Walton v. Hill
| Decision Date | 01 September 2009 |
| Docket Number | No. CV 05-1125-AC.,CV 05-1125-AC. |
| Citation | 652 F.Supp.2d 1148 |
| Parties | Tyrone Earl WALTON, Petitioner, v. Jean HILL, Superintendent Snake River Correctional Institution, Respondent. |
| Court | U.S. District Court — District of Oregon |
Mark Bennett Weintraub, Assistant Federal Public Defender, Eugene, OR, for Petitioner.
John R. Kroger, Attorney General, Summer R. Gleason, Assistant Attorney General Department of Justice, Salem, OR, for Respondent.
On May 12, 2009, Magistrate Judge Acosta issued Findings and Recommendation ("F & R") (#71) in the above-captioned case recommending that petitioner's Amended Petition for Writ of Habeas Corpus (#49) be GRANTED IN PART and DENIED IN PART. Specifically, Judge Acosta recommends that the Petition be GRANTED as to petitioner's claim of ineffective assistance of counsel for failure to communicate entry of final amended judgment within the time required to appeal such judgment. He further recommends that a conditional writ of habeas corpus be granted ordering Petitioner's release from state custody unless the state permits Petitioner to initiate and prosecute a direct appeal from the amended judgment within 120 days. Finally, Judge Acosta recommends that the Petition be DENIED on all other grounds. Respondent filed objections to the F & R (# 78).
The magistrate judge makes only recommendations to the court, to which any party may file written objections. The court is not bound by the recommendations of the magistrate judge, but retains responsibility for making the final determination. The court is generally required to make a de novo determination of those portions of the report or specified findings or recommendation as to which an objection is made. 28 U.S.C. § 636(b)(1)(C). However, the court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the F & R to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003). While the level of scrutiny under which I am required to review the F & R depends on whether or not objections have been filed, in either case, I am free to accept, reject, or modify any of the magistrate judge's F & R. 28 U.S.C. § 636(b)(1)(C).
Upon review, I agree with Judge Acosta's recommendation, and I ADOPT the F & R (# 71) as my own opinion.
IT IS SO ORDERED.
FINDINGS AND RECOMMENDATION
Petitioner, an inmate at the Snake River Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Amended Petition for Writ of Habeas Corpus should be GRANTED IN PART and DENIED IN PART.
On May 16, 1987, Petitioner and Jolene Abbott went to a Minit Mart convenience store at Southeast 39th and Yamhill Streets in Portland. Petitioner was wearing a cap to disguise a distinctive half-moon scar on his forehead. Petitioner, who was armed with a sawed-off shotgun, robbed the Minit Mart.
Early in June, 1987, Petitioner and Marion Tillman drove to two convenience stores in the Beaverton area. Petitioner told Tillman that one of the stores would be "a good lick," which Tillman understood to mean it would be a good target for stealing money. Upon returning to Petitioner's house, Petitioner went inside and came back out with a sawed-off shotgun. He showed Tillman the shotgun and asked, "Do you think [this] will scare somebody?"
A few days later, Petitioner asked Tillman to drive him to a Plaid Pantry convenience store (the "Plaid Pantry") at North Killingsworth and Denver Streets in Portland. Tillman first agreed, but then changed her mind because she "didn't want to be involved."
After the events with Tillman, Petitioner and Abbott rented a car in Portland to drive to Colorado. They returned to Portland on June 20, 1987. The two spent June 21, 1987, engaged in shoplifting, selling the proceeds of their thefts for money, and using the money to buy cocaine, which they then consumed.
In the early hours of June 22, the rental car was vandalized. Petitioner and Abbott decided on a likely suspect for the vandalism. They picked up the sawed-off shotgun from Petitioner's mother's house and drove around until they found the suspect and threatened him. Later, Petitioner, Abbott, and another friend, Marcia Harris, attempted to the re-contact the person they suspected of vandalizing the rental car. They failed, and returned to Petitioner's mother's house to consume more cocaine.
At about 8:00 a.m., on June 22, 1987, Abbott drove Petitioner in the rental car to the Plaid Pantry. Petitioner was wearing a blue baseball cap, a black sweatshirt, black jeans, and tennis shoes. Petitioner carried the sawed-off shotgun in a bag. He got out of the car, told Abbott to keep the motor running, and went into the store.
While sitting in the car, Abbott heard a shot. When Petitioner came out of the store, he was sticking the sawed-off shotgun back in the bag. Abbott asked Petitioner whether he had shot somebody. Petitioner answered that he had shot the Plaid Pantry clerk because "the man was stepping from the counter like he was going to go step on an alarm or something."
Minutes later, the Plaid Pantry clerk was found dead beneath the store's open cash register. The cause of death was shotgun wounds to the chest and heart. An audit of the Plaid Pantry cash register showed a shortage of $79.00.
No one witnessed the actual shooting of the store clerk. Witnesses outside the store at the time of the incident described the suspect as a slender, young, black male wearing a cap and dark jogging clothes. None of the witnesses positively identified Petitioner as the man they saw. One witness saw a car leaving the scene which matched the description of the one Petitioner and Abbott had rented.
Detective Rubey, who responded to the Plaid Pantry after the shooting and robbery, noted there was a single dollar bill remaining in the cash register drawer. The alarm system in the Plaid Pantry would have been triggered by the removal of the final dollar bill from the till. Rubey's testimony was contradicted by the testimony of Gordon Bloom, another police officer at the scene, who specifically recalled that the cash register drawer was open and was "certain that the till was empty."
Following the crime, Petitioner and Abbott returned to his house. At Petitioner's request, Abbott hid the sawed-off shotgun in the neighborhood. Unknown to Petitioner, Abbott put the blue baseball cap under a couch in the dining room of the house. She hid the cap because she believed Petitioner would be less likely to commit more robberies if he could not find it, because he needed the cap to cover the distinctive scar on his forehead.
The police had no suspect for the Plaid Pantry crimes at first. They did, however develop a theory that the Minit Mart robbery had similar characteristics and might have been committed by the same suspect.
On July 28, 1987, Portland Police Officer Lloyd Higgins received a telephone call from an unidentified man who told him that Jolene Abbott was responsible for the robbery and shooting at the Plaid Pantry. That same day, Portland Police Officer William Klaus responded to a domestic-violence report involving Abbott and the Petitioner. After Abbott left the residence, Petitioner approached Klaus and said "... that he had some information that Ms. Abbott had been involved with another gentleman, and that she had driven a car that was used in a robbery."
Detective Law, who was assigned to investigate the Plaid Pantry murder and robbery, interviewed several persons, including Abbott, Leshia Hart, and Anthony Elliott. As a result of the information he obtained, on August 5, 1987, Law searched for and found the sawed-off shotgun in some bushes, where Abbott said she had hidden it on the day of the crime. Attempts to develop fingerprints from the weapon were unsuccessful.
On August 7, 1987, Law obtained a warrant for Petitioner's arrest. Law and Detective Nelson drove to a house where Petitioner was then living with Marcia Harris. The detectives saw Petitioner standing in front of the house talking to Hams. Law addressed Petitioner by his name. Petitioner responded that was not his name, and gave an alias. Law had a photograph of Petitioner, and told him he knew who he was. Law then told Petitioner he was looking for Abbott, whom Petitioner denied knowing.
Law asked Petitioner whether the detectives could speak to him. Petitioner agreed, and invited the detectives to the front porch of the house. A wide-ranging discussion followed. Law asked Petitioner if he owned a sawed-off shotgun, which Petitioner denied. Law showed Petitioner the shot-gun he had retrieved from the bushes, and Petitioner denied having seen it before. Law asked Petitioner about his possession of a rental car matching the description of the car seen leaving the Plaid Pantry. Petitioner denied having a rental car.
Law also asked Petitioner whether he had ever telephoned "911" to implicate Abbott in the Plaid Pantry crimes. Petitioner denied telephoning "911." Law asked Petitioner if he would go to the police station voluntarily to "clear up questions" about whether he had called "911" to implicate Abbott. Petitioner agreed.
At the police station, the detectives advised Petitioner of his Miranda rights, which Petitioner said he understood and was willing to waive. Petitioner agreed to talk to the detectives. Petitioner admitted he knew Abbott and that he had lived with her, but he stated she had moved out weeks earlier and he had not seen her for several days. Petitioner admitted calling "911" on July 28, 1987, to implicate Abbott in the Plaid Pantry crimes. He said he did so because he was angry with Abbott for terminating...
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