Samson Dubria v. G.A. Smith, Warden

224 F.3d 995, 2000 Daily Journal DAR 10033, 2000 Cal. Daily Op. Serv. 7546, 2000 U.S. App. LEXIS 22775
Court of Appeals for the Ninth Circuit·Decided September 11, 2000·No. 98-55914·Published·Cited by 115 cases

Opinions

Opinion by Judge MICHAEL DALY HAWKINS: Dissent by Judge PREGERSON

MICHAEL DALY HAWKINS, Circuit Judge:

Dr. Samson Dubria (“Dubria”), a California state prisoner, appeals the district court’s denial of his federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was heard originally before a three-judge panel of this court. We accepted the case for en banc review and now affirm the district court. Our jurisdiction is pursuant to 28 U.S.C. § 1291.

BACKGROUND

Dubria was found guilty following a jury trial of first degree murder, rape by the use of drugs, and administering a drug in order to enable and assist himself to commit a felony. Dubria was given a mandatory sentence of life in prison without the possibility of parole. Following the denial of his consolidated direct and collateral appeals in state court, Dubria sought habe-as relief in district court.

The relevant events began in 1990 when Dubria became friends with Jennifer Klap-per (“Klapper”) while the two were coworkers at an Ohio hospital. Their rela[998]*998tionship was not romantic. Klapper had stated that she was not physically attracted to Dubria and, at the time of her death, she was romantically involved with another man with whom she was discussing marriage. In the spring of 1991, Dubria invited Klapper to attend his class reunion in California. Klapper was a television and movie fan and did not have the financial means to take a trip to California on her own. She also expressed reservations about the invitation. She told a friend that she felt uncomfortable about going on the trip because she did not know what Dubria expected from her. She also told her boyfriend that she did not want to be away from him. Klapper’s sister overheard a telephone conversation in which Klapper told Dubria that their relationship was platonic and that she had a boyfriend. Further, she told Dubria that if he expected to have physical relations while on the trip, she would have to cancel her plans to go.

Dubria flew to California alone and in advance of Klapper and then picked her up at the airport several days later. The pan-spent the next few days touring Southern California, spending their evenings at the home of Dubria’s parents and sleeping in separate rooms. On August 15,1991, after watching a taping of the Johnny Carson Show, they planned on camping overnight at the San Elijo State Beach Campground between Los Angeles and San Diego. Instead of camping out, the pair checked into the Allstar Inn in Carlsbad, California.

At about 8:09 a.m., Carlsbad police responded to a 911 call at the Allstar Inn. Klapper was lying unconscious on the bed closest to the door. She had no pulse and was not breathing. Dubria and a police officer administered CPR. Firefighters and paramedics arrived shortly thereafter and were able to restore some electrical activity in Klapper’s heart, but not a normal beat. Neither the police nor any of the emergency personnel smelled a chemical odor in the room. Klapper was immediately transferred to a local hospital where further attempts to revive her were unavailing. Emergency room physicians pronounced Klapper dead at 3:52 a.m., but were unable to determine a cause of death.

Several hours after her death, Klapper’s body was examined by a coroner’s investigator, who noticed that Klapper was missing an earring in her left ear, and the lycra pants she was wearing were on inside out. The investigator also noticed scratches on her face, including a half-moon scratch on her left cheek. The investigator examined the room at the Alistar Inn and in the trash can found a beer can, a carton of fuzzy navel mixed drink, and a styrofoam cup containing a yellowish liquid. None of the items had any odor except that of alcohol, and they were not preserved.

Dubria willingly spoke with Carlsbad police officers three times during the early morning of August 16, relating essentially the same story each time: he and Klapper had planned on staying at a campsite that night and when their plans to stay at the campsite fell through, they decided to get a motel room. They arrived at the Inn at about 11:30 p.m. He drank a beer and a mixed drink and Klapper had a few sips of the mixed drink. Klapper moved over on the bed she was lying on and signaled for Dubria to join her. He put his arm around her and they cuddled in the bed. They talked, kissed, and eventually had sex. He stated that, before they had intercourse, he asked her if she was using any birth control and she told him that she was taking birth control pills. After they had intercourse, Klapper went to the bathroom, then Dubria went to the bathroom, and they went to sleep in the same bed.

Dubria stated that, after Klapper fell asleep, she tossed and turned. At about 3:00 a.m., he awoke to go to the bathroom. While in the bathroom, he heard a “thud” and a moan and, when he returned, he found Klapper on the floor. She was not breathing and had no pulse. He administered CPR for about five minutes. He then panicked and, instead of calling 911 from the room, he ran out of the room for help. The person working in the motel office told him to call 911 from his room. [999]*999He ran back to the room, found himself locked out, ran back to the motel office, got a spare key, and ran back to the room to call 911. The police arrived a few minutes later. Dubria, who had been with Klapper almost continuously that day and night, stated that he had no idea why she died.

After Dubria returned to the medical facility where he was working in New Jersey, an autopsy was performed on Klap-per’s body. The examiner, forensic pathologist Dr. Leena Jariwala, found some cuts and abrasions on Klapper’s right eyelid, her right chin, her left cheek, and the tip of her nose. Dr. Jariwala concluded that these injuries were inflicted before Klap-per’s heart stopped beating. Dr. Jariwala and the emergency personnel also concluded that these injuries were inconsistent with the efforts of emergency personnel to revive her on the night of her death. Dr. Jariwala’s examination also revealed that Klapper had sexual intercourse relatively close to the time of her death. After completing the autopsy, Dr. Jariwala could find no cause of death.

Toxicological tests were performed and the only anomalous result was a heightened level of chloroform in Klapper’s blood, liver tissue, and gastric organs. Dr. Jariwala concluded that the cause of death was chloroform intoxication.

On October 23, 1991, Carlsbad detectives visited Dubria at his New Jersey home. They interviewed him at a nearby office. The officers told Dubria that they believed he had accidently murdered Klap-per when he administered chloroform in order to rape her. Dubria stuck to his story that he had no idea how Klapper had died and specifically denied trying to rape her or playing any role in her death. The officers did not arrest Dubria that day but later charged him with Klapper’s rape and murder.

At trial, Dr. Lucien Morris, a state expert with extensive knowledge of chloroform, explained that chloroform is an extremely potent and dangerous anesthetic.

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Samson Dubria v. G.A. Smith, Warden, 224 F.3d 995, 2000 Daily Journal DAR 10033, 2000 Cal. Daily Op. Serv. 7546, 2000 U.S. App. LEXIS 22775 (9th Cir. 2000).

224 F.3d 995 (Samson Dubria v. G.A. Smith, Warden) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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