Burton v. Director

Filing 238

ORDER ADOPTING REPORT AND RECOMMENDATION. Burton's petition for a writ of habeas corpus is denied. The Clerk may close this case. Signed by Judge Larry Alan Burns on 9/30/11. (All non-registered users served via U.S. Mail Service)(kaj)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ERIC WILTON BURTON,

CASE NO. 08CV0325-LAB (POR)
Petitioner,

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ORDER ADOPTING REPORT
AND RECOMMENDATION

vs.
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DIRECTOR, CALIFORNIA
DEPARTMENT OF CORRECTIONS
AND REHABILITATION,
Respondent.

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Eric Burton, a prisoner in state custody, filed a petition for writ of habeas corpus in this

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Court challenging a July 2005 conviction for willful and premeditated attempted murder,

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discharging a firearm from a motor vehicle, and assault with a semi-automatic firearm.

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Pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.1(c) and (d), the petition was referred

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to Magistrate Judge Louisa Porter for a report and recommendation. Judge Porter issued

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her R&R on June 2, 2011, and for the reasons given below, the Court ADOPTS it in its

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entirety.

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I.

Legal Standard

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In reviewing an R&R, “[t]he district judge must determine de novo any part of the

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magistrate judge’s disposition that has been properly objected to. The district court may

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accept, reject, or modify the recommended disposition; receive further evidence; or return

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08CV0325

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the matter to the magistrate judge with instructions.” In other words, “the district judge must

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review the magistrate judge’s findings and recommendations de novo if objection is made,

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but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en

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banc). Because Burton is proceeding pro se, the Court construes his pleadings liberally and

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affords him the benefit of any doubt. See Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621,

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623 (9th Cir. 1988). That said, “[p]ro se litigants must follow the same rules of procedure that

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govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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II.

Discussion

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When the Court granted a stay and abeyance of Burton’s petition over two years ago,

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pending resolution of his state habeas petition, it referred to him as “a man of many

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pleadings.” (Dkt. No. 89.) It also encouraged him “not to file multiple and unnecessary

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pleadings in the interim or thereafter.” (Id.) That encouragement was fruitless. Since Judge

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Porter issued her R&R, Burton has filed three separate objections to it (Dkt. Nos. 229, 231,

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235), one motion for an expedited ruling on his petition, an evidentiary hearing, and

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appointment of counsel (Dkt. No. 220), a motion for exhibits (Dkt. No. 224), two requests for

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judicial notice (Dkt. Nos. 226, 227), and another motion for an evidentiary hearing and

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appointment of counsel (Dkt. No. 235). Judge Porter has repeatedly denied Burton’s request

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for counsel, and the Court affirms those denials. (See Dkt. Nos. 44, 115, 162, 215, 221.)

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The same goes for his requests for an evidentiary hearing. (See Dkt. Nos. 184, 215, 221.)

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The Court cites Burton’s prolific filings in this case to underscore the difficulty it faces

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in considering his objections to Judge Porter’s R&R. While there may be pointed and

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coherent objections to the R&R somewhere in his recent filings, the Court simply cannot find

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them. Instead, it finds a collage of general points of constitutional law that simply do not

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inform the Court’s present analysis, either because they are too general to be useful or

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because they do not even relate to the actual claims in Burton’s petition. In one of Burton’s

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objections to the R&R, for example, he discusses the Fifth Amendment right against self-

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incrimination, the right to counsel during police questioning, and the public’s right of access

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to court proceedings. (See Dkt. No. 231.) None of those touch in any way on Burton’s actual

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habeas claims.

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A.

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Burton’s first and second claims relate to the trial court’s denial of his motion to

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represent himself at trial. Burton certainly had that right in the abstract. Faretta v. California,

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422 U.S. 806 (1975). But the record shows that at the time Burton made his Faretta motion,

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his competency to stand trial was in doubt, which called into question whether his waiver of

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his right to counsel was knowing, voluntary, and intelligent. See Iowa v. Tovar, 541 U.S. 77,

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88–89 (2004). The record further shows that Burton did not subsequently reassert his

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Faretta right unequivocally. The Court of Appeal’s denial of Burton’s Faretta claim was

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neither contrary to nor an unreasonable application of clearly established Supreme Court

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law. It was also not based upon an unreasonable application of the facts in his case. Burton

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is not entitled to habeas relief on this claim.

Self-Representation

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B.

Brady Claim

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The Court is in complete agreement with the R&R as to the merits of Burton’s Brady

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claim. He fails to establish that the identity of a bailiff who could have been his witness at

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trial: (1) was either willfully or inadvertently suppressed by the prosecution; (2) was

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exculpatory; and (3) was material to his defense. See Strickler v. Greene, 527 U.S. 263,

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281–82 (1999). Burton is not entitled to relief on this claim.

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C.

Batson Error

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The Court is also in complete agreement with the R&R’s treatment of Burton’s

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Batson claim. The California Court of Appeal gave substantial consideration to Burton’s

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Batson claim and held that he failed to make a prima facie showing that the juror at issue

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was excused on account of her race. For the reasons offered by Judge Porter, this

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holding was neither contrary to, nor an unreasonable application of, clearly established

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Supreme Court law. Nothing the Court can find in Burton’s filed objections rebuts this

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conclusion.

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//

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//

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III.

Conclusion
The Court adopts Judge Porter’s R&R in its entirety. Burton’s petition for a writ of

habeas corpus is DENIED. The Clerk may close this case.

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IT IS SO ORDERED.
DATED: September 30, 2011

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HONORABLE LARRY ALAN BURNS
United States District Judge

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