The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Following a jury trial in the Tulare County Superior Court, Petitioner was convicted of one count of burglary. The court also found true three prior strike convictions. On August 11, 2006, Petitioner was sentenced to 25 years to life plus 5 years for a total term of 30 years to life in prison.
Petitioner filed a timely notice of appeal to the California Court of Appeal, Fifth Appellate District. On December 5, 2007, the Court of Appeal affirmed Petitioner's conviction and sentence. (Lodged Doc. No. 4.)
Petitioner did not file a petition for review in the California Supreme Court.
On October 4, 2006, Petitioner filed a petition for writ of habeas corpus in the Tulare County Superior Court, which was denied on October 10, 2006. (Lodged Doc. Nos. 5, 6.)
On December 11, 2006, Petitioner filed a subsequent petition for writ of habeas corpus in the Tulare County Superior Court, and it was denied on December 13, 2006. (Lodged Doc. Nos. 7, 8.)
On March 19, 2007, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Fifth Appellate District. (Lodged Doc. No. 9.) The petition was denied on March 23, 2007. (Lodged Doc. No. 10.)
On January 11, 2008, Petitioner petitioned the California Supreme Court for review. (Lodged Doc. 11.) Review was denied on February 13, 2008. (Lodged Doc. 12.)
On February 4, 2008, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, which was denied on July 30, 2008. (Lodged Doc. Nos. 13, 14.)
On July 15, 2008, Petitioner filed a second petition for review in the California Supreme Court, and it was denied on August 20, 2008. (Lodged Doc. Nos. 15, 16.)
Petitioner filed the instant federal petition for writ of habeas corpus on September 9, 2008. (Court Doc. 1.) Respondent filed an answer to the petition on December 16, 2008, and Petitioner filed a traverse on December 29, 2008. (Court Docs. 18, 22.)
Lance Ortega testified that on December 28, 2005, he left his home at about 5:00 a.m. and did not return until approximately 6:30 p.m. (RT 23-24, 38, 40-41.) When he left his residence he looked the front door, but it was open when he returned home that evening. (RT 42, 58.) Mr. Ortega observed footprints on the toilet in the bathroom, and noticed that someone had entered him home through the bathroom window. (RT 45.) He discovered that his fiancee's jewelry was missing from the bedroom, along with $50 in change, a $2 bill, and a camera. (RT 62, 65.)
Porterville police officer, Dominic Barteau, testified that while investigating the burglary of Ortega's home, he discovered a footprint on the window of the master bedroom bathroom, on the toilet lid, and on the bathroom floor. (RT 24-25.)
Petitioner's daughter, Melissa Williams, lived across the street from Mr. Ortega's home. On the day of the burglary, Melissa saw Petitioner who lived in a tent in her backyard. (RT 68, 70.) Petitioner showed her a see-through chain purse that contained a $2 bill, a necklace, and other jewelry. (RT 71, 76.) When asked where he got the property, Petitioner stated that he "did a little burglary" and confessed to her that he "robbed" Lance Ortega's house. (RT 71-72.) Petitioner left and Melissa spoke to the police that night and told them that Petitioner confessed to the burglary. (RT 72.) Petitioner returned later but left again when Melissa informed him that she spoke to the police. (Id.)
On cross-examination, Melissa testified that although she loved her father she did not like that he made her clean up after him and run errands. (RT 73.) She also acknowledged that her boyfriend did not get along with Petitioner because he accused him of molesting Melissa's daughter. (RT 74.)
Petitioner did not testify or present any witnesses in support of his defense.
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The ...