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Garcia v. Burton

United States District Court, E.D. California

November 18, 2019

ROBERT BURTON, Respondent.



         I. Introduction

         Petitioner is a state prisoner, proceeding in forma pauperis and without counsel. Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2254, raising two claims for relief. First, petitioner claims that the trial court abused its discretion in refusing to strike his prior conviction under People v. Romero, 13 Cal.4th 497 (1996) (“Romero”). Second, petitioner alleges that the trial court's restitution order was not supported by sufficient evidence. Respondent moves to dismiss the petition on the grounds that petitioner did not exhaust his state court remedies as to claim one, but also fails to state a valid claim for federal habeas relief as to both claims one and two. Petitioner filed an opposition and moves to stay this action to return to state court to exhaust claim one. Respondent filed a reply, and opposes the stay.

         As set forth below, the undersigned recommends that the motion to dismiss be granted, the motion for stay be denied, and the petition be dismissed.

         II. Procedural Background

         On October 15, 2015, in the Placer County Superior Court, a jury convicted petitioner of two counts of assault with a deadly weapon in violation of California Penal Code Section 245(a)(1), and a number of sentencing enhancement allegations were found true. (ECF No. 10-1 at 1.) Petitioner was sentenced to a determinate state prison term of fifteen years on April 20, 2016. (Id.)

         Petitioner filed a timely appeal, and the California Court of Appeal affirmed the judgment on September 25, 2017. (ECF No. 10-2.) Petitioner filed a petition for review in the California Supreme Court, which was denied on November 29, 2017, without comment. (ECF Nos. 10-3, 10-4.)[1]

         Petitioner filed the instant petition on February 15, 2019. (ECF No. 1.)

         III. Facts

         In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

During a street brawl, [petitioner] stabbed two victims a total of nine times. Much of the incident was captured on video.
The Stabbings
In early 2013, [petitioner] and three friends went to a bar in Roseville. There, defendant drank a rum and Coke -- his only drink that night; he was not drunk.
In the bar, some of [petitioner's] friends got in a scuffle with a group of African-Americans. A few punches were exchanged. Bar security told the group of African-Americans to leave.
Sometime later, [petitioner's] group decided to leave the bar. Outside, they came across the group they had quarreled with, along with others. One of [petitioner's] friends was punched by a man in a blue shirt.
Another of [petitioner's] friends started fighting the man in the blue shirt. [Petitioner's] friend had managed to get the better of the man (he was pummeling him from atop), when the two victims came out of the bar.
The two victims had each consumed about six beers. One of the victims was quite tall. The shorter of the two victims heard the man in the blue shirt call for help. The victim pushed (or “pried”) [petitioner's] friend off the man. After he did, one of [petitioner's] friends punched the shorter victim in the face. The shorter victim and that friend began fighting.
[Petitioner] involved himself in the fight. At one point, the taller victim grabbed [petitioner] by the jacket and flung him away from the shorter victim who was still fighting [petitioner's] friend.
The fight between the shorter victim and [petitioner's] friend moved to the opposite sidewalk. The victim punched [petitioner's] friend, while the taller victim stood behind him.
[Petitioner] ran up and, using a small box cutter knife, stabbed both victims from behind, in rapid succession. He stabbed the taller victim once in the lower back and the shorter victim three times in the side. Then he grabbed his friend and left.
[Petitioner] apparently had also stabbed both victims at an earlier point in the brawl. The shorter victim was stabbed a total of seven times, and the taller victim was stabbed twice. Both victims suffered a collapsed lung. And neither victim ever struck [petitioner] during the brawl.
[Petitioner] and his friends were apprehended, in a car, about a mile and a half from the bar. At trial, [petitioner] did not recall what happened to the knife. He testified he had the knife when he got into the car, after leaving the brawl, but did not have the knife after his arrest when he was taken to jail.
Verdict, Sentencing, and the Romero Motion
A jury convicted [petitioner] of two counts of assault with a deadly weapon and as to each found he had inflicted great bodily injury. [Petitioner] admitted to a 1995 strike conviction for discharging a firearm. (Pen. Code, § 246.3.)[FN2]
Prior to sentencing, [petitioner] moved to strike his prior strike. The trial court denied the motion. It noted the strike occurred when [petitioner] was 18; while angry and ...

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