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Roberts v. Howton

United States District Court, D. Oregon

April 9, 2014

LISA MARIE ROBERTS, Petitioner,
v.
NANCY HOWTON, Respondent

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[Copyrighted Material Omitted]

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For Petitioner: STEVEN T. WAX, Federal Public Defender, ALISON M. CLARK, Assistant Federal Public Defender, Portland, Oregon.

For Respondent: FREDERICK M. BOSS, Deputy Attorney General, ANDREW HALLMAN, SAMUEL A. KUBERNICK, Assistant Attorneys General, Department of Justice, Salem, Oregon.

OPINION

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OPINION AND ORDER

Malcolm F. Marsh, United States District Judge.

Petitioner, an inmate at Coffee Creek Correctional Facility, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons set forth below, petitioner's Fourth Amended Petition (#173) is granted in part, and denied in part.

BACKGROUND

On May 25, 2002, at approximately 2:55 p.m., the naked body of Jerri Lee Williams was found at Kelley Point Park in Portland, Oregon. The body was located in a downward sloping area, 15 feet from the curb of the parking lot, in some foliage and bushes. See Pet.'s Supp. Exh. to Reply (#230). According to the investigating officers, the body was visible from the parking lot and from the driver's side of a vehicle in the parking lot (later identified as belong to Adam and Anne Cross). Response in Opposition to Emergency Motion for Release (#111) (hereinafter " Response" ), Att. I to Exh. B at 95 & 312. There was no evidence indicating that the body had been dragged. A pillowcase was found near the body. Former Deputy Medical Examiner Duane Bigoni estimated Williams' time of death to be 11:40 a.m. Response, Exh. B at 5. Deputy Medical

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Examiner Cliff Nelson performed an autopsy and determined that Williams died from manual strangulation. Dr. Nelson noted contusions on Williams' right tricep and right inner thigh.

On August 16, 2002, petitioner was arrested for the murder of Williams. Petitioner was indicted on charges of intentional Murder (O.R.S. 163.115(1) (a)), Assault in the Fourth Degree, Harassment (two counts), and Menacing. Based upon a determination that petitioner was unable to aid and assist in her defense, petitioner was committed to the Oregon State Hospital (OSH) for treatment and evaluation. Approximately six months later, the trial court held an aid and assist hearing, and concluded petitioner was competent to proceed to trial.

Attorneys William Brennan and Patrick Sweeney were appointed to represent petitioner in 2004. On December 1, 2004, petitioner pled guilty to Manslaughter in the First Degree. At the plea hearing, petitioner admitted that she caused the death of Williams by strangulation. Petitioner was sentenced to a 180-month term of imprisonment, and three years post-prison supervision. The remaining counts in the indictment were dismissed.

Petitioner did not file a direct appeal. Almost two years later, petitioner filed a petition for state post-conviction relief. The trial court denied the petition, the Oregon Court of Appeals summarily affirmed, and the Oregon Supreme Court denied review.[1]

I. THE PROSECUTION'S CASE

The police believed that petitioner killed Williams at home, placed her body in a sleeping bag (with a pillow case over her head), transported her body in a pickup truck, and dumped the body at Kelley Point Park. See Response, Att. I to Exh. B at 28; Transcript Designation (#17), TR Vol. 4 at 290-94; Motion for Immediate Release (#156) (hereinafter " Motion for Release" ), Exh. L, TR at 223-24. The prosecution's case was premised upon circumstantial evidence, including a volatile " love triangle" between petitioner, Williams, and Terry Collins; petitioner's history of domestic violence; incriminating statements made by petitioner; and witness statements and cell phone tower evidence purporting to pinpoint petitioner near Kelley Point Park the morning of the murder. See e.g. TR Vol. 4 at 313-321 & 333-35. Additionally, there was DNA evidence linking petitioner to the crime scene.

A. "Love Triangle" & History of Domestic Violence

Petitioner was in a romantic relationship with Terry Collins for approximately eight years. They lived together as a couple. During the course of their relationship, Collins introduced petitioner to Williams. Williams, also known as " Foxy," had a history of prostitution and drug use. Petitioner and Williams became romantically involved, creating conflict between the three women. Collins and petitioner argued about Williams and, during one such argument, petitioner choked Collins to unconsciousness by wrapping her arm around Collins' neck (characterized by the police as a carotid artery hold). Response,

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Att. I to Exh. B at 223, 234-35 & 246. Collins' daughter, Jennifer Locke, also recalled a time when petitioner choked her mother to unconsciousness. Id. at 247.

On September 2, 2001, Collins punched and grabbed Williams around the neck at a restaurant. Id. at 174, 228-29 & 547-54. During the assault, Collins allegedly screamed " Bitch, I'll kill you if you don't leave my wife alone." Id. at 551 & 553. Collins was arrested and charged with Assault IV and Menacing. Id. at 550 & 554-55. The following morning, petitioner lured Williams into her truck, drove her to a different location, and repeatedly punched Williams in the face because petitioner was angry that Collins had been arrested. Id. at 174, 229, 234, 427-28 & 564; TR Vol. 4 at 312-18. According to petitioner, this is the only time she was violent toward Williams. Id. at 174, 275 & 454. Several acquaintances, however, told police otherwise.

Curtis Fields, with whom petitioner and Williams once lived, reported to police that he had noticed " choke marks" on Williams' neck, and had seen petitioner slam Williams against the wall and hit her on multiple occasions. Id. at 189 & 214. According to Kathleen Loop and Dennis Plather, Williams told them that fights with petitioner often became physical. Id. at 187 & 191; Motion for Release, Exh. U at 22.

Petitioner's feelings for Collins continued after their breakup, and petitioner became frustrated with Collins' involvement with other women (including " Naomi" and " Jueles" ). See Response, Att. I to Exh. B at 198, 214, 930-38, 946-47, 964, 971-80, 1078, 1095 & 1104. Petitioner's frustration is reflected in her journal entries. Id. at 467-68 & 518-22; see also Exh. B at 44. Approximately one week before Williams' murder, Collins told petitioner that she was going to Reno to visit her girlfriend Jueles. Response, Att. I to Exh. B at 198 & 1095. Collins agreed to allow Locke to stay with petitioner provided Williams was not present. Id. at 172, 178, 198, 241 & 257. Williams was angry about having to leave for the weekend. Id. at 176 & 345-46.

On May 24, 2002, the day before the murder, petitioner drove Collins to the airport in Collins' red Mazda pickup. Petitioner kept the truck for her use while Collins was out of town. Id. at 173, 198, 346 & 409. Before going to the airport, they stopped at the Farmhouse Restaurant. According to Collins, petitioner was quiet and appeared upset. Williams repeatedly called petitioner because she was angry that petitioner was with Collins. Id. at 176, 198, 241, 346-47 & 421. At the end of one such call, petitioner stated that both Collins and Williams were " bitches." Id. at 198. However, according to petitioner, she and Williams made love that evening and/or the following morning. Id. at 177, 275 & 426-27.

On Saturday May 25, 2002, the day Williams was murdered, petitioner picked up Locke for the weekend. Id. at 173, 177 & 242. The following day, the police came to petitioner's home and advised her that Williams was dead. Id. at 171-72 & 443. Petitioner did not inquire into the manner of Williams' death and, upon being informed that it was a homicide, never inquired into how Williams was killed or where she was found. Id. at 173, 414 & 456. According to Locke, after the police left, petitioner called a friend and asked for a gun and two bullets. Id. at 203; see also Att. I to Exh. B at 137-39 & 462.

On May 28, 2002, petitioner picked up Collins from the airport. Petitioner did not tell Collins that Williams was dead, and asked Locke and Julia Patterson (a friend of Collins) not to mention it to Collins. Id. at 200-01, 203 & 205; Motion for

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Release, Exh. U at 28. On that same day, petitioner told Ed Mills (a friend of Williams) that Williams had been strangled and found nude in a park. Response, Att. I to Exh. B at 206. Police found this suspicious because they believed the manner in which Williams was killed had not been made public.[2] Response, Exh. B at 34-35.

B. Petitioner's Statements Before and After the Murder

1. Threats to Harm Williams

According to Collins, petitioner stated on several occasions that she would " take care" of Williams, and put her " six feet under." Response, Att. I to Exh. B at 197, 229-30 & 1104. Petitioner allegedly made this type of statement just days before Williams' death. Id. at 197-98. Similarly, Locke recalled a time when her mother and petitioner were talking about the need to keep Williams away from Locke. During that conversation, petitioner allegedly stated that she would take care of the problem, even if she had to strangle her. Id. at 248-49.

Pam Larkin, a friend of Collins, reported to police that she overheard petitioner say on two occasions that she would " take care of Foxy." Id. at 140. Larkin recounted a conversation at the Farmhouse Restaurant approximately one month before the murder. According to Larkin, petitioner looked at her from across the table and said " you will help Terry help me, if I do something stupid," and then flipped out a knife. Id. at 141-42.

2. Prior Kidnapping Scheme

Curtis Fields and his son-in-law, Daniel Miller, told police that on at least five occasions, petitioner asked for help to find some guys to abduct someone. Id. at 214-16 & 343; Motion for Release, Exh. L, TR at 84-85. Petitioner wanted the person to be taken to a secluded area so that she could do bodily harm to her. Response, Att. I to Exh. B at 343. Miller stated that petitioner did not identify the person to be kidnapped, but indicated that she wanted the person to be tied up and blindfolded, put in the trunk of a car, driven to somewhere off of Marine Drive, and left with only her socks on. Id. at 216. Fields identified the person to be kidnapped as " Naomi" (who was living with Collins at the time). Id. at 214. Miller recalled that the last conversation was in April, 2002. Id. at 216.

3. Solicitation to Kill

While confined at OSH for the aid-and-assist evaluation, petitioner became acquainted with Sarah Ater (a patient incarcerated for solicitation and conspiracy to commit murder and arson). Response, Att. G to Exh. B, TR at 33; see also Att. I to Exh. B at 617-21. Ater testified that petitioner talked to her on two occasions seeking help to find someone to kill a man. Response, Att. G to Exh. B, TR at 37-48. According to Ater, petitioner told her that she was innocent, that she was fearful of going to prison, and that a man who knew information about her relationship with Williams needed to die. Id. at 37-48 & 61; and Att. I to Exh. B at 619-20.

Ater explained that petitioner was " very concerned about making sure that this person, a man, would not be around to . . . testify or provide any other information." Response, Att. G. to Exh. B, TR at 39.

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Petitioner identified the man to be killed as Williams' boyfriend, and said that he killed Williams. Response, Att. I to Exh. B at 620. After her release from OSH, petitioner wrote a letter to Ater stating: " [S]till looking for that help, your crazy friend, Lisa." Response, Att. G. to Exh. B (#117), TR at 70, and Att. I to Exh. B at 622.

4. Admission to Marrissa Johnson

While confined at the Multnomah County Detention Center, petitioner allegedly made statements to fellow inmate Marrissa Johnson. According to Johnson, petitioner told her that she had accidentally strangled Williams during an argument (using a cloth or cord), and took the body in a truck to a park. Response, Att. I to Exh. B at 285; Motion for Release, Exh. L, TR at 133-34. Johnson admitted to police that she had seen television coverage of the murder, but stated that the television was quickly turned off.[3] Response, Att. I to Exh. B at 285 & 305; Motion for Release, Exh. L, TR at 132.

C. Petitioner's Travel Route

Key to the prosecution's case was the placement of petitioner near Kelley Point Park (west of Interstate 205) at the approximate time of Williams' death. The prosecution found petitioner's statements regarding her route of travel, and her assertion that the closest she came to Kelley Point Park was I-205 and Marine Drive, to be contrary to physical data, scientific testing, and witness accounts. Response, Exh. B at 15.

1. The Starting Point

Petitioner and Williams lived at 7865 N.E. 65th Avenue, Portland, Oregon. At approximately 8:00 a.m. on May 25, 2002, Williams called her friend Kathleen Loop to say that she was coming to see her at the Madison Suites Motel (located at 3620 N.E. 82nd Avenue). Response, Att. I to Exh. B at 172, 186 & 244. Williams told Loop she first was going to the Fremont McDonald's (located at 3330 N.E. 82nd Avenue). Motion for Release, Exh. U at 22. According to petitioner, sometime between 9:00 and 9:30 a.m., she and Williams drove to 82nd and Fremont, where she dropped Williams off near the McDonald's. Response, Att. I to Exh. B at 172, 177, 254, 411 & 437-38.

The prosecution was suspicious that petitioner provided seemingly inconsistent statements regarding Williams' plans for the weekend. Petitioner originally stated that Williams was going to get something to eat, and then walk two blocks to the Madison Suites to meet Dennis Plather (with whom she planned to go camping). Id. at 172. Petitioner later told police that the camping trip had been cancelled, and Williams intended to spend the weekend at the Madison Suites with Ed Mills (a handyman at the motel, and a friend with whom Williams once lived). Id. at 172, 177, 185-86, 241-42, 255-57, 410-11, 422-24, 428 & 460.

The prosecution also was suspicious that petitioner provided inconsistent statements regarding whet she saw Williams doing after petitioner dropped her off on 82nd Avenue. Petitioner originally stated to police that she last saw Williams walking toward the Madison Suites. Id. at 173; Pet.'s Reply Memo. in Support, Exh. 20 at 1. However, petitioner later stated that she saw Williams approach the front door of the McDonald's Restaurant. Response,

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Att. I to Exh. B at 177, 258 & 430. According to Kathleen Loop and Ed Mills, Williams never showed up at the Madison Suites. Id. at 244-45.

2. Path of Travel to Locke's Home

On at least two occasions, petitioner explained to police her travel route from 82nd and Fremont to Locke's home at 18451 N.E. Multnomah (estimating that she arrived in approximately 45 minutes). Id. at 262 & 438. On August 6, 2002, petitioner explained her route from 82nd to Locke's home as follows: (1) she " hit" I-205, proceeded northbound and missed the I-84 exit to The Dalles; (2) got off at Marine Drive; and (3) went straight up a road between some warehouses to Sandy Boulevard, " hit" 181st Avenue, and proceeded to Locke's house. Id. at 261-64. In describing her route, petitioner told police she did not know the location of Kelley Point Park. Id. at 268. When advised of its location, she stated that the closest she came to the park would have been at I-205 and Marine Drive. Id. at 270.

On August 16, 2002, Detective Austria provided petitioner a Thomas Guide to aid in their discussion. Id. at 431; Pet.'s Exhs. Motion for Release, Exh. L, TR at 120-22. With the aid of a map, petitioner recited her path of travel as follows: (1) she headed north on 82nd and took Sandy Boulevard to I-205 heading south; (2) missed the I-84 exit to The Dalles; (3) turned around at Stark and Washington, and proceeded north on I-205; (4) missed The Dalles exit again; (5) continued north on I-205 to either Airport Way or Marine Drive, got lost in some parking lots, and took a shortcut to Marine Drive heading east; and (6) took a numbered street she couldn't remember, passed by some warehouses and house boats, eventually hit 181st and proceeded to Locke's house. Response, Att. I to Exh. B at 432-37; Motion for Release, Exh. L, TR at 120-22. Petitioner again stated that the closest she came to Kelley Point Park would have been I-205 and Marine Drive. Response, Exh. B at 13 & 15; Att. I to Exh. B at 449.

In an attempt to trace petitioner's path of travel, the prosecution obtained her telephone records. The call detail records indicate that on the morning of the murder, petitioner called Locke at 9:38 a.m.; Locke called petitioner at 10:27:19 a.m.; and petitioner made a second phone call to Locke at 10:27:59 a.m. Response, Att. I to Exh. B at 759. Of particular interest to the police was petitioner's second call to Locke which connected to a cell phone tower located at 2001 Kotobuki Way, Vancouver, Washington (approximately three miles from Kelley Point Park). Id. at 19, 808-810 & 813; & Exh. B at 13. Assuming that the closest and/or strongest cell tower would pick up petitioner's call, the prosecution believed that this demonstrated that petitioner was at or near Kelley Point Park at 10:27:59 a.m., and that she had lied when she stated that the closest she came to Kelley Point Park was I-205 and Marine Drive. See Response, Exh. B at 22; Motion for Release, Exh. L, TR. at 96- 106, 184-85 & 219.

The prosecution also considered petitioner's proximity to Kelley Point Park (and west of I-205) to be supported by a statement from Julia Patterson. Patterson, a friend of Collins, told police that she saw Collins' red pickup truck traveling eastbound on Marine Drive between N.E. 33rd and 122nd. Response, Att. I to Exh. B at 204. Thinking it odd that the truck was being driven while Collins was in Reno, Patterson immediately called Collins. Id. Telephone records show that this call was made at approximately 10:36 a.m., and routed initially to a cell phone tower

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located at 6455 N.E. Columbia Blvd. (west of I-205). Id. at 706, 743 & 746.

Petitioner provided police no explanation for Patterson's sighting of Collins' truck traveling eastbound on Marine Drive. Id. at 414. However, petitioner opined that it was not peculiar that her 10:27:59 a.m. telephone call to Locke was routed to the Kotobuki Way cell tower in Vancouver. Petitioner explained that it is " just like if [she] were at the armory [-] one side of the building it said Portland [and] you go to the other side and it comes in Vancouver." Id. at 459.

According to then Assistant District Attorney Rodney Underhill, an employee of Verison Wireless opined that petitioner's 10:27:59 a.m. telephone call had, in fact, been placed near Kelley Point Park. Michael Bethers, Special Agent in the Criminal Justice Division of the Oregon Department of Justice, agrees with this conclusion. Bethers opines that although " cell phone tower data cannot pinpoint a person's exact location, such data does provide useful, accurate information about a person's general whereabouts during a given time frame, as well as information about where a person was not likely located during a particular time period." Bethers Dec. (#216) at ¶ ¶ 5 & 11. Bethers concludes that petitioner's call detail records refute her assertion that she did not travel west of I-205:

Records received from Verizon . . . show that there were two significant calls on Petitioner's cell phone records on May 25, 2002 at approximately 10:27 am. There was an incoming call at 10:27:19 from Jennifer Locke to petitioner. Receiving this call, petitioner's phone connected with cell tower 106, located at 415 E. 13th St. in Vancouver, WA. Forty seconds later at 10:25:59, petitioner called Jennifer Locke. Petitioner's phone connected with cell tower 5, located at 2100 Kotobuki Way in Vancouver, WA. Cell tower 5 is about three miles from where Ms. Williams' body was discovered. Towers 5 and 106 are approximately 1.3 miles apart, with Tower 5 being east of Tower 106.[4] For Petitioner's statement that she was not west of I-205 on the day of Ms. Williams' murder to be accurate, the call to Locke would have had to bypass or " defeat" numerous other cell towers between petitioner's purported location at the time of the call and the Kotobuki Way and E. 13th St. towers. From my knowledge of cell phone systems, tower data, the number of cell tower sites available in the relevant geographic area, and what is well accepted in the field of [call detail records], it is not possible for a telephone call to bypass or " defeat" that many other towers.

Id. at ¶ 7 (record citations omitted, emphasis added).

3. Petitioner's Arrival

Petitioner estimated that she picked up Locke between 10:00 and 11:00 a.m. Response, Att. I to Exh. B at 177 & 262. This approximation is consistent with Locke's estimate that petitioner arrived 15 to 25 minutes after petitioner's last call to her.[5] Id. at 201 & 247.

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At 11:42 a.m., a three-second telephone call was made to Williams' cell phone, which connected to a cell tower located near petitioner's home. Response, Exh. B at 23-24 & Att. I to Exh. B at 21; but see Att. I to Exh. B at 695. The prosecution opined that this call coincided with Locke and petitioner's return to petitioner's home. Response, Exh. B at 24. Williams' cell phone was never found. Motion for Release, Exh. L, TR at 157.

D. DNA Evidence

Police collected evidence from the scene of the murder, including the pillowcase found near Williams' body. Response, Att. B to Exh. B at 3. Additional evidence was collected in a postmortem examination of Williams, including vaginal swabs, breast swabs, and fingernail clippings. Response, Att. I to Exh. B at 476-79. The evidence was submitted to the Oregon Department of State Police Forensic Laboratory. Sperm was detected on the vaginal swabs, and the evidence was forwarded to the State Police Forensic Laboratory DNA Unit for analysis. Id. at 476-79. On July 22, 2002, a DNA sample from the spermatozoa was searched against the Oregon State Police Forensic DNA database, but no match was found. Response, Att. B to Exh. B at 131-34.

On August 7, 2002, Forensic Scientist Mary Krings issued a report, which included the following findings:

1. DNA from more than one person was detected on both the sperm fraction of the vaginal swabs (Exhibit 6.4), and the breast swab (Exhibit 6.8). The major profile is consistent with coming from Jerri Williams. Ed Mills, Daniel Miller, Curtis Fields, [and] Lisa Roberts . . . are all excluded as contributors to the minor profiles(s). The minor profile(s) has been compared to profiles stored in the Oregon State Police databases. No matches were found at this time; however, the minor profile(s) is below the threshold for entry into the database or for making a more conclusive determination.
2. DNA from more than one person was detected on the right hand fingernails (Exhibit 6.9). The female DNA foreign to Jerri Williams is consistent with coming from Lisa Roberts. The estimated frequency of occurrence of an unrelated individual in a random population exhibiting this STR profile is
1 in 459 million Caucasians
1 in 4.49 billion in African Americans
1 in 4.45 billion in Hispanics
DNA from a third individual is also present at levels too low to make a conclusive determination.
3. No DNA foreign to Jerri Williams was detected on the left hand fingernails (Exhibit 6.10).
4. DNA from more than one person was detected on the pillowcase (Exhibits 7.2-7.4). Jerri Williams and Lisa Roberts cannot be excluded as major contributors of the DNA to this exhibit. The number of unrelated individuals in a random population who also could have been major contributors to this exhibit is
1 in 529,000 in Caucasians
1 in 5,760,000 in African Americans
1 in 1,180,000 in Hispanics.
Ed Mills, Daniel Miller, Curtis Fields . . . are all excluded as major contributors to the mixture. The minor profile(s) is below the threshold for entry into the database or for making a conclusive determination.

Response, Att. I to Exh. B at 497-98 (emphasis added).

Police opined that the spermatozoa in Williams' vagina could have been deposited 48 hours or more prior to her death, and believed that its presence was not necessarily

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suspect because Williams had a history of prostitution. Motion for Release, Exh. L, TR at 177-81 & 197-200. The presence of petitioner's DNA under Williams' fingernails could be explained by petitioner's statements to police that she and Williams had sex the night before her murder. Id. at 150.

However, police considered the presence of petitioner's DNA on the pillowcase highly suspect because there was no evidence that Williams took the pillowcase with her when she allegedly departed for 82nd Avenue. Therefore, its presence at the crime scene supported the prosecution's theory that petitioner had brought it with her when she transported Williams' dead body to the park. Id. at 182. However, Williams' DNA was not found on the sleeping bag seized from petitioner's home, or the fibers and swabs taken from the red Mazda pickup truck. See Response, Att. I to Exh. B at 34, 179, 492 & 499; Motion for Release, Exh. L, TR at 156-57.

II. NEW EVIDENCE

Petitioner offers new evidence in the instant proceeding to prove that she is actually innocent, and that Brian Tuckenberry (an Oregon Department of Corrections inmate) is the murderer. Petitioner asserts that this new evidence " debunk[s] the State's theory that Ms. Williams was killed before 10:27 a.m." and the State's reliance upon " a telephone call bouncing off a cell tower in Vancouver, Washington," to prove that petitioner was near Kelley Point Park. Pet.'s Reply Memo. in Support (#221) at 1-2. Petitioner's new evidence includes the following.

A. A Different Suspect

1. Discovery of Brian Tuckenberry's DNA

In April and May, 2013, additional DNA analysis was performed using new Y-STR technology.[6] On May 15, 2013, Forensic Scientist Maria Kaplan issued a report concluding that the Y-STR profiles obtained from Williams' vaginal swabs and left fingernail clippings were consistent with the Y-STR profiles of Brian Tuckenberry. Pet.'s Supp. Memo. (#130), Exh. A at 4-12. The Report provides:

1. The Y-STR profiles obtained from the sperm found in the vaginal swabs are a mixture of at least three individuals. The predominant contributor mixtures are both consistent with the Y-STR profiles of Brian Tuckenberry and Edward Mills."
2. The Y-STR profiles obtained from the right hand fingernail clippings are a mixture of multiple people. The major contributor matches the Y-STR profile of Edward Mills. Due to low levels of DNA, the minor contributors could not be identified.
3. The Y-STR profiles obtained from the left hand fingernail clippings are a mixture consistent with two contributors. The major contributor matches the Y-STR profile of Brian Tuckenberry. Due to low levels of DNA, the minor contributor could not be identified.

Id.

2. Brian Tuckenberry's Criminal History of Violence

Brian Tuckenberry currently is serving a 111-month sentence pursuant to his plea

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of no contest to charges of Sex Abuse in the First Degree and Burglary in the First Degree. Motion for Release, Exh. F. at 30-33. Tuckenberry committed those offenses on June 12, 2010, when he broke into the home of his former girlfriend, Rhiannon Miller. Id. at 57-61.

Miller had been in a long-term relationship with Tuckenberry, and worked for him as a prostitute. Id. at 34-36; Pet.'s Exhs. to Memo. in Support, Exh. 9 at ¶ 1. Miller told police that Tuckenberry raped her while her children slept in another room. Tuckenberry held her down by putting his forearm across her neck. Motion for Release, Exh. F at 59.

Previously, in April 2010, Miller had accused Tuckenberry of strangling her. Id. at 34-38 & 82-99. Miller told police that Tuckenberry punched her in the back of-the head, and then grabbed her throat with both hands strangling her until she thought she was going to die. Id. at 85; Pet.'s Exhs. to Memo. in Support, Exh. 9 at ¶ 1. In a recent declaration submitted to this court, Miller explains Tuckenberry's violent nature and his propensity to strangle women during sexual intercourse:

3. During the course of my relationship with Mr. Tuckenberry, he emotionally, physically, and sexually abused me on a routine basis. * * * These assaults happened so often during the course of our relationship that it became almost routine and Mr. Tuckenberry would not hesitate to assault me in front of others.
4. I remember the first time that I had sexual intercourse with Tuckenberry. During sex, Tuckenberry grabbed my throat and started choking me and said that " blonde girls like to be choked." * * * Sometimes when he choked me during sex he went too far and I thought I would pass out.
5. I recall one particular incident that happened around the time that we went to St. Louis. * * * Mr. Tuckenberry blew up with no warning, threw me down on the bed . . . [and] said to me: " I'll do you like I did the others."
6. Tuckenberry has threatened to kill me on many other occasions . . . .

Pet.'s Exhs. to Memo. in Support, Exh. 9 (emphasis added); see also Exh. 6 at 3.

Tuckenberry's criminal history includes allegations of violence against other women, including assault and promoting prostitution. See Motion for Release, Exhs. F & U at 2-5; Teesdale Dec. (#145), Att. A-L. Of particular relevance are the allegations of Andrea Bunch:

1. I first met Brian Tuckenberry in 2004 when he worked at the drive-through window at McDonald's at N.E. 82nd Avenue near Madison High School. We were together for seven years and he abused me the whole time. Three to four weeks after I met Tuckenberry he quit his job at McDonald's. I understand he worked there for about a year. * * * *
2. In 2004, Tuckenberry was selling drugs and picking up females and having them prostitute. * * * Tuckenberry would control the girls by giving them cocaine, alcohol, and hitting them.
* * * *
5. * * * Tuckenberry told me what he had done to others. He said he would hit the women and if they didn't fall he would kick them in the belly. He also told me that he had sent some of his victims to the ...

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