Boultinghouse v. Hall

• Decision Date: 08 October 2008
• Docket Number: No. SA CV 07-142-AHM(E).,SA CV 07-142-AHM(E).
• Citation: 583 F.Supp.2d 1145
• Court: U.S. District Court — Central District of California
• Parties: Christopher Michael BOULTINGHOUSE, Petitioner, v. Guillerma HALL, Warden, Respondent.

583 F.Supp.2d 1145

Christopher Michael BOULTINGHOUSE, Petitioner, v. Guillerma HALL, Warden, Respondent.

No. SA CV 07-142-AHM(E).

United States District Court, C.D. California.

October 8, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Christopher Michael Boultinghouse, Norco, CA, pro se.

Elizabeth A. Hartwig, CAAG Office of Attorney General of California, San Diego, CA, for Respondent.

ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

A. HOWARD MATZ, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court approves and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that Judgment be entered denying and dismissing the First Amended Petition with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein by United States mail on Petitioner and counsel for Respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable A. Howard Matz, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

On February 6, 2007, Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody." On February 22, 2007, the Court received from Petitioner a motion to amend the Petition ("Motion") seeking leave to add a new Ground Four alleging that the sentencing court imposed an upper term in violation of Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) "(Cunningham"). The Court rejected the Motion for filing because the proof of service was inadequate and because Petitioner failed to lodge with the Court an original and one copy of the proposed amended Petition, in violation of Local Rule 15-1.

On March 6, 2007, Respondent filed a "Notice of Motion and Motion to Dismiss Petition for Writ of Habeas Corpus" ("Motion to Dismiss"), addressing Petitioner's Cunningham claim, although that claim was not contained in the Petition. On March 19, 2007, the Magistrate Judge issued a Report and Recommendation recommending that the Court deny the Motion to Dismiss without prejudice and grant Petitioner leave to file a motion to amend the Petition and to lodge a proposed First Amended Petition containing all of the claims Petitioner desired to raise in this proceeding. On April 19, 2007, the District Court issued an Order approving and adopting the Report and Recommendation of March 19, 2007.

On May 21, 2007, Petitioner filed a "Motion to Amend the Petition" ("Motion to Amend"), seeking leave to amend and also seeking a stay pursuant to Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). Respondent filed a "Statement of Non-Opposition, etc." to the Motion to Amend. On June 19, 2007, the Magistrate Judge issued an order granting leave to amend and ordering the First Amended Petition to be filed as of the date of lodging, May 21, 2007. On June 21, 2007, the Magistrate Judge issued a Report and Recommendation recommending that the District Court issue an order staying the Petition, ordering Petitioner to file a petition in the California Supreme Court, and ordering Petitioner to notify this Court within forty-five days of the date of any California Supreme Court ruling on that petition. On July 25, 2007, the District Court issued an Order adopting the Report and Recommendation of June 21, 2007.

On October 16, 2007, Petitioner filed a document to which was attached a California Supreme Court petition containing Petitioner's Cunningham claim and the California Supreme Court's order of August 8, 2007 denying that petition. On December 28, 2007, Respondent filed an Answer addressing the merits of the First Amended Petition. On January 31, 2008, Petitioner filed a Reply and an "Addendum to Notice of Lodging, etc."

BACKGROUND

An Information charged Petitioner with one count of possession for sale of a controlled substance, i.e., gamma-butyrolactone ("GBL"), a felony, in violation of California Health and Safety Code section 11351, and four misdemeanor counts of the unauthorized possession of the controlled substances stanozolol, nandrolone, testosterone and methandrostenolone, in violation of California Health and Safety Code section 11377(a) (Clerk's Transcript ["C.T."] 17-19). The Information further alleged Petitioner had suffered three prior convictions qualifying as "strikes" under California's "Three Strikes Law," California Penal Code sections 667(b)—(i) and 1170.12(a)—(d) (C.T.17-19).¹ A jury found Petitioner guilty of the felony count of possession for sale of GBL and the four misdemeanor possession counts (Reporter's Transcript ["R.T."] 337-40; C.T. 106, 149-52).

Petitioner waived a jury trial of the prior conviction allegations (R.T. 3; C.T. 98). The prosecutor did not produce evidence to support one of the strike allegations, and the court found that allegation not to be true (R.T. 347-48). The court found true the remaining two strike allegations (R.T. 348-49; C.T. 107). Pursuant to People v. Superior Court (Romero), 13 Cal.4th 497, 504-05, 53 Cal.Rptr.2d 789, 917 P.2d 628 (1996), the court struck one of these prior conviction allegations (R.T. 367; C.T. 227). The court then imposed an upper term sentence of four years in state prison on the felony count, doubled pursuant to California Penal Code sections 667(e)(1) and 1170.12(c)(1), for a total prison term of eight years (R.T. 368-69; C.T. 227-28).

The California Court of Appeal affirmed the judgment (Respondent's Lodgment 6;² see People v. Boultinghouse, 134 Cal. App.4th 619, 36 Cal.Rptr.3d 244 (2005)). On March 15, 2006, the California Supreme Court denied Petitioner's petition for review without opinion, but "without prejudice to any relief to which defendant might be entitled after the United States Supreme Court determines in Cunningham v. California, No. 05-6551, the effect of Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 and United States v. Booker (2005) 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, on California law" (Respondent's Lodgment 8).

Petitioner filed a habeas corpus petition in the Orange County Superior Court, which that court denied on May 25, 2006 (Respondent's Lodgments 15, 16). Petitioner filed a second habeas corpus petition in the Orange County Superior Court, which that court denied on August 1, 2006 (Respondent's Lodgments 17, 18). Petitioner filed a third habeas corpus petition in the Orange County Superior Court, which that court denied on October 31, 2006 (Respondent's Lodgments 19, 20). Petitioner filed a habeas corpus petition in the California Supreme Court on November 1, 2006, which that court denied without opinion on May 9, 2007 (Respondent's Lodgment 21; docket in In re Boultinghouse, California Supreme Court case number S147719).³ Petitioner filed a habeas corpus petition in the California Court of Appeal asserting his Cunningham claim, which that court denied on January 26, 2007 without prejudice to the filing of a petition in the Superior Court (Respondent's Lodgment 5 of documents lodged on March 6, 2007).

On February 6, 2007, Petitioner filed the present federal Petition. As indicated above, the Court stayed the Petition pending exhaustion of Petitioner's Cunningham claim in the California Supreme Court.

Petitioner filed a habeas corpus petition in the Orange County Superior Court, which that court denied on April 11, 2007 (Respondent's Lodgment 23). Petitioner filed a habeas corpus petition in the California Court of Appeal, which that court denied on June 7, 2007 (Respondent's Lodgments 24, 25). Petitioner filed a petition for review in the California Supreme Court, which that court denied on August 7, 2007 (Respondent's Lodgments 26, 30; Exhibits to Petitioner's letter of October 16, 2007).

SUMMARY OF EVIDENCE

I. Prosecution Case

Drug Enforcement Administration ("DEA") agent Eric Ball testified that, on March 21, 2002, he and other officers conducted a search of Petitioner's apartment and recovered two boxes containing bottles of GBL, four kinds of steroids, syringes, a hairspray can with a false bottom and a hidden compartment, $34,500 in cash (mostly in $20 bills), and a money counter (R.T. 29-31, 36-48, 98-106). One box containing bottles of GBL assertedly was sealed and contained 32 unlabeled bottles of GBL packed in foam (R.T. 32, 36, 70). The other box allegedly had been opened and contained 22 unlabeled bottles of GBL with spaces for 10 missing bottles (R.T. 36, 69, 72). Ball also allegedly found financial documents associated with Petitioner's production company (R.T. 53-55, 78-80).

Petitioner reportedly told Ball that the steroids belonged to Petitioner (R.T. 58). According to Ball, Petitioner identified the substance in the bottles as "Renewtrient" or "Blue Nitro," or a similar substance (R.T. 58). Petitioner allegedly said: "It is like GHB. It feels like GHB after you eat it, but it is not" (R.T. 58). Petitioner allegedly told Ball that Petitioner did not know where he had obtained the GBL, and was not sure when he obtained it, but it possibly was a year before (R.T. 58). Petitioner reportedly said he had earned the money doing construction and putting on "raves" (R.T. 59). Ball said Petitioner could not produce any receipts to show this alleged income, but provided the name of his business manager, Valentin Martinez, and a business associate, Trece Romero, or "Ice Tea" (R.T. 59-62). Petitioner allegedly said he had started a production company at the beginning of 2002, but had not yet made any money (R.T. 60). Asked why he needed...