Blakewood v. Hartley

Filing 18

Order by Hon. Lucy H. Koh granting 17 Motion for Leave to File Amended Reply. (Attachments: # 1 Appendix A)(lhklc3, COURT STAFF) (Filed on 3/1/2013)

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Robert Bratberg, Esq. SBN 99368
1014 Hopper Ave. #425
Santa Rosa, CA 95403
Telephone No.: [phone]
Fax No.: [phone]
E-mail: [e-mail]
Attorney for Petitioner

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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ROBERT REEVES BLAKEWOOD,

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Petitioner,
v.
JAMES D. HARTLEY, Warden,
Respondent.

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Case No.: 5:11-CV-00142-LHK
AMENDED REPLY TO ANSWER TO
PETITION FOR WRIT OF HABEAS CORPUS
AND AMENDED POINTS AND AUTHORITIES
IN SUPPORT OF PETITIONER’S REPLY
TO ANSWER TO PETITION FOR WRIT OF
HABEAS CORPUS

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Amended Reply to Answer & Amended P&A’s in Support to Petitioner’s Reply to Ans. to Petition for
Writ of Habeas Corpus,Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

TABLE OF CONTENTS

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I.

Amended Reply To Answer To Petition For Writ of Habeas Corpus . 1

II.

Amended Points and Authorities in Support of Petitioner’s Reply
to Answer to Petition For Writ of Habeas Corpus . . . . . . . 2

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III. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 23

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Amended Reply to Answer & Amended P&A’s in Support of Petitioner’s Reply to Answer to Petition
for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

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TABLE OF AUTHORITIES

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CASES

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Bumper v. North Carolina, 391 U.S. 543 . . . . . . . . . . . . 4,5,6,9,10,12,13,15,18,19,21,22

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Dortch v. O’Leary 863 F. 2d 1337 (7th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . .4

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Gamble v. State of Oklahoma 583 F.2d 1161 . . . . . . . . . . . . . . . . . . . . .3,4,6,7,19,23

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Harrington v. Richter (2011) 131 S.Ct. 770 .. . . . . .. . . . . . . . . . . . . .

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Herrera v. Lemaster (10th Cir.2000) 225 F.3d 1176. . . . . . . . . . . . . . . . .

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Mack v. Cupp 564 F.2d at 901 (9th Cir. 1977). . . . . . . . . . . . . . . . . . . . . . . . 22,23

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Ortiz-Sandavol v. Gomez 81 F.3d at 899 (9th Cir. 1996). . . . . . . . . . . . . . . . . . . . 22

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People v. Harrington (1970) 2 Cal.3d 991 .. . . . . . . . . . . . . . . . . . . . . 15,16,17,18

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Schneckloth v. Bustamonte, (1973)412 U.S. 218 . . . . . . . . . . . . . . . . . . . . . . . 20,21

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Silverman v. United States (1961) 365 U.S. 505

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Smallwood v. Gibson 191 F.3d 1257 (10th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . .4

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U.S. Ex Rel. Bostick v. Peters 3 F.3d 1023 (7th Cir. 1993). . . . . . . . . . . . . . . . . . .4

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United States v. Griffin 530 F.2d 739 (7th Cir. 1976) . . . . . .

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United States v. Impink (9th Cir. 1984) 728 F.2d 1228 . . . . . . . . . . .

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United States v. Shaibu (9th Cir. 1990) 920 F.2d 1423 . . . . .5, 6,7,9,0,12,13,14,15,16,17,18,20

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Williams v. Taylor (2000) 529 U.S. 362 . . . . . . . . . . . . . . . . . . . . . . 4,7,8,19,20,21

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Wong Sun v. United States (1963) 371 U.S. 471 . . . . .

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STATUTES

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28 U.S.C. §2254(d)(1) . . . . . . . . . . . . . . . .

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28 U.S.C. §2254(d)(2). . . . . . . . . . . . . . . .

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CONSTITUTIONAL PROVISIONS

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Fourth Amendment. . . . . . . . . . . . . . . . .2,3,6,7,9,21,22,19,23

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.3,4,6,7,19,23

. . . . . . . ..5,6,9,10,11,13,15,18,19,22

. . . . . . . . . . . 16,17,18
. . . . . . . .14,18

. . . . . . . 5,9,10,12,15,18,19,21,22

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.4,7,19,23

.4,7,19,20,21,23

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Amended Reply to Answer & Amended P&A’s in Support of Petitioner’s Reply to Answer to Petition
for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

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AMENDED REPLY TO ANSWER TO PETITION
FOR WRIT OF HABEAS CORPUS

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Attorney for Petitioner Robert Reeves Blakewood does hereby

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respectfully file this Amended Reply to Answer to Petition for Writ of

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Habeas Corpus and alleges as follows:

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1.

Paragraph one, the “CUSTODY” paragraph of Respondent’s Answer

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to Petition for Writ of Habeas Corpus is untrue because it

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alleges that the Petitioner’s custody is lawful and proper;

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2. Paragraph two, the “GENERAL AND SPECIFIC DENIALS” paragraph of

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Respondent’s Answer to Petition for Writ of Habeas Corpus is

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untrue because it alleges that the State Court ruling was not

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based upon an unreasonable determination of fact or was not

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contrary to or not involved an unreasonable application of

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clearly established United States Supreme Court law.

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Furthermore, this paragraph is untrue as it alleges that

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Petitioner’s conviction was not obtained as a result of an

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unlawful search and seizure in violation of the Fourth

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Amendment.

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that Petitioner was not denied a full and fair opportunity to

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litigate his Fourth Amendment claims in the underlying state

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proceedings.

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Finally, this paragraph is untrue as it alleges

3. Petitioner incorporates by reference and resubmits his

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Petition for Writ of Habeas Corpus as if fully set forth

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herein; and,

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4. Petitioner also incorporates by reference the Memorandum of
Points and Authorities to his Petition and this Reply.

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Amended Reply to Answer & Amended P&A’s in Support of Petitioner’s Reply to Answer to Petition
for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

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AMENDED POINTS AND AUTHORITIES IN SUPPORT OF PETITIONER’S
REPLY TO ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS

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Petitioner has reviewed the Attorney General’s Points and

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Authorities and notes that they are in accord with the Petitioner’s

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presentation of his case in at least two significant respects which

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are noted as follows:

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First, the Petitioner is in accord with the Attorney General’s

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summary of the Statement of Facts and secondly, the Petitioner is in

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accord with the Attorney General’s recognition of the standard for

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determining, pursuant to established authority, whether the Petitioner

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has had a full and fair opportunity to litigate his Fourth Amendment

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claims within the State Courts.

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authority upon which the Attorney General and Petitioner agree will be

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more fully developed later herein.

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In this regard, the established

With respect to the Statement of Facts with which the Petitioner
and the Attorney General are in accord, those facts appear as follows:
That upon responding to a call and conversing with Doe at the

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front of Petitioner’s home, Officer Shoemaker knocked on the

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Petitioner’s front door three times and when the Petitioner answered,

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Shoemaker asked the Petitioner to get Alford.

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Petitioner turned away from the front door to get Alford from

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upstairs and Shoemaker followed Petitioner inside to the entry/dining

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room area.

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Once inside, Shoemaker continued to question Petitioner whereupon

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Petitioner ultimately admitted that he had engaged in sexual contact

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with Doe.

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Amended Reply to Answer & Amended P&A’s in Support of Petitioner’s Reply to Answer to Petition
for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

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Shoemaker then went outside to consult with her Sergeant who was

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with Doe and then Shoemaker returned to the house and advised the

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Petitioner of his Miranda rights.

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Thereafter, Petitioner made further admissions when, thereafter,

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Shoemaker again contacted her Sergeant outside, then returned and

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arrested Petitioner.

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In addition to the above, the Trial record reflects that at no

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time did law enforcement possess either a search warrant or an arrest

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warrant.

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Since each of the above noted facts do appear in the Trial

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record, in essence, they should be considered the Undisputed Facts of

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Petitioner’s case.

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The Attorney General and the Petitioner are in additional accord

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with respect to the legal criteria regarding whether the Petitioner

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had, in fact, received a full and fair opportunity to advance his

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Fourth Amendment claims within the State Courts.

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In this regard, both the Attorney General and the Petitioner

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agree that the case authority of Herrera v. Lemaster (10th Cir. 2000)

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225 F.3d 1176 and Gamble v. State of Oklahoma 583 F.2d 1161, when

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applied to a Habeas claim, constitutes well established authority for

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guiding the reviewing Court’s determination as to whether, under the

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circumstances, the Petitioner when advancing his Fourth Amendment

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claim, based on colorable U.S. Supreme Court precedent has, in fact,

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been provided an opportunity to litigate those U.S. Supreme Court

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precedents, on point, while presenting his Fourth Amendment arguments

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within the State Courts.

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Amended Reply to Answer & Amended P&A’s in Support of Petitioner’s Reply to Answer to Petition
for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

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Furthermore, even though his Petition did not specifically cite

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28 U.S.C. §2254 (d)(2) or Williams v. Taylor (2000) 529 U.S. 362, the

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fact is, Petitioner cited case authority supporting Williams, supra

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where, as argued in his Petition, the State Courts based their

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decision on an unreasonable determination of the facts.

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as cited in the Petition, are U.S. Ex Rel. Bostick v. Peters 3 F.3d

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1023 (7th Cir. 1993), Dortch v. O’Leary 863 F.2d 1337 (7th Cir. 1988)

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and Smallwood v. Gibson 191 F.3d 1257 (10th Cir. 1999).

These cases,

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Also, as to 28 U.S.C. Section 2254 (d)(1), which essentially

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states that a Habeas Corpus Petition cannot be granted unless the

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State Court’s ruling was “contrary to or involved in unreasonable

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application of clearly established U. S. Supreme Court law, that

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recitation of authority on point, coincides with the criteria as noted

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in both Herrera, supra and Gamble, supra, with which both parties

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agree can be determinative as to whether Habeas relief should be

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granted.

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Furthermore, the Attorney General and the Petitioner herein,

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would be in accord with Harrington v. Richter (2011) 131 S.Ct. 770,

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which provides that Habeas relief can only be permitted where the

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State Court’s ruling on the claim being presented in Federal Court was

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so lacking in justification that there was an error well understood

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and comprehended in existing law beyond any possibility for fair

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minded disagreement.

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In this respect and as discussed further in this reply when

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noting Petitioner’s initial argument, the State Court’s outright

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failure to acknowledge the well-established precedent in Bumper v.

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Amended Reply to Answer & Amended P&A’s in Support of Petitioner’s Reply to Answer to Petition
for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

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North Carolina 391 U.S. 543, Silverman v. United States (1961) 365

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U.S. 505 and Wong Sun v. United States (1963) 371 U.S. 471, clearly

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demonstrates that the State Court’s overall error in failing to apply

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those U.S. Supreme Court precedents on point, as advanced in the State

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Courts by the Petitioner was, in fact, beyond any possibility for fair

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minded disagreement, in light of the clear cut application of Bumper,

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supra, Silverman, supra and Wong Sun, supra to the Undisputed Facts of

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Petitioner’s case.

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Consequently as emphasized herein, it is extremely noteworthy

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that even though the Attorney General and the Petitioner are in

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complete accord as to the operable Undisputed Facts of Petitioner’s

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case and the well-established exceptions to the Stone bar, the

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Attorney General, nevertheless proceeds to oppose this Petition by

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waging an argument, which, in actuality, defies and flies in the face

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of the application of the Undisputed Facts and the Stone bar legal

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authorities to which they initially agreed with Petitioner, in terms

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of determining whether the Petitioner has, in fact, effectively argued

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that he is entitled to an overall grant of his Habeas Corpus Petition.

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Again, as argued above, despite agreeing with the Petitioner in

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the two above noted significant respects, the Attorney General’s

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answer falls prey to a variety of the State Courts’ glaring

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misapplications of the Undisputed Facts of Petitioner’s case, as well

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as the State Court’s failure to recognize and incorporate the

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Petitioner’s U.S. Supreme Court case authority (as well as United

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States v. Shaibu (9th Cir. 1990) 920 F.2d 1423, as advanced by

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Petitioner at the Appellate Court and the California Supreme Court.)

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Amended Reply to Answer & Amended P&A’s in Support of Petitioner’s Reply to Answer to Petition
for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

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Despite the Attorney General’s concession that the standards set

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by Herrera, supra and Gamble, supra are well established exceptions to

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the Stone bar which is wholly consistent with the Petitioner’s overall

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argument on that point, as urged in his Petition, the Attorney General

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nevertheless, proceeds to fruitlessly argue that the mere fact the

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Petitioner was simply permitted to file and argue his Motion to

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Suppress, based on his well-established Fourth Amendment claims,

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throughout the State Court system, in and of itself, somehow

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demonstrates that the Petitioner did, in fact, receive a full and fair

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opportunity to litigate his Fourth Amendment claims.
Without undue elaboration, the Attorney General’s baseless and

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fallacious argument in this regard, simply ignores their initial

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acknowledgement of the well-established authority as noted herein,

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with respect to the standard which must be applied when determining,

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whether or not, the Petitioner did, in fact, receive a full and fair

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opportunity to litigate his Fourth Amendment claims as presented by

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him at each level in the State Courts.(See for example, in this

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regard, Herrera, supra, and Gamble, supra)

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In fact, a close comparison of the Attorney General’s answer to

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the Petitioner’s Writ, demonstrates that the only two areas where the

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parties substantially disagree are the Attorney General’s adoption of

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the results of the State Court’s willful failure to colorably apply

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the Undisputed Facts of the Petitioner’s case to the U.S. Supreme

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Court precedent in Bumper, supra, Silverman, supra, and Wong Sun,

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supra, as well as Shaibu, supra, where, by failing to carefully apply

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the Undisputed Facts of Petitioner’s case, the State Court’s ignored

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Amended Reply to Answer & Amended P&A’s in Support of Petitioner’s Reply to Answer to Petition
for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

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the holding in Williams v. Taylor, supra

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(9th Circuit 1990) 920 F.2d

1423 and 28 U.S.C. §2254(d)(2).

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Furthermore, the only other area where the parties disagree

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concerns the Attorney General’s vain attempt to argue that, in fact,

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the Petitioner received a full and fair opportunity to litigate his

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claims, simply by virtue of the fact that he was allowed to argue his

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Fourth Amendment claims, even where the Attorney General’s argument in

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that regard, wholly ignores the clear cut applicability of the

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authority of Herrera, supra, Gamble, supra, Williams v. Taylor, supra,

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28 U.S.C. §2254 (d)(1) and 28 U.S.C.§2254 (d)(2), which the Attorney

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General themselves have acknowledged are determinative as to whether a

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Petitioner has, in fact, received an opportunity to litigate his

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Fourth Amendment claims in the State Courts, after referencing and

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urging U.S. Supreme Court case precedent, on point, and applying that

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authority to the established facts in his case at each level therein.

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As to the first area of disagreement between the Attorney General

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and the Petitioner, this Petitioner emphasizes the Attorney General’s

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overall misguided attempts to justify the State Court’s failure to

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carefully analyze the Undisputed Facts in Petitioner’s case as well as

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the State Courts willful failure to colorably apply U.S. Supreme Court

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precedent, on point, as advanced by the Petitioner in connection with

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the Undisputed Facts in his case.

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As noted herein above, the Attorney General’s adoption of and

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attempt to justify the State Courts overall failure to carefully

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analyze the Undisputed Facts in Petitioner’s case, pursuant to the

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Amended Reply to Answer & Amended P&A’s in Support of Petitioner’s Reply to Answer to Petition
for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

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mandate of Williams, supra, and 28 U.S.C.§2254(d)(2) are, in fact,

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glaring in their significance when outlined as follows:

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For example, as vainly urged by the Attorney General, the

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TrialJudge

found that “Shoemaker contacted Defendant at the door of

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his home, questioned him about Doe’s allegations and decided that he

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should be arrested and given his Miranda rights.”

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Trial Court, wholly defies the Undisputed Statement of Facts where,

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even the Attorney General concedes that the only exchange which

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occurred at the Petitioner’s front door was, in fact, Shoemaker’s

This finding by the

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demand that Petitioner seek out Alford.

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Court’s finding that the Petitioner was arrested at the front door,

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wholly defies the Statement of Facts that Shoemaker followed the

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Petitioner inside his house when the Petitioner, at Shoemaker’s

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request, went to retrieve Alford and where, once inside and without

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requesting entry, Shoemaker proceeded to question Petitioner, prior to

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providing Petitioner with his Miranda warnings, whereupon Petitioner

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provided damaging admissions in advance of receiving his Miranda

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warnings.

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Furthermore, the Trial

In the face of the Trial Court’s above noted misplaced and

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incorrect findings, that Court also, without factual support concluded

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that there was consensual encounter at the entrance to Petitioner’s

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home and admittedly inside.

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In light of the foregoing, the Trial Court wholly failed to

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carefully analyze the Undisputed Facts of Petitioner’s case as

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initially conceded to by the Attorney General that Shoemaker entered

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Petitioner’s home by merely following Petitioner into his home when

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Amended Reply to Answer & Amended P&A’s in Support of Petitioner’s Reply to Answer to Petition
for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

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Petitioner turned his back to retrieve Alford at Shoemaker’s request

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and where, under the Undisputed Facts of Petitioner’s case, Shoemaker

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gained entry into Petitioner’s home, without making a formal request

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to enter and where, thereafter, extracting damaging admissions from

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the Petitioner, prior to providing the Petitioner with his Miranda

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warnings.

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Consequently, despite well established Fourth Amendment law on

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point, the Trial Judge ’s findings (with which the Attorney General

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erroneously adopts) that the Petitioner was cooperative when speaking

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inside his house with Shoemaker and the Trial Judge ’s finding that

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the Petitioner said nothing to object to Shoemaker’s presence in his

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home, is of no overall legal consequences or impact as to whether

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Petitioner, in fact, provided legal implied consent, given the clear

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cut applicability of Bumper, supra, Silverman supra, Wong Sun, supra,

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and the application of the true facts of U.S. v. Shaibu, supra, to the

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Undisputed Facts of Petitioner’s case to which the Attorney General

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has initially conceded as applicable.
Thus, for the above stated reasons, it is clear that the Trial

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Judge

failed to carefully analyze the Undisputed Facts of

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Petitioner’s case and failed to colorably apply Fourth Amendment

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Constitutional law, on point, which ultimately resulted in the Trial

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Court’s erroneous denial of Petitioner’s Suppression Motion, since

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from a Constitutional basis, the Petitioner did nothing, said nothing,

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nor acted in any way, which was inconsistent with his Constitutionally

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protected rights and thus, his acts or failure to act could never

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Amended Reply to Answer & Amended P&A’s in Support of Petitioner’s Reply to Answer to Petition
for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

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justify a finding of implied consent pursuant to Bumper, supra,

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Silverman supra, Wong Sun, supra.

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Thus, the Trial Court’s failure to colorably apply Fourth

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Amendment Supreme Court precedent, on point, when based on the

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Undisputed Facts as conceded to by the Attorney General, clearly shows

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that the Trial Judge, by his failure to apply U.S. Supreme Court

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authority, on point, and his failure to carefully analyze the

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Undisputed Facts of Petitioner’s case, wholly erred in denying

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Petitioner’s Suppression Motion, especially under the Undisputed

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Facts, where Shoemaker never requested entry and where Shoemaker’s

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entry was without benefit of a warrant.

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The Attorney General’s attempt to adopt and justify the

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Appellate Court’s wholly erroneous finding of implied consent again

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demonstrates that the Attorney General has fallen prey to the

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Appellate Court’s failure to carefully analyze the Undisputed Facts of

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Petitioner’s case as well as the Appellate Court’s willful failure to

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colorably apply U.S. Supreme Court case precedent, along with Shaibu,

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supra, to the Undisputed Facts to Petitioner’s case.

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First, it is noteworthy that nowhere in their answer does the

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Attorney General address the clear cut applicability of the U.S.

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Supreme Court precedent, on point, as raised by the Petitioner, when

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referring to Bumper, supra, Silverman, supra, and Wong Sun, supra,

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especially where, as argued in his Petition, the Petitioner notes how

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the Appellate Court’s three findings of implied consent wholly defy

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the essence of the holdings of Bumper, supra,

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Wong Sun, supra.

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Amended Reply to Answer & Amended P&A’s in Support of Petitioner’s Reply to Answer to Petition
for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

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Silverman, supra, and

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In this regard, the Petitioner noted that the Appellate Court

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found implied consent based, in fact, on three faulty factual

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findings.

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These findings are as follows:

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asked Petitioner to get Alford.

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2.

That Petitioner, upon Shoemaker’s request, went to get
Alford.

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That the Petitioner left the door open when Shoemaker

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That when Petitioner went to get Alford, without seeking
Petitioner’s request, Shoemaker gained entry into

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Petitioner’s home and before being Mirandized,

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Petitioner cooperated in responding to Shoemaker’s

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questions.

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As emphasized in his Petition, the Petitioner noted that by

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basing their findings of implied consent on the above three factors,

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the Appellate Court willfully failed to colorably apply U.S. Supreme

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Court precedent, on point, to the Undisputed Facts of Petitioner’s

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case, as urged by him, where the Petitioner noted the following:

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As to the Appellate Court’s finding of implied consent based on

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the fact that the Petitioner left the door open when Shoemaker asked

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him to get Alford, the Appellate Court willfully failed to apply clear

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cut U.S. Supreme Court precedent in the case of Silverman, supra,

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which stands for a citizen’s right to retreat into the sanctity of his

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home and to be safe from warrantless intrusion, even if he is under

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investigation.

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As to the findings by the Appellate Court of implied consent,

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based on the fact that the Petitioner went to get Alford at the

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Amended Reply to Answer & Amended P&A’s in Support of Petitioner’s Reply to Answer to Petition
for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

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specific request of Shoemaker, this finding wholly ignores Bumper

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supra, which holds that actions in acquiescence to police authority

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cannot be deemed consent.
As to the Appellate Court’s third finding of implied consent,

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based upon the fact that Petitioner cooperated by answering

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Shoemaker’s questions prior to receiving his Miranda warnings, the

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Appellate Court wholly ignored Petitioner’s argument that, pursuant to

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Wong Sun, supra, statements or observations made after an unrequested

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and unlawful entry cannot be used at all, against a citizen,

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especially where, as applied in this case, to find implied consent.
In essence, the Appellate Court unjustifiably relied on the above

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three facts, as words, acts, or conduct, to justify its finding of

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implied consent, even where, as demonstrated above, everything the

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Petitioner did or failed to do was wholly consistent with his

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constitutionally protected rights and activities as enunciated and

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clarified by Bumper, supra,

Silverman, supra, and Wong Sun, supra.

Next, the Attorney General attempts to adopt and justify the

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propriety of the Appellate Court’s decision that U.S. v. Shaibu,

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supra, is not controlling.
Yet, in doing so, the Attorney General fails to closely examine

20
21

how the true facts of Shaibu, supra, as found by that Court, are in

22

close alignment with the operable Undisputed Facts in Petitioner’s

23

case.

24

The Attorney General’s and the Appellate Court’s recount of the

25

significant facts and legal conclusions in Shaibu, supra, are not

26

accurate by virtue of the Appellate Court’s and Attorney General’s

27

Amended Reply to Answer & Amended P&A’s in Support of Petitioner’s Reply to Answer to Petition
for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

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12

1

omission of certain salient facts and the true holding of Shaibu,

2

supra.

3

The Court in Shaibu, supra, distinctly found that when Shaibu

4

turned around to retreat into his apartment, he, in fact, left his

5

door open, which both the Appellate Court and the Attorney General

6

failed to note.

7

The significance of the Appellate Court’s and the Attorney

8

General’s failure to acknowledge that the Shaibu Court found that

9

Shaibu retreated into his house, leaving the front door open, cannot

10

be overstated, since as noted herein above, the Appellate Court, in

11

rendering their three faulty findings of implied consent, noted that

12

one of those factors was the fact that the Petitioner had left the

13

front door of his residence open, when, at Officer Shoemaker’s

14

request, the Petitioner retreated into his home to get Alford.

15

(Parenthetically, as noted herein, Petitioner’s compliance with

16

Shoemaker’s request to get Alford and his leaving the door open, when

17

he retreated into the sanctity of his home, are, as argued in his

18

Petition, Constitutionally protected activities pursuant to Bumper,

19

supra and Silverman, supra.)

20

Again, with reference to the Appellate Court’s and the Attorney

21

General’s recount of the Shaibu Court’s findings of facts and ultimate

22

conclusions of law, concerning the fact that the Shaibu Court did find

23

that Shaibu had indeed, left the door to his apartment open, when he

24

retreated into his apartment, the Appellate Court and the Attorney

25

General further failed to relate the Shaibu Court’s further findings

26

of fact and conclusions of law that Shaibu opened the door not to let

27

Amended Reply to Answer & Amended P&A’s in Support of Petitioner’s Reply to Answer to Petition
for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

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13

1

the police enter, but only for himself to step out of the apartment to

2

meet visitors outside, rather than inside and that there was no

3

contention that the police expressly or impliedly asked consent to

4

enter, nor that Shaibu expressly granted or refused entry.

5

Court went on to conclude that it is one thing to infer consent from

6

actions responding to a police request.

7

sanction the police walking into a person’s home without stopping at

8

the door to ask permission.

9

The Shaibu

It is quite another to

Under the circumstances of Shaibu, supra, the Court noted that

10

the defendant’s failure to object to an entry, especially in the

11

absence of a specific request by the police for permission to enter,

12

is not sufficient to establish free and voluntary consent.

13

concluded by observing, “we will not infer both the request and the

14

consent.”

15

The Court

Yet, in the face of the Appellate Court’s and the Attorney

16

General’s failure to fully recount the salient features of Shaibu,

17

supra, as noted above, the Appellate Court and the Attorney General,

18

here, make reference to cases which are factually distinguishable from

19

Shaibu, supra, and the Undisputed Facts of Petitioner’s case, to

20

support each of their assertions that Shaibu, supra, is not

21

controlling, as applied to the Undisputed Facts of Petitioner’s case.

22

First, the Attorney General cites the Appellate Court’s misplaced

23

reliance on United States v. Impink (9th Cir. 1984) 728 F.2d 1228,

24

which is factually distinct from Petitioner’s case because that aspect

25

of Impink, supra, focuses on “assisting in the search of others,”

26

which is not factually germane to Petitioner’s Undisputed Facts when,

27

Amended Reply to Answer & Amended P&A’s in Support of Petitioner’s Reply to Answer to Petition
for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

28

14

1

especially, the Petitioner relies on the holding of Shaibu, supra,

2

where the Shaibu opinion, in part, makes specific reference to Impink,

3

supra, which states that in implied consent cases “the suspect himself

4

takes some action” showing “unequivocal and specific” consent.

5

In this regard, as emphasized in the Undisputed Facts, the fact

6

that Petitioner remained silent and did not object to Shoemaker’s

7

warrantless, unrequested entry into his home and his mere cooperation

8

thereafter, by answering Shoemaker’s questions, prior to her providing

9

Petitioner with his Miranda warnings, in no way establishes implied

10

consent, pursuant to Petitioner’s reliance on Bumper, supra,

11

Silverman, supra, and Wong Sun, supra, where in fact, under those

12

circumstances, Petitioner did nothing, said nothing, nor acted in any

13

way which was inconsistent with his Constitutional rights as provided

14

by Bumper, supra,

15

Silverman, supra, and Wong Sun, supra.

Thus, the Appellate Court’s and the Attorney General’s reliance

16

on Impink, supra, for the above stated reasons, does not support their

17

argument that Petitioner somehow provided implied consent to

18

Shoemaker’s otherwise warrantless and unlawful entry.

19

Furthermore, the Appellate Court’s and the Attorney General’s

20

reliance on People v. Harrington (1970) 2 Cal.3d 991, is factually

21

distinguishable when compared to the true facts of Shaibu, supra, and

22

the Undisputed Facts of Petitioner’s case since, unlike Shaibu and

23

Petitioner, who did absolutely nothing to indicate that they had acted

24

in any way, by undertaking some act or uttering some words to imply

25

consent, in Harrington, supra, after the Officer asked if he could go

26

inside Harrington’s residence (which is clearly not part of the

27

Amended Reply to Answer & Amended P&A’s in Support of Petitioner’s Reply to Answer to Petition
for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

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15

1

surrounding facts of Shaibu, supra, and Petitioner’s case), Harrington

2

made a gesture by extending his left hand, whereupon the officer

3

entered Harrington’s apartment.
Thus, the facts of Harrington, supra, are totally distinct from

4
5

the Undisputed Facts of Petitioner’s case, since in Harrington, supra,

6

the officer not only requested entry into Harrington’s apartment, but

7

Harrington responded thereto in making a gesture by extending his left

8

hand, in clear acquiescence to the officer’s request to enter.

9

under the circumstances, the Harrington Court was clearly justified in

10

Thus,

finding implied consent.

11

Furthermore, the Appellate Court’s and the Attorney General’s

12

reliance on United States v. Griffin 530 F.2d 739 (7th Cir.1976) is

13

misplaced since, as noted in the Shaibu opinion, unlike the facts of

14

Shaibu, supra, the police ultimately requested admission into

15

Griffin’s and his codefendant Russell’s apartment on two occasions.

16

Thus, the Seventh Circuit found consent, not only because the police

17

twice asked to enter the apartment, but also because, even though,

18

Russell slammed the front door after the first request by the police

19

to be admitted into the apartment, upon answering the door after the

20

police’s second knock and their second request to enter, Russell

21

stepped back into the apartment, leaving the door partially open.
In Griffin, supra, neither officer later recalled any words

22
23

spoken by Russell during these moments.

The officers entered the

24

apartment and followed Russell down a short hallway into the living

25

room.

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27
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Amended Reply to Answer & Amended P&A’s in Support of Petitioner’s Reply to Answer to Petition
for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

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The Shaibu opinion noted how Griffin, supra, was dissimilar from

1
2

Shaibu, supra, in two fundamentally significant respects.

First, in

3

Griffin, supra, the police requested entry while in Shaibu’s case,

4

they did not.

5

interpreted the acts of opening the door and stepping back, as

6

responding affirmatively to a clear request by the police to enter the

7

home.

8

Shaibu opened the door, not to let the police enter, but only for

9

himself to step out of his apartment to meet visitors outside rather

Second, in Griffin, supra, the Seventh Circuit

The Shaibu Court noted that no affirmative acts took place.

10

than inside.

11

contention that the police expressly or impliedly asked consent to

12

enter, nor that Shaibu expressly granted or refused entry.

13

regard, the Shaibu Court noted that it is one thing to infer consent

14

from actions responding to a police.

15

the police walking into a person’s home without stopping at the door

16

to ask permission.

17

Shaibu, supra,

goes on to state, that there is no

In this

It is quite another to sanction

Thus, for the above stated reasons the facts of Shaibu, supra,

18

are clearly distinguishable from Griffin, supra, and thus, in light of

19

the foregoing argument where the facts and holding of Impink, supra,

20

the facts of Harrington, supra, and the facts of Griffin, supra, are

21

demonstrably distinct from the Undisputed Facts in Petitioner’s case,

22

the Appellate Court and the Attorney General have wholly failed to

23

establish why, in fact, the decision in Shaibu, supra, should not have

24

been controlling in Petitioner’s case.

25

In the face of the true facts in Shaibu, supra, and the fact that

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27
28

Amended Reply to Answer & Amended P&A’s in Support of Petitioner’s Reply to Answer to Petition
for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

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1

Harrington, supra, and Griffin, supra, and the applicable facts and

2

holding of Impink, supra, are distinguishable from the Undisputed

3

Facts of Petitioner’s case, at the bottom of page 4 and the top of

4

page 5 of the Attorney General’s Memorandum of Points and Authorities

5

in support of their answer to the Petition for Writ of Habeas Corpus,

6

the Attorney General again fails to recognize the true factual and

7

legal applicability of Shaibu, supra, as well as the clear

8

applicability of Bumper, supra,

9

supra.

Silverman, supra, and Wong Sun,

10

In this regard, a close scrutiny of the Attorney General’s

11

argument demonstrates that they again fail to note the true facts of

12

Shaibu, supra, and its underlying decision, based thereon, as well as

13

the Undisputed Facts of Petitioner’s case, which are closely the same

14

as the true facts of Shaibu, supra, where that Court also found that

15

Shaibu, when retreating into his apartment, had left his door open,

16

just as the Petitioner did under the Undisputed Facts of his case.

17

Also, the Attorney General’s argument that the Petitioner

18

cooperated in getting Alford wholly ignores the impact of the U. S.

19

Supreme Court case of Bumper, supra.

20

Further, by arguing that Petitioner cooperated by responding to

21

Officer Shoemaker’s questions, the Attorney General ignores that under

22

the Undisputed Facts, as argued in his Petition, when coupled with the

23

clear fact that Shoemaker had already accomplished her unrequested and

24

thus, unlawful entry into Petitioner’s residence, the mere fact that

25

the Petitioner assertedly, thereafter cooperated, cannot form a basis

26
27
28

Amended Reply to Answer & Amended P&A’s in Support of Petitioner’s Reply to Answer to Petition
for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

18

1

for finding implied consent pursuant to Wong Sun, supra, for the

2

reasons stated in the Petitioner’s initial Petition for Habeas relief.

3

Also, pursuant to the authority of Wong Sun, supra, the Attorney

4

General’s argument that after Shoemaker’s entry into Petitioner’s

5

home, which has clearly been shown to be unlawful, the mere fact that

6

the Petitioner did not, thereafter object to Shoemaker’s presence does

7

not, in any way, absolve Shoemaker from her initial, unrequested,

8

warrantless entry into the sanctity of Petitioner’s home, where, under

9

the overall circumstances of Petitioner’s case, Shoemaker’s initial

10

entry, her initial questioning and her continued presence was

11

unjustified under the clear cut authority of Bumper, supra,

12

Silverman, supra, and Wong Sun, supra.

13

Thus, the Trial Judge did err in finding a “consensual encounter”

14

at defendant’s home and consequently, he erred when denying

15

Petitioner’s Motion to Suppress evidence.

16

The Petitioner has already emphasized why, pursuant to the

17

established authority of Herrera, supra, Gamble, supra, and the

18

authority of Williams v. Taylor, supra, as well as the authority of 28

19

U.S.C. §2254(d)(1) and 28 U.S.C. §(d)(2), the Trial Judge, not only

20

willfully failed to colorably apply United States Supreme Court

21

precedent on point, as urged by the Petitioner, in connection with the

22

Undisputed Facts of Petitioner’s case, but also emphasized that the

23

Trial Judge failed to carefully analyze the facts of Petitioner’s case

24

and thus, based his decision on an unreasonable determination of those

25

facts and consequently, pursuant to the authority with which the

26

Attorney General agrees, as provided by Williams, supra, and 28 U.S.C.

27

Amended Reply to Answer & Amended P&A’s in Support of Petitioner’s Reply to Answer to Petition
for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

28

19

1

§2254(d)(2), and thus, based on the Trial Judge’s failures as noted

2

immediately herein above, this Petitioner respectfully submits that he

3

was not provided a full and fair opportunity to argue his Fourth

4

Amendment claims as advanced by him at the Trial Court level.

5

Furthermore, with respect to this Petitioner’s close review of

6

the Attorney General’s attempts to adopt and justify the Appellate

7

Court’s conclusion that Shaibu, supra is not controlling, based on a

8

close review and scrutiny of Shaibu, supra, it is clear, as urged

9

herein, that both the Appellate Court and the Attorney General, when

10

arguing that Shaibu, supra, should not be controlling, based their

11

opinion, in part, on an unreasonable determination of the true facts

12

of Shaibu, supra, in outright violation of Williams v. Taylor, supra,

13

and 28 U.S.C. §2254 (d)(2), to which the Attorney General has earlier

14

conceded can be a basis for a reviewing Court’s issuance of a Writ of

15

Habeas Corpus.

16

Furthermore, both the Appellate Court and the Attorney General

17

fail to fully appreciate the principle holding of Schneckloth v.

18

Bustamonte (1973) 412 U.S. 218, which wholly concurs with the

19

underlying holding of Shaibu, supra, that a citizen must have been

20

found to express voluntary consent, whether express or implied before

21

a search or entry can be legally justified.

22

additional aspect of Schneckloth, supra, regarding the fact that the

23

government need not show the citizen’s knowledge of his right to

24

refuse consent, in no way, was advanced by this Petitioner, at any

25

stage of the proceedings against him.

In this regard, the

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27
28

Amended Reply to Answer & Amended P&A’s in Support of Petitioner’s Reply to Answer to Petition
for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

20

1

Consequently, for both the Appellate Court and the Attorney

2

General to raise this second aspect of Schneckloth, supra, which in no

3

way played a role in the Petitioner’s argument of his Fourth Amendment

4

claims, the Appellate Court as well as the Attorney General have again

5

failed to carefully analyze the facts of Petitioner’s case pursuant to

6

Williams v. Taylor, supra and 28 U.S.C. §2254(d)(2).

7

Thus, when this Court considers, as urged herein, the impact of

8

the Appellate Court’s failure to comply with Williams, supra, and 28

9

U.S.C. §2254(d)(2), in addition to the Appellate Court’s willful

10

failure and refusal to colorably apply U.S. Supreme Court precedent,

11

on point, as urged by the Petitioner when relying on Silverman, supra,

12

Bumper, supra and Wong Sun, supra, as those cases pertain to the

13

Undisputed Facts of Petitioner’s case, it is respectfully submitted

14

that the Petitioner has established, at the Appellate Court level, he

15

did not receive a full and fair opportunity to argue his Fourth

16

Amendment claims which he advanced pursuant to the Stone bar authority

17

exceptions, to which the Attorney General has agreed can form a basis

18

for this Court’s ultimate grant of Petitioner’s Writ of Habeas Corpus.

19

Also, the California Supreme Court refused to consider the merits

20

of Petitioner’s Fourth Amendment arguments which were, in large part,

21

similar to his overall arguments which he advanced in the Trial Court

22

and at the Appellate Court. Thus, without undue elaboration, the

23

California Supreme Court wholly failed to provide Petitioner with a

24

full and fair opportunity to advance his Fourth Amendment claims in

25

that Court, for the reasons stated herein with respect to the

26
27
28

Amended Reply to Answer & Amended P&A’s in Support of Petitioner’s Reply to Answer to Petition
for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

21

1

arguments which the Petitioner attempted to raise in the Trial Court

2

and Appellate Court.

3

Thus, even though the Petitioner believes he has persuasively

4

argued that he is entitled to this Court’s grant of his Writ of Habeas

5

Corpus, for the reasons stated in the Petition and the reasons stated

6

herein, this Petitioner feels compelled to address two additional

7

arguments raised in the Attorney General’s answer.

8

First, apparently pursuant to Ortiz-Sandoval v. Gomez 81 F.3d at

9

899, the Attorney General urges that the Petitioner may not argue why

10

he believes the State Courts decisions were incorrectly decided and

11

where, in this regard, the Attorney General notes that this Petitioner

12

has merely listed all the ways he disagrees with the State Court

13

rulings.

14

The fact of the matter is, Petitioner is not seeking Habeas

15

relief based on why he disagrees with the State Courts rulings, but

16

instead, based on the well reasoned opinions of the U.S. Supreme Court

17

justices involved in the majority decisions of Silverman, supra,

18

Bumper, supra and Wong Sun, supra.

19

In this respect, Petitioner submits that the majority of the

20

justices involved in the above three noted Supreme Court decisions

21

would wholeheartedly disagree with the State Court’s overall failure

22

to properly interpret and apply Fourth Amendment law, on point, as

23

enunciated in Silverman, supra, Bumper, supra and Wong Sun, supra.

24

Secondly, the Attorney General, in the face of their recognition

25

of the established exceptions to the Stone bar, nevertheless allude to

26

the curious standard of Mack v. Cupp 564 F.2d at 901, where the

27

Amended Reply to Answer & Amended P&A’s in Support of Petitioner’s Reply to Answer to Petition
for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

28

22

1

Attorney General seems to ignore the Stone bar exception authorities

2

as noted in Herrera, supra and Gamble, supra, by begging the Court to

3

adopt a novel standard that “as long as the State procedures were

4

fair,” somehow this reviewing Court should find that the Petitioner

5

received a full and fair opportunity to argue his Fourth Amendment

6

claims in the State Courts.

7

With all due respect to the Attorney General, this Petitioner has

8

not found any established authority to substantiate the Attorney

9

General’s claim that the decision in Mack, supra, in fact, in any way

10

supplants the well established authority, to which the Attorney

11

General has previously conceded as embodied in Herrera, supra, Gamble,

12

supra, and 28 U.S.C. §2254(d)(1) and 28 U.S.C. §2254(d)(2).

13

Thus, for each of the above stated reasons, this Petitioner

14

respectfully requests that his Petition for Habeas Corpus relief be

15

granted.

16

CONCLUSION

17

Again, for the above stated reasons, the Petitioner requests that

18

this Court grant his Petition for Habeas Corpus relief.

19

Respectfully submitted,

20
21
22
23

Date: May ___, 2012
________________________________
Robert Bratberg
Attorney for Petitioner

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Amended Reply to Answer & Amended P&A’s in Support of Petitioner’s Reply to Answer to Petition
for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

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for Writ of Habeas Corpus, Robert Reeves Blakewood v. James D. Hartley, Warden, Case No. 5:11-cv00142-LHK

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