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Johnson v. Kane

February 25, 2009

JAY JOHNSON, PETITIONER,
v.
A.P. KANE, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Robert J. Bryan United States District Judge

ORDER ON FURTHER BRIEFING

This matter comes before the court on petitioner's petition for writ of habeas corpus. Dkt. 1. The court has considered the relevant documents and the remainder of the file herein.

INTRODUCTION

Petitioner is a state prisoner currently incarcerated at the California Training Facility in Soledad, California. He filed this petition for writ of habeas corpus to challenge his 2002 Placer County, California conviction. Respondent filed an answer and relevant portions of the record. Dkt. 13 and 14. Petitioner filed a traverse. Dkt. 15.

PROCEDURAL AND FACTUAL HISTORY

On November 19, 2002, petitioner convicted by jury trial of first degree murder (Cal. Pen. Code § 187(a))(Count 1); attempted murder (Pen. Code §§ 664/187(a))(Count 2); and two counts of assault with a deadly weapon (Pen. Code. § 245)(Counts 5 and 6). The jury found true allegations of personal use of a deadly weapon (Pen. Code. § 12022(b)), and personal infliction of great bodily injury (Pen. Code § 12022.7). Petitioner was acquitted on charges of attempted robbery and burglary.

On December 19, 2002, the court sentenced petitioner to an indeterminate term of 25 years to life on Count 1, first degree murder, as well as a one-year enhancement for the personal use of a deadly weapon. The court imposed a consecutive term of 13 years on Count 2 (attempted murder), and stayed sentences for Counts 5 and 6 (assault with a deadly weapon). Petitioner was on probation at the time of these crimes.

The California Court of Appeal summarized the facts of the case as follows:

FACTS

Ronald Booker and his wife Laurie Niami lived in an isolated area of Colfax. On April 16, 2001, Booker was recovering from surgery on the quadriceps of his right leg. About 5:15 a.m. that morning, Booker was having coffee and changing the dressing on his leg when defendant entered the home through unlocked French doors in the back of the house. Defendant was carrying a plastic bag and a tree branch. Booker called to his wife to call the police.

Defendant began striking Booker in the head and body with the branch. Unable to defend himself, Booker called to his wife for help. As Niami ran at defendant, he struck her in the face, knocking her unconscious. Defendant returned to striking Booker with the branch until it broke. Hoping defendant would take what he wanted and leave, Booker feigned unconsciousness. However, defendant continued to strike Booker, poured hot coffee down Booker's neck, and pulled an electric cord from the wall and held it like a rope. Booker pushed himself to his knees and defendant dropped the cord, picked up a cane and struck Booker with it, breaking it over Booker's head. Defendant, who was wearing climbing boots, then kicked Booker two or three times in the chest.

Booker managed to hit defendant once in the head and grab defendant's jacket. Defendant got out of the jacket, smiled at Booker and kicked Niami twice in the head. Still on his knees, Booker pushed back his scalp which was now hanging over his face. Defendant picked up a solid oak television tray and struck Booker over the head with it. Defendant then slammed the tray down on Niami's throat with "crushing" force.

Booker asked defendant why he was doing this and defendant replied that Jesus had sent him and his brother to kill everybody in the house. Booker said, "Not today, Charlie," ...


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