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LEE v. IARIA

November 2, 2005.

JESSE TERENCE LEE, Petitioner,
v.
VINCENT J. IARIA, Chief Probation Officer; BILL LOCKYER, Attorney General of the State of California, Respondents.



The opinion of the court was delivered by: RUBEN BROOKS, Magistrate Judge

REPORT AND RECOMMENDATION RE: DENIAL OF SECOND AMENDED PETITION FOR A WRIT OF HABEAS CORPUS AND ORDERING RESPONDENT (S) TO FILE DECLARATION [DOC. NO. 8]
Petitioner Jesse Terence Lee, an individual proceeding pro se, filed a Second Amended Petition for Writ of Habeas Corpus [doc. no. 8] on February 28, 2005. Petitioner alleges two grounds for relief: (1) He was denied his right to put on a defense, under the Sixth and Fourteenth Amendments, when the trial court excluded a witness who alleged excessive force during his arrest by the same deputy who arrested Lee; and (2) he was denied his right to confront witnesses against him, under the Sixth and Fourteenth Amendments, when the trial court limited cross-examination of Deputy Stebbing on prior complaints of excessive force. (Second Am. Pet. 6-7.) On April 22, 2005, Respondent*fn1 filed an Answer [doc. no. 11] to Lee's Second Amended Petition. Petitioner filed his Traverse [doc. no. 14] on May 24, 2005.

After reviewing the Second Amended Petition, Respondent's Answer, the Lodgments, and the Traverse, this Court finds that Lee is not entitled to the relief requested and recommends that his Second Amended Petition for a Writ of Habeas Corpus be DENIED for the reasons outlined below.

  I. FACTUAL BACKGROUND

  A. According to the Prosecution

  On the evening of October 30, 2001, San Diego County Deputy Sheriff Robert Stebbing stopped Petitioner's vehicle because he had a taillight out. (Lodgment No. 2, Rep.'s Trial Tr. vol. 3, at 493, 495, June 19, 2002.) Deputy Stebbing became suspicious when Lee did not immediately pull over. (Id. at 502-03.) Stebbing asked Petitioner why he did not immediately pull over, and Lee responded that he had been looking for a safe place to stop. (Id. at 513-14.) Lee did not have a valid driver's license in his possession. (Id. at 515.)

  Deputy Stebbing decided to "run [Petitioner's] D.M.V. status" to confirm his identity. (Id. at 522.) Lee refused to sit in the back of the patrol car while the deputy ran his check. (Id. at 522-24.) Deputy Stebbing attempted to force Petitioner into the backseat of the patrol car, placing Lee's right arm in a "wrist lock." (Id. at 525-26.) Petitioner resisted and demanded Stebbing release him because the deputy was hurting his shoulder. (Id. at 551.) At that point, Deputy Stebbing radioed for backup. (Id. at 535.)

  Pedro Alcazar, an employee at a restaurant in the shopping center where Lee stopped his car, saw Deputy Stebbing holding Lee's hands behind his back and Petitioner struggling to get away. (Lodgment No. 2, Rep.'s Trial Tr. vol. 4, at 768-70, 775-76, June 20, 2002.) Alcazar also saw Lee hit the deputy three times before running away. (Id. at 773-74.)

  Deputy Dan Settle responded to Deputy Stebbing's request for backup with his tracking dog named Urk. (Id. at 641, 645, 649-50.) The police helicopter circling overhead warned Petitioner he should surrender to the deputies to avoid being bitten by the police dog. (Id. at 657-58.) Urk tracked Lee's scent, found him, and bit him on the left forearm. (Id. at 665-66.) While Petitioner was struggling with the dog, Deputy Settle struck Lee in the abdominal area with a flashlight. (Id. at 671.) Deputy Schott, who also responded to Deputy Stebbing's call for backup, deployed five to ten rounds from a pepperball gun at Petitioner's upper torso. (Id. at 737, 747-48.) Lee continued to struggle with Urk on the ground. (Id. at 749.) Another responding officer, Deputy Foster, used his collapsible baton to strike Petitioner on the upper portion of his arms and back. (Lodgment No. 2, Rep.'s Trial Tr. vol. 6, at 927, 929, June 24, 2002.) Deputy Foster struck Lee several more times with the baton when he attempted to stand up. (Id. at 929-30.)

  Deputy Settle commanded Urk to let go of Petitioner's arm, and the dog complied. (Lodgment No. 2, Rep.'s Trial Tr. vol. 4, at 678.) After some additional struggling, Deputies Schott and Foster were able to handcuff Lee. (Id. at 751-52; Lodgment No. 2, Rep.'s Trial Tr. vol. 6, at 930-31.) Petitioner was taken to the hospital and treated for his injuries. (Lodgment No. 2, Rep.'s Trial Tr. vol. 4, at 683.)

  B. According to the Defense

  Lee testified that he did not immediately pull over when Deputy Stebbing turned on his overhead lights because there was a car next to him, and the road was dark. (Id. at 811-12.) Petitioner claims he told the deputy he had an identification card, but he was not able to readily find it. (Id. at 814-15.) Lee alleges Deputy Stebbing ordered him out of the car, then twisted Petitioner's arm behind his back, popping Lee's shoulder out of joint, even after Petitioner told the deputy he had a prior shoulder injury. (Id. at 816-18.) Deputy Stebbing also used pepper spray on Lee and swung a flashlight at him. (Id. 819-21.) Petitioner claims he ran to get away from what he perceived to be an assault and battery. (Id. at 823-24.) Lee also alleges he was already on the ground when the officers saw him and told the dog to "get him." (Id. at 832-33.)

  Petitioner painted a calmer picture of himself in this situation and at the hospital than the sheriff's deputies did. (See id. at 832-35; Lodgment No. 2, Rep.'s Trial Tr. vol. 6, at 962.) He also testified that he was interrogated by the officers before being medically treated. (Lodgment No. 2, Rep.'s Trial Tr. vol. 6, at 961, 968-76.) When Lee was finally released from the hospital, he was sent home to recover. (Id. at 975-76.) II. PROCEDURAL BACKGROUND

  The San Diego County District Attorney filed an information on November 2, 2001, charging Petitioner with resisting an executive officer, see Cal. Penal Code § 69 (West 1999); harm to or interference with a police animal, see id. § 600 (a); assault on a peace officer and emergency personnel, see Cal. Penal Code §§ 240, 241 (b) (West 1999 & Supp. 2005); and resisting an officer, see Cal. Penal Code § 148 (a) (1) (West 1999). (Lodgment No. 1, Clerk's Tr. vol. 1, at 1-3.) A preliminary hearing was held on November 16, 2001, and Lee pled not guilty to all charges. (Lodgment No. 2, Prelim. Examination Tr. at 56, Nov. 16, 2001.)

  On February 8, 2002, Petitioner filed a motion under California Evidence Code section 1043 to discover personnel records of Deputies Stebbing, Foster, Settle, and Schott. (Lodgment No. 1, Clerk's Tr. vol. 1, at 53-61.) The court granted the motion and ordered the prosecution to disclose the names of two people who had filed excessive force complaints against Deputies Stebbing and Settle. (Id. at 242.)

  Lee filed motions in limine on June 20, 2002, followed by amended motions in limine on June 21, 2002, to admit the testimony of Jesus Adrian Colin and Damarius Booker, the two individuals who previously filed excessive force complaints against Deputies Stebbing and Settle. (Id. at 91-97.) Jesus Colin had filed a complaint against Deputy Stebbing for using excessive force during Colin's arrest in August 2001. (Id. at 92, 95.) Damarius Booker was bitten by Deputy Settle's dog, Urk, on October 26, 2000. (Id. at 93, 97.) Petitioner argued Colin's and Booker's testimony should be admitted to prove a modus operandi and pattern of conduct of the officers involved in his arrest. (Lodgment No. 2, Rep.'s Trial Tr. vol. 5, at 852, 863-64, June 21, 2002.)

  The trial court granted Lee's motion to allow Booker to testify. (Id. at 866-68.) It denied his motion to allow Colin to testify because: (1) The motion was brought in an untimely manner; (2) the court was in mid-trial, and defense counsel was unsure when Colin could be made available because he was in custody; and (3) the only facts available — that Petitioner and Colin are both minorities, flashlights were wielded by Deputy Stebbing in both instances, and there was a pursuit in both cases — were too thin to use in assessing the probative value of the evidence. (Id. at 864-67.) The court also denied Lee's request to cross-examine Deputy Stebbing about Colin's excessive force complaint. (Id. at 865.)

  On June 27, 2002, a jury convicted Petitioner of resisting an executive officer, assault on a peace officer and emergency personnel, and resisting an officer. (Lodgment No. 2, Rep.'s Trial Tr. vol. 9, at 2106-07, June 27, 2002.) At sentencing, the court granted Lee's motion pursuant to California Penal Code section 17 (b) to reduce the conviction for violation of Penal Code section 69 (resisting an executive officer) to a misdemeanor. (Lodgment No. 2, Rep.'s Trial Tr. vol. 10, at 11, August 20, 2002.) The court suspended the imposition of sentence, placed Petitioner on informal, unsupervised probation for three years, a term that expired on August 20, 2005, and ordered Lee to complete sixty days of light-duty public service work. (Id.)

  Represented by counsel, Petitioner filed an appeal, claiming: (1) He was denied his Sixth and Fourteenth Amendment right to put on a defense when the trial court excluded testimony about a prior complaint of excessive force against Deputy Stebbing, and (2) he was denied his Sixth Amendment right to confront a witness against him when the trial court would not allow him to cross-examine Deputy Stebbing about a prior excessive force complaint. (Lodgment No. 3, Appellant's Opening Brief at 15, 23, People v. Lee, No. D040738 (Cal.Ct.App. Nov. 25, 2003).)

  The California Court of Appeal found Lee had waived his Sixth Amendment claims because he failed to timely object at trial on specific Sixth Amendment grounds. (Lodgment No. 6, People v. Lee, No. D040738, slip op. at 7-8, 14-15 n. 4 (Cal.Ct.App. Nov. 25, 2003).) The court of appeal also held that the trial court ruling excluding Colin's testimony and preventing cross-examination of Stebbing did not rise to the level of an unconstitutional deprivation of Sixth Amendment rights, and the trial court properly exercised its discretion in making those rulings. (Id. at 12-14, 16-17.)

  Petitioner, again represented by counsel, then filed a petition for review in the California Supreme Court, raising the same two grounds. (Lodgment No. 7, Petition for Review at 6, 15, People v. Lee, No. S121750 (Cal. filed Jan. 7, 2004).) The petition was denied six weeks later. (Lodgment No. 8, People v. Lee, No. S121750, order at 1 (Cal. Feb. 18, 2004).)

  On December 22, 2004, Lee, proceeding pro se, filed a Petition for Writ of Habeas Corpus [doc. no. 1] in the United States District Court for the Southern District of California pursuant to 28 U.S.C. § 2254. The Petition was dismissed without prejudice [doc. no. 4] on January 3, 2005, for failure to pay the filing fee and to name a proper respondent. (Order Dismissing Case at 1-2.) Petitioner filed a First Amended ...


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