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Cedric W. Conner v. R. Barnes

June 28, 2011

CEDRIC W. CONNER, PETITIONER,
v.
R. BARNES, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER*fn1

I. Introduction

Petitioner is a state prisoner proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2007 conviction on one count of second degree burglary and one count of petty theft. At the sentencing hearing, petitioner agreed to waive his right to appeal in exchange for a sentence of five years and eight months. Petitioner raises four claims in his petition, filed July 20, 2009, that his prison sentence violates the Constitution. For the reasons set forth below, petitioner's application for a writ of habeas corpus is denied.

II. Procedural History

On September 27, 2007, the Petitioner was found guilty by a jury of a Second Degree Burglary (Penal Code 459) and Petty Theft (Penal Code 484(a)/666). Outside the presence of the jury, the trial court found true allegations that the Petitioner had previously suffered certain prior convictions, namely, a strike and three prison commitments (Penal Code 667.5(b)). His total prison exposure, as convicted, was nine-years. Following the jury verdict, the case was referred to the Probation Department and a report was prepared that recommended that the petitioner be sentenced to prison for seven years.

On January 2, 2008, the case was calendared for Judgment and Sentencing. The Defendant had previously filed a Romero motion requesting the trial court exercise it's [sic] discretion to strike one or more of the prior enhancements. Following the trial, the District Attorney had apparently offered the Petitioner a stipulated prison sentence of five years, eight months in lieu of the likely higher prison sentence the court could impose. The offer from the prosecution, however, included a requirement that the Petitioner waive his appellate rights [rt 3:12-13][.]

At the sentencing hearing, the trial court informed the petitioner that the court would likely impose the mid-term and sentence the defendant to seven years, thus he was saving over a year and a third by accepting the District Attorney's offer. [rt 6:2-7] The trial court informed the petitioner that he could accept the offer or reject it and offered to give the petitioner more time to talk with his attorney. [rt 4:1-3] The defendant was informed that his waiver would include everything that occurred pretrial, during trial also sentencing. [rt 7:1-24] The defendant acknowledged that he understood the consequences of the waiver and he expressly agreed to and did waive his appellate rights. [rt 7:1-24] In accordance with the negotiated sentenced [sic], the trial court sentenced the defendant to five years, eight months in prison.

(Sup. Ct. Op., LD 4, at 1-2 (footnote omitted).*fn2 On May 19, 2008, petitioner filed his first state habeas petition in the Placer County Superior Court. (LD 3.) He alleged ineffective assistance of counsel and challenged the voluntariness of his appellate waiver. (LD 3 at 3-4.) On July 1, 2008, the superior court found petitioner's wavier included a waiver of the right to seek a writ of habeas corpus and accordingly, found petitioner had waived all claims. (LD 4 at 3.)

On August 4, 2008, petitioner filed a habeas petition in the California Court of Appeal which was denied without comment on August 6, 2008. (LD 5 and 6.) On September 8, 2008, petitioner filed a habeas petition in the California Supreme Court which, on March 25, 2009, was also denied without comment. (LD 7 and 8.)

On July 20, 2009, petitioner filed the instant habeas corpus petition in this court.*fn3

On November 15, 2010, the undersigned granted in part respondent's motion to dismiss. (Dkt. No. 24.) Claims 2(c), 2(d), 2(e), and 2(f) were dismissed as unexhausted. (Id.)

III. Facts

Because petitioner did not appeal, there is no appellate opinion summarizing the facts presented at trial. Respondent has provided a Statement of Facts, which is quoted below. The court recognizes that petitioner objects to some aspects of this recitation of the facts.*fn4

Petitioner's objections are noted.

In the summer of 2007, Natalie Rankin and her husband Jason Rankin owned and operated the Sunkissed Tanning Salon on Lone Tree Boulevard in the city of Roseville in Placer County. (LD #9 at 90, 92, 164, 223.) The front door of the salon opened into a lobby with a large counter. (LD #9 at 93-95.) Customers generally stood in front of the counter to pay for services or make an appointment, while an employee sat behind the counter at an adjacent desk and entered those transactions into a computer and cash register. (LD #9 at 95.) A security camera was mounted on the wall of the lobby, but it was not working due to a missing part. (LD #9 at 115, 197.) A hallway extended behind the lobby, where several tanning rooms and a separate office were located. (LD #9 at 96.) Next to the front door, there was a window with sheer curtains. (LD #9 at 116.) Consequently, a passerby from one of the nearby businesses, such as Subway, would be able to see into the lobby while standing outside the salon. (LD #9 at 90, 116.)

Shortly after 2:00 p.m. on June 30, 2007, Natalie and Jason were both present in the tanning salon with no other employees or customers. (LD #9 at 97, 164.) Natalie was cleaning one of the tanning beds, while Jason was working in the back office. (LD #9 at 97, 164.) Jason heard the front door chime open, followed shortly thereafter by a "bang." (LD #9 at 164-65, 187.) Natalie did not remember hearing the chime, but she did hear the "bang." (LD #9 at 156.) Jason and Natalie both thought the "bang" sounded like the cash register drawer being opened. (LD #9 at 97, 99-100, 123, 165.) Natalie stopped cleaning and walked to the front lobby, while Jason continued working in the back office. (LD #9 at 98, 166.)

Upon entering the lobby, Natalie observed Petitioner, an African-American male, "walking out" from behind the counter near the desk. (LD #9 at 98-99, 124-25, 127.) Natalie immediately noticed that Petitioner was holding her plastic Subway cup, which she always kept filled with water on the desk next to the cash register. (LD #9 at 98, 103.) Natalie also noticed another plastic cup from Subway, filled with green soda and a red straw, sitting on the front of the counter. (LD #9 at 98, 103.) Natalie stared at Petitioner, wondering why he was holding her water cup. (LD #9 at 100.) Petitioner reacted by pointing to some of the tanning equipment around the room and repeatedly asking, "What's that?" (LD #9 at 100-01.) Petitioner did not ask for any tanning services or inquire about the prices for those services. (LD #9 at 101.) Feeling "weird" about the situation, Natalie started to back away from Petitioner. (LD #9 at 100-01.)

Within seconds of hearing voices, Jason entered the office and walked into the lobby to see if everything was alright. (LD #9 at 165-66.) Just then, Petitioner opened the front door and walked outside. (LD #9 at 100, 166, 181.) Petitioner was still holding Natalie's water cup, leaving behind the other cup filled with green soda and a straw. (LD #9 at 98, 103.) Jason recognized Petitioner from earlier that day, when Jason had seen Petitioner waving an advertising sign at the nearby intersection of Lone Tree Boulevard and Blue Oaks Boulevard. (LD #9 at 166-67, 173, 181-82, 191.) Jason had also seen Petitioner that afternoon leaving the Subway located next door to the tanning salon. (LD #9 at 166-67, 173, 181-82, 191.)

As soon as Petitioner left, Natalie walked over to the register and opened the drawer. (LD #9 at 100.) She discovered that all of the $5 bills and $20 bills were missing. (LD #9 at 102, 168.) Natalie told Jason, "We've been robbed." (LD #9 at 104, 168.) Jason walked outside to track down Petitioner, while Natalie picked up the phone and dialed the police. (LD #9 at 104, 168.)

The call was received by the Rocklin Police Department at 2:08 p.m. (LD #9 at 194.)

Jason spotted Petitioner just as he was walking around the corner of the building. (LD #9 at 168-69.) Petitioner briefly turned around and saw Jason. (LD #9 at 169.) Petitioner continued walking away, and Jason ran after him. (LD #9 at 169.) Jason next spotted Petitioner walking across the street at the intersection of Lone Tree Boulevard and Blue Oaks Boulevard, the same intersection where Petitioner had been waving the advertising sign earlier that morning. (LD #9 at 169-70, 191.) Jason's car happened to be parked nearby, so he got inside and drove over to Petitioner. (LD #9 at 170.)

After parking his car, Jason stepped outside and reluctantly approached Petitioner. (LD #9 at 170-71.) At that time, Petitioner was loading his advertising sign and lunch box into a blue Thunderbird, which was parked just in front of Jason. (LD #9 at 171, 203, 228.) Jason said to Petitioner, "I know that you robbed us." (LD #9 at 171.) Petitioner responded, "I didn't rob you. I work really hard for my money. I don't have to rob anybody." (LD #9 at 171.) Jason replied, "But we know that you robbed us. You were the last person in with-the last half hour. Nobody else has been in for that time, and you are the only one in there." (LD #9 at 171.) Petitioner answered, "I'll show you I didn't rob you." (LD #9 at 172.) Petitioner, accompanied by Jason, walked back across the street to the salon. (LD #9 at172.)

When they returned, Natalie was still on the phone with the police. (LD #9 at 104, 172.) Petitioner asked Natalie and Jason why they believed he had robbed them. (LD #9 at 172.) Jason responded that Petitioner had been the only one in the store, and Natalie added that Petitioner had been standing next to the cash register. (LD #9 at 173.) Petitioner said, "Ma'am, I did not rob you." (LD #9 at 105, 172.) Petitioner pointed to the camera on the wall and said, "Check the video." (LD #9 at 130, 183.) Then Petitioner removed numerous items from his cargo-pants pockets and placed the contents on the counter. (LD #9 at 105-06, 173.) There was no money among the contents. (LD #9 at 106, 173-74.) When Jason asked to see Petitioner's back pockets, Petitioner insisted they were already empty. (LD #9 at 174.) Natalie interjected, "It doesn't matter. The police are on their way." (LD #9 at 106, 131, 174.) At that point, Petitioner quickly gathered his belongings from the counter and hurriedly exited the salon. (LD #9 at 106, 132, 174-75.)

Natalie continued to stay on the phone waiting for the police to arrive, while Jason again followed Petitioner. (LD #9 at 106-07, 175.) Petitioner walked at a brisk pace all the way across the intersection, then stepped into his blue Thunderbird, and hurriedly drove away, even running a red light. (LD #9 at 175-76.) Jason also returned to that intersection, where his own car was still parked, and he got inside and drove off after Petitioner. (LD #9 at 175-77.) Using his cell phone, Jason continued following Petitioner and reported the location and license plate of Petitioner's car to the Rocklin Police Department. (LD #9 at 178, 234.)

Patrol cars soon appeared and conducted a traffic stop on Douglas Boulevard near the I-80 freeway. (LD #9 at 179, 206.) Petitioner was advised that he was suspected of theft and asked to exit his vehicle. (LD #9 at 207.) Petitioner complied, while still holding a cell phone in one hand and a crumbled $20 bill in the other. (LD #9 at 207, 210.) Petitioner eventually consented to a search of his person and vehicle. (LD #9 at 207-08, 210.) Officers discovered waded [sic] up cash stuffed behind the ash tray in the center console of Petitioner's car. (LD #9 at 213, 215.) The total amount of money seized from Petitioner's person and vehicle amounted to $172, consisting of seven ...


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