United States District Court, N.D. California, San Jose Division
ORDER DENYING DEFENDANT'S PETITION FOR WRIT OF
HABEAS CORPUS (28 U.S.C. § 2254) RE: DKT. NO. 1
J. DAVILA UNITED STATES DISTRICT JUDGE.
was convicted by a jury in the Superior Court of the State of
California in and for the City and County of San Francisco of
first-degree burglary. After waiving a jury for proof of
prior convictions, the trial court found that a February 13,
1998 robbery conviction was a strike and a serious felony,
but that the prosecution failed to prove the other special
allegations. On March 14, 2014, Sullivan was sentenced to a
state prison term of nine years.
February 11, 2016, the First District California Court of
Appeal upheld the trial court's decision that the
prosecutor's peremptory strike was not a racially
discriminatory peremptory strike and confirmed that
sufficient evidence supported the verdict. People v.
Sullivan, 2016 WL 556133, at *1 (Cal.Ct.App. Feb. 11,
2016). The California Supreme Court denied review on June 8,
2016. Dkt. 13-5, Ex. 8.
then filed the instant federal petition for writ of habeas
corpus under 28 U.S.C. § 2254. Petition for Writ of
Habeas Corpus (“Mot.”), Dkt. 1. Pursuant to an
order to show cause why the writ should not be granted,
Defendant (“the Government”) filed an answer.
Memorandum of Points and Authorities in Support of Answer to
Order to Show Cause (“Opp.”), Dkt. 13-1. Sullivan
filed a traverse. Traverse to Respondent's Answer
(“Reply”), Dkt. 17.
California Court of Appeal summarized the facts of the case
[April-Lynn] Bond testified that she lived in a one-bedroom
apartment in a house on Buchanan Street. A flight of stairs
from the sidewalk led to a walkway that in turn led to the
front door of Bond's apartment on the side of the house.
Her living room was just inside the building's front
windows and was next to her bedroom.
At about 8:00 a.m. on October 10, 2012, Bond called in sick
to work and planned to stay in bed. The window to Bond's
bedroom was partially open and the blinds were down. The
living room windows were closed and the blinds were down.
Bond's purse, work bag, work computer, home computer, and
wallet were on a table in the kitchen. While laying in bed,
Bond heard voices and banging in an alleyway where the
garbage and recycling are kept. It sounded like the speaker
was engaging in a conversation. She then heard a very clear
voice coming from inside her apartment saying something like,
“Oh, dude, this is my worst fucking nightmare.”
Peeking through a gap in the doors to her bedroom, Bond saw
Sullivan, whom she did not know, inside her apartment coming
from the direction of the living room windows. Bond grabbed
her phone, climbed out a bedroom window, and called 911 as
she made her way to the street.
Officer Matthew Lobre, who was dispatched in response to
Bond's 911 call, arrived in uniform driving a patrol car.
He spotted Bond and asked for a description of the intruder.
She indicated there were two people and started to describe
one as a White male with long scraggly hair and jeans when
she interjected, “There he is, that's him.”
She pointed behind Lobre to Sullivan, who was walking down
the front steps of her building. Lobre approached Sullivan
and asked him to put his hands behind his back. Sullivan was
calm and cooperative. As Lobre handcuffed him, Sullivan said,
“This is my house. What did she say? She let me
When Bond reentered her apartment, she noticed the front
window was open, the floor Sullivan had walked on was dirty,
a nearby space heater had been unplugged, and a jacket and
glove that did not belong to her were in the living room. Her
purse, work bag, work computer, home computer, and wallet and
its contents were undisturbed. None of the drawers in a
living room bookshelf had been opened, and no other property
was missing from her apartment.
Inspector Paul Doherty interviewed Sullivan in a hospital
while he was treated for an abscess on his left forearm. The
interview was recorded and an edited version was played for
the jury. Sullivan told Doherty that he was willing to talk
because he had done nothing wrong. Doherty asked him,
“So you've used-you said, uh, you've been up
the last couple of days, but you're not under the
influence right now. You're sober and you feel good
enough to talk to me about this incident?” Sullivan
responded, “Yeah, dude. I've tried to go to sleep
10 times but I can't seem to be left alone.” Later
in the interview Sullivan said, “I've been up for
four fuckin' days. No one wants to give me no food or
water . . . .” Doherty testified that Sullivan did not
appear to be in pain during the interview, and he appeared to
understand the questions that were posed to him.
Sullivan said he inherited part ownership of the building
where Bond lived from a man he met in the park. The man had
left the property to Sullivan and a girl whose name was
something like Emma or Maggie. An attorney told Sullivan
about the inheritance and said he would deliver paperwork to
Sullivan at the home. On October 10, 2012, the attorney,
Sullivan and the girl met at the property. “I went over
there to meet her and talk about how we were gonna figure out
the rent. And she'd been living there for a while, too,
since dude died.” When Sullivan arrived, the building
was locked up and no one would answer the door. Sullivan told
the girl, “Listen, you can't keep me out of my own
fuckin' house, ” and the girl “opened the
window [and] told me I could go in there.” Sullivan
said, “They don't go through doors, bro. I'm
telling you, man. They go through fuckin' windows, like a
little leprechaun or something, dude.” The girl went
through the window with Sullivan, but then left through the
same window. Sullivan said, “I just waited [about 20
minutes] for her [to return]. . . . And then I heard
something and I looked out the door and there's a police
officer. . . . And I came right out [through the window] . .
. [¶] . . . [¶] . . . [a]s soon as he said
Sullivan told the officer that he had inherited the building,
but he was still arrested for burglary. “I didn't
burglarize shit, nothing's broken, nothing's missing.
I didn't take nothing. That was not my intent. I was told
that was my place and I was trying to hash out with this
chick about how we're gonna handle the bills
and-'cause I'm homeless. I'm moving in.” He
added, “I had no intent-I don't need no dope. I
didn't get high since yesterday.” Sullivan
acknowledged that he left his coat, phone charger and glove
in the apartment. Doherty asked Sullivan why Bond would say
that he broke into her apartment, and Sullivan responded,
“I don't think she wants me to live there to be
honest with you. I think she wants the whole ball of wax for
herself.” Doherty did not investigate Sullivan's
story because “I can't investigate every crazy
story that's told me.”
The prosecution rested following the testimony of Bond,
Lobre, and Doherty. The trial court denied Sullivan's
motion for a directed verdict pursuant to section 1118.1 on
the charge of entry with the intent to commit theft.
Sullivan's only witness was Richard Osborn,  who
testified that he was walking his child to school down
Buchanan Street at about 8:00 a.m. on the day of the
incident. He heard “some undecipherable noises coming
from the bushes [in front of Bond's building], which was
enough to startle us to kind of step away from the bushes,
and keep going towards school.” The noise was
“[s]ort of a garbled speech. I couldn't decipher
any of the words, but it was someone's voice.”
“[S]ort of grunting sounds, in a way, ”
“maybe a little louder than a soft mumble.” When
he walked by again on his way back home, he saw “a
gentleman standing in front of the bushes on the sidewalk.
[¶] . . . I made an assumption that's probably whose
voice we had heard before.” The man was Caucasian with
disheveled blonde shoulder-length hair and could have been
Sullivan. “I noticed that he walked into the street,
and I noticed a woman also crossing from the other side of
the sidewalk. [¶] He seemed to walk towards her not
aggressively, but it seemed . . . that maybe she was slightly
avoiding him, walking away.” Neither person seemed
aggressive and Osborn did not see a need to intervene.
However, he reported the incident to 911. Osborn did not
return a call from the district attorney's office shortly
Sullivan, 2016 WL 556133, at *1-3.
Court may entertain a petition for writ of habeas corpus on
“behalf of a person in custody pursuant to the judgment
of a State court only on the ground that he is in custody in
violation of the Constitution or laws ...