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Burden v. Uribe

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


March 9, 2010

JAMES LOUIS BURDEN, PETITIONER,
v.
DOMINGO URIBE, JR., ACTING WARDEN, RESPONDENT.

The opinion of the court was delivered by: Gary A. Feess United States District Judge

ORDER MODIFYING AND ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Second Amended Petition ("SAP"), all of the records and files herein, the Magistrate Judge's Amended Report and Recommendation, and Petitioner's Objections to the initial Report and Recommendation and his Objections to the Amended Report and Recommendation. After having made a de novo determination of the portions of the Amended Report and Recommendation to which Objections were directed, the Court concurs with and adopts the findings, conclusions and recommendations of the Magistrate Judge. However, the Court modifies the Recommendation as indicated below.

In his Objections to the Amended Report, Petitioner asserts that the Ninth Circuit's recent unpublished memorandum disposition in Mack v. Dexter, 2010 WL 547600 (9th Cir. Feb. 16, 2010), should result in a grant of habeas relief here. This Court disagrees.

In Mack, the Ninth Circuit summarily reversed the district court's denial of a habeas petition as follows:

The record in this case establishes that the jury could have found-and likely did find-Mack guilty of merely failing to update his registration on his birthday, which the California courts regard as a mere technical violation of § 290. [citations omitted]. A sentence of 28 years to life for a technical violation of § 290 runs afoul of the Eighth Amendment. See Gonzalez, 551 F.3d at 877.

Id. at *1. As indicated above, Gonzalez is limited to "technical" violations of the sex offender registration law. Gonzalez, 551 F.3d at 890. Mack does nothing to expand upon or alter the holding in Gonzalez. See Mack, 2010 WL 547600, at *1. Petitioner's triggering offense of petty theft and second degree commercial burglary cannot be deemed a "technical" violation of the law. Accordingly, Mack does not compel the grant of habeas relief here.

IT IS ORDERED THAT:

1. The Second Amended Petition is DENIED and Judgment shall be entered dismissing this action with prejudice.

2. The Clerk shall serve copies of this Order and the Judgment herein by United States mail on counsel for Petitioner and on counsel for Respondent.

20100309

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