The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER DENYING MOTION FOR RECONSIDERATION
On September 10, 2008, the Court entered judgment adopting the Report and Recommendation ("R&R") denying the petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 by Petitioner Kirk Patrick Vaught, Jr. (Doc. No. 24.) On October 6, 2008, Petitioner filed a notice of appeal and indicated in an accompanying letter that he did not receive a copy of the R&R prior to its adoption and that he had prejudicially missed his opportunity to make objections to the R&R. (Doc. Nos. 26, 31.) On October 14, 2008, for good cause shown, the Court granted Petitioner an opportunity to respond to the order adopting the R&R. (Doc. No. 27.) The Court further ordered that Petitioner's response be construed as a motion for reconsideration. Id. On November 11, 2008, Petitioner filed objections to the R&R. (Doc. No. 40.)
For the reasons stated below, the Court DENIES Petitioner's motion for reconsideration and DENIES Petitioner's objections to the R&R.
On April 19, 2004, a San Diego County Superior Court jury found Petitioner guilty of two counts of robbery, one count of possession of a firearm by a felon, and one count of burglary. (Clerk's Transcript ("CT") at 185-91.) The jury also found true the allegation that Petitioner personally used a firearm during the commission of the robbery. (CT at 186, 188.) On November 30, 2004, Petitioner was sentenced to a state custody term of 18 years. (CT at 201.) Petitioner's sentence included the applicable enhancements for personal use of a firearm during the commission of a robbery. Id. OnMay 1, 2006, the California Court of Appeal affirmed Petitioner's convictions and found that the prosecution had presented at trial sufficient evidence to prove that Petitioner possessed and used a firearm during the commission of the robbery. (Lodgment 5 at 1.) On July 17, 2006, the California Supreme Court denied a petition for review. (Lodgment 7 at 1.) On July 7, 2008, Petitioner filed with this Court a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On November 7, 2007, Respondent filed an answer. (Doc. No. 13.) On January 1, 2008, Petitioner filed a traverse. (Doc. No. 22.) On May 5, 2008, the magistrate judge issued an R&R recommending that the petition be denied. (Doc. No. 23.) On September 10, 2008, the Court reviewed the entire record and issued an order denying the habeas petition. (Doc. No. 24.)
The state appellate court summarized the relevant facts as follows:
At approximately 7:00 p.m. on September 28, 2003, two employees were working at the Aaron Brothers store located on Midway Drive in San Diego. The assistant manager, Jill Bautista, was helping Geoffrey Moon complete the final orders for the night. When Bautista opened the store's back door to ensure it was locked, she was approached by a woman who asked to make a return of merchandise. Bautista explained the store was closed and she could not complete the merchandise's return until the next day. Vaught appeared from behind the door and told Bautista he was robbing the store. When Vaught held a gun to Bautista's chest, she admitted Vaught and the woman into the store.
Bautista immediately walked to the room in which Moon was working. Vaught followed Bautista. Bautista told Moon that Vaught was there to "take our money." Moon noticed Vaught had a gun pointed at Bautista. Bautista then lead [sic] Vaught to the office, where money was kept in a safe. Vaught waved the gun at Moon, directing him to follow.
After unlocking the office door, Bautista entered the office, followed by Moon and Vaught. Bautista opened the safe and handed Vaught the cash from the cash drawers. Vaught stuffed the money in his pockets. At this time, the gun was either in his hand or his waistband, and was still visible to Bautista and Moon. When Vaught insisted there was more money in the safe, Moon handed over two pouches containing the daily deposits. Vaught asked Bautista and Moon to give him time to get away, and he and the woman left the store. No gun used in the robberies was ever recovered; the existence of a gun was based solely on the testimonies of Bautista and Moon. (Lodgment 5 at 2-3.)
As noted in the Court's order denying the petition for writ of habeas corpus, the two robbery victims, Bautista and Moon, both testified at trial that Petitioner possessed and personally used a gun during the robbery. (Doc. No. 23; Reporter's Transcript ("RT") at 128, 213.) Bautista testified that Petitioner pulled a gun out of his waistband and put it to her chest. (RT at 213-16.) When he pointed the gun at her chest, Petitioner told her "it wasn't a joke and that he was here to take [Aaron Brothers'] money." (RT at 216.) Although Bautista's initial reaction was that the gun looked like the kind of gun "you play with when you're a kid," she testified she complied with Petitioner's demands because she thought the gun was real and loaded. (RT at 215, 225.) She could not remember the exact details of the gun, only that it was "long and pointy." (RT at 215.)
Moon testified that Petitioner had the gun in his left hand and was pointing it at Bautista. (RT at 128.) Moon stated he had previously handled a gun and described the difference between a revolver and a semi-automatic pistol. (RT at 129.) He testified the gun was a dark metal revolver with a long barrel, approximately nine to ten inches long. (RT at 129.) Moon also testified that the barrel appeared to ...