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Lee v. Yates

December 16, 2009

ELMER WALTON LEE, PETITIONER,
v.
JAMES A. YATES, RESPONDENT.



The opinion of the court was delivered by: Ronald B. Leighton United States District Judge

THE HONORABLE RONALD B. LEIGHTON

ORDER DENYING PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS

THIS MATTER is before the Court for consideration of Petitioner's Petition for Writ of Habeas Corpus [Dkt. #1]. The Court has reviewed the materials submitted in support of and opposition to the Petition. For the following reasons, Petitioner's Petition for Writ of Habeas Corpus is DENIED on all grounds.

Background

Petitioner Elmer Walton Lee was convicted by jury trial of lewd acts upon a child under age 14 (Cal. Penal Code § 288(a)), continuous sexual abuse of a child under age 14 (Cal. Penal Code § 288.5(a)), and lewd acts upon a child age 15 (Cal. Penal Code § 288(c)(1)). During petitioner's trial, the trial court found that the petitioner had a prior lewd conduct serious felony conviction from Idaho in 1987 (Cal. Penal Code §§ 667(b)-(I), 1170.12). The trial court also found that petitioner was a habitual sex offender as to the § 288(a) and § 288.5(a) charges (Cal. Penal Code § 667.71). Petitioner was sentenced to 111 years to life. Petitioner appealed his conviction to the California Court of Appeal, which affirmed the judgment of the trial court.*fn1 Petitioner did not appeal his conviction to the California Supreme Court.

Petitioner filed a Petition for Writ of Habeas Corpus in Butte County Superior Court on July 11, 2005. The petition was denied on July 12, 2005. Petitioner filed a Petition for Writ of Habeas Corpus in the California Supreme Court on or about July 11, 2005. The petition was denied on May 17, 2006. Petitioner filed a second Petition for Writ of Habeas Corpus in Butte County Superior Court on May 4, 2006. The petition was denied on May 15, 2006. Petitioner filed a Petition for Writ of Habeas Corpus in the California Court of Appeal, Third Appellate District, on June 15, 2006. The petition was denied on June 22, 2006. Petitioner filed a second Petition for Writ of Habeas Corpus in the California Supreme Court on July 27, 2006. The petition was denied on February 7, 2007. Petitioner filed a third Petition for Writ of Habeas Corpus in the California Supreme Court on July 2, 2007. The petition was denied on December 12, 2007. Petitioner filed this Petition for Writ of Habeas Corpus in the United States District Court for the Eastern District of California on October 15, 2007.

Factual Background

Petitioner states three grounds for habeas corpus relief in his petition. First, petitioner alleges that he never admitted he had a prior conviction or waived his right to a jury trial on the issue of whether he had a prior conviction. Second, petitioner claims that the admission of Aimee Pettigrew's testimony and a note written by the victim was erroneous and should result in an overturned conviction. Third, petitioner argues that he was denied due process when the prosecutor committed misconduct during closing argument by impermissibly commenting on petitioner's constitutional right not to testify in his own defense.

1. Prior Conviction Admission and Waiver

On the first day of trial, defense counsel stated that the petitioner "would be prepared to admit the previous conviction out of the presence of the jury, however, without conceding that it is applicable as a strike or as is alleged in the special allegations." Dialogue between the court and defense counsel followed:

THE COURT: Is your client waiving his right to a jury trial under Apprendi to determine the truth of the prior for both strike purposes and prior prison term purposes?

MR. BERGLUND: Yes.

THE COURT: I'll get that appropriate waiver. It won't come into play until there's a conviction, so I'll take the waiver at that time. But at least I'm not going to hold the jury. I probably will - - it's been my practice to hold the jury in case you change your mind until I ...


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