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Dennis Wayne Mize v. M. Cate

September 4, 2012

DENNIS WAYNE MIZE,
PETITIONER,
v.
M. CATE, ET AL., RESPONDENTS.



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, brings this 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. 1), respondent's answer (Doc. 19), and petitioner's reply (Doc. 27). Also before the court is petitioner's motion for leave to conduct discovery (Doc. 28).

I. BACKGROUND

A. Facts*fn1

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

The pivotal factual question posed to the jury was whether defendant resided in California or Oregon. There was an abundance of evidence that he had moved to California for a period of time far in excess of the 10-day trigger to register as a sex offender. We provide a brief sketch of that evidence. . . .

First, following his arrest, defendant himself provided his address as 6998 Highway 273 in Anderson and told his probation officer that he had resided in Shasta County for nine months. He gave the same address to a second probation officer a few days later and repeated that he had lived at that address for nine months. But he also told the second probation officer that he had lived in Shasta county for 20 years.

Second, his then girlfriend, Suzanne Rodriguez, testified that she moved with defendant to Shasta County at the end of April or beginning of May 2006. They lived with an elderly woman, Oleta Dobson. Because defendant had been Dobson's son's best friend before the son died, Dobson allowed defendant and Rodriguez to live in a converted garage unit in exchange for some odd jobs. Rodriguez further testified they remained at Dobson's house from the end of April to June with the exception of a week she left to go to Turlock and three or four days when defendant left to sell his Jeep. She admitted she drank heavily during the time they lived together at Dobson's. On June 16, 2006, a non-contact order was issued on her behalf when she went to the emergency room following an incident with defendant.

Third, Dobson and her twin sister Ozella Mitchell, almost 70 years old, both testified that defendant lived at Dobson's house on and off for a couple of months. At trial both claimed faulty memories but acknowledged defendant had stayed at Dobson's house. Dobson testified defendant stayed in her family room, which had been converted from a garage and had a sleeping area and bathroom. Dobson was annoyed that defendant had not kept up his end of the bargain and failed to get much work done for her. She disliked his girlfriend's drinking. Nevertheless, because the unit had its own entrance, she did not know precisely when defendant or Rodriguez was there. She told an investigator for the district attorney's office that defendant had lived with her for about three months.

Contrary to this evidence, defendant testified that he lived and worked in Oregon. He claimed he was in California sporadically from December 2005 through June 2006, but never for more than three consecutive days. When he was in Redding, he would stay with Dobson and had "free gratis" to come and go whenever he came through town. (footnote omitted). He explained that he had told the arresting officer and probation officer his address was 6998 Highway 273 because from his experience it was best to give a local address in order to get a favorable bail review or release on one's own recognizance. It was the jury's prerogative to reject defendant's testimony given his propensity and motive to lie.

It was undisputed that defendant failed to register in California and, for that matter after August 9, 2005, in Oregon either. He did not notify the authorities in Oregon that he was moving to California, nor did he register on his birthday in 2006 as he was required to do. There was ample evidence that he knew he was required to register.

His Oregon parole officer testified that she discussed with defendant the requirement that he must report a change of residence to the appropriate law enforcement agency within 10 days of the change in residence. This requirement was expressly set forth in the order of supervision conditions he signed on multiple occasions. A sex offender registration obligation notification form, signed by defendant on July 29, 2003, stated: "If you move out of state, you must register within 10 days in order to be relieved of your requirement to register in Oregon. You should also contact the appropriate agency in that state regarding their registration requirements." On September 9, 2003, he signed another document that informed him: "Pursuant to federal law, you must also contact the appropriate agency in the state to which you have moved within ten (10) days of arriving in that state." He completed forms containing this same information on January 22, 2004; April 29, 2004; and March 10, 2005.

In November 2004 defendant left Oregon and went to Washington. He was later punished for failing to notify Oregon authorities of his move and failing to register as a sex offender in Washington.

The prosecution introduced excerpts of letters defendant wrote to Rodriguez in spite of the no-contact order. He encouraged her to dodge subpoenas and lie on his behalf. Angry about her disclosures to the district attorney's investigator, he wrote, "Would you like to know how many ways your conversation with the DA ...


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