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Bell v. Walker

February 5, 2009

KANYA BELL, PETITIONER,
v.
J. WALKER, WARDEN,*FN1 RESPONDENT



The opinion of the court was delivered by: Milan D. Smith, Jr. United States Circuit Judge Sitting by Designation

ORDER

Kanya Bell (Petitioner) is proceeding pro se with an application for a writ of habeas corpus under 28 U.S.C. § 2254. Pending before the court are Petitioner's "First Amended Petition," filed on April 24, 2007 (Doc. 7); Warden James Walker's (Respondent's) "Answer to Petition for Writ of Habeas Corpus," filed on December 19, 2007 (Doc. 12). For the reasons discussed below, Petitioner's application for a writ of habeas corpus pursuant to § 2254 is denied.

I.

A.

Petitioner was found guilty by a jury in the Sacramento County Superior Court of murder of the second degree (Pen. Code §§ 187, sub. (a), 189)) and possession of a firearm by a convicted felon (Pen. Code § 12021 sub. (a)(1)). The jury also found true the allegation that the petitioner personally discharged a firearm (Pen. Code § 12022.53, sub. (d)). Petitioner was sentenced to a total state prison term of 40 years to life (15 years to life for second degree murder, a consecutive sentence of 25 years to life for the personal use of a gun enhancement, and concurrent sentence of three years for being an ex-felon in possession of a firearm).

B.

Petitioner timely filed a direct appeal from the state trial court's judgment in the California Court of Appeal for the Third District. After briefing by the parties, the California Court of Appeal affirmed the state trial court's judgment on February 17, 2006 in an unpublished opinion.

C.

Petitioner timely filed a petition for review of the California Court of Appeal's decision in the California Supreme Court. On April 26, 2006, the California Supreme Court denied the Petition for Review.

D.

Petitioner timely filed a petition for a writ of habeas corpus before this court on October 3, 2006. On April 2, 2007, District Judge Kimberly Mueller ordered that the Petitioner's application for write of habeas corpus dismissed because Petitioner had not signed the application, in violation of Rule 11 of the Federal Rules of Civil Procedure. Petitioner timely filed an amended petition for writ of habeas corpus before this court on April 24, 2007. On December 19, 2007, Respondent filed its Answer to the Petition. In its answer, Respondent admits that Petitioner has properly exhausted his claims for relief that are raised in the petition.

II.

The California Court of Appeal summarized the facts presented in the state trial court as follows in its unpublished decision in which it affirmed the judgment.

In the early morning hours of June 15, 2004, defendant Kanya Bell shot and killed Carl Johnson. Defendant encountered the victim upon leaving Mary Seaton's home in the company of Stacy Moore. Waving a $20 bill, the victim, a friend of Stacey, was anxious to purchase a "dub," or $20 worth of cocaine. Defendant told the victim that he had some. Stacey tried to warn the victim not to give defendant the money because she knew he did not have any drugs. The victim demanded his money back. Stacey watched defendant shoot her friend. Mary would not allow anyone to call the police because she thought it would jeopardize her attempt to regain custody of some of her children. Stacy and Valerie Robinson, who had been at Mary's house with Stacey, got into Valerie's car and drove away.

A couple driving by saw the victim stagger and fall. They called 911 and rendered assistance. Johnson died of a ...


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