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Burk v. Sisto

May 26, 2010



Petitioner is a state prisoner proceeding pro se with a first amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The first amended habeas petition before the court challenges petitioner's judgment of conviction entered in the Shasta County Superior Court in 2006 for the transportation of a controlled substance in violation of California Health and Safety Code § 11379(A) and the carrying of a concealed dirk or dagger in violation of California Penal Code § 12020(A)(4). Petitioner seeks federal habeas relief on the grounds that:

(1) the evidence introduced at his trial was insufficient to support his conviction for carrying a concealed dirk or dagger; and (2) his sentence of two prison terms of 25-years to life, to be served concurrently, constitutes cruel and unusual punishment.

Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.


On June 29, 2006, a jury found petitioner guilty of possession of a controlled substance, the transportation of a controlled substance and the carrying of a concealed dirk or dagger.*fn1 (Notice of Lodging Documents on December 23, 2008 (Doc. No. 16), Clerk's Transcript on Appeal (CT) at 145-47.) Additionally the trial court found sentencing enhancement allegations with respect to two prior serious felony convictions to be true. (Reporter's Transcripts on Appeal (RT) at 164-65.) Following his conviction, petitioner was sentenced on July 25, 2006, to two concurrent state prison terms of twenty-five years to life. (Id. Id. at 197.)

Petitioner appealed his judgment of conviction to the California Court of Appeal for the Third Appellate District. (Resp't's Lod. Doc. 3.) On July 23, 2007, the judgment of conviction was affirmed in a reasoned opinion. (Resp't's Lod. Doc. 4.) Petitioner then filed a petition for review with the California Supreme Court. (Resp't's Lod. Doc. 5.) The California Supreme Court summarily denied that petition on September 25, 2007. (Resp't's Lod. Doc. 6.)

On September 23, 2008, petitioner filed a petition for a writ of habeas corpus in this court. (Doc. No. 5.) The undersigned dismissed that petition on October 9, 2008, with leave to file an amended petition, due to petitioner's failure to name the proper respondent. (Doc. No. 6.) Petitioner filed this first amended petition on October 28, 2008. (Doc. No. 7.) Respondent filed an answer on December 23, 2008. (Doc. No. 17.) Petitioner has not filed a traverse.


In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

On December 19, 2004, Police Officer Steven Morehouse was on patrol in eastern Redding when he pulled defendant over for speeding on a motorcycle. Defendant was wearing a leather jacket that covered his waist. During a record check on the motorcycle, defendant leaned forward on the bike, and Officer Morehouse noticed a sheath and a portion of the handle of a knife. After calling in backup, Officer Morehouse confiscated the knife and sheath from defendant.

The knife blade was approximately eight inches long and was folded into the handle of the knife, in a similar fashion to a pocketknife. This knife was unique, however, in that the blade extended beyond the protective covering of the handle by about two inches. The sheath prevented the knife from injuring defendant when it was in his pocket; otherwise, the two inches of the blade that were not encased in the handle might stab him. Officer Morehouse attempted to unfold the knife but could not because the blade appeared to be permanently locked in the folded position. These two unique characteristics of the knife led him to believe that the knife had been modified for use as a stabbing instrument.

After finding the knife, Officer Morehouse was concerned there might be other weapons inside defendant's large, gauntlet-style gloves. When he peeled back a portion of one glove, Officer Morehouse discovered a plastic baggie containing methamphetamine. (Resp't's Lod. Doc. 4 (hereinafter Opinion) at 2-3.)


I. Standards of Review Applicable to Habeas Corpus Claims

A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Title 28 U.S.C. § 2254(d) sets forth the following standards for granting habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(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 evidence presented in the State court proceeding.

See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of ยง ...

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