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Burlew v. Hedgpeth

July 9, 2009

ROBERT C. BURLEW, PETITIONER,
v.
A. HEDGPETH, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Robert C. Burlew, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner attacks his conviction in the Shasta County Superior Court, case number 03F1651, for receiving stolen property.

II. CLAIMS

Petitioner makes the following claims:

A. Violation of his right to be free from unreasonable search and seizure;

B. The trial court erred by admitting his statement into evidence; and

C. He received ineffective assistance of trial counsel.

Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's petition for habeas corpus relief be denied.

III. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts*fn1

Around 10:30 to 10:45 p.m. on March 3, 2003, Deputy Sheriff James Beaupre was on patrol in the area of Placer Road and Silver King Road in Shasta County. Beaupre was sitting in his patrol car surveilling a suspected drug manufacturing house. The area is residential and somewhat rural. He had a "ride-along" with him-someone who was in training to be a deputy sheriff.

He had been sitting in that location for approximately five to ten minutes when a car being driven by defendant attracted Beaupre's attention. The car was making a left hand turn, and appeared to initiate the turn after the front of the car had already passed the intersection. When the car made the turn, its two right side wheels went off the pavement into the dirt. Defendant did not turn on his turn signal until he was at least half way through the turn; however, there was no other traffic. Defendant appeared to be going too fast to properly negotiate the turn.

Beaupre stopped the car because he believed the erratic driving might be an indication the driver was intoxicated. In his report, Beaupre listed the reason for stopping defendant was for violating Vehicle Code section 22108, which states: "Any signal of intention to turn right or left shall be given continuously during the last 100 feet traveled by the vehicle before turning."

After the vehicle made the turn, Beaupre turned his spotlight on and lit up the vehicle. He turned on his headlights and overhead lights to effect a stop of the vehicle. After the stop, Beaupre asked for defendant's identification. Defendant was the driver of the vehicle, and his passenger was Georgina Rerich. Beaupre radioed the information to dispatch, which advised him defendant was on probation for a theft-related offense and was subject to search. Beaupre then asked defendant to step out of the vehicle, and told defendant he was going to do a probation search. Beaupre had Rerich exit the vehicle as well.

Beaupre pat searched defendant and found a jewelry box containing jewelry in defendant's shirt pocket. Defendant was also wearing a woman's bracelet on his left wrist. Beaupre asked defendant why he had women's jewelry in his pocket, and defendant responded it had slid across the dashboard while he was driving, so he put it in his pocket. Defendant claimed the jewelry belonged to Rerich.

Beaupre told defendant he was not under arrest, but that Beaupre needed to find out what was going on. Beaupre put defendant in the back of the patrol vehicle, and went to talk to Rerich. The patrol vehicle's doors were closed and defendant was not able to open the doors from the inside. Rerich told Beaupre the jewelry did not belong to her. Beaupre searched the vehicle. The trunk was full of property. Among the items in the trunk were a large telescope, a pellet gun, a Makita drill, a camera, and a shoebox containing checks from 1999 and a bill with the name "Shirley Forseng" on it.

When Beaupre questioned defendant about why he had the items in his trunk, he claimed he was moving the items for someone named Jeremy and Ray-Ray. Beaupre telephoned Forseng, who informed him that some of the property in defendant's trunk had been stolen from her home.

After speaking to Forseng, Beaupre again spoke with defendant, who was sitting in the back of the patrol car. Defendant was not handcuffed, had not been informed he was under arrest, and Beaupre at no time had drawn his service revolver. Beaupre asked defendant if he thought the items in the trunk were stolen, and defendant said "he thought maybe they were and [that] he was moving them or helping someone move them[.]" When defendant made this statement, he was seated in the back of the patrol car, and the door was open. After defendant made the statement, Beaupre arrested him. Defendant was not advised of his Miranda rights until after he was handcuffed and arrested for receiving stolen property.

Shirley Forseng testified she locked her door when she left for work at 8:00 a.m. on March 3, 2003. Around 4:00 p.m. she received a telephone call from her boyfriend telling her that her house had been broken into. The door had been pried open. The intruders had taken a telescope, her silver jewelry, a Makita drill, a BB gun, a camera, a spotlight, and other things.

Forseng testified defendant and his wife had been to her house three times. Defendant had offered to do some work on her property. On one occasion, defendant and his wife were visiting, and Forseng showed them some Christmas presents they had received, including the telescope and a crystal collection, both of which were among the items stolen.

Forseng's neighbor, Frank Mascaro, testified he had not seen anyone around Forseng's house the day of the burglary. Simone White, a friend of defendant's, testified she had been visited by Nikki Carter and her boyfriend Jeremy on March 3, 2003. They brought over a number of items, including jewelry and a telescope. White was going to drive them somewhere, but defendant came by and agreed to drive them. They loaded the items in defendant's car, but Nikki and Jeremy took other items in duffle bags, and left on foot. Rerich, White's roommate, asked defendant if he would drive her somewhere. He agreed, and they left. When Nikki and Jeremy returned, they were angry because they thought defendant had stolen their property.

Opinion at 2-6.

During the first trial defense counsel notified the court of a conflict of interest, causing the trial judge to declare a mistrial. Id. at 6. The court appointed new defense counsel and a second trial commenced. Id. At the conclusion of that trial the jury acquitted petitioner of burglary but found him guilty of receiving stolen property. Id. The trial court found an allegation that petitioner had been convicted of three prior serious or violent felonies true. Id. at 2. Petitioner was sentenced to a prison term of 25-years to life on July 21, 2005. Clerk's Transcript, Volume 1 ("1CT") at 535.

B. Post Trial Proceedings

1) State Appellate Review

Petitioner filed an appeal with the California Court of Appeal, Third Appellate District, on March 14, 2006. Answer, Ex. A. On January 9, 2007, that court affirmed the trial court's judgment in a reasoned but unpublished opinion. Answer, Ex. D. Petitioner then sought review in the California Supreme Court on February 15, 2007. Answer, Ex. E. That petition was summarily denied on March 21, 2007. Answer, Ex. F.

2) Federal Review

Petitioner next petitioned the United States Supreme Court for certiorari. The Supreme Court denied that petition on October 1, 2007. See Burlew v. California, __ U.S. __, 128 S.Ct. 169 (Mem.)(2007). Petitioner ...


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