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Larry W. Kirk v. S.M. Salinas

April 23, 2012

LARRY W. KIRK, PETITIONER,
v.
S.M. SALINAS, RESPONDENT.



The opinion of the court was delivered by: United States Magistrate Judge Timothy J Bommer

ORDER

Petitioner, Larry W. Kirk, is a state prisoner proceeding with a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was sentenced to sixteen months in state prison after a jury found him guilty of attempted making of terrorist threats, a felony, (Cal. Penal Code §§ 664, 422) and misdemeanor battery. In his Third Amended Petition (Docket No. 30, incorrectly titled "Fourth Amended Petition"), Petitioner raises two claims for federal habeas relief; specifically: (1) the trial court's failure to hold a competency hearing when substantial evidence raised a doubt as to Petitioner's competency to stand trial violated his right to due process under the Fourteenth Amendment ("Claim I") and (2) the trial court's reinstatement of criminal proceedings after Petitioner's counsel had declared a doubt as to Petitioner's competency and the trial court had ordered that he be medically examined violated his due process rights ("Claim II"). Both Petitioner and Respondent consented to the jurisdiction of a United States Magistrate Judge in this case. Docket Nos. 12, 25. For the reasons stated herein, the federal habeas petition is denied.

II. FACTUAL BACKGROUND*fn1

Defendant Larry Wilber Kirk accosted bus driver Trina Anderson, calling her names and following her down the street. Defendant spat at Anderson, told her "I ought to cut your throat," and threatened to have his girlfriend beat her up. . . .

The jury heard the following evidence at trial. On a December morning, bus driver Anderson had just completed her shift. She was scheduled to transfer her bus to a relief driver, but the new driver had not arrived. Under Regional Transit's policy, Anderson could not leave the area until the arrival of the relief driver. Anderson got off the bus, and the waiting passengers attempted to board the bus. Anderson asked them to disembark until the arrival of the relief driver. As she walked toward the adjacent light rail station, defendant, one of the waiting passengers, began following her. He called her fat, ugly, and a bitch. Anderson had seen defendant once previously when he was a passenger on her bus. Anderson, who was talking on her cell phone, tried to ignore defendant. Defendant continued to insult her, and Anderson told him to "F-off."

Anderson walked to the end of the station, but defendant continued to follow her as she quickened her pace. Defendant kept up his flow of insults, repeating fat, ugly, and bitch and adding bald-headed. Anderson stopped and asked defendant if he wanted to get back to the bus before it left, but defendant merely continued the insults.

Defendant stood about three feet away and spat at Anderson; the spittle landed on her jacket. Anderson yelled, "You spit on me!" Defendant told Anderson: "I ought to cut your throat" and reached into his pocket. Anderson feared defendant was reaching for a knife. Anderson did not know what to do; continuing down the street would have put her in a more isolated area, making her even more vulnerable, so she stayed where she was.

Instead of a knife, defendant took a cell phone out of his pocket.

He told Anderson: "I'll get my girlfriend to come out here and beat you up." Defendant appeared to dial the phone and spoke into it, giving a physical description of Anderson as well as their location. Anderson believed she was in danger.

Anderson saw a police car and waved it down. She told the officers what happened. Defendant denied Anderson's allegations. A witness told officers defendant had spit on Anderson, and officers arrested defendant.

Sandra Cooper, a bystander at the station that morning, saw defendant and a bus driver arguing. After the driver got off the bus, Cooper saw defendant follow her. Cooper heard them exchanging words. When the pair were approximately 20 feet away, Cooper heard defendant tell the bus driver he would have his girlfriend "kick her ass" and that he would "slit her throat." Cooper saw defendant spit at the driver.

According to Cooper, the driver was trying to get away from defendant, but defendant kept following her. Cooper told officers what she had seen and saw them take defendant into custody. Sacramento City Police Sergeant Elmo Banning, on duty that morning, observed a bus driver trying to flag him down. The driver, a short woman, looked scared. Anderson told Banning defendant spat on her.

Banning approached defendant and asked him what happened. Defendant said: "I didn't spit on that lady." Defendant did not tell Banning that Anderson had done anything wrong toward him. When handcuffed, defendant became remorseful.

According to Banning, defendant did not appear to be physically impaired. Banning remained on the scene for a very short time, assigning other officers to more completely interview the witnesses.

Defendant testified in his own behalf, denying the charges. The morning of the incident, defendant planned to have breakfast and go to the pharmacy. As he approached the bus he saw Anderson get off. Anderson told those waiting to board: "Don't get your asses on my bus. Get off my bus."

When a bystander replied, Anderson, looking directly at defendant, said: "[F]uck you, you fucking punk." Defendant, trying to be nice, shrugged off Anderson's words. Anderson continued cursing at him, calling into question his masculinity. Defendant finally responded, calling Anderson a whore and a slut and telling her, "I don't fuck with black bitches of [your] caliber ."

Defendant did not follow Anderson, spit on her, or threaten to cut her throat. On the contrary, Anderson threatened to have someone kill defendant.

During cross-examination, defendant testified he took several psychotropic drugs. He is a borderline schizophrenic and bipolar. In ...


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