The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER: (1) ADOPTING THE MAGISTRATE JUDGE'S REPORT (Doc. No. 9); (2) REJECTING PETITIONER'S OBJECTIONS (Doc. No. 11); (3) DENYING THE PETITION FOR WRIT OF HABEAS CORPUS (Doc. No. 1); and (4) ISSUING CERTIFICATE OF APPEALABILITY.
On January 3, 2007, petitioner Gabriel John Bradway, a state prisoner proceeding through counsel, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his February, 2004 conviction for first degree murder with the special circumstance of lying in wait. (Doc. No. 1.) This matter was referred to United States Magistrate Judge Louisa S. Porter pursuant to 28 U.S.C. § 636(b)(1)(B). On October 31, 2007, Magistrate Judge Porter issued a Report and Recommendation ("Report") recommending the Court deny the petition for writ of habeas corpus. Petitioner filed objections to the Report on December 3, 2007. (Doc. No. 27.)
Following de novo review of petitioner's claim, the Court finds Magistrate Judge Porter's Report to be thorough, complete, and an accurate analysis of the legal issues presented in the petition.
For the reasons explained below, the Court: (1) adopts in full Magistrate Judge Porter's Report; (2) rejects the petitioner's objections, (3) denies the petition for writ of habeas corpus, and (4) issues a certificate of appealability.
The Court hereby incorporates by reference the magistrate judge's accurate recitation of the facts as determined by the California Court of Appeal. (Report at 2-5.) As the magistrate judge correctly noted, the Court presumes state court findings of fact to be correct. In summary, petitioner planned to kill his friend Julie Kelin for about a month. He arranged, as a ruse, to go to Kelin's apartment to pick up his pager, but his real reason was to kill her. Petitioner sawed off the handle of a sledgehammer so he could hide it in his waistband, concealed it, and went to her apartment at a time petitioner knew Kelin's daughter would be at school. Kelin let him in and petitioner was nice to her so that she would be comfortable. Then, when Kelin kneeled to place paper in her printer, petitioner caught her by surprise, hitting her on the head several times with his hammer. When Kelin fought back, petitioner threw her on the bed and strangled her with both of his hands and a telephone cord. After being arrested on the day of the murder, petitioner confessed in full. His video-taped confession was played to the jury, and the defense presented no testimony at trial.
On November 16, 2001, petitioner was charged with first degree murder in violation of California Penal Code Section 187(a). (Lodgment No. 2 at 1-3.) The complaint also alleged petitioner used a deadly weapon (a sledgehammer) in the commission of the murder within the meaning of California Penal Code Section 12022(b)(1), and alleged the murder was committed by means of lying in wait within the meaning of California Penal Code Section 190.2(a)(15). Id.
On May 24, 2002, the trial court granted petitioner's motion to dismiss the lying-in-wait allegation, finding the allegation unconstitutionally vague. A divided panel of the California Court of Appeal reversed in a published opinion dated January 16, 2003. People v. Superior Court (Bradway), 105 Cal. App. 4th 297, 309-11 (2003) (hereinafter Bradway). Petitioner filed a petition for review in the California Supreme Court, which denied the petition over the dissent of three Justices who would have granted review. (Lodgments 3 & 4).
On February 4, 2004, a jury found petitioner guilty of first degree murder. (Lodgment No. 1 at 405-06.) The jury also found true the allegations petitioner personally used a deadly weapon and killed the victim by means of lying in wait. (Id.) On April 1, 2004, petitioner was sentenced to life imprisonment without the possibility of parole plus one year. (Id. at 444.)
Petitioner appealed and the California Court of Appeal affirmed his conviction in an unpublished opinion. (Lodgment No. 8.) Petitioner filed a petition for review with the California Supreme Court which was denied on January 4, 2006.
Petitioner filed a timely petition for writ of habeas corpus on January 3, 2007, alleging the single claim that California's lying in wait special circumstance is unconstitutionally vague. (Doc. No. 1.) After an extension of time, respondent filed an answer on May 9, 2007. (Doc. No. 6.) On June 8, 2007, petitioner filed a traverse. (Doc. No. 7.) Magistrate Judge Porter issued a Report on ...