Burton v. Director

Filing 186

ORDER ADOPTING REPORT AND RECOMMENDATIONS 168 173 ; Respondent's motion to dismiss Burton's First Amended Petition 143 is denied, and the Petitioner's motion to amend his Petition 156 is denied. Signed by Judge Larry Alan Burns on 8/22/10.(All non-registered users served via U.S. Mail Service)(kaj) (jrl).

Burton v. Cate

Doc. 186

1 2 3 4 5 6 7 8 9 10 11 12 13 vs. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MATTHEW CATE, Secretary of California Department of Corrections and Rehabilitation, Respondent. Petitioner Eric Wilton Burton, a state prisoner proceeding pro se, filed a First Amended Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, on June 20, 2008. (Doc. No. 21.) On February 9, 2010, Respondent Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation, moved to dismiss the Petition on the ground that Burton failed to exhaust his available state court remedies with respect to Ground 3; Ground 3 alleges a "failure of prosecution to disclose material exculpatory evidence (suppression)" in violation of Burton's rights to due process and equal protection. Burton opposed the motion to dismiss, contending he fairly presented and therefore exhausted Ground 3 in the California Supreme Court. (Doc. No. 153.) // -108cv0325

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

ERIC WILTON BURTON, Petitioner,

CASE NO. 08cv0325-LAB (POR) ORDER ADOPTING REPORTS AND RECOMMENDATIONS [Doc Nos. 168 & 173]

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On April 1, 2010, Burton filed what the Court construes as a motion to amend his Petition. (Doc. No. 156.) Cate then filed an opposition, which was followed by Burton's reply. (Doc. Nos. 166, 170.) Pursuant to 28 U.S.C. § 636 and in accordance with Local Rule 72.1(d), both motions were referred to Magistrate Judge Louisa S. Porter for a Report and Recommendation (R&R). In the R&Rs, filed June 30, 2010 and July 14, 2010, respectively, Judge Porter recommended that Cate's motion to dismiss and Burton's motion to amend be denied. (Doc. Nos. 168, 173.) The Court agrees with Judge Porter and ADOPTS both R&Rs. I. Legal Standard Because Burton is proceeding pro se, the Court construes his pleadings liberally and affords him the benefit of any doubt. See Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). Of course, "[p]ro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). When reviewing an R&R, "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3). In other words, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). II. Respondent's Motion to Dismiss FAP On July 29, 2005, a jury convicted Burton of willful and premeditated attempted murder, discharging a firearm from a motor vehicle, and assault with a semi-automatic firearm. In Ground 3 of his Petition, Burton contends that a "failure of prosecution to disclose material exculpatory evidence" ­ specifically, the failure to disclose evidence about a witness whom Burton discovered was a bailiff from the court ­ resulted in a violation of his right to due process and equal protection. (Doc. No. 21 at 8.) Cate argues that Burton's Petition should be dismissed because when he presented Ground 3 to the -2-

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California Supreme Court, he failed to exhaust the claim by not fully describing the operative facts surrounding it. Cate has filed no objection to the R&R, which is a strong sign that it is sound. The Court finds that the R&R thoroughly and correctly considered this issue, and agrees that Ground 3 is technically exhausted. When a habeas petitioner has defaulted his federal claims in state court, as Burton has, "he meets the technical requirements for exhaustion; there are no state remedies any longer `available' to him." Cassett v.Stewart, 406 F.3d 614, 621 n.5 (9th Cir. 2005) (quoting Coleman v. Thompson, 501 U.S. 722, 732 (1991)). Because Ground 3 is now time-barred in state court, Burton has satisfied the technical requirement for exhaustion with respect to it. Cate's motion to dismiss is therefore DENIED. III. Petitioner's Motion To Amend First Amended Petition In his motion to amend, Burton contends that in light of the Supreme Court's 2009 decision in Arizona v. Gant, __U.S. __, 129 S. Ct. 1710, the search of his vehicle while he was handcuffed in a patrol car was unreasonable and violated his Fourth Amendment rights. (Doc. 156 at 2-3.) In Gant, the Supreme Court held that police may search a vehicle incident to arrest without a warrant only if the arrestee is "within reaching distance" of the searched part of his vehicle at the time of the arrest or if "it is reasonable to believe the vehicle contains evidence of the offense of arrest." Id. at 1723-24. Presumably, Burton wants the opportunity to prove that neither circumstance existed during his arrest. However, it is well settled that when a state provides a full and fair opportunity to litigate a Fourth Amendment claim, "the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at trial." Stone v. Powell, 428 U.S. 465, 481-82 (1976). Since the record shows that Burton received a full and fair hearing on his Fourth Amendment claim, it is not cognizable under federal habeas review. (Lodgment 1 at 61-64, 84-90; Lodgment 2 at 33-41, 93-106.) -3-

08cv0325

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Even if Burton's Fourth Amendment claim were cognizable under federal habeas review, Gant does not apply here. For a new rule to be made retroactive to cases on collateral review, the Supreme Court must hold it to be retroactive. Tyler v. Cain, 533 U.S. 656, 663 (2001). Since in Gant the Supreme Court did not hold that any newly declared constitutional law regarding reasonable searches was to be applied retroactively, it cannot be so applied here. Further, as outlined in the R&R, the factors which guide a court in deciding whether to grant leave to amend weigh against Burton. (Doc. No 173 at 2-3.) Accordingly, Burton's motion to amend his first amended petition is DENIED. IV. Conclusion The Court ADOPTS both R&Rs. Respondent's motion to dismiss Burton's FAP is DENIED, and the Petitioner's motion to amend his Petition is DENIED.

IT IS SO ORDERED. DATED: August 22, 2010

HO N O R AB LE LARRY ALAN BURNS United States District Judge

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