The opinion of the court was delivered by: William Q. Hayes United States District Judge
ORDER: (1) ADOPTING THE REPORT AND RECOMMENDATION; (2) DENYING THE PETITION FOR WRIT OF HABEAS CORPUS.
Before this Court is Magistrate Judge Jan M. Adler's Report and Recommendation ("R&R") recommending that the Court deny Petitioner Curtis Pressly's ("Petitioner") Petition for Writ of Habeas Corpus and dismiss the case with prejudice. This Court has considered Petitioner's Petition, F.B. Haws's ("Respondent") Answer and Memorandum of Points and Authorities, and all supporting documents submitted by the parties. Having considered these documents, this Court DENIES Petitioner's Petition for Writ of Habeas Corpus and DISMISSES the action with prejudice.
28 U.S.C. § 2254(e)(1) provides that a "determination of a factual issue made by a State court shall be presumed to be correct" in a federal habeas corpus petition. "The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."
Accordingly, this Court presumes the following facts, taken from the California Court of Appeal's opinion regarding Petitioner's direct appeal, are correct.
On October 1, 2003, Petitioner was arrested for a robbery of the Union Bank of California ("Union Bank") at the corner of Fourth Avenue and Laurel Street in San Diego. (Lodgment 7 at 2.) Cristina Zizzo was working as a bank teller at the Union Bank on the morning of October 1, 2003 when a man approached the counter and handed her a demand letter that said something like, "This is a robbery. No alarm, no bait, no dye packs." (Id. at 7.) Even though the man had made no threats and not displayed a weapon, Zizzo said she was "a little bit" afraid. (Id.) She thus responded to the note as she had been trained to do, which was not to resist, but rather to comply with a robber's demands, by immediately removing the money from her two drawers to give to the man. (Id.)
She had unloaded all but one stack of twenty dollar bills from the top drawer and was preparing to empty the next drawer when the robber pointed to the remaining stack of bills and told her, "Give me those 20's too." (Id. at 7-8.) Zizzo had not initially included that stack because the demand note had instructed her not to give the robber a dye pack, and that stack contained a dye pack. (Id. at 7.) After Zizzo handed over all the money in her two drawers, the robber told her, "You never saw me," as he turned and left the building, heading west down Laurel. (Id. at 8.) Zizzo waited until the robber had left the building to activate the silent alarm under her counter station to alert the police to the robbery. (Id.)
Jennifer Tarver was driving her car near Union Bank around the time it was robbed when she saw someone driving away from the bank in a Toyota Corolla with orange smoke bellowing from inside. (Id.) Tarver had previously worked as a bank teller and recognized the colored smoke as that from a bank dye pack and "strongly associated the possibility of a bank robbery."
When the car pulled into a nearby parking lot, Tarver followed it, parked at a distance, and continued to watch the car as she called 911 on her cell phone to report her suspicions. (Id.)
Filisimo Amposta was sitting in his car in the parking lot when the Toyota pulled up next to him, with red smoke pouring out of it, and parked. (Id. at 9.) He made eye contact with the driver when the man got out and tried to wave the smoke out of the car. (Id.)
Tarver had continued to observe the driver while he was in the parking lot, and as soon as the Toyota exited the lot, she began following it again, relaying the Toyota's progress to an emergency dispatcher while she drove. (Id. at 8.) When the man driving the Toyota realized he was being followed, he accelerated and ran a stop sign. (Id.) Tarver then ended her pursuit of the robber and returned to Union Bank to talk with police officers who had arrived in response to the robbery. (Id. at 8-9.) After telling police what she had witnessed, an officer took Tarver in his squad car to the Days Inn Motel on Pacific Highway because a car like the robber's had been seen parked near the motel. (Id. at 9.)
Detective James McGhee of the Robbery Division was already at the Days Inn when Tarver and the officer arrived. (Id. at 5.) McGhee had responded to a police radio broadcast that the bank robbery suspect was believed to be at the motel, and that a car matching the robber's had been found nearby. (Id.) As he pulled into the parking lot of the Days Inn, he saw a man matching the description of the suspect walking on the third floor toward an elevator away from room 315, which had its door open. (Id.) Leaning over the walkway railing in front of the room was a woman. (Id.) Detective McGhee saw the man get into the elevator and go down to the first floor, where other officers immediately detained him. Id. When asked permission to search room 315, Petitioner said, "Go ahead. I don't care. I'm not staying in that room." (Id. at 3.)
McGhee then went upstairs to talk to the woman. (Id.) He asked for her identification, and she went into the room to get it, leaving the door open. (Id.) McGhee followed her. (Id.) Near the door in plain view was a red-stained cardboard beer carton filled with red-stained cash.
McGhee recognized the stain as the type caused by dye packs. He escorted the woman back out of the room and waited for the ...