McKettrick v. Yates, No. CV 05-03002-RGK (VBK).

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
Writing for the CourtR. Gary Klausner
Citation627 F.Supp.2d 1144
PartiesTimothy C. McKETTRICK, Petitioner, v. James A. YATES, Warden, Respondent.
Docket NumberNo. CV 05-03002-RGK (VBK).
Decision Date06 October 2008
627 F.Supp.2d 1144
Timothy C. McKETTRICK, Petitioner,
James A. YATES, Warden, Respondent.
No. CV 05-03002-RGK (VBK).
United States District Court, C.D. California, Western Division.
October 6, 2008.

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Timothy C. McKettrick, Imperial, CA, pro se.

Lance E. Winters, CAAG — Office of Attorney General of California, Los Angeles, CA, for Respondent.


R. GARY KLAUSNER, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has made a de novo review of the Petition for Writ of Habeas Corpus and First Amended Petition for Writ of Habeas Corpus ("First Amended Petition"), Respondent's Answer, Supplemental Brief and Supplemental Answer, Petitioner's Traverse and Supplemental Reply to Respondent's Answer, Petitioner's Objections to the Report and Recommendation, and all of the records herein and the Report and Recommendation of the United States Magistrate Judge ("Report").

IT IS ORDERED that: (1) the Court accepts and adopts the Report and Recommendation, and (2) Judgment be entered dismissing the First Amended Petition and the entire action with prejudice.


VICTOR B. KENTON, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable R. Gary Klausner, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 01-13 of the United States District Court for the Central District of California.


Petitioner, a California state prisoner proceeding pro se, filed a "Petition for Writ of Habeas Corpus by a Person in State Custody" ("Petition") pursuant to 28 U.S.C. § 2254 on April 22, 2005. Respondent filed an "Answer to Petition" ("Answer") on July 25, 2005. Petitioner filed an uncaptioned Traverse on December 27, 2005.

On January 23, 2007, the Court issued a Minute Order ordering Respondent to file a supplemental brief addressing the applicability of Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) on Petitioner's claim that the trial court imposed the upper term rather than

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the middle term, based on aggravating factors not found by the jury or admitted by Petitioner.

On February 21, 2007, Respondent filed a Supplemental Brief.

On February 23, 2007, the Court issued a Minute Order ordering a Stay of the action and ordered Petitioner to return to state court to exhaust ground two in the California Supreme Court.

Petitioner filed a Petition for Writ of Habeas Corpus in the California Supreme Court, which was denied on September 25, 2007 with a citation to People v. Duvall, 9 Cal.4th 464, 474, 37 Cal.Rptr.2d 259, 886 P.2d 1252 (1995).

On October 26, 2007, Petitioner filed an "Amended Complaint" which the Court accepted for filing on November 6, 2007, and construed as a "First Amended Petition."

On January 22, 2008, the Court issued a Minute Order ordering Respondent to file a supplemental answer to the First Amended Petition.

On February 28, 2008, Respondent filed a Supplemental Answer.

On March 3, 2008, Petitioner filed a document entitled "Motion for Leave to Amend Rule 15a." Petitioner requests the Court to allow him to amend his Petition to include an ineffective assistance of counsel claim. On March 5, 2008, the Court issued a Minute Order ordering Respondent to file an opposition or statement of non-opposition to Petitioner's Motion to Amend within 30 days of the Minute Order. On March 25, 2008, Respondent filed an Opposition to Petitioner's Motion to Amend Petition.

On May 23, 2008, Petitioner filed a "Supplemental Reply to Respondent's Answer of Habeas Corpus."

Briefing having been deemed completed, the matter is ready for decision. Having reviewed the allegations of the Petition and the matters set forth in the record and the parties' filings, it is recommended that the Petition be denied and the matter be dismissed with prejudice.


Pursuant to a state jury trial, in January 2004 Petitioner was convicted of three offenses: (1) count one, evading an officer with willful disregard for the safety of persons or property (California Vehicle Code § 2800.2(a)); (2) count two, petty theft with a prior theft conviction (Cal.Penal Code § 666); and (3) count three, unlawful driving or taking of a vehicle (Cal. Vehicle Code § 10851(a)). Petitioner waived jury trial on prior conviction allegations. After a bench trial the court found true "strike" allegations that Petitioner had previously been convicted of robbery, a serious felony, and had served a prison term. The court sentenced Petitioner to an aggregate term of imprisonment of 8 years and 4 months. (Reporter's Transcript ("RT") 606-09, 611-12, 901-12; Clerk's Transcript ("CT") 43-46, 51-52, 119-21, 124-43).

Petitioner, represented by appointed counsel, appealed to the California Court of Appeal. By unpublished order filed December 2, 2004, the Court of Appeal affirmed the judgment of the trial court. (CT 159; Answer Ex. A; Respondent's Lodgment no. 3, 5). Petitioner filed a petition for review in the California Supreme Court. By order filed February 16, 2005, the California Supreme Court denied the petition without comment or citation to authority. (Answer Ex. B, C).


As found by the California Court of Appeal on direct review, the following facts support Petitioner's conviction:

In August 2003, Daniel Ochoa's white Buick Century automobile was stolen. When the car was recovered by police a

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few weeks later, Mr. Ochoa noticed: the paint had been sanded; the front and trunk of the car were damaged; and the ignition switch was gone. Mr. Ochoa did not know [Petitioner]. Mr. Ochoa did not give [Petitioner] permission to take or drive the white Buick Century.

On September 6, 2003, Los Angeles County Deputy Sheriff Joseph Dominguez was on duty in a patrol car. Deputy Dominguez received a radio broadcast regarding someone possibly siphoning gasoline from a rental truck. A subsequent broadcast revealed that the individual left the area in a white sedan. That white car was later determined to be Mr. Ochoa's stolen Buick Century. Chuck Bitar, a local resident, had detected the smell of gas. Mr. Bitar saw a hose coming from the gas tank of a parked rental truck into a can. Mr. Bitar telephoned the sheriffs department. Approximately 10 or 15 minutes later, Mr. Bitar saw someone drive away from the area in a white sedan.

When Deputy Dominguez arrived in response to a radio broadcast, he saw a white sedan pull out of a parking lot behind the gas station near the location of the rental trucks. Deputy Dominguez followed the car. Thereafter, Deputy Dominguez pulled the patrol car alongside the white car. Deputy Dominguez shined a white light into the car. [Petitioner], who was driving the car, looked in Deputy Dominguez's direction for 7 to 10 seconds. [Petitioner] was not wearing a shirt. Deputy Dominguez radioed Deputy Patrick Bohnert. Deputy Bohnert was directly behind Deputy Dominguez's patrol car. Deputy Dominguez, who was in uniform, indicated over the radio he intended to initiate a traffic stop. Deputy Dominguez's patrol car was a typical sheriffs cruiser with lights and a siren. Deputy Dominguez activated his three overhead lights as he pulled behind the white sedan. The red light faced forward. [Petitioner] drove approximately 7 to 10 feet and came to a rolling stop. However, [Petitioner] then accelerated. Deputy Dominguez turned on his air horn siren. [Petitioner] sped away. [Petitioner] made two right turns without signaling and failed to stop at two stop signs. [Petitioner's] car reached speeds of approximately 65 miles per hour, which was in excess of the posted speed limit. Deputy Dominguez continued to use his air horn and forward-facing lights. [Petitioner] turned again after he failed to stop at another stop sign. Deputy Dominguez was advised by the watch commander to cancel the pursuit. [Petitioner] drove into the parking lot of a nearby park. Deputy Dominguez turned off his lights and sirens. Deputy Dominguez followed [Petitioner] into the park. [Petitioner] drove onto the grass some 650 feet before hitting a gate.

In response to another radio broadcast, Deputy Dominguez drove to the northwest corner of the park. Deputy Bohnert and a sergeant, who had responded to the pursuit, arrived at the park. Deputy Bohnert saw [Petitioner] run toward a nearby apartment complex. Deputy Dominguez stopped his patrol car. Deputy Dominguez then saw [Petitioner] "pop up" behind a wall. [Petitioner] was later found hiding in an ivy area near a residence. [Petitioner] wore no shirt. [Petitioner] appeared very lethargic and tired when he was arrested. [Petitioner's] clothing, shoes, and socks were wet. [Petitioner] had several open scratches and cuts. Three five-gallon gas cans and a siphoning hose were in the rear seat of the white sedan, which [Petitioner] had driven.

(Answer Ex. A at 31-32).


Petitioner contends the following:

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1. "Count one must be reversed because due process per V.C. § 2800.2 creates a mandatory presumption by stating that a willful or wanton mental state includes the act of committing three traffic violations or the occurrence of property damage, is Sandstrom error, violation jury trial and due process" (ground one); and

2. "The court committed prejudicial Blakely error by imposing the aggravated term based upon factors not found by the jury beyond a reasonable doubt" (ground two).

(See Petition at 5; First Amended Petition.)


The Court will first address the procedural matters, Petitioner's Motion to Amend the Petition, and then will address the merits of the First Amended...

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