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Bruno v. Director

January 25, 2010

NATHAN CLAY BRUNO, PETITIONER,
v.
DIRECTOR, CALIFORNIA DEPT. OF CORRECTIONS, ET AL., RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a 1999 judgment of conviction entered against him in the Sacramento Superior Court on charges of attempted murder, assault with a deadly weapon, battery with serious bodily injury, and possession of a weapon (a dagger), with findings that he personally inflicted great bodily injury. He seeks relief on the grounds that his trial counsel rendered ineffective assistance. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

I. Procedural and Factual Background*fn1

A jury convicted defendant Nathan Clay Bruno of attempted murder (Pen. Code, §§ 187, subd. (a), 664; further statutory references are to the Penal Code; count one), assault with a deadly weapon (§ 245, subd. (a) (1); count two), battery with serious bodily injury (§ 243, subd. (d); count three), and possession of a weapon, a dagger (§ 12020, subd. (a) (4); count four), and found that he personally inflicted great bodily injury (§ 12022.7, subd. (a)) in the commission of counts one, two and three. (footnote omitted.) The trial court found that he had suffered one prior serious felony conviction (§ 667, subd. (a)) and two "strike" convictions (§§ 667, subds. (b) - (I), 1170.12), and had served a prior prison term (§ 667.5, subd. (b)). He was sentenced to state prison on count one for 36 years to life. Sentences on counts two and three were stayed pursuant to section 654; a 100-day sentence on count four was deemed already served.

** *

FACTS

Prosecution case in chief On May 4, 1998, at about 10:30 a.m., James Breitenstein was in Cesar Chavez Park in Sacramento. He had a couple of beers with some people at a table. Defendant approached Breitenstein. The people at the table asked defendant to leave, and a verbal argument broke out. Breitenstein scuffled and wrestled with defendant on the ground. Then Breitenstein turned away from the argument. As he was walking away, defendant slashed Breitenstein's neck and arm. The lengthy neck wound cut through a muscle and injured blood vessels and a nerve. The arm wound was defensive and severed some of the tendons to the hand.

Defendant quickly walked out of the park and proceeded toward 9th and J Streets and then toward K Street.

At 5:37 p.m. that afternoon, Community Service Guide Peter Milner saw defendant passing an alley on 10th Street between J and K Streets. Defendant glanced quickly at Milner and kept on walking.

At 5:50 p.m. that afternoon, Sacramento Police Officer Ronald Chesterman contacted defendant at 10th and G Streets. There were no weapons on him. Defendant was arrested and taken to police headquarters. He had visible injuries indicating that he may have recently been in a fight.

Criminalist Mary Hansen determined that a bloodstain on defendant's clothing was consistent with his own blood. Breitenstein could not be excluded as the source of other bloodstains on defendant's clothing.

Sacramento Police Detective Skip Buck interviewed defendant. The interview was videotaped and excerpts from the tape were played for the jury.

In the interview, defendant admitted being in Cesar Chavez Park from 8:15 a.m. until 1:15 p.m. However, he claimed to be unaware of the "five police cars, ambulance, fire trucks, sirens blaring, lights flashing, crowds gathering," that resulted from the attack. Defendant knew that the investigation involved assault with a deadly weapon before the officers told him what the offense was. Defense Loaves and Fishes is an agency that provides services to homeless people. It maintains a roster of persons who use its lunch service. The roster for the week of April 29, 1998, indicated that defendant was issued a lunch ticket on May 4, 1998. Lunch tickets could be picked up between 7 a.m. and 12:30 p.m. The time a ticket is picked up is not noted on the roster.

Margaret-Mary Canales, a Loaves and Fishes employee, testified that defendant had regularly visited the agency for three to four months prior to May 1998. He typically would arrive between 10:15 and 10:45 a.m. to pick up his lunch ticket. Canales had no recollection of defendant being present on May 4, 1998.

Rebuttal On May 4, 1998, Ricardo Vargas was a security officer in a building across from Cesar Chavez Park. At 10:47 a.m., a woman entered the building and reported a stabbing in the park. Vargas went to the park and found Breitenstein, who described his assailant as an Hispanic male, five feet six inches tall, dressed in black, and carrying a green coat.

Detective Buck testified that the walk from Cesar Chavez Park to Loaves and Fishes takes approximately 15 minutes.

Petitioner's judgment of conviction was affirmed on appeal in an unpublished decision dated April 27, 2001. Pet., Ex. E. Petitioner subsequently filed a petition for review in the California Supreme Court, which was denied by order dated July 11, 2001. Id., Ex. F.The instant habeas petition was filed on October 23, 2002.

II. Analysis

A. Timeliness of ...


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