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Whiten v. Sisto

October 12, 2010

JULIOUS RAY WHITEN, JR., PETITIONER,
v.
D.K. SISTO, WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding with counsel on an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The amended petition before the court challenges petitioner's 2005 judgment of conviction entered in the Sacramento County Superior Court for one count of possession of a sawed-off shotgun in violation of California Penal Code § 12022 and one count of being a felon in possession of a firearm in violation of California Penal Code § 12021. Petitioner seeks federal habeas relief on the ground that his trial counsel rendered ineffective assistance.

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

PROCEDURAL BACKGROUND

On November 30, 2005, a Sacramento County Superior Court jury found petitioner guilty of possession of a sawed-off shotgun and being a felon in possession of a firearm.*fn1 (Notice of Lodging Documents on November 20, 2009 (Doc. No. 18), Reporter's Transcript on Appeal ("RT") at 1112-13.) Following his conviction, petitioner was sentenced on April 7, 2006, to a state prison term of twenty-five years to life. (Id. at 1157.)

Petitioner appealed his judgment of conviction to the California Court of Appeal for the Third Appellate District. On September 7, 2007, the judgment of conviction was affirmed. (Resp't's Ex. 1 (Doc. No. 17) at 2 of 5).*fn2 Petitioner then filed a petition for review with the California Supreme Court. (Resp't's Lod. Doc. 1.) On December 12, 2007, the California Supreme Court denied that petition. (Id.) Petitioner thereafter filed a petition for writ of habeas corpus with the California Supreme Court. (Resp't's Lod. Doc. 2.) That petition was denied on June 10, 2009. (Resp't's Lod. Doc. 3.)

On December 15, 2008, petitioner filed a federal habeas petition in this court challenging his state court conviction on the grounds that: (1) his Fourth Amendment rights were violated by an unlawful search and seizure, and (2) his Sixth Amendment rights were violated when he received ineffective assistance of counsel. (Doc. No. 1.) On August 18, 2009, the undersigned found that petitioner's Fourth Amendment claim failed to state a cognizable claim for purposes of federal habeas review. (Doc. No. 6.) With respect to his Sixth Amendment claim the court found that it appeared that petitioner may have exhausted the claim in state court while this federal petition was pending. (Id.) Petitioner was therefore given thirty days to file an amended federal habeas petition setting forth his exhausted Sixth Amendment claim or, in the alternative, to file a status report indicating that his Sixth Amendment claim was still pending before the California Supreme Court. (Id.) On September 17, 2009, petitioner filed the amended petition now before this court. (Doc. No. 8- "Am. Pet.") Respondent filed an answer on November 20, 2009. (Doc. No. 17-"Answer.") Petitioner has not filed a traverse.

FACTUAL BACKGROUND

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:

At the suppression hearing, Officer Robert Mueller testified that he and Officers Gin and Dionne were dispatched to investigate a reported assault. The victim, Michael Sunahara, told them that [petitioner], who was Sunahara's neighbor, was the assailant.

The officers then went to [petitioner's] house to conduct further investigation. While Officer Dionne spoke with [petitioner], a woman named Jennifer Jacinto, who was [petitioner's] fiancée, told Officer Mueller that their house had been burglarized the night before and that she believed Sunahara was the perpetrator. Sunahara had lived in [petitioner's] house for about a week but had moved out when he was unable to pay the rent. Jacinto showed Officer Mueller the damage caused by the burglary, including holes in the guest bedroom wall, and a kicked-in door in the master bedroom.

The officers then returned to Sunahara's house. When Officer Gin told him about the allegations, Sunahara said that [petitioner] had handcuffed and assaulted him with a .45-caliber pistol and that [petitioner] kept the pistol and a sawed-off shotgun at his house. According to Sunahara, the likely location of the pistol was in a black zippered case in the nightstand in [petitioner's] master bedroom, or inside the living room couch, or inside one of the cars. The shotgun was either under the master bedroom bed or in one of the cars.

At this point, Officer Mueller returned to [petitioner's] home to look for the weapons and to further investigate the alleged burglary. When Jacinto answered the door, Officer Mueller told her he had seen something at Sunahara's house that might have caused the holes in the guest bedroom and asked to see the damage again. Jacinto showed him to the guest bedroom. After a few moments, Mueller said he did not think the object at Sunahara's house had caused the damage after all, and suggested it might have been caused by some object in [petitioner's] house. He asked Jacinto to show him the rest of the damage, and she led him to the master bedroom to view the kicked-in door.

When they reached the bedroom, Officer Mueller asked if there were any weapons in the house. Jacinto responded that she was not aware of any. Mueller then asked if he could search for weapons. Jacinto consented.

Officer Mueller began searching under the bed and in the nightstand drawer, as Sunahara had suggested. In the drawer, Mueller found a box of "sex toys." Since Sunahara had mentioned that he was handcuffed during the assault, Mueller asked Jacinto whether she owned any handcuffs. According to Jacinto, at ...


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