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Buenrostro v. Felker

October 31, 2005

ABRAHAM ADAM BUENROSTRO, PETITIONER,
v.
T. FELKER, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Claudia Wilken United States District Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Abraham Adam Buenrostro is a prisoner of the State of California who is incarcerated at the High Desert State Prison at Susanville, California. He brings this petition pro se seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent was ordered to show cause why the writ should not be granted and has filed an answer supported by a memorandum of points and authorities, the State trial record and the unpublished opinion of the California Court of Appeal. Petitioner had the opportunity to file a traverse, but did not do so.

Having considered all of the papers filed by the parties and the State court trial record, the Court DENIES the petition for writ of habeas corpus.

BACKGROUND

On October 19, 1999, at about 2:30 a.m., Fortunado Noyola, Luis Rodriguez and a third man stopped to purchase gas at a 7-Eleven convenience store at the intersection of Mayfair Drive and Sanborn Road in Salinas, California. RT 259. The three men, all migrant farm workers, were riding to work in Mr. Noyola's car. RT 260. Mr. Noyola went into the store to purchase gas, but the clerk told him that the store was closed. RT 261.

Mr. Noyola went back to his car; two young men approached him. RT 261. One man had a gun. RT 261. They asked Mr. Noyola for money and he gave them $90 to $100 in cash. RT 262. The man holding the gun demanded more money. RT 262. Mr. Noyola gave the man three uncashed checks. RT 262. The man asked one of the clerks to cash the check, but the clerk told him that 7-Eleven did not cash checks. RT 262-63.

The man with the gun then approached Mr. Rodriguez and told him to take out his money. RT 264. The man without the gun told Mr. Rodriguez to give him the money. RT 264. Mr. Rodriguez said that he had no money. RT 264. The man with the gun shot Mr. Rodriguez in the left side of his chest. RT 265, 357-58. Mr. Noyola was shot twice in the back. RT 265-67. And the two young men fled. RT 285.

Mr. Rodriguez died before the police and emergency medical personnel arrived. RT 356-57. Mr. Noyola went to the hospital, where he was treated for two bullet wounds. RT 266.

On February 7, 2000, Petitioner was charged by information filed in the Superior Court of Monterey County with the murder and attempted robbery of Mr. Rodriguez and the attempted murder and robbery of Mr. Noyola. Petitioner plead not guilty.

As described in the unpublished opinion of the Sixth Appellate District of the California Court of Appeal in People v. Buenrostro, H022870 (Dec. 9, 2002), before his trial:

[Petitioner] brought a motion in limine seeking to admit the testimony of Ernesto Gonzalez regarding statements made to him by "Animal" and "Drifter" in support of the defense theory of third party culpability. During the hearing on the motion, Gonzalez testified to certain exchanges he had with other inmates while in jail. He stated that Marcos Perez told him that "Drifter" did the shooting at the 7-Eleven on Mayfair Street. Gonzalez testified that "Animal" told him that Animal's cousin had said that "Drifter and them other guys had done the shooting" and that Animal's girlfriend had said the same thing. He conceded that "Animal" never told him that "Drifter had done anything in particular with regard to this robbery-shooting." Gonzalez also conceded that neither Perez nor "Animal" ever said that he was present at the crimes.

Gonzalez further testified that as he passed "Drifter" in jail, he asked, "'What happened?'" or "'What's up?'" According to Gonzalez, "Drifter" made a hand gesture as if he were pulling the trigger of a gun. Gonzalez stated that he assumed that "Drifter" "was telling [him] what everybody else had been telling [him] already." Gonzalez was not aware of the reason Drifter was in jail or that he had just been arrested for carrying a concealed weapon. Gonzalez admitted that he never had a direct conversation with "Drifter" and explained "Drifter" was "just going by through the rotunda at the time" and the officers "wouldn't let me talk with him."

At the hearing, Lisa Sobalvarro, an investigator with the Monterey County Public Defender's Office, testified that they knew that Aaron Contreras was called "Drifter" and Gonzalez had identified the photograph of Contreras as being "Drifter." She testified regarding her unsuccessful efforts to locate Contreras.

The court denied the motion to introduce the evidence. It explained in part: "The statements were clearly hearsay, and not of any personal knowledge of the people speaking. ...


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