objection to the admission of the written confession. (Id.) Mr. Hulbert’s written confession was admitted at trial. (Id.) At a hearing on July 24, 2002, counsel advised the trial court that the defense needed mental health records for Mr. Hulbert to attempt to demonstrate that Mr. Hulbert misunderstood Ms. Schwartz. (Tr. Hr’g Jul. 24, 2002 at 14.) Defense counsel sought to demonstrate Mr. Hulbert’s actions as those of a psychotic individual throughout the trial. (Trial Tr. 193-96, 775-800, 801-43, 842-49.) The court instructed the jury in Instruction 14A that if the jury had a reasonable doubt that Mr. Hulbert had the “mental capacity to understand the nature and consequences of any agreement to commit a crime at the time of the agreement,” the jury must acquit Ms. Schwartz of the conspiracy. (Jury Instruction 14A.) Throughout the closing argument, defense counsel argued extensively about Mr. Hulbert’s mental illness. (Trial Tr. 974, 980-83, 990-92.) On February 19, 2003, Ms. Schwartz was convicted in the Circuit Court of Loudoun County for murder, conspiracy, and two counts of solicitation to commit murder and sentenced to forty-eight years of imprisonment. Ms. Schwartz’s direct appeals were denied. The Virginia Court of Appeals denied her appeal on April 19, 2005. Schwartz v. Johnson, 45 Va. App. 407; 611 S.E.2d 631; 2005 Va. App. LEXIS 156, R. No. 0577-03-4 (Va. Ct. App. Apr. 19, 2005.) The Virginia Supreme Court denied Ms. Schwartz’s appeal on October 6, 2005. Schwartz v. Johnson, R. No. 051072 (Va. Oct. 6, 2005). On October 6, 2006, Ms. Schwartz filed a petition for a writ of habeas corpus in the Circuit Court for Loudoun County challenging her conviction two grounds. Schwartz v. Johnson, R. No. 42813 (Oct. 6, 2005). Specifically, Ms. Schwartz alleged that: (1) she was deprived of her 6th Amendment right to effective assistance of counsel at trial because her defense counsel failed to timely and properly object to the admission into evidence Mr. Hulbert’s written confession and other inculpatory statements; and (2) because her defense counsel failed to request jury instructions on the lesser included offenses of second degree murder and manslaughter and failed to argue alternative defenses based on the facts presented.

On March 14, 2008, a habeas corpus motions hearing was held. At the conclusion of the hearing, the court ruled that the habeas petition should be denied. The order of dismissal was entered April 23, 2008. Ms. Schwartz appealed to the Virginia Supreme Court, which denied the petition for appeal by order dated November 3, 2008. Schwartz v. Johnson, R. No. 081416, 2008 Va. LEXIS 132 (Va. Nov. 3, 2008).



The Court dismisses Ms. Schwartz’s Federal Habeas Petition for Writ of Habeas Corpus for Prisoner in State Custody because the state court’s denial of her claims was not contrary to, or an unreasonable application of, clearly established federal law, and was not based on an unreasonable determination of the facts. Ms. Schwartz has failed to demonstrate that her trial counsel was ineffective under the Strickland standard and the Virginia Circuit Court of Loudoun County did not apply the standard unreasonably nor did it base its decision on an unreasonable determination of the facts. Defense counsel’s trial tactics cannot form a basis for a habeas petition. There is no constitutional violation of Ms. Schwartz’s rights in the Virginia Circuit Court of Loudoun [*23] County to give rise to a writ of petition of habeas corpus in this Court.

For the foregoing reasons, it is hereby

ORDERED that the Petitioner Ms. Clara Jane Schwartz’s Motion for Petition for Writ of Habeas Corpus For Prisoner in State Custody pursuant to 28 U.S.C. § 2254 is DENIED.

The Clerk is directed to forward a copy of this Order to counsel.

Entered this 3rd of August, 2009

Gerald Bruce Lee
United States District Judge
Alexandria, Virginia

This 2009 habeas petition was denied by United States Magistrate Judge Robert C. Mitchell. The opinion quoted four uses of the word “ninja” from the lower court and from petitioner’s arguments. These refer to a “ninja sword and nunchucks” and a “black ninja outfit”.

Michale J. Anderson, an inmate at the State Correctional Institution at Houtzdale has presented a petition for a writ of habeas corpus. For the reasons set forth below, the petition will be dismissed and because reasonable jurists could not conclude that a reasonable basis for appeal exists, a certificate of appealability will be denied.

MICHALE J. ANDERSON, BH-9234, Petitioner,
SUPERINTENDENT BRITTON, et al., Respondents.


Civil Action No. 09-113
2009 U.S. Dist. LEXIS 45455

Decided June 1, 2009

The background to this prosecution is set forth in the February 3, 2000 Memorandum of the Superior Court:

In the early morning hours of October 27, 1989, Anderson took a taxicab to the home of the victim, Karen Hurwitz (“Hurwitz”). On his way to Hurwitz’s home, Anderson had the cab stop in the Highland Park area where he retrieved a bag containing various weapons. After arriving at the Hurwitz residence, Anderson removed a Ninja sword and nunchucks from his bag and placed them at the side of the house. Anderson also placed another weapon inside his jacket. Anderson then went into the Hurwitz home.

After speaking with Hurwitz for a few moments, Anderson and Hurwitz agreed to continue their conversation outside so as not to awaken Hurwitz’s parents. Once outside, Anderson picked up the Ninja sword and walked with the victim to a gazebo in her yard. As the two conversed, Anderson struck the victim in the head with the ninja sword and repeatedly stabbed her in the torso. When the victim stopped moving, Anderson went into the Hurwitz home, took the keys to the Hurwitz’s automobile, and drove away in the vehicle.

The next morning, Anderson voluntarily accompanied police officers from his high school to police headquarters. Upon arriving at headquarters, Anderson confessed to the aforementioned crimes.


In his post-conviction petition to the Superior Court, the petitioner framed this issue as follows:

At Mr. Anderson’s trial Katherine Berlin testified that she was the girlfriend of Mr. Anderson (TT.222-223). Berlin saw Mr. Anderson on a nearly daily basis in the months prior to Hurwitz’s killing (TT.224-225). Mr. Anderson began sleeping at Berlin’s residence albeit without the knowledge of Berlin’s parents (TT.223). Berlin’s bedroom was on the first floor and her parent’s on the second floor (TT.225). Mr. Anderson brought various packaged personal items in bags and boxes, which Berlin kept, under her piano.

At trial Berlin was shown 3 boxes belonging to Mr. Anderson, one of which had marked on it: “mixed stuff, don’t touch”. Berlin never opened the box (TT.227). According to Berlin, Mr. Anderson came to Berlin’s residence on October 26, 1989, changed his clothing and put them in a bag under the piano (TT.233).

At trial Detective Terrance P. O’Leary testified that he had recovered a black ninja suit from Mr. Anderson’s backpack located at Berlin’s residence (TT.303). He also recovered stars and literature from boxes at Berlin’s residence (TT.303). Three of Mr. Anderson’s boxes recovered from Berlin’s apartment contained Mr. Anderson’s clothing and personal items (TT.305). Found also in the boxes were three American Flags: Exhibits 65,66, and 67; On Exhibit 65 was hand printed: “Niggers, spics, Jewish pigs will rape America no more. These will not be the first”; On Exhibit 66 was written: “Long live the white. Fuck the Jews. These will not be the first.” TT.307. The Commonwealth argued that the seized items in question went to Mr. Anderson’s state of mind and were thus admissible (TT.307).

As post-conviction appellate counsel argued, at trial the admissibility of this evidence was argued, but counsel never asserted the petitioner’s Fourth Amendment rights regarding these articles. Additionally, it is argued that no warrant was secured for these items; Anderson had not given his consent for their seizure and the items were delivered to the police by Ms. Berlin’s father who had no knowledge that the petitioner was residing in his house. Thus, the question was whether or not petitioner enjoyed a reasonable expectation of privacy in these items and as a result whether his Fourth Amendment rights were violated.


An appropriate Order will be entered.


AND NOW, this 1st day of June, 2009, for the reasons set forth in the foregoing Memorandum, the petition for Michael J. Anderson for a writ of habeas corpus is dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability is denied.

/s/ Robert C. Mitchell

United States Magistrate Judge

In this case of habeas petition on Los Angeles murder-for-hire, a “Ninja” was convicted based on out of court statements of an unavailable convicted co-conspirator. This is a 2008 appeal on a 1990 conviction of the ninja hitman. The murders in this case have been extensively covered in the press, see for example this 1988 Los Angeles Times article referring to the “Ninja Murders”. And see detailed narrative at, “The Ninja Murder Case” BY Tori Richards

ERNEST ROE, Warden, Respondent.

Case No. CV 98-6956-SVW (JWJ); 651 F. Supp. 2d 1065; 2008 U.S. Dist. LEXIS 112110

Decided March 5, 2008, Opinion by United States Magistrate Judge Jeffrey Johnson


In 1983, brothers Neil and Stewart Woodman hired hitmen Steven and Robert Homick (also brothers) to murder the Woodmans’ parents. (Resp. Exh. 107, pp. 21-23, 26-27, 36-49, 63-64.) [FN2] The crime was to take place on the night of September 25, 1985, Yom Kippur. (Resp. Exh. 100, pp. 60, 100, 102-03.) The Woodman’s motive was to gain an advantage in a family business dispute (Resp. Exh. 107, pp. 15-21) and to collect on their mother’s $ 500,000 insurance policy — money they needed to pay off business debts (Id. at 15-18).

Late in the evening of September 25, 1985, the Woodman parents were shot and killed in the parking garage of their Brentwood apartment complex. Roger Backman, an independent witness, saw a black-clad individual, later referred to as the “Ninja,” fleeing the scene of the crime. [FN3]

== Footnotes ==
FN2 Unless otherwise specified, all citations to exhibits refer to those introduced by the parties at the evidentiary hearing.
FN3 The assailant was termed the “Ninja” after Mr. Backman described the suspect as wearing a black hooded outfit.

At petitioner’s trial, the prosecution argued that petitioner was the “Ninja” observed by Robert Backman.

After petitioner’s conviction, Stewart Woodman confessed his guilt in exchange for a promise that the prosecution would not seek the death penalty against him.

Here on appeal:

Petitioner argued, inter alia, that the following “new evidence” supported his procedural claim of actual innocence: Michael Dominguez, a key prosecution witness, recanted his testimony implicating petitioner; the police investigation involved questionable methods; the testimony of Robyn Lewis was impeached; and the testimony of Roger Backman likely excludes petitioner as the “Ninja.” (Proposed Findings, pp.18-47.)


petitioner points to the testimony of Roger Backman as evidence that petitioner could not have been the “Ninja.” As detailed above, Mr. Backman described the hooded assailant as resembling Michael Dominguez. While this evidence may suggest that petitioner was not the “Ninja” who came face to face with Mr. Backman, it does not prove that petitioner is innocent of the murders of Gerald and Vera Woodman. It is undisputed that the murders were carried out by more than one individual. In fact, Mr. Backman testified that while he saw the “Ninja,” he heard another individual running through the bushes. Thus, Mr. Backman’s description of the “Ninja” does not support a finding that petitioner was not a participant in the murders.

The Court dismisses the petition, finding that the petitioner cannot show his actual innocence. Ironically, the co-conspirator’s self-interested claims were credible for conviction but the his recantation is not credible for appeal.

None of the other “new” evidence presented by petitioner, without the support of a credible recantation by Dominguez, is sufficient to meet petitioner’s procedural claim of actual innocence.

This opinion was then supplemented and adopted by the District Court Judge Stephen Wilson, August 4, 2009:

v. ERNEST ROE, Warden, Respondent.

CV 98-6956 SVW (JWJx)
651 F. Supp. 2d 1065; 2009 U.S. Dist. LEXIS 70762

Petitioner contends that Dominguez’s recantation should be believed because Dominguez’s initial testimony was the result of police coercion by the Detectives. In his objections, Petitioner claims that the SSRR not only failed to adequately consider the effect of the alleged police coercion on jurors, but goes so far as to “sanction[] egregious police misconduct.” (Obj., at 16.) Specifically, Petitioner insists that the following evidence of Detective Holder’s unethical character was not presented to the jury in Petitioner’s case: (1) Detective Holder suborned perjury of a criminal informant (Siegel) at the first preliminary hearing for defendant Woodman; (2) the Detectives placed a photograph of Petitioner in front of Dominguez during the initial interview “so that [Dominguez] would identify [Petitioner] as the Ninja” (Id.); (3) Detective Holder called Deputy District Attorney John Krayniak a “wimp prosecutor” when Krayniak refused to put untruthful informant Sidney Storch on the witness stand (10/5/04 ERT 89); (4) the Detectives secretly entered into an undisclosed book rights agreement, presumably about the trial; and (5) after leaving the LAPD, Detective Holder obtained a court appointment as a phony expert witness or private investigator in the Woodman trial. (Obj., at 16.)

While Petitioner’s evidence regarding the Detectives may speak to the negative qualities of Detectives Holder and Crostley, and perhaps even suggest that they used questionable interviewing tactics, this evidence does not alter the Court’s conclusion with regard to the credibility of Dominguez’s new testimony. This evidence regarding the Detectives does not allow Petitioner to meet the “extraordinary” burden of a Schlup claim for two reasons. First, the jury watched the interview between the Detectives and Dominguez at trial and, as a result, the jury was given the opportunity to evaluate whether Dominguez was coerced. This Court must examine “new reliable evidence” while evaluating a Schlup claim. 513 U.S. at 324 (emphasis added). Thus, because the placement of the photographs was presented to the jury at trial, Petitioner’s objection standing alone would not cause a new jury to have reasonable doubts. Only Petitioner’s “new” evidence – such as the book deal – could be used in connection with a Schlup claim. Id.

Second, even though Petitioner identifies some other evidence, because Dominguez himself is not credible, this evidence would not cause all reasonable jurors to doubt Petitioner’s conviction. Had the Magistrate concluded that Dominguez was credible during the evidentiary hearings, the evidence of the Detectives’ negative character may have supplemented the Magistrate’s finding that Dominguez was credible. But given that the Magistrate found that Dominguez was not credible, the evidence of the Detectives’ character would not affect reasonable jurors viewing Dominguez’s recantation.


E. Roger Backman’s Testimony

On the night of the murders, Roger Backman witnessed a black-clad “Ninja” outside the murder scene. The prosecutors used this information to claim that Petitioner was the Ninja. At Neil Woodman’s 1994 trial, however, Mr. Backman described the Ninja in such a way “arguably as not only to exclude the middle-aged [Petitioner,] but to implicate the youthful Dominguez.” [FN4] Majoy, 296 F.3d at 774.

== Footnotes ==
FN4 Mr. Backman testified that he identified Dominguez as the Ninja because it was the “most logical[]” choice based on Dominguez’s age, skin tone, and build. Majoy, 296 F.3d at 775.

In the SSRR, the Magistrate stated that even if Petitioner was not the Ninja, “Mr. Backman . . . heard another individual running through the bushes. Thus, Mr. Backman’s description of the ‘Ninja‘ does not support a finding that petitioner was not a participant in the murders.” (SSRR at 32-33.) Petitioner objects to the Magistrate’s finding that Petitioner could have been a “noise in the bushes.” (Obj., at 20.) Though the Court agrees with the Magistrate’s analysis of Mr. Backman’s testimony, the SSRR could arguably be interpreted as applying the incorrect standard of review by reaching what could be construed as a factual conclusion. This Court will therefore determine de novo how Mr. Backman’s testimony would affect reasonable jurors. See Majoy, 296 F.3d at 776.

Although Mr. Backman’s 1994 testimony might support Petitioner’s actual innocence claim, the Court concludes that this evidence would not have such an effect on reasonable jurors such that Petitioner would meet the Schlup burden. First, as with Ms. Lewis’s testimony, the California Court of Appeal did not give Mr. Backman’s testimony much weight. The Court of Appeal decision thoroughly analyzed the evidence, and the Court generally agrees with the Court of Appeal’s analysis. After listing the substantial corroborating evidence implicating Petitioner, the Court of Appeal stated: “Finally, independent corroboration [by Backman], no matter how slight in value it might appear to be when standing alone, implicated [Petitioner] in the conspiracy and murders.” People v. Majoy, No. B052619, 38 (Cal.Ct.App. Jan. 27, 1997). As the Court of Appeal decision illustrates, Petitioner’s conviction was based on ample corroborating evidence, which included Mr. Backman’s testimony, even though Mr. Backman’s testimony was of “slight” value. Because Mr. Backman’s testimony was of such slight value, this evidence would not have swayed reasonable jurors to such an extent to satisfy the Schlup actual innocence standard.

Second, in discussing Mr. Backman’s 1994 testimony, the Ninth Circuit stated that “Backman identified . . . the ‘Ninja‘ in such a way arguably as . . . to exclude the middle-aged [Petitioner].” Majoy, 296 F.3d at 774 (emphasis added). Though Mr. Backman’s statements “arguably” excluded Petitioner as the Ninja, there was nothing conclusive about his testimony at the subsequent trials. Mr. Backman admitted he only saw a small part of the Ninja‘s face “between . . . just above [the Ninja‘s] eyebrows and just below the tip of the nose” and that he therefore could not conclusively identify the man. Majoy, 296 F.3d at 775. Mr. Backman’s qualified statements would not cause all reasonable jurors to doubt Petitioner’s conviction.

Even assuming Mr. Backman conclusively exonerated Petitioner as the Ninja, without something more, such as substantial evidence of police coercion or clear reliability of Dominguez’s recantation – both of which are lacking – Petitioner cannot reach the standard that “no reasonable juror would have found [P]etitioner guilty beyond a reasonable doubt.” Majoy, 296 F.3d at 776.

Because the Court generally agrees with the California Court of Appeal that Mr. Backman’s identification of the Ninja was of little import in upholding Petitioner’s conviction, and because Mr. Backman did not conclusively exonerate Petitioner as the Ninja, Petitioner has failed to meet the heavy burden of a Schlup actual innocence claim.


Roger Backman could not conclusively prove Petitioner was not the Ninja; and, most importantly, Dominguez’s recantation lacked credibility. Because the Ninth Circuit remanded to this Court to determine the credibility of Dominguez’s recantation, and because this Court has determined it was not credible, Petitioner’s Schlup claim must fail. Accordingly, the Court adopts the Magistrate’s SSRR.

This is the case of PASSI v. MUKASEY about immigrant from Republic of Congo seeking asylum in the U.S. from fear of persecution related to Ntumi’s Ninja rebels. Recall previous NinjaLaw post about these ninja rebels: “Asylum sought because of Ninja killers in the Congo“.

The Passi case appears twice at the 2nd Circuit Court of Appeals. First, an unpublished Summary Order from January 29, 2008 before Judges Miner, Cabranes and Sotomayor (yes, that Sotomayor!):

(Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael B. Mukasey is automatically substituted for former Attorney General Alberto R. Gonzales as the respondent in this case.)

07-2102-ag NAC
261 Fed. Appx. 332; 2008 U.S. App. LEXIS 1920

Both the IJ and the BIA erred by relying exclusively on the United States Department of State country reports in finding that Passi no longer had a reasonable basis to fear persecution if he returned to the Republic of Congo. This Court has instructed immigration courts “not to place excessive reliance” on the Department of State country reports. See Tambadou, 446 F.3d at 302 (quoting Tian-Yong Chang v. INS, 359 F.3d 121, 130 (2d Cir. 2004)). We have also instructed immigration courts to consider evidence that is contrary to country reports and to consider the “particular circumstances of the applicant’s case demonstrated by testimony and other evidence.” Id. Both the IJ and the BIA erred in failing to consider contrary evidence and in failing to consider Passi’s particular circumstances.

These circumstances include the fact that President Sassou-Nguesso — whose militia was responsible for the severe beating of Passi and the murder of Passi’s father, a police officer under the former President Lissouba ? remains in power. Cf. In re O-Z-, 22 I. & N. Dec. 23, 26-27 (B.I.A. 1998). Passi also correctly notes that the 2004 country report, cited by the BIA, states that “[u]ncontrolled and unidentified armed elements remained active in the Pool region [of the Republic of Congo], despite an ongoing demobilization and reintegration program following the March 2003 Peace Accord between the Government and Pasteur Ntumi’s Ninja rebels.” In addition, the reports note that some members of the security forces committed human rights abuses, and although there were some “significant improvements” in the Congolese government’s human rights record, “serious problems remained,” including that security forces were reportedly responsible for “beatings, physical abuse of detainees, rapes,” and “arbitrary arrest and detention.” Moreover, news articles submitted by Passi describe the deaths of civilians by a resurgent militia in a suburb of Brazzaville, the displacement of 50,000 people in the capital, and clashes between government troops and rebel fighters in the Pool region surrounding Brazzaville, as well as within the capital itself. The agency was required to conduct a more “individualized analysis” of how any changes in Congo would affect Passi’s personal circumstances. See Tambadou, 446 F.3d at 303.

Then a published supplemental opinion, July 23, 2008, before Judges Jacobs, Kearse and Katzman: ,

MICHAEL B. MUKASEY, Attorney General, Respondent.
(Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael B. Mukasey is automatically substituted for former Attorney General Alberto R. Gonzales as the respondent in this case.)

Docket No. 07-2102-ag
535 F.3d 98; 2008 U.S. App. LEXIS 15481

Opinion by Judge Katzmann:

notably, the 2004 country report confirms that Sassou-Nguesso–whose Cobra militia beat Passi into unconsciousness and killed his father–is now firmly in control of Congo and his “[g]overnment’s human rights record remains poor.” The report noted that although there were “some” improvements, “serious problems remained,” particularly in Passi’s home region where there are continued clashes between the mainly Lari “Ninja” rebels and Sassou-Nguesso’s government forces. The 2004 country report stated that “[u]ncontrolled and unidentified armed elements remain active in the Pool region, despite an ongoing demobilization and reintegration program following the March 2003 Peace Accord between the Government and [the] Ninja rebels,” and noted continued violence and harassment by either “uncontrolled government security forces or former Ninjas.” In December 2003, uncontrolled Republican Guard government forces attacked Ninja elements in Brazzaville resulting in restrictions on civilian movement, and there was “renewed harassment and intimidation by uncontrolled and unidentified armed elements.” While there were fewer reports that government forces killed civilians in the Pool region than in previous years, the 2004 country report stated that members of the security forces “committed human rights abuses” and were “responsible for beatings, physical abuse of detainees, rapes, arbitrary arrest and detention, looting, solicitation of bribes and theft.” The report also noted that “[d]iscrimination on the basis of ethnic regions remained a problem.” The news articles Passi submitted describe the deaths of civilians at the hands of either the military or a resurgent militia in a suburb of his home city Brazzaville, the displacement of 50,000 people in Brazzaville, and clashes between government troops and rebel fighters in Brazzaville and in the Pool region surrounding the city.

Therefore the case was remanded for further proceedings:

The BIA improperly inferred that Passi no longer has a well founded fear of persecution because its inference was based entirely on a country report that details general improvements, while indicating that Passi’s hometown (which the agency was required by regulation to presume is unreasonable for him to leave) is still troubled by ethnic and political conflict. We remand for the agency to conduct an individualized analysis of whether the changes in conditions in Congo were so fundamental that they are sufficient to rebut the presumption that Passi’s fear of persecution is well founded.

This 2007 asylum seeker claimed that he would be in danger if returned to the Congo, despite State Department claims that the situation had changed. In this case, the Court vacated the ruling of the Board of Immigration Appeals and remanded for further proceedings. The Ninja were a militia in the Congo; according to Wikipedia they disbanded in 2008.

Blaise MAPOUYA, Petitioner,
Alberto R. GONZALES, Respondent.

United States Court of Appeals, Sixth Circuit.
487 F.3d 396
No. 06-3042.

Decided and Filed: May 18, 2007.

The majority opinion written by Judge Dan Polster (and joined by Judge Martin) explains:

Blaise Mapouya is an ethnic Mbochi born in Brazzaville, Congo on January 4, 1970. He fled Congo on March 20, 1999, and eventually entered the United States illegally through New York City on August 3, 2002, using a borrowed passport. Mapouya made his way to Memphis, Tennessee, and in October 2002, he filed an application for asylum, withholding of removal, and relief under The Convention. On the application, Mapouya claimed asylum based on political opinion. After recounting that Mapouya was subjected to violence and torture in the days of the 1997-98 Congolese civil war, the application included Mapouya’s assertion that he would not return to Congo as long as Denis Sassou-Nguesso is president, “because I do not want to put my life in danger.”


A recounting of recent events is necessary to better understand the details of Mapouya’s testimony. In the second half of 1997, violence and civil war returned to the Republic of Congo (hereinafter “Congo”) when Sassou-Nguesso, the country’s former military strongman, ousted the country’s first democratically elected president, Pascal Lissouba. Sassou-Nguesso, who had ruled Congo previously from 1979-91 after a coup, once again seized power militarily in October 1997 after several months of vicious fighting between government and militia troops loyal to Lissouba on one side, and Sassou-Nguesso’s forces on the other. Angolan troops also crossed the southern border and intervened at different places on Sassou-Nguesso’s behalf, including in the capital city of Brazzaville, which is located in the southeast region of the country.

Strong ethnic overtones are present in Congolese politics, and the 1997-98 civil war was no different. Generally, the conflict can be characterized as pitting northerners, who supported Sassou-Nguesso and his Congolese Labour Party (“PCT”), against southerners, who supported former President Lissouba and former Prime Minister Bernard Kolelas. The Mbochi, which are one of the larger Bantu ethnic groups, are located primarily in the northern regions of Congo. Accordingly, the Mbochi are traditionally strong Sassou-Nguesso supporters, especially because Sassou-Nguesso is Mbochi as well. Conversely, supporters of Lissouba and his Pan-African Union for Social Development party (the translated acronym for which is “UPADS”) are primarily southern Congolese tribes, which are mainly Lari ethnic groups. Any divergence from these ethnic-political affiliations, while not unheard of, is rare. Mapouya appears to be one of these few exceptions.

Concluding “that the IJ made an erroneous adverse credibility finding on the asylum question, and that this negative credibility determination permeates and infuses the IJ’s subsequent findings and conclusions”. The Court remands and “urge[s] that, on remand, a different immigration judge be assigned to any further proceedings.”

Dissent by Judge Clay argues to uphold the denial of asylum based on the Board of Immigration Appeals finding “that changed country conditions rebutted Petitioner’s presumption of a well-founded fear of persecution.” Judge Clay notes:

Petitioner contends that the Republic of Congo still has a poor human rights record, that security forces killed civilians in the southern “Pool” region, [and] that the government committed various human rights abuses in the same region

And citing a 2003 State Department report in multiple footnotes, Judge Clay explains:

FN5 – “The Government’s human rights record remained poor.”

FN6 – “There were no reports of political killings; however, there were press reports that government forces killed civilians in the Pool region prior to the March signing of the Peace Accord between the Government and anti-government Ninja rebels.”

FN7- “Until March, there were reports that undisciplined government forces committed abuses such as summary executions, rape, looting, and other violent acts, primarily in the Pool region.”

FN8- “The Constitution prohibits arbitrary arrest and detention; however, security forces frequently committed such acts.”

The 2006 opinion affirmed a grant of habeas corpus to a convicted murderer. Richard Joseph was convicted of the 1990 murder of 16-year-old son, Ryan Young. The case involved a “black ninja mask”, evidence found with the dead body and linked to the defendant.

RICHARD JOSEPH, Petitioner-Appellant/Cross-Appellee,
RALPH COYLE, Warden, Respondent-Appellee/Cross-Appellant.

Nos. 05-3111 / 05-3113
469 F.3d 441

Decided November 9, 2006, before Circuit Judges Moore, Cole and Clay. The opinion by Judge Karen Moore begins:

An Ohio jury convicted Richard Joseph of aggravated murder. The jury also convicted Joseph of a single capital specification, which made him eligible for the death penalty, and, after a mitigation hearing, recommended a sentence of death. The trial court accepted this recommendation and imposed the death penalty, which was upheld on direct and state post-conviction review. Asserting twenty grounds for relief, Joseph petitioned the district court for a writ of habeas corpus. The district court granted the writ on four grounds relating to a fundamental error in the capital specification: although the specification required Joseph to be the principal offender in the commission of the aggravated murder, everyone at trial proceeded under the mistaken view that the specification required Joseph to be the principal offender in the commission of the kidnapping. The district court denied Joseph’s remaining claims. Joseph appeals the denial of six of his sixteen unsuccessful claims, while the state cross-appeals the grant of the writ.

For the reasons discussed below, we AFFIRM the grant of a writ of habeas corpus.

Then quoting facts from from the Ohio Supreme Court’s decision:

Ryan’s body was discovered in a shallow grave. The body was wrapped in Visqueen, the jagged edge of which was matched positively with Visqueen recovered from the job site at Indian Lake where [Joseph] had been working. Under the body, a black ninja mask was recovered. An autopsy revealed that Ryan had superficial lacerations in the area of the throat. Further, Ryan had been stabbed two times in the back – one to the right flank and one at the base of the skull.

And about the materiality and prejudice of suppressed evidence:

All five items of suppressed evidence that were favorable to Joseph were favorable in the sense that they would have impeached Forest. And viewed collectively, these items would have strongly impeached Forest, who was clearly a crucial trial witness for the prosecution. FN22

FN22 Forest testified that Joseph and Bulerin had access to Visqueen (the material in which Young’s body was found) at the sand and gravel lot, that Joseph’s and Bulerin’s demeanors were unusual the morning after the kidnapping, that Bulerin changed the tires on Forest’s car the morning after the murder, that a knife was kept in Forest’s car and was in the car on the day of the murder, that Joseph and Bulerin kept a shovel in Forest’s car, and that Joseph owned a black ninja mask like the one discovered near Young’s body

By affirming the grant of habeas petition, the defendant’s death sentence was set aside. Subsequently, writ of certiorari was denied (549 U.S. 1280), and on subsequent state court appeals the remaining life sentence (parole after 20) was affirmed (2008 Ohio 1138), but later remanded in 2010 only for the limited purposes of allowing motion to waive some court costs (125 Ohio St. 3d 76).

Two articles in the Lima Press are noteworthy – the parents of the victim and friends filled the courtroom and the parent were outraged at what they thought was an injustice to not execute their son’s killer:

“You were indicted, convicted by a jury of your peers and sent to death row where you should have died many years ago,” Sharon Young said Wednesday during the resentencing of Richard Joseph for the 1990 murder of their 16-year-old son, Ryan Young. She then criticized the law and justice system for his second chance. “The justice system has failed us and given you, a convicted murderer, another chance in life. Where does the system give Ryan another chance? You did not and neither did the justice system,” she said as she held her husband’s arm while both of them choked back tears. Joseph stared downward at the table in front of him …

In this 2006 decision, another murder conviction habeas petition involving yet another “ninja-type” motorcycle.

John F. Zaffino, Petitioner
Khelleh Konteh, Warden, Respondent

Case No. 5:05CV1485

Decided, July 27, 2006, the opinion by Magistrate Judge David Perelman begins:

In this action in habeas corpus, 28 U.S.C. § 2254, petitioner challenges the constitutionality of his March 13, 2003 conviction pursuant to a jury trial of one count of aggravated murder with a firearm specification, upon which he is currently serving a sentence of life imprisonment for aggravated murder and three years incarceration on the firearm specification, to be served consecutively.

Petitioner’s conviction arose consequent to a love triangle, which culminated with Mr. Jeff Zack being fatally shot in the face.

The decision then quotes from the fact findings of the state appellate court review:

The key question for the jury in this case was the identity of the person who rode the motorcycle towards the victim’s automobile and fired the shot, killing him. The state sought to establish that Appellant was the assailant in several ways. First, they established that the motorcycle they were able to recover from Appellant’s ex-wife was, in fact, the motorcycle purchased by Appellant just before the murder.

Next, they produced five individuals who witnessed the motorcycle and rider on the day of the murder. The witnesses all described the motorcycle as being dark, or green and black with some white. According to these witnesses, the motorcycle was consistent with the motorcycle that was admitted into evidence, which was a “ninja-type” motorcycle. The rider was described as wearing dark clothing and a dark helmet with a face-shield.

This decision was adopted (petition dismissed) by US District Judge Peter Economius on August 15, 2006.

Recall other NinjaLaw cases about ninja motorcycles and ninja murderers.