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Eric Kenneth Dungan v. Rob Barnes

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 6, 2011

ERIC KENNETH DUNGAN, PETITIONER,
v.
ROB BARNES, WARDEN, RESPONDENT.

ORDER

Petitioner is proceeding with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he challenges his second-degree murder conviction for killing a police officer in an automobile collision on October 9, 2005. The record before the court indicates that, later in the day of the collision, CHP Officer Charles Swift interviewed petitioner for two hours and forty-five minutes and that this interview, recorded on two DVDs, was played for the jury at petitioner's trial. (Lod. Doc. 8 at 6-8*fn1 .) The record before this court also indicates that, in reviewing petitioner's argument that there was insufficient evidence to support the jury's verdict finding him guilty of murder, the California Court of Appeal for the Third Appellate District reviewed these DVDs.*fn2 Indeed, the state appellate court discussed petitioner's interview at some length in its order and opinion affirming petitioner's judgment of conviction. (Id.)

Pursuant to 28 U.S.C. § 2254(d), this court is tasked with reviewing whether the state court's adjudication of petitioner's claims

(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.

Under § 2254(d)(2), the court must be able to review the complete factual record available to the state appellate court including, in this case, the DVDs of Officer Swift's October 9, 2005 interview with petitioner.

Accordingly, IT IS HEREBY ORDERED THAT respondent lodge with this court a copy of the DVD recording of the October 9, 2005, interview of petitioner by Officer Charles Swift within seven days of this order.


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