The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITION FOR WRIT OF HABEAS CORPUS
On July 5, 2007, Kirk Patrick Vaught, Jr. ("Petitioner"), a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On November 7, 2007, Respondent filed an answer. (Doc. No. 13.) On January 1, 2008, Petitioner filed a traverse. (Doc. No. 22.) On May 5, 2008, the magistrate judge filed a Report and Recommendation, recommending that the petition be denied. (Doc. No. 23.) As of the date of this Order, Petitioner has not filed objections to the Report and Recommendation, although the deadline for doing so is long past. (See Doc. No. 23.)
For the reasons set forth below, the Court ADOPTS the Report and Recommendation and DENIES the Petition.
On April 19, 2004, a San Diego County Superior Court jury found Petitioner guilty of two counts of robbery, one count of possession of a firearm by a felon, and one count of burglary. (Clerk's Transcript ("CT") at 185-91.) The jury also found true the allegation that Petitioner personally used a firearm during the commission of the robberies. (CT at 186, 188.) On November 30, 2004, Petitioner's sentence included applicable enhancements for the use of a firearm under Cal. Penal Code § 12022.53(b) found by the jury. (CT at 201.) OnMay 1, 2006, the California Court of Appeal affirmed Petitioner's convictions. (Lodgment 5 at 1.) On June 2, 2006, Petitioner filed a petition for review by the California Supreme Court. (Lodgment 6 at 1.) On July 17, 2006, the California Supreme Court denied the petition for review. (Lodgment 7 at 1.)
The state appellate court summarized the relevant facts as follows:
At approximately 7:00 p.m. on September 28, 2003, two employees were working at the Aaron Brothers store located on Midway Drive in San Diego. The assistant manager, Jill Bautista, was helping Geoffrey Moon complete the final orders for the night. When Bautista opened the store's back door to ensure it was locked, she was approached by a woman who asked to make a return of merchandise. Bautista explained the store was closed and she could not complete the merchandise's return until the next day. Vaught appeared from behind the door and told Bautista he was robbing the store. When Vaught held a gun to Bautista's chest, she admitted Vaught and the woman into the store.
Bautista immediately walked to the room in which Moon was working. Vaught followed Bautista. Bautista told Moon that Vaught was there to "take our money." Moon noticed Vaught had a gun pointed at Bautista. Bautista then lead [sic] Vaught to the office, where money was kept in a safe. Vaught waved the gun at Moon, directing him to follow.
After unlocking the office door, Bautista entered the office, followed by Moon and Vaught. Bautista opened the safe and handed Vaught the cash from the cash drawers. Vaught stuffed the money in his pockets. At this time, the gun was either in his hand or his waistband, and was still visible to Bautista and Moon. When Vaught insisted there was more money in the safe, Moon handed over two pouches containing the daily deposits. Vaught asked Bautista and Moon to give him time to get away, and he and the woman left the store. No gun used in the robberies was ever recovered; the existence of a gun was based solely on the testimonies of Bautista and Moon. (Lodgment 5 at 2-3.)
At trial, the two robbery victims, Bautista and Moon, both testified that Petitioner possessed and personally used a gun during the robbery. (RT at 128, 213.) Bautista testified that Petitioner pulled a gun out of his waistband and put it to her chest. (RT at 213-16.) When he pointed the gun at her chest, Petitioner told her "it wasn't a joke and that he was here to take [Aaron Brothers'] money." (RT at 216.) Although Bautista's initial reaction was that the gun looked like the kind of gun "you play with when you're a kid," she testified she complied with Petitioner's demands because she thought the gun was real and loaded. (RT at 215, 225.) She could not remember the exact details of the gun, only that it was "long and pointy." (RT at 215.)
Moon testified that Petitioner had the gun in his left hand and was pointing it at Bautista. (RT at 128.) Moon stated he had previously handled a gun and described the difference between a revolver and a semi-automatic pistol. (RT at 129.) He testified the gun was a dark metal revolver with a long barrel, approximately nine to ten inches long. (RT at 129.) Moon also testified that the barrel appeared to ...