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Blanco v. McDonald

March 19, 2010

NORMAN PAUL BLANCO, PETITIONER,
v.
MICHAEL MCDONALD, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER DENYING THE HABEAS PETITION

On August 24, 2009, Normal Paul Blanco ("Petitioner"), a prisoner proceedings pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner claimed insufficient evidence supported his conviction for assault with a deadly weapon on a peace officer. (Doc. No. 1 at 6.) On November 9, 2009, Respondent filed an answer. (Doc. No. 11.) On December 8, 2009, Petitioner filed a traverse. (Doc. No. 14.) On January 29, 2010, the magistrate judge issued a report and recommendation denying Petitioner's habeas petition. (Doc. No 15.) On February 26, 2010, Petitioner filed objections to the report and recommendation. (Doc. No. 16.)

After due consideration, the Court denies the habeas petition.

BACKGROUND

On March 1, 2006, Petitioner was convicted of: (1) assault with a firearm; (2) two counts of discharge of a firearm in a grossly negligent manner; (3) unlawfully taking and driving a vehicle; (4) evading an officer with reckless driving; (5) hit and run driving; (6) assault with a deadly weapon on a peace officer; (7) possession of a firearm by a felon; and (8) unlawful possession of ammunition. (Lodg. 1 at 295-303.) On August 18, 2006, the trial court sentenced Petitioner. (Lodg. 1 at 635-36.) On September 6, 2006, Petitioner filed a direct appeal in the California Court of Appeal, Fourth Appellate District, Division One, alleging multiple errors including a claim that insufficient evidence supported his conviction for assault with a deadly weapon on a peace officer. (Lodg. 5.) On July 22, 2008, in an unpublished opinion, the court of appeal denied the insufficient evidence claim on the merits. (Lodg. 15 at 7-8.) On August 29, 2008, Petitioner filed a petition for review in the California Supreme Court. (Lodg. 16.) On October 1, 2008, the California Supreme Court denied review. (Lodg. 17.) On August 24, 2009 Petitioner filed a petition for writ of habeas corpus in this Court claiming insufficient evidence supported his conviction for assault with a deadly weapon on a peace officer. (Doc. No. 1.)

Federal habeas courts presume the correctness of a state court's determination of factual issues unless Petitioner "rebut[s] the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1) (2006). See Pollard v. Galaza, 290 F.3d 1030, 1035 (9th Cir. 2002). The parties do not challenge the accuracy of the California Court of Appeal's summary of the underlying facts, although Petitioner disputes his guilt on the assault with a deadly weapon on a peace officer. The court of appeal summarized the underlying facts as follows:

Chula Vista Police Officer Sarah Sharpe testified that on September 12, 2004, at approximately 8:00 p.m., she responded to a call that shots had been fired at Blanco's residence. Sharpe met Shendel Dame, Blanco's girlfriend, who gave her the following account: Dame and Blanco were together when another woman Blanco was romantically involved with -Vickie Pena- showed up to visit Blanco. An argument ensued between Blanco and Dame. Blanco fired a gunshot into the floor. He "pulled [Dame's] hair and yanked her neck back and held the gun up to her neck," telling Dame, "Dare me? You fucking don't think I'll do it, do you [?]" He blocked both women from leaving the apartment. Dame locked herself inside the bathroom, and heard Blanco fire three shots in her direction. A few minutes later, she opened the bathroom door. She saw Blanco holding a gun pointed directly at her, and she slammed the door.

The next day, Officer Sharpe responded to another call at Blanco's apartment. Dame and Pena were there. Dame told Sharpe she had returned to Blanco's apartment to pick up her belongings, and she called the police from there. After Dame finished the phone call, she realized Blanco had left in Pena's car.

Chula Vista Police Officer Frank Giaime testified that on September 13, 2004, he responded to a call at Blanco's residence. Dame informed Giaime that Blanco was at her family's apartment located at 307 Ash Street in Chula Vista. Giaime went there and saw Blanco leaving the apartment and running to a parked vehicle. Giaime drew his gun and ordered Blanco to stop, but Blanco got into the vehicle and sped away. Giaime and another officer pursued him using their lights and siren. A police helicopter reported Blanco's movements to Giaime, who reached Woodlawn Avenue and E Streets, and exited his police car. Approximately ten seconds later, Giaime heard three loud pops, which he assumed was gunfire. When he saw Blanco approaching, Giaime drew his weapon and ordered him to stop. Blanco ducked down and accelerated past Giaime. Returning to his car, Giaime heard another loud sound, and saw Blanco had crashed into another vehicle. Giaime went to the collision scene and saw Blanco standing outside his vehicle. Blanco turned and ran. Giaime chased him as he jumped over a fence. A citizen intervened and held Blanco down until Giaime arrived and apprehended Blanco.

Chula Vista Police Officer Fred Rowbotham testified he responded to the call at 307 Ash Street. He was dressed in his uniform, and proceeded to handle traffic control at an intersection. He watched as Blanco left the apartment, eluded the other police officers, ran to a vehicle, and drove away. Rowbotham turned on his motorcycle lights and siren, and chased Blanco through city streets and into a strip mall parking lot. While other officers pursued Blanco, Rowbotham stopped his motorcycle in the parking lot. Blanco drove towards Rowbotham, who pulled out his gun. As Blanco raced past him, Rowbotham saw "[Blanco's] whole upper body was . . . level or lower than the dashboard of the vehicle. He was completely laying across the seats." Rowbotham testified that as Blanco passed him, they "had eye-to-eye contact the whole time."

Office Rowbotham exited the parking lot, drove south on Woodlawn Street and immediately saw Blanco approach from around a corner, straddling the center line and driving "possibly at the fastest possible speed you could make that corner as a vehicle . . . the suspension was extended, the vehicle was sliding around the corner." Rowbotham jumped off his motorcycle, and ran. He pulled out his gun. He testified, "I just wanted to get out of the road. I thought for sure he was trying to run me over." Blanco drove to within approximately one foot of Rowbotham, who fired three shots. Rowbotham estimated Blanco was driving at 50 miles an hour.

Chula Vista Police Officer Tom Craft testified he was directing traffic at the intersection of Broadway and F Streets, and saw Blanco leave the apartment at 307 Ash Street. Blanco got into a vehicle and in reverse drove speedily towards Craft, knocking over the cones in front of his police vehicle. Craft turned on his lights and siren, and pursued Blanco. Craft stopped approximately 15 feet behind Rowbotham and saw Blanco's vehicle, straddling the center line, accelerating towards them. Craft saw Rowbotham appear to fall from his motorcycle, and Blanco driving between Rowbotham and the motorcycle. Craft testified, "I thought that [Blanco's] vehicle was going to strike [Rowbotham], when the first shot went off. That's what I saw. It was --[Blanco] was only three, four feet away from the front bumper of the vehicle." Craft estimated Blanco was driving at 40 to 50 miles an hour, and the passenger side of Blanco's vehicle passed within two to three feet of Rowbotham.

Chula Vista Police Office Don Clarke testified, "I remember seeing [Rowbotham] coming around the front bumper, he was trying to get out of the way, moving very quickly towards the curb, and shooting as he was moving towards the curb." Clarke estimated Blanco's vehicle came to within three to five feet from the curb.

Suzanne Martin testified she was at work and looking out the window. She saw "the motorcycle cop was standing in the middle of the street, and when [Blanco's vehicle] came back out of the driveway, he was headed right ...


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