Garrett v. Johnson

          ORDER TO SHOW CAUSE WHY HABEAS PETITION SHOULD NOT BE DISMISSED AS SUCCESSIVE

          KAREN E. SCOTT, UNITED STATES MAGISTRATE JUDGE

         I.

         INTRODUCTION

         In January 2020, Petitioner Craig K. Garrett (“Petitioner”) filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. (Dkt. 1 [“Petition”].) The Petition purports to challenge Petitioner's 1991 conviction for second degree attempted robbery. (Id. at 2.) In the supporting facts, however, Petitioner discusses his arrest on March 10, 2011, for burglary, and the subsequent trial testimony of Detective Linares. (Id. at 5, 9.) These facts relate to his October 2011 burglary conviction. See People v. Garrett, No. YA080544 (Cal. Super. Oct. 25, 2011).

         II.

         FACTUAL BACKGROUND

         The underlying, italicized facts are taken from the unpublished California Court of Appeal decision on Petitioner's direct appeal. People v. Garrett, No. B239107, 2012 WL 6686092, 2012 Cal.App. Unpub. LEXIS 9390 (Dec. 26, 2012). Unless rebutted by clear and convincing evidence, these facts may be presumed correct. Tilcock v. Budge, 538 F.3d 1138, 1141 (9th Cir. 2008); 28 U.S.C. § 2254(e)(1).

         Prosecution Case

         John Park lived across the street from Joseph Robinson on West 159th Street in the City of Gardena. On March 10, 2011, at approximately 12:30 p.m. Park looked through his bedroom window and saw [Petitioner] walk up to Robinson's house, open the security screen and knock on the front door. [Petitioner] knocked on the door for a while before moving to the big glass window in the front of the house. [Petitioner] looked through Robinson's front window into the house and then went back and knocked on the screen door. No. one answered the door and [Petitioner] crouched down and sat by the wall at the front of the house. Park's view of [Petitioner] was then obscured by a bush at the front of the house.

         After a few minutes [Petitioner] got up and looked in the window again. He then walked to the end of the porch, looked around, and started doing pull ups from a beam attached to the house. He suddenly “hiked his leg” over a fence next to the porch and entered Robinson's backyard. [Petitioner] went towards the back door of Robinson's house and disappeared from Park's view. Park called 9-1-1 and went outside to his porch when he saw the police arrive. Park saw [Petitioner] walk towards the front of the yard from the garage area at the back. Park yelled and pointed at [Petitioner] who ran towards the back of the pool when he saw Park. [Petitioner] was wearing brown plaid shorts. Police set up a perimeter around the area and attempted to locate [Petitioner].

         Gardena Police Officer Nick Beerling responded to the burglary call. He received information that [Petitioner] was seen running in an alley behind West 159th Street, approximately 300 yards west of the Robinson residence. [Petitioner] ran towards Officer Beerling, made a sharp turn and ran towards an apartment complex. He was wearing a white tank top, gray shirt, and brown plaid checkered shorts. Officer Beerling broadcast his location and remained at the entrance of the apartment complex for a few minutes until he was asked to respond to another location.

         At approximately 1:00 p.m. Angelica Hernandez, who lived on West 159th Street, heard police sirens and her dog began barking. She looked outside and saw [Petitioner] pulling clothes out of her car parked in the driveway. Hernandez ran outside and asked [Petitioner] what he was doing on her property. Appellant dropped the clothes and ran through the back of the property.

         Gardena Police Department Detective Ixtzia Linares saw [Petitioner] on the roof of a residence on the corner of Normandie and West 159th Street. He was wearing a white tank top with brown plaid shorts. [Petitioner] ignored verbal commands from police officers to come down from the roof. After further unsuccessful attempts to convince [Petitioner] to climb down from the roof, Gardena Police Department Detective Luis Villanueva fired a rubber bullet which struck [Petitioner] in the chest. [Petitioner] was arrested and taken into custody. Redondo Beach Police Officer Corey King and his K-9 dog assisted in searching the area. He found a gray T-shirt in the driveway of the adjacent property which was booked into evidence.

         On March 11, 2011, Detective Linares and other police officers met Robert Bailey at the Robinson residence. Bailey was Robinson's neighbor and had been taking care of the house for approximately a year while Robinson was in the hospital. Detective Linares noticed a screen missing from the living room window at the back of the house. The screen was not missing when Bailey inspected the house on March 9, the day before the incident. The screen was found at the bottom of Robinson's pool and had been cut. Bailey had installed new screens for the entire house six months earlier. ...