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William H. Hoard, Iii v. State of California

March 9, 2012

WILLIAM H. HOARD, III,
PETITIONER,
v.
STATE OF CALIFORNIA,
RESPONDENT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

[Doc. 1]

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge. Local Rule 305(b).

BACKGROUND

Following a jury trial in the Kern County Superior Court, Petitioner was convicted of second degree robbery with a knife (Cal. Penal Code*fn1 §§ 212.5(c) & 1022(b)(1)) and misdemeanor resisting arrest (§ 148(a)(1)). The jury also found that Petitioner served a prior prison term within the meaning of California Penal Code section 667.5, subdivision (b). Petitioner was sentenced to five years in state prison.

Petitioner filed a timely notice of appeal. On September 10, 2009, the California Court of Appeal, Fifth Appellate District affirmed the judgment.

On December 2, 2009, Petitioner filed a petition for review in the California Supreme Court. The petition was denied on December 2, 2009.

Petitioner then filed a petition for writ of habeas corpus in the Kern County Superior Court. The petition was denied on June 21, 2010.

On May 3, 2010, Petitioner filed a petition for writ of habeas corpus in the Kern County Superior Court. That petition was denied on March 2, 2011.

Petitioner filed the instant federal petition for writ of habeas corpus on August 23, 2011. Respondent filed an answer to the petition on January 26, 2012. Petitioner did not file a traverse.

STATEMENT OF FACTS

Facts-Prosecution Case

At approximately 10:05 a.m. on May 26, 2008 (May 26), a Black man, wearing dark clothing, a beanie and a mask, and holding a knife in his hand, entered Margin's Market Liquor Store (liquor store) as Jung Chi, the owner of the store, was standing in front of the counter. The man demanded money. Chi handed the man some money. She then opened a cash register and the man took some more money and ran out of the store. After waiting a few minutes, Chi telephoned her husband and then the police. The man made off with approximately $1,200.

On May 26 at approximately 10:00 a.m., as John Washington was driving near the liquor store, he saw a man run out of the store. Washington pulled up in front of the store and the man, as he ran by, kicked Washington's car. The man ran toward, and then into, an alley, and Washington followed him in his car. As the man ran, he started taking off articles of clothing.

The man "turned the corner," and Washington lost sight of him. Approximately 15 seconds later, Washington saw a Black man emerge from the back yard of a nearby residence, climb over a fence and run toward Washington, who was sitting in his parked car. There was nothing covering the man's face. He was Black, and his "clothing . . . was the same" as the man Washington had seen seconds before. As the man approached Washington, he pulled out a knife. As the man ran by Washington's car he kicked it and continued running. Washington followed, and the man jumped over a cement fence. At that point, Washington drove back in the direction of the liquor store.

While driving, Washington saw the same man, running near a building that was formerly a K-Mart store. When Washington got back to the liquor store, he made contact with a police officer who had arrived on the scene. Less than a minute later, with Washington driving his car and the officer following in his, Washington led the officer to the old K-Mart store.

At 10:38 a.m. on May 26, City of Bakersfield Police Officer Nathan McCauley and his partner, responding to a report they received from police dispatch, were in the vicinity of the liquor store when they saw a Black male, who met the "suspect description" the officers had received; the man was wearing black clothing and he was walking in the area of some dumpsters.

Officer McCauley got out of his car and approached the man, whom the officer later identified as [Petitioner]. The officer did not see anything in the man's hands and could not tell if he was collecting cans. As the officer approached he said, "let me talk to you for a second, sir." [Petitioner] said, "hold on a second," The officer responded that he needed to talk to [Petitioner], but [Petitioner] began to walk away. The officer, who continued to approach [Petitioner], yelled for him to stop, but [Petitioner] ran off and jumped over a wall.

The officer ran to the spot where [Petitioner] went over the wall, but [Petitioner] was not visible. At that point, Officer McCauley put out a radio call to other police officers, informing them of what he had seen.

On May 26, sometime after 10 a.m., City of Bakersfield Police Officer Tyler Kinney responded to the scene and "started looking for a suspect." He encountered [Petitioner] in the yard of an apartment complex; [Petitioner] appeared to be in the process of removing his shirt. [Petitioner] was wearing a black beanie cap and he had a pair of gloves in his pocket. Officer Kinney took [Petitioner] into custody.

Police took Washington to an in-field "show up" at a location approximately two or three blocks away from the liquor store. The police had a man in custody. Washington recognized him as the man he had seen running out of the liquor store earlier.

Police transported Chi to the location where [Petitioner] had been arrested, approximately three blocks from the liquor store. There, police had [Petitioner] in custody; he was standing in the alley. Chi testified the man was the same height and weight as the man who robbed her, and was wearing pants similar to those worn by the robber. Chi had not been able to see the robber's face and was not able to positively identify [Petitioner] as the man who robbed her.

Facts-Defense Case

Bonnie Bowden, a friend of [Petitioner's], testified to the following: She was with [Petitioner] from 9:00 a.m. to 10:30 a.m. on May 26, in an alley near an old K-Mart store, looking for cans for recycling. At one point, [Petitioner] was looking for cans in some dumpsters when two police officers approached on foot and spoke to [Petitioner]. [Petitioner] at that point, walked over a brick wall, jumped over it and ran. The officers gave chase.

On July 25, 2008, a defense investigator showed Washington a photographic line-up consisting of six photographs. [Petitioner's] photograph was in the "number five position." The investigator asked Washington if any of the photographs depicted "the person or persons who committed the crime." Washington stated, "I think it is No.2...." Police officers searched [Petitioner's] person, the area where officers first observed [Petitioner] and the area where [Petitioner] was seen running, but found no currency, bandana, scarf, mask or knife.

Procedural and Additional Factual Background [Petitioner] did not testify at trial.

A police officer testified on cross-examination that after [Petitioner] was taken into custody, "it [was] determined that [Petitioner] had a bench warrant for his arrest[.]" The witness confirmed "that's something if you don't show up for court or you don't comply with some rule of court they issue a warrant for your arrest that ...


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