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Roger Blueearth v. Vimal J. Singh

January 31, 2013

ROGER BLUEEARTH, PETITIONER,
v.
VIMAL J. SINGH, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Sheri Pym United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I.

INTRODUCTION

On January 5, 2012, petitioner Roger Blueearth filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition"), challenging his 2009 conviction for second degree robbery in the Los Angeles County Superior Court. Petitioner claims that his counsel was ineffective and there was insufficient evidence to convict him.

On August 17, 2012, respondent filed an Answer to the Petition. Petitioner filed a Reply on August 30, 2012.

Both petitioner and respondent consented to proceed for all purposes before the Magistrate Judge pursuant to 28 U.S.C. § 636(c). With the parties' briefing complete, the matter is now ready for decision.

For the reasons discussed below, petitioner's claims lack merit. Accordingly, the Petition will be denied with prejudice.

II.

STATEMENT OF FACTS*fn1

[O]n May 29, 2009, [petitioner], who had suffered a prior theft-related conviction, stole a $60 circuit breaker from a Home Depot store in Los Angeles (count 2). Junior Barrillas, a loss prevention officer for the store, confronted [petitioner] outside the store to recover the stolen item. [Petitioner] used force on Barrillas in an unsuccessful effort to escape (count 1).

III.

PROCEEDINGS On August 31, 2009, following a jury trial, petitioner was convicted of second degree robbery (Cal. Penal Code § 211) and petty theft with a prior conviction (Cal. Penal Code § 666). Petition at 2; Clerk's Transcript ("CT") at 81. The trial court also found that petitioner had a prior felony conviction. Petition at 2; CT at 81. On November 6, 2009, the trial court sentenced petitioner to a total term of four years, three years for the robbery and one year for the prior conviction enhancement, with the sentence on the petty theft with a prior conviction stayed. CT at 81.

Petitioner, represented by counsel, appealed his conviction. Petitioner raised two arguments: (1) convictions for both robbery and petty theft, a lesser Except as noted, the facts set forth are drawn verbatim from the California included offense, were impermissible; and (2) the court imposed improper fines and the record included clerical errors regarding the fines. Lodged Doc. 3. The California Court of Appeal affirmed the judgment in part. Pet. Mem., Exh. A-1. The California Court of Appeal reversed petitioner's conviction on count two on the ground that petty theft is a lesser included offense of robbery and therefore petitioner could not be convictedof both. Id. The California Court of Appeal also vacated or modified some of the fines imposed on petitioner. Id.

On March 8, 2011, petitioner filed a habeas petition in the California Supreme Court. Pet. Mem., Exh. A-2. Petitioner presented two arguments: (1) ineffective assistance of counsel; and (2) insufficient evidence. Id. The California Supreme Court summarily ...


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