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Jimmy Burton v. Warden G. Lewis

February 27, 2012

JIMMY BURTON,
PETITIONER,
v.
WARDEN G. LEWIS,
RESPONDENT.



The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable Dale S. Fischer, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on August 23, 2011. Respondent filed an Answer on October 14, 2011, contending that the Petition was partially unexhausted. On October 28, 2011, Petitioner filed a "Motion for Stay and Abeyance," conceding that the Petition was partially unexhausted, and moving for a stay of the Petition.

In an Order filed November 9, 2011, the Court denied Petitioner's motion for a stay. In the same Order, the Court afforded Petitioner the opportunity to dismiss the entire action without prejudice by filing, within thirty (30) days of the date of the Order, a "Notice of Voluntary Dismissal." The Order advised Petitioner that, in the event Petitioner elected not to file a "Notice of Voluntary Dismissal" within the requisite time period, the Court would order briefing on the merits of Petitioner's single exhausted claim (Ground One of the Petition).

Petitioner failed to file a "Notice of Voluntary Dismissal" within the allotted time, thereby electing to delete the unexhausted claims from the Petition and to proceed on the merits of his exhausted claim. Therefore, on December 21, 2011, the Court issued an Order requiring Respondent to file a Supplemental Answer addressing the merits of Petitioner's exhausted claim. On January 10, 2012, Respondent filed a Supplemental Answer. Petitioner did not file a Supplemental Reply within the allotted time.

BACKGROUND

A jury found Petitioner guilty of second degree murder, found true various gun enhancements, and found true the allegation that the offense was committed for the benefit of a criminal street gang (Reporter's Transcript ["R.T."] 5103-05; Clerk's Transcript ["C.T."] 451-53). Petitioner received a sentence of fifteen years to life (R.T. 5711-12; C.T. 485-86).

The California Court of Appeal affirmed (Respondent's Lodgment 5). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 7).

PETITIONER'S CONTENTION

Petitioner contends that the admission of Petitioner's jailhouse conversations allegedly violated the Confrontation Clause, California's hearsay rule, and Petitioner's constitutional right to remain silent.

SUMMARY OF TRIAL EVIDENCE

The following summary is taken from the opinion of the California Court of Appeal in People v. Burton, 2010 WL 3749273 (Cal. App. Sept. 28, 2010). See Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).

[Prosecution Case]

Desiree S. was 17 years old at the time of the shooting incident on the evening of June 4, 2007. She lived in Compton and was familiar with the Compton Transit Center, which was located on Willowbrook Avenue across from the Greyhound station. She was at the transit center at the time of the shooting. It was still light outside. Desiree arrived at the transit center after a train trip from Carson, and she had her bicycle with her. Desiree walked her bicycle from the train platform toward the bus station. As she approached a stop sign, an African-American male, similar to her age, came up and asked, "Can I see your bike real fast"? She replied that she had to go, walked away, and decided to ride home (northbound on Willowbrook) because she just missed the bus. She had seen the same male a handful of times before, standing in a group and offering to sell day passes. The male rode his bicycle across the street toward the Greyhound station.

Desiree crossed the street and was mounting her bicycle when she heard gunshots. She looked in the direction of the shots, toward the transit center, and saw the victim, Hardy, an African-American male, lying on the ground. She believed Hardy was a member of the Nutty Blocc Crips.*fn1 She had previously seen him at the train station, offering to sell train tickets or bus passes. Shortly before the shooting, Desiree had seen Hardy standing with a group in front of the Greyhound station.

Deputy Jose Racho and his partner responded to the transit center at approximately 7:00 p.m. Within five minutes, Deputy Racho saw fire department personnel treating Hardy, who was lying face down in front of the transit center's entrance. Hardy was transported to the hospital and pronounced dead shortly thereafter from two gunshot wounds to his back, one of which fatally penetrated his vital organs. Hardy suffered abrasions to his cheek and knee, and a laceration on his chin. There was a bullet lodged in the wall of the transit center, near the victim.

Examination of the two bullets showed they were fired from the same weapon-either a .38-caliber special semiautomatic or a .357-caliber magnum revolver. When Detective Q. Rodriguez arrived at the shooting scene, the paramedics had cut away clothing from the victim and transported him to the hospital. No weapon was found in the clothing. Additional investigation gave no indication that Hardy was armed.

Deputy John Orozco assisted other officers in containing the shooting scene and looking for witnesses. Desiree rode up to him on her bicycle. The deputy took her name and address and asked if she knew what had happened. She responded, "Semi, a little bit" and went home.*fn2 Later that evening, police officers went to her home and brought her to the station, accompanied by her father. She told the interviewing officer, Detective Shaun McCarthy, that the male who asked to use her bike was a twin.*fn3 She described him as being dark-skinned and could tell the twins apart because one had a scar on his face.*fn4 She had seen him and the victim at the station before, selling day passes on the ...


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