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Rea v. Sherman

United States District Court, C.D. California

June 30, 2014

PAUL JIMMY REA, Petitioner,
v.
STU SHERMAN, Warden, [1] Respondent

Order Filed: September 19, 2014

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Paul Jimmy Rea, Petitioner, Pro se, Corcoran, CA.

For Robert Gower, Warden, Respondent: Yun K Lee, CAAG - Office of Attorney General of California, Los Angeles, CA.

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE

OTIS D. WRIGHT, II, UNITED STATES DISTRICT JUDGE.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, records on file, and Report and Recommendation of the U.S. Magistrate Judge. No objections to the Report and Recommendation have been filed, even though Petitioner was granted an extension of time within which to do so. The Court accepts the findings and recommendations of the Magistrate Judge.

IT THEREFORE IS ORDERED that the Petition is denied, Petitioner's request for an evidentiary hearing is denied, and Judgment be entered dismissing this action with prejudice.

JUDGMENT

Pursuant to the Order Accepting Findings and Recommendations of U.S. Magistrate Judge,

IT IS HEREBY ADJUDGED that this action is dismissed with prejudice.

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REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

JEAN ROSENBLUTH, UNITED STATES MAGISTRATE JUDGE.

This Report and Recommendation is submitted to the Honorable Otis D. Wright, II, U.S. District Judge, under 28 U.S.C. § 636 and General Order 05-07 of the U.S. District Court for the Central District of California.

PROCEEDINGS

On March 16, 2012, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254, raising three claims. On March 22, 2012, the Court issued an Order to Show Cause why the Petition should not be dismissed because ground two was unexhausted. On November 19, 2012, Petitioner requested that ground two be dismissed and moved to stay this action while he exhausted the claim in state court. On November 21, 2012, the Court granted Petitioner's motion, dismissed ground two, and stayed this case pending Petitioner's exhaustion of his state remedies. On April 29, 2013, Petitioner moved for leave to amend ground two back into his Petition, which the District Judge denied on October 1. On October 7, 2013, the Court lifted the stay and ordered Respondent to file a response to the Petition's remaining claims. On February 18, 2014, after three extensions of time, Respondent filed an Answer with an attached memorandum of points and authorities. On May 5, 2014, after two extensions of time, Petitioner filed a Reply.

For the reasons discussed below, the Court recommends that judgment be entered denying the Petition, denying Petitioner's request for an evidentiary hearing, and dismissing this action with prejudice.

PETITIONER'S CLAIMS[2]

I. The trial court's admission into evidence of the victim's hearsay statement that he feared Petitioner violated the Confrontation Clause and deprived Petitioner of due process and a fair trial. (Pet. at 5, 48-55.)[3]

II. The trial court's refusal to exclude contaminated DNA evidence deprived Petitioner of due process. (Id. at 6, 56-61.)

BACKGROUND

On October 8, 2009, Petitioner was convicted by a Los Angeles County Superior Court jury of (1) evading a peace officer causing serious bodily injury, in violation of California Vehicle Code section 2800.3(a), (2) resisting a peace officer, in violation of California Penal Code section 148.10(a), (3) first-degree murder, in violation of Penal Code section 187(a), and (4) unlawful possession of a firearm, in violation of Penal Code section 12021(a)(1). (Lodged Doc. I, 1 Clerk's Tr. at 205-06.) The jury found true that Petitioner had used a firearm, in violation of section 12022.53(b), and had personally and intentionally discharged a firearm, in violation of section 12022.53(c). (Id. at 172.) On January 5, 2009, the court sentenced him

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to 50 years to life in state prison plus eight years eight months. (Lodged Doc. J, 5 Rep.'s Tr. at 2401, 2404.)

Petitioner appealed, raising the remaining claims in his Petition (Lodged Doc. K); the California Court of Appeal affirmed the judgment (Lodged Doc. B). Petitioner thereafter filed a petition for review with the California Supreme Court, raising the same claims (Lodged Doc. C); on October 20, 2010, the supreme court denied review (Lodged Doc. D). On January 14, 2011, Petitioner filed a petition for writ of certiorari in the U.S. Supreme Court, which denied certiorari on March 7. (Lodged Doc. 1.)

Petitioner filed a round of habeas petitions in the state courts in order to exhaust an ineffective-assistance-of-counsel claim.[4] (See Lodged Docs. 2, E, G.) At each level, the habeas petition was denied. (See Lodged Docs. 3, F, H.) He did ...


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