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November 15, 2005.

S. RYAN, Warden, Respondents.

The opinion of the court was delivered by: WILLIAM McCURINE JR., Magistrate Judge

This Report and Recommendation is submitted to United States District Judge Marilyn L. Huff pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California.



  Petitioner Christopher Butler ("Petitioner") filed the instant Petition for Writ of Habeas Corpus ("Petition") on March 22, 2005. [Docket No. 1]. On April 29, 2005, this Court issued a Notice Regarding Possible Failure to Exhaust and One-Year Statute of Limitations ("Notice"). [Docket No. 6]. Also on April 29, 2005, this Court dismissed the case without prejudice because Petitioner failed to pay the $5.00 filing fee. [Docket No. 7]. The Court then reopened the case on June 23, 2005 as Petitioner paid the filing fee. [Docket No. 9]. As Respondent S. Ryan ("Respondent") represented that the Petition could be decided without the Court's reaching the merits on Petitioner's claims, this Court ordered Respondent to file a motion to dismiss no later than July 25, 2005. [Docket No. 9]. On July 25, 2005, Respondent filed a Motion to Dismiss the case. [Docket No. 11]. On September 29, 2005, Petitioner filed a Motion to Dismiss the case. [Docket No. 19].



  The following facts are taken from the California Court of Appeal opinion in People v. Butler, No. D041819, slip op. (Cal.Ct.App. Oct. 6, 2004). This Court relies on these facts pursuant to 28 U.S.C. § 2254(e)(1). See Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness); Sumner v. Mata, 449 U.S. 539, 547 (1981) (stating deference is owed to findings of state trial and appellate courts).

  The Planning Stage

Butler and his girlfriend Lisa Ramirez lived in a room at George Calloway's house in Oceanside, California, and Christopher Huggins lived in Calloway's garage. Huggins's friend Robert Ortiz lived across the street from Calloway's house.
On November 7, 2000, Ramirez, identifying herself as Lisa Butler, went to the Bank of America and asked employee Loretta Myers about opening a business account. Ramirez reported that she and her husband recently moved to the area and planned to open a photography business with a $1.2 million lawsuit settlement he expected to receive soon. Myers spoke with Ramirez for about an hour, and Myers's desk was about eight feet from the desk of the bank's manager, Estey.
Butler told Calloway he was "planning on robbing something" and "planning on staking out a bank." Butler said he planned to go to a bank, watch the bank manager for a couple of days and "stake out the house." Butler also said "he would never have to go in the bank, . . . his plan was to put a bomb on the lady, and she'd go in the bank . . . [and] go in and bring the money out." Butler planned to "threaten[] her with her children." Butler purchased two-way radios, and he, Ramirez and Huggins began testing their range. Further, Butler sawed off pieces of a broom handle, spray painted them red to resembe dynamite and attached wires to them. He told Calloway he planned to use the two-way radios and the fake dynamite in the bank robbery. He also told Calloway he believed Ortiz could provide some guns.
On November 20, 2000, Butler, Ramirez, Huggins and Ortiz went to the apartment of Cassandra Stokes, a friend of Ramirez's and a former co-worker of Huggins. The apartment is a short distance from the Bank of America. Butler, Ramirez, Huggins and Ortiz left the apartment that evening, but they came back later and Ramirez reported, "It didn't go right." Butler and Ramirez carried two-way radios.
On November 21, Ramirez returned to the Bank of America to open a business account. She gave Myers a business card containing Butler's name and the name of a photography business and showed her a portfolio of photographs. Myers told Ramirez that Butler would have to sign a signature card, and he came to the bank later that day to do so. He appeared "startled and nervous," and he "was looking all around the teller area." While he waited for Myers to finish with a customer, Butler sat at Estey's desk and spoke with her. He also gave Estey a business card. Butler asked Myers whether the bank had ever been robbed.
That afternoon Butler told Calloway he and Ramirez "were going to stake out the house." Butler, Ramirez, Huggins and Ortiz spent several hours at Stoke's apartment before leaving at approximately 7:30 p.m. Ortiz had his girlfriend's Rottweiler dog with him.
The Kidnappings
After picking up her daughter, Estey arrived home about 7:00 p.m. on November 21. They lived in a remote area and a Rottweiler that Estey had not seen before was in her yard.
Estey and her daughter were curled up on the couch when three men wearing black masks, hooded jackets and gloves smashed through the locked back door and rushed inside. Estey eventually recognized one of the men as Butler because his eyes were "weepy and red." Huggins and Ortiz were later identified as the other two men.
Two of the men pointed their guns at Estey, who begged them not to hurt her daughter. Huggins grabbed Estey by the back of the head and slammed her onto the floor. The men tied Estey's and B.'s hands behind their backs with duct tape, and also taped B.'s ankles together. B. shook with fear and asked the men whether they were going "to kill my mommy."
Butler did most of the talking. He told Estey "they had tracked" her for several weeks and "they were there to get the money from the vault of the bank." Butler questioned Estey about the bank procedures and threatened to kill her and B. if she did not cooperate. Butler warned Estey that if she "pull[ed] anything" other people outside would kill them and she would have to watch her daughter die first. Butler showed Estey the fake dynamite and a supposed detonating device that resembled a doorbell, and said, "We're going to put this on you in the morning." Ortiz pointed a gun at Estey and told her not to move or speak. Estey heard Butler speaking with a woman outside the house by two-way radio, and the woman referred to him as "Chris." Estey though she recognized the woman's voice as Ramirez's.
Oliver arrived home about 11:00 p.m., and when she entered the front door Huggins grabbed her from behind and placed a hand over her mouth. Oliver screamed at the men to get out of the house, and Butler "took his gun and stuck it right up her nose." When Estey pushed Butler's hand away from Oliver, he threatened to blow Estey's head off. Huggins and Ortiz threw Oliver to the floor and taped her hands and ankles. Ortiz let the Rottweiler in the house and told Estey and Oliver the dog was trained to kill and would kill them if they made any sudden moves or tried to escape.
The men remained in Estey's home all night. In the morning, Butler ordered her to get ready for work, and to wear loose clothing and a jacket. The men taped the fake dynamite to the backs of Estey, B. and Oliver and displayed a supposed detonator devise with a "10-mile radius." Butler warned the hostages: "Do not go outside the house. If you try to run, you will disintegrate. If you try any funny business, you will all be killed." The men took Oliver into her bedroom, which they had ransacked, and having untaped her earlier, taped her hands behind her back, her feet together and her eyes and moth shut. The men put B. in a closet and taped her legs together and her mouth.
In B.'s presence, Butler told Estey, "you have about 10 minutes to say whatever it is you'd want to say to your daughter, because it might be the last thing you ever say to her if you screw up." Butler handed Estey her briefcase and told her to put they money from the bank in a gym back inside of the briefcase, and not to include any "funny money" or "any of that stuff that explodes." Holding his gun and a two-way radio, Butler told Estey it was "time to go the work." Butler ordered Estey to drive to the bank in her Jeep with him crouched in the back seat.
The Robbery and Aftermath
Estey parked in the Bank of America lot shortly after Myers and another employee, Janet Becerril, arrived for work around 8:30 a.m. Butler told Estey, "You've got five minutes from the time that truck leaves that brings the money to get out of that bank and get back in the car." Butler told Estey not to make any telephone calls and warned her, "We can see what you're doing and hear everything that goes on in the bank."
The bank was not yet open for business, and Estey entered it by using her keys. Estey was usually "bubbly" and "very vivacious," but she ignored Myers. The Brinks truck arrived and a guard delivered cash to the vault. Estey then took the briefcase into the vault, where she pulled the gym bag out and began stuffing cash into it. She told Becerril, who was also in the vault, about the hostage situation and that B.'s and Kim's lives were in danger. Estey showed Becerril the "dynamite" and insisted that she not notify the authorities until Estey gave her okay. Estey left the bank, telling Myers she would telephone later. Becerril then told Myers what happened, and Myers called the police.
Estey returned to her Jeep with the cash, and Butler directed her to drive to a cul-de-sac near Stokes's apartment. Butler told her to get out of the car and slowly walk to another location where he would leave the Jeep. Estey followed his directions, found the Jeep and drove home. Huggins and Ortiz had left in Oliver's car, and before leaving they removed the fake dynamite from B. and Oliver. Estey cut the tape off B. and Oliver, and removed the fake dynamite from Estey's back and put it outside on a retaining wall. She, Estey and B. then ran to a neighbor's house and asked him to call 911. Estey telephoned Myers and explained what happened and told her Butler was one of the men involved. Later that day Estey talked to another bank employee and asked her to tell the police of Butler's involvement and ask them to check her desk for his business card.
The afternoon of November 22, Butler and Ramirez went to Stokes's apartment and left $10,000 in cash under her pillow. That evening, they took a locked safe to Stokes's apartment and asked her to hide it. Ramirez told Stokes the safe contained $100,000 and two-way radios. According to Stokes, she got a friend to take the safe and she never saw it again.
On November 23 Butler bought six round trip plane tickets for that day to Atlanta, Georgia, for $2,000 in cash, for himself, Ramirez, her children and another person. On November 29 Butler and Ramirez returned to California, and on December 1 police arrested them as they drove away from the vicinity of Stokes's apartment in Ramirez's car. In the car were Bank of America documents with account numbers and Myers's name written on them; a two-way radio; black gloves; a wool cap with the eyes cut out; black nylon pants; a detached doorbell; a gym bag containing the type of nylon straps banks use to bundle cash; a card on which "Bank of America," "November 20," "$20,000" and a teller's number were stamped; four credit cards in Oliver's name; and three credit cards in Estey's name. In Stokes's apartment police found spears, binoculars and a camera. Oliver identified the mask, gloves and nylon pants as clothes Butler wore and the binoculars and camera as items taken from her bedroom.
At Calloway's house police found a black knit cap with eye holes cut out, gloves, a revolver, pieces of wood dowel and cans of red spray paint containing Butler's fingerprints. The composition of the paint matched the paint on the fake dynamite. The fake dynamite taped to Estey contained Butler's fingerprint in the red paint.
B. told investigators that three masked men broke into her house, and she demonstrated where the fake dynamite was taped to her back. Additionally, investigators found pieces of duct tape throughout Estey's house, some of which had Oliver's hair attached to it.
In December 2000 Huggins' girlfriend notified the FBI she found a safe on the side of her house. It contained $93,100, which was returned to Bank of America. In February 2001 Ortiz was arrested in Wisconsin. FBI agents found a safe in his residence that contained $32,855. That cash was also returned to Bank of America.
  Petitioner was convicted of conspiracy to commit kidnapping for robbery (count 1; Cal. Penal Code §§ 182(a)(1); 209(b)(1)); kidnapping for ransom of Kimbra Oliver (count 3; Cal. Penal Code § 209 (a)); kidnapping for ransom of a minor (count 4, Cal. Penal Code § 209(a)); first degree robbery of Kimbra Oliver (count 6; Cal. Penal Code § 211); robbery of Melanie Nelson (count 11; Cal. Penal Code § 211), and robbery of Mark Stamoulis (count 11; Cal. Penal Code § 211). On February 28, 2003, Petitioner was sentenced to three life terms with possibility of parole plus sixty-four consecutive years in prison. (CT 10, 917; RT 2042; Lodgment 2 at 2.)

  Petitioner then appealed. In an unpublished decision, the Court of Appeal, Fourth Appellate District, Division One, reversed the Judgment on count 1 on the grounds of instructional error and the sentence in count 6 because pursuant to Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004), a trial court is precluded from making findings on aggravating factors in support of an upper-term sentence. (Lodgment 2 at 24-28.) The Court remanded the matter for resentencing. (Lodgment 2 at 26, 28.)

  On November 8, 2004, Respondent filed a Petition for Review regarding the Blakely issue. (Lodgment 4.) On or about November 13, 2004, Petitioner filed a Petition for Review with the California Supreme Court with the claim that requiring him to wear a stun belt violated his Sixth Amendment rights. (Lodgment 3.) On December 22, 2004, the California Supreme Court granted Respondent's Petition for Review, deferring any action on the case pending consideration of a related issue in two other cases involving the Blakely issue. The California Supreme Court denied Petitioner's Petition for Review. (Lodgment 5.) To date, Petitioner's Blakely claim is still pending in state court. A remitittur has not yet been issued in Petitioner's state court appeal.



  Principles of federalism and comity require this Court to abstain from considering the merits of a Petition for Habeas Corpus under Younger v. Harris, 401 U.S. 37, 91, 1185 S. Ct. 746, 27 L. Ed. 2d 669 (1971) if a Petitioner's state court direct appeal is still pending. See Roberts v. Dicarlo 296 F.Supp.2d 1182, 1185-1186 (C.D. Cal., 2003). Federal habeas corpus review is generally not available for issues that are currently pending in a state trial court. See Carden v. Montana, 626 F.2d 82, 83-84 (9th Cir. 1980), citing Younger v. Harris, 401 U.S. at 37. Unless there are unusual ...

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