The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS AND DENYING MOTION TO STAY
On January 12, 2007, Ben Bates Waddell ("Petitioner"), a California prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On July 21, 2008, Respondent filed a motion to dismiss the petition. (Doc. No. 32.) On September 12, 2008, Petitioner filed a motion to stay which this Court construes as an opposition to Respondent's motion. (Doc. No. 36.) On October 16, 2008, the magistrate judge filed a Report and Recommendation, recommending that this Court grant Respondent's motion to dismiss and deny Petitioner's motion to stay. (Doc. No. 37.) As of the date of this Order, Petitioner has not filed an objection to the Report and Recommendation.
For the reasons set forth below, the Court ADOPTS the Report and Recommendation, GRANTS Respondent's motion to dismiss, and DENIES Petitioner's motion to stay.
A San Diego County Superior Court jury found Petitioner guilty of first degree burglary, theft with a prior conviction, possession of a controlled substance, and resisting a peace officer. (Lodgment 4 at 1.) The jury also found true the allegation that a person other than an accomplice was present in the residence during the burglary. (Lodgment 4 at 1-2.) On June 4, 2004, the California Court of Appeal affirmed Petitioner's conviction and sentence. (Lodgment 4 at 1.) On September 15, 2004, the California Supreme Court denied Petitioner's petition for review. (Lodgment 6 at 1.)
On August 17, 2005, Petitioner filed a habeas petition with the California Supreme Court. (Lodgment 7.) In his petition, Petitioner raised eight claims: (1) ineffective assistance of trial counsel; (2) vindictive prosecution; (3) an improper true finding on an enhancement; (4) no qualifying prior conviction for the enhancement; (5) a violation of Blakely v. Washington, 542 U.S. 296 (2004) in sentencing; (6) ineffective assistance of appellate counsel; (7) improper impeachment; and (8) insufficiency of the evidence. (Lodgment 7.) On June 21, 2006, the California Supreme Court denied the petition. (Lodgment 8 at 1.)
On January 12, 2007, Petitioner filed the present federal petition on the same grounds. The Court dismissed the Petition on January 22, 2007, and reopened the Petition on March 13, 2008.*fn1
The state appellate court summarized the relevant facts as follows:
On October 16, 2002, Sally Corson lived in La Jolla with her husband, Steve Schreiner and their two children. She returned to her La Jolla home about 1:30 p.m. and found an unfamiliar fanny pack sitting on the kitchen counter. She walked into the living room and yelled, "Who's here?" She saw Waddell walking down the stairs. She said, "Who the hell are you?" He answered, "Hello, I'm Ben," or asked who she was as he continued walking down the stairs toward her. She left, went to a nearby construction site and called the police. The police responded within five to ten minutes and arrested Waddell as he came out the front door of the Corson/Schreiner home. Waddell was wearing clothing belonging to Schreiner.
Inside the house, by the downstairs bathroom, Corson and the police found Waddell's clothing. The shower had been used and there were open shampoo bottles and wet towels on the floor. In the master bedroom, clothes had been moved in Schreiner's closet and some hangers and a dry cleaning bag were on the floor. The doors to the birdcages in the daughter's room had been opened. Downstairs, a wine bottle and a wine glass had been moved from a wine cellar to a nearby room. A video had been taken out. Nothing else had been disturbed or taken. Some of the doors to the home were unlocked; Schreiner and the children were not diligent about locking the doors, particularly the home's back doors. Corson, however, believed the front doors had been locked when she left the residence.
Neither Corson nor Schreiner had given Waddell permission to enter the house, use their shower, or take any items. Schreiner was at work when the ...