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Willie Belton, Iii v. Mcdonald

December 1, 2010

WILLIE BELTON, III, PETITIONER,
v.
MCDONALD, RESPONDENT.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

/ FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are petitioner's petition for a writ of habeas corpus (Doc. 1) and respondent's answer (Doc. 10).

/ / / / / / / / / / / / /

I. BACKGROUND

A. Facts*fn1

The state court recited the following facts, and petitioner has not offered any clear

and convincing evidence to rebut the presumption that these facts are correct:

Christine B. started a relationship with defendant in February 2005. They were intimate with each other and started to live together sharing the room Christine had been living in when they met. Upon being kicked out of the room, Christine and defendant "were pretty much homeless after that, staying in motels and maybe with a cousin or nephew of his or something." They took their meals together, and since defendant had no income, Christine covered all of their expenses. She would buy things for defendant as well as herself and they would occasionally shop together.

The relationship ended in April 2005. At the time, Christine and defendant were sleeping together in a car parked next to her friends Lynetta's house. Lynetta was willing to let Christine live inside her house, but was uncomfortable having a stranger (defendant) sleep inside. Christine chose to sleep in the car with defendant rather than use Lynetta's house by herself. However, defendant was allowed to bathe, watch television, and eat at Lynetta's house.

The relationship ended over defendant's drug use, his disappearing for days at a time, and his inability to help Christine as she looked for a home and job. One day, defendant drove up in a car with two passengers, another man and a woman, and asked Christine for his belongings. Defendant took his things and left peacefully.

Christine testified that she was not in love with defendant and barely knew him. She stated that there were two instances in which there was violence in the relationship. In the first, defendant grabbed her by the throat after she asked him if he was taking drugs again. She could not remember the specifics of the second, except that it "most likely had to do with his drug abuse." Defendant also threatened her once while they were together -- he told Christine that he would kill her if he ever caught her walking on Del Paso Boulevard with another man.

On May 6, 2005, after defendant and Christine had ended their relationship, Christine was on Del Paso Boulevard to meet Ronnie, a male friend. (The two later became romantically involved). Christine described Ronnie as a "mutual friend."

Christine saw Ronnie from 10 to 15 feet away. As she walked toward him, defendant grabbed Christine's shoulder from behind and turned her around, saying, "I -- I told you. What are you doing here, bitch?" Christine, confused, asked to be let go, but defendant grabbed her by the hair and the right side of her face and slammed the other side of her head three times into a brick wall.

Ronnie approached the two and held defendant, telling him to calm down, which allowed Christine to break away and start to cross the street. Defendant struck Ronnie, knocking him to the ground, then ran to Christine and pulled her across the street by her hair and her arm.

Christine tried to pull away from defendant. Defendant punched her in the mouth, which caused her to lose part of a tooth. He also punched her on the side of her head "maybe twice." Christine fell to the ground from the force of the blows and the pain of the lost tooth. She got into a fetal position and defendant kicked her and stomped on her arm. At some point, ...


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