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Kevin Ross Beam v. V.W. Knipp

February 6, 2012

KEVIN ROSS BEAM,
PETITIONER,
v.
V.W. KNIPP, 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, seeks to bring a 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. 5), respondent's answer (Doc. 21), and petitioner's reply (Doc. 25). Also before the court are petitioner's motion for a stay-and-abeyance order (Doc. 7) and motion for leave to amend (Doc. 26).

I. BACKGROUND

A. Facts*fn1

The state court recited the following facts*fn2 , and petitioner has not offered any clear and convincing evidence to rebut the presumption that these facts are correct:

The victim was referred to as Jane Doe at trial. Doe worked at a gas station in Cool. She heard the police were at her mother's house and twice left work to see what was going on. Doe's mother said the police were looking for defendant. At the house there were two police officers present and then a SWAT team arrived.

Back at the gas station, a co-worker told Doe that defendant was looking for her. Defendant phoned Doe, telling her he needed to get out of town because the police were looking for him. Doe did not agree at first to help defendant; he phoned her again.

Doe spoke with her supervisor, F. Pearce, about defendant's phone calls. Pearce suggested Doe call the police. Pearce called the police; Doe and Pearce met the police at a market near the gas station. Doe told the officers of the residence where defendant could be located. .

At footnote 3, the state court observed:

The police claimed Doe would not tell them were defendant was. Defendant was wanted for burglary or possession of stolen property.

The state court continued its discussion as follows:

. . . They told her they could not arrest someone at another's residence without a warrant.

Doe and Pearce came up with a plan to get defendant arrested; Doe would pick him up and leave him at a motel. Pearce would follow Doe to ensure her safety. Pearce gave Doe $60 for the motel room. The police told Doe this plan was a terrible idea and not to do it. It would not be safe.

Despite this warning, Doe put the plan in action and picked up defendant and drove through Georgetown. She drove past the car wash and saw Pearce's car waiting. Pearce pulled out and attempted to follow them but defendant saw the car and told Doe to speed up. Between Coloma and Placerville, Pearce lost sight of Doe's car. Pearce, with her husband, went to a diner and waited there several hours.

Defendant directed Doe to drive from Placerville to Cameron Park. From there they drove to Auburn. After trying to check into motels that were too expensive, they went to the Elmwood Motel. Once there, Doe's phone rang several times as Pearce was trying to reach her. Doe answered once, but did not speak long. Defendant got angry about the calls and his posture changed. Doe was scared and felt trapped; defendant was tense. Doe told defendant she needed to leave; she had to get home to her child. Defendant responded she was not going anywhere. Defendant told Doe that he thought the police were looking for him because of Toby Kaiser. He said Sheri had probably turned him in because he killed Kaiser, cut off his hands, and used them in burglaries. . . .

At footnote 4, the court added: The police did not investigate this allegation further because it was outside their jurisdiction. There is no mention of this crime in the probation report.

The court continued:

. . . When Doe learned this, her attitude about leaving changed; she was scared.

Defendant wanted to get a local newspaper to see why the police were looking for him, so they went to Doe's gas station to get one. Defendant took the car keys with him when he went into the gas station. While he was gone, Doe called a friend, A. Meza. It was a poor ...


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