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Boyce v. Small

June 2, 2009

KEVIN ALEXANDER BOYCE, PETITIONER,
v.
L. SMALL, WARDEN,*FN1 RESPONDENT.



The opinion of the court was delivered by: Richard C. Tallman United States Circuit Judge

MEMORANDUM DECISION AND ORDER

This matter comes before the Court on Kevin Alexander Boyce's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

INTRODUCTION

On August 30, 2006, Boyce, a California state prisoner, filed his first Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. On May 2, 2007, he was granted leave to file an amended petition and, by order of this court on May 27, 2007, he was granted both an extension of time to file his first amended petition and appointment of counsel. Boyce's Amended Petition ("Amended Petition") was filed by counsel on October 30, 2007. On December 27, 2007, Respondent filed his Answer/Response to the Petition ("Answer") and Boyce filed a Traverse to Respondent's Answer ("Traverse") on January 28, 2008.

FACTUAL AND PROCEDURAL HISTORY

The facts underlying the Boyce's conviction are not in dispute in these proceedings. Accordingly, the court will quote directly from the California Court of Appeal's statement of facts presented in its opinion affirming the Boyce's conviction.

Shortly before 10:00 a.m. on November 26, 2002, Deputy Manning [a 20-year veteran of the Sacramento County Sheriff's Department] was on routine patrol with his partner, Deputy John Foster, when they received a radio dispatch concerning a suspicious person.*fn2 According to Manning, the dispatch stated: "BMJ-Black male juvenile-wearing black pants, a gray down jacket, looking in windows of cars and houses, knocked on several doors, last seen walking on Harrison towards Myrtle from Tresler in his teens, five-two, thin build. Complainant thinks he's casing the area."

The deputies drove to the area identified in the dispatch.*fn3 While traveling southbound on Harrison Street at 10:12 a.m., Deputy Manning saw defendant walking northbound along the edge of the southbound lane. Deputy Foster pulled the patrol car over to the curb, and parked it about 10 feet in front of defendant. Defendant was wearing baggy gray pants and a heavy, black down jacket and was the only individual in the area generally fitting the dispatch description of the suspect. Manning admitted defendant was taller than five feet two inches, and that he had a mustache and goatee, although facial hair was not mentioned in the dispatch.*fn4 Defendant did not appear to Manning to be a teenager or to have a thin build, although his physique was obscured by his clothing. Notwithstanding these deviations from the physical description of the suspect, Manning testified he would have stopped for questioning anyone in the vicinity generally matching the description of the suspect.

Deputy Manning left his patrol car and approached defendant and asked if they could talk, while directing him to remove his hands from his pockets. As defendant complied, two gold bracelets fell out of his right coat pocket. At that point, defendant was only a few feet from Manning, who positioned himself behind defendant, and took hold of him with one arm while conducting a patdown search for weapons with the other. Manning testified he frisked defendant for officer safety, since he had often seized concealed weapons from burglary suspects.

By this time, a third deputy (Dianne Patton) had arrived, and Deputy Manning instructed her to pick up the bracelets and hand them back to defendant. When Patton did so, defendant threw the bracelets into some nearby bushes. During the search, Manning felt a semi-rigid box shape under defendan"s left shoulder. Manning thought it might be a shoulder holster or case containing a weapon. As he concluded the patdown, Manning asked defendant to remove the object, which turned out to be a box containing a digital camera. Suspecting that the camera was stolen, Manning then searched defendant's pockets, and recovered a pair of gloves, a wet washcloth, women's jewelry, money, and baggies containing marijuana. Defendant was handcuffed and placed in the back of a patrol vehicle.

An in-field show-up was conducted, at which Oleg K. identified defendant as the prowler he had seen that morning.*fn5 Before trial, Boyce filed a motion to suppress evidence obtained during the officers' stop on November 24, 2002. The court held a preliminary suppression hearing on May 9, 2003. The sole witness at this hearing was Deputy Foster. He testified that before the search, he and his fellow deputies had twice been briefed on recent burglaries in his patrol area, "which encompassed North Highlands, Antelope, Rio Linda and Garden Highway in the unincorporated area of Sacramento County."

On February 20, 2004, Boyce was convicted by a jury of three counts of residential burglary under California Penal Code section 459and four counts of possession of stolen property under California Penal Code section 496(a). The trial court sentenced him to an aggregate state prison term of twenty-four years, eight months.

Boyce appealed his conviction and sentence to the California Court of Appeal, which then affirmed the trial court's judgment in an unpublished decision on June 30, 2005. (Lodged Doc. No. 4 at 1). He thereafter filed a petition for review in the California Supreme Court, which was denied on September 7, 2005, without comment or citation to authority. (Lodged Doc. No. 6). He then filed a Pro Se Petition for Writ of Habeas Corpus with the California Supreme Court. (Lodged Doc. No. 7) That petition was denied because Boyce had failed to raise the issues claimed in his pro se petition during his direct appeals.

His Amended Petition before this court contains only one issue-a violation of his Fourth Amendment rights-which was exhausted on direct appeal in the California state courts. See Picard v. Connor, 404 U.S. 270 (1971) (holding that a petitioner can satisfy the exhaustion requirement in 28 U.S.C. § 2254 by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court); see also Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). The unexhausted issues contained within ...


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