United States District Court, C.D. California, Western Division
Kenneth Taylor, Petitioner, Pro se, Norco, CA.
For Warden Tampkins, Respondent: Susan S Kim, CAAG - Office of Attorney General, California Department of Justice, Los Angeles, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
VICTOR B. KENTON, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Honorable Philip S. Gutierrez, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On September 23, 2014, Kenneth Taylor (hereinafter referred to as " Petitioner"), a California state prisoner proceeding pro se, filed a " Petition for Writ of Habeas Corpus by a Person in State Custody" pursuant to 28 U.S.C. § 2254 (" Petition"). In accordance with the Court's Order requiring Respondent to file a response, on November 17, 2014, Respondent filed an " Answer to Petition for Writ of Habeas Corpus; Memorandum of Points and Authorities" and a " Notice of Lodging." Petitioner did not file a Reply.
Having reviewed the allegations of the Petition, the matters set forth in the record and the parties' filings, it is recommended that the Petition be denied and this case be dismissed with prejudice.
On March 12, 2012, a jury in the Los Angeles County Superior Court found Petitioner guilty of making criminal threats in violation of California Penal Code (" PC") § 422. (Lodged Document [" LD" ] 1 [Clerk's Transcript (" CT")] at 87-89; LD 2 [Reporter's Transcript (" RT") at 903-04.) Petitioner admitted allegations pertaining to three prior serious felony convictions in violation of PC § 667(a)(1) and three prior serious or violent felony convictions in violation of PC § 667(b)-(I) and PC § 1170.12(a)-(d). (CT at 104; LD 4 at 1-4.) On October 5, 2012, Petitioner was sentenced to a term of six years and four months in state prison. (CT at 184, 188-90; RT at 3008-16.)
On March 12, 2013, Petitioner filed a direct appeal in the California Court of Appeal. (LD 5.) On August 29, 2013, the California Court of Appeal issued an opinion affirming the judgment of conviction, with a modification regarding a court security fee. (LD 8.)
On October 2, 2013, Petitioner filed a Petition for Review in the California Supreme Court. (LD 9.) On November 13, 2013, the California Supreme Court denied review. (LD 10.)
STATEMENT OF FACTS
The California Court of Appeal set forth a factual background in denying Petitioner's direct appeal which this Court summarizes in pertinent part and supplements with observations from its own review of the record, as follows:
On July 6, 2008 at about 1:00 p.m., Carl White, Clyde Clausell, and Petitioner were at Lennox Park in Los Angeles County. (RT at 311.) White, Clausell, and Petitioner worked for the Department of Parks and Recreation. White, a general maintenance supervisor, was Clausell's supervisor. (Id.) Clausell was a maintenance supervisor and was Petitioner's supervisor. White and Clausell were at the park to serve notice on Petitioner that his employment was being terminated. (RT at 311-312.)
White opened the door of the park office and Clausell saw Petitioner on the phone, sitting at Clausell's desk. (RT at 313.) Only White, Clausell, and Petitioner were present. White and Clausell entered the office and Petitioner hung up the phone. Petitioner then said, " Oh, I knew this was coming." (Id.)
Clausell stood in the corner of the office. His role was simply to be a witness to the termination. (RT at 314.) After Petitioner hung up the phone, White talked with Petitioner. White took out an envelope containing paperwork and told Petitioner that his employment was being terminated. (RT at 315.)
Once White mentioned termination, Petitioner got belligerent and started yelling and screaming, saying it was all Clausell's fault. (RT at 317.) Petitioner said Clausell did not stand up for Petitioner. (Id.) Clausell testified that Petitioner continued talking and said to Clausell, " You not a man. You a bitch and you a faggot. Your wife, ... wear the pants and you ain't nothing but a punk." (Id.) Petitioner then said, " Yeah, but you getting a pass today." (Id.) Petitioner was trying to provoke Clausell. (Id.)
Petitioner was sitting in the office chair perhaps four feet from Clausell, and Clausell was standing in the doorway. (Id.) The office was very small, about eight feet by ten feet. (Id.) When Petitioner was calling Clausell a punk, bitch, and similar words, Petitioner's demeanor was like that of a mad man. (RT at 318.)
Petitioner took keys off a ring and threw them on the desk. (Id.) Clausell testified that Petitioner then took his personal keys and put them in between his hand and started lunging at him talking about " Come on, mother fucker. You want some of this? You want some of this?" (Id.) Clausell could see one key protruding from between Petitioner's index finger and his ring finger. (RT at 319.) Petitioner lunged at Clausell with the key in his hand. (Id.) When Petitioner lunged at Clausell, Petitioner's hand came within perhaps six or eight inches of Clausell. (Id.)
Clausell testified that Petitioner said, " You ain't nothing but a Mexican lover and I hope the sons of bitches chop you up into pieces." (RT at 320.) After Petitioner said that, he turned around and said, " Yeah. Next time they see you, you going to be like this in a mother fucking coffin and I don't care, I'm going to get even with all of you." (Id.) When Petitioner said that, Petitioner's wrists were crossed in front of him. (Id.) The prosecutor asked Clausell, " What did you take that statement to mean, ... the statement where the defendant showed you his wrists crossed over each other?" (RT at 321.) Clausell ...