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Burnett v. Clark

April 7, 2010

CARLOS R. BURNETT, PETITIONER,
v.
KEN CLARK, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Milan D. Smith, Jr. United States Circuit Judge

ORDER

Petitioner Carlos R. Burnett, a state prisoner, has filed a petition for a writ of habeas corpus with this court pursuant to 28 U.S.C. § 2254(a). For the reasons discussed below, Burnett's petition is DENIED.

FACTS AND PROCEEDINGS

In the early morning hours of July 24, 1996, three teenage boys named Feolofan Lopa, Matthew Lene, and Jesse Tooto, started walking to Lene's home in North Sacramento after spending the evening at the home of Lene's aunt. RT 37-43, 73-75. Their journey home took them through the neighborhood of Del Paso Heights.

Del Paso Heights is a large neighborhood in North Sacramento, and Elm Street is located within Del Paso Heights. RT 273. At the time of the events in this case, each of these geographical areas was associated with a specific street gang. The Del Paso Heights Bloods claimed the Del Paso Heights neighborhood as their territory, and the Elm Street Bloods claimed Elm Street and the associated block as their territory. RT 275. The Del Paso Heights and Elm Street Bloods were related gangs, as they were both subsets of the larger Bloods gang. RT 273-75.

The Bloods often engage in violent conflict with the Crips, a rival gang. RT 274-75. Both gangs have their own signs, hand signs, and graffiti to identify their members. Id. They also distinguish themselves from one another by the colors they wear-Crips typically wear blue, and Bloods tend to wear red. RT 273.

On the morning of July 24, Lopa was wearing blue clothing. RT 76-77. The record is not clear whether the three boys belonged to a gang. Lene testified that he "grew up with a street gang" called the Sons of Samoa, RT 38-39, whose members tended to wear blue, RT 39-40, but he declined to say whether the Sons of Samoa associated themselves with the Crips or Bloods. RT 39. Lene also did not address Lopa's or Tooto's involvement with the Sons of Samoa. RT 38.

As the three boys walked together, two African-American males in a gray pickup truck with a camper shell drove slowly past the boys, giving them "hard looks." RT 76-77. The driver shortly turned the truck around, parked, and exited the vehicle with the passenger. RT 43-45, 77. The driver yelled, "What's up, Bloods?" RT 45, 77. The three boys did not respond to the driver's taunt and continued walking. RT 46, 77.

After the two drivers initially passed the three boys and parked the car, Lene was able to briefly look at them after the two men exited the truck. Lene saw that the driver was a skinny African-American male with braided hair. RT 48-49. Lene observed that the passenger was a tall, skinny African-American male with little or no hair. RT 49-50. Tooto also got a look at the two men as they slowly drove past the boys, giving them "hard looks." He described the driver as an African-American male who was "kind of chubby and stocky" with braided hair. RT 85-86.

He described the passenger as a tall, skinny African-American male who was bald or had little hair. RT 87.

Suddenly, the truck pulled up behind the boys. RT 50, 79. The passenger shouted, "What's up now, Blood," and then began firing at the boys. RT 50-51, 55, 80-81. Lene was hit in his left thigh, RT 56-57, 81-82, and Lopa was shot in the back, RT 58-59. Lopa died from the gunshot wound. RT 258-60.

After the incident, Lene participated in a photo line-up at the police station. RT 60-62. Lene was shown ten photos in the photo line-up, and he pointed out two that resembled the shooter, one of whom was Burnett. RT 59-64. Tooto also participated in a photo lineup. RT 99-100. When Tooto was shown a group of ten photographs, he eventually picked a photograph that he believed resembled the passenger. The photograph he selected was not of Burnett. RT 90-92, 100-01.

After Lene identified Burnett as being the possible shooter, Sharon McClatchy, a detective with the Sacramento City Police Department, interviewed Burnett. RT 247-48, CT 1-48. In that interview, Burnett represented that on the night of the shooting, he and his friend, Omar, drove a gray truck with a camper in the Del Paso Heights neighborhood. CT 1-12. However, Burnett stated that they drove to an apartment to check on Omar's baby, who was sick, and that once they checked on the baby, they returned home. Id. Burnett told Detective McClatchy that he and Omar returned home between midnight and 1 a.m. and that they did not go out again. CT 37-38. Shortly after the interview, Burnett was arrested and charged with murder. RT 252.

On November 1, 1996, an information was filed in Sacramento Superior Court charging Burnett with violation of California Penal Code section 187 for first degree murder and sections 664/187 for attempted murder. CAT 8-10. The information also contained special allegations that Burnett personally used a firearm in the commission of the charged offenses and that he intentionally killed the victim by firing from a motor vehicle. Id. Burnet pleaded not guilty and denied the special allegations. CAT 133.

The jury trial commenced on March 31, 1997. CAT 112-13. On April 10, 1997, a jury returned a guilty verdict on both counts and found the special allegations to be true. CAT 202-03. On May 8, 1997, the trial court sentenced Burnett to state prison for life without possibility of parole on the murder count, and to twelve years and four months for consecutive terms for the attempted murder count and special allegations enhancements. CAT 236-37. On June 30, 1998, the California Court of Appeal of the Third Appellate District affirmed Burnett's conviction. On September 23, 1998, the California Supreme Court denied Burnett's petition for review.

On October 13, 1999, Burnett filed a petition for writ of habeas corpus in the Sacramento County Superior Court. On November 3, 1999, the state court denied the petition. On November 29, 1999, Burnett filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. On December 2, 1999, the California Court of Appeal summarily denied the petition. On March 13, 2000, Burnett filed a petition for writ of habeas corpus with the California Supreme Court. On June 28, 2000, the California Supreme Court summarily denied the petition.

On March 9, 2001, Burnett filed the present petition for writ of habeas corpus. Burnett filed an amended petition for writ of habeas corpus on January 16, 2008.

LEGAL STANDARD

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a district court may grant a petition challenging a state conviction or sentence with respect to a claim that was "adjudicated on the merits" in state court only if it (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the ...


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