Lobretto v. Sisto

TIMOTHY ALAN LOBRETTO, Petitioner,

v.D. K. SISTO, Warden, Respondent.

Case No.: 1:08-cv-00080-LJO-JLT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: February 12, 2013

FINDINGS AND RECOMMENDATIONS TO

DENY AMENDED PETITION FOR WRIT OF HABEAS CORPUS (Doc. 14)

ORDER DIRECTING THAT OBJECTIONS BE

FILED WITHIN TWENTY DAYS

Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1).

PROCEDURAL HISTORY

Petitioner is in custody of the California Department of Corrections and Rehabilitation ("CDCR") serving a determinate sentence of 23 years, 8 months, pursuant to a judgment of the Superior Court of California, County of Kings (the "Superior Court"), as a result of Petitioner's 2004 convictions for (1) two counts of false imprisonment effected without violence or menace (Cal. Pen. Code § 236); (2) three counts of second degree robbery (Cal. Pen. Code § 211); (3) one count of second degree burglary (Cal. Pen. Code § 459); (4) one count of assault by means likely to produce great bodily injury (Cal. Pen. Code § 245(a)(1); and (5) one count of assault (Cal. Pen. Code § 240). (Doc. 14, pp. 2-3).

On November 30, 2004, Petitioner filed a direct appeal to the California Court of Appeals, Fifth Appellate District (the "5th DCA"), which was denied in an unpublished opinion on June 23, 2006. (Id., p. 3). Petitioner filed a Petition for Review in the California Supreme Court which was denied on October 18, 2006. (Id.).

The instant petition was filed on January 15, 2008. (Doc. 1). On February 28, 2008, Petitioner filed a motion to stay the proceedings in order to exhaust additional state court claims. (Doc. 8). On July 24, 2008, the Court granted Petitioner's motion for stay, and ordered Petitioner's counsel to file regular status reports regarding the exhaustion efforts. (Doc. 9). On January 14, 2010, the Court issued an Order to Show Cause why the stay should not be lifted in light of the fact that Petitioner had failed to file any status reports. (Doc. 11). On February 8, 2010, Petitioner's counsel filed a response indicating that Petitioner would file an amended petition withdrawing the unexhausted claims. (Doc. 12). On March 5, 2010, the Court ordered the stay lifted, and directed Petitioner to file an amended petition containing only exhausted claims within thirty days. (Doc. 13). On April 2, 2010, Petitioner filed the amended petition. (Doc. 14). On April 21, 2010, the Court ordered Respondent to file a response to the amended petition. (Doc. 16). On July 15, 2010, Respondent filed the Answer and lodged the state court record with the Court. (Doc. 23). On November 1, 2010, Petitioner filed a Traverse. (Doc. 29).

Respondent concedes that all grounds for relief in the amended petition appear to have been fully exhausted. (Doc. 23, p. 7).

FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the 5th DCA's unpublished decision:

A. Background and Facts Relating to the Crimes

Defendant was an avid motorcycle enthusiast. In December of 1998, defendant approached others about forming an organized club. Defendant and others met at defendant's house and five of them agreed to form a new club, the Exiled Motorcycle Club (Exiled).

The members consisted of defendant, Paul Goonan, Richard Whitlock, Frank McDaniel, and Wes Seruntine. They designed a patch for the club using shades of orange and gray to align themselves with the red and white colors of the Hell's Angels Motorcycle Club (Hell's Angels). They designated the following March 15 as the birth date of their club, March 15 also being the celebrated birth date of the Hell's Angels.

Exiled held weekly meetings and collected dues. The group found a clubhouse location and fixed it up. Some members brought personal property to the club. When property was brought to the club, the individual would let the members know if the property was to remain personal property or was to become club property. Donated property was treated as club property, while lent property remained the personal property of the lender. Some property was purchased with club dues, for example the security system. Members always had the opportunity to come back and reclaim their personal property from the clubhouse. Andy Randazzo, Mark Craver, and others became members of the club. The members of the club wanted to be looked upon as a decent motorcycle club and did not want to get involved in illegal activities.

Exiled associated with Scream City Motorcycle Club in Fresno. Scream City eventually became the Fresno County chapter of Hell's Angels. Exiled members wore patches to indicate their affiliation and support for the Fresno Hell's Angels. Exiled was mentored by the Fresno Hell's Angels and received information to train them and align them with the established ways of the Hell's Angels. Exiled members would assist at Hell's Angels functions doing "flunky" work.

The Mongols Motorcycle Club is a rival to the Hell's Angels. The Exiled clubhouse was in Mongols territory. It was a subject of concern that Exiled members had to drive through Mongols territory when they traveled to and from their homes to the clubhouse.

In September 2000, Paul Goonan was deployed by the Navy on a cruise, at which time defendant and Craver left Exiled to instead associate with the Fresno chapter of the Hell's Angels. Before Goonan left on his cruise, he said something offensive to Cydnie Newsome, defendant's girlfriend, at the clubhouse. He said he loved her; he then grabbed her and kissed her. While she was trying to get away, they were interrupted and Goonan left the area. While Goonan was on his cruise with the Navy, he called Newsome and told her he was thinking about her. Cydnie handed the telephone to defendant. During Goonan's birthday party in February of 2001, Goonan verbalized that he wanted to perform a certain sexual act with Newsome.

In February of 2001 there was rising tension between the Hell's Angels and the Mongols motorcycle club in other parts of California. There was a concern that the Exiled clubhouse might be taken over by the Mongols because it was in their territory, or the Mongols might exact some kind of retaliation on Exiled. Exiled was instructed by Hell's Angels that if they had firearms they should always carry them and if they were going to ride anywhere they should do so in groups of two. Defendant was present during these discussions.

On February 24, 2001, Goonan spent the night at the Exiled clubhouse with his girlfriend, Angela Clark, and his son. On the morning of February 25, 2001, others arrived at the clubhouse, including defendant and Brian Wendt, sergeant of arms of the Fresno Hell's Angels. Defendant entered the clubhouse and took a shotgun, rolled it in a sheet and handed it to Wendt, who removed it from the clubhouse. Wendt also asked for the telephone list for the Fresno chapter of Hell's Angels. Wendt took the list and left with others, including Exiled members Wes Seruntine and Dave Wilson.

Seruntine and Wilson returned and told Goonan they had been instructed to burn any documentation in the clubhouse that had any ties to the Hell's Angels. They lit a fire and started to go through the paperwork in the clubhouse. Goonan objected. He called Randazzo, and Randazzo came to the clubhouse. Randazzo was very upset because they were burning some of his personal paperwork along with the paperwork affiliated with the Hell's Angels. Things got heated and different individuals grabbed weapons. Randazzo had a gun and told everyone to shut up. Seruntine and Wilson surrendered their Exiled patches because they wanted to affiliate with Hell's Angels and not Exiled.

On March 2, 2001, Goonan accepted an invitation to come to the clubhouse of the San Diego chapter of the Hell's Angels. There was an altercation at the clubhouse. While at the San Diego clubhouse, Goonan and a person named Perez had a discussion regarding a woman both Goonan and Perez had dated.

On March 3, 2001, Goonan went to a party held by the Fresno Hell's Angels. He went to show them their (Exiled) ranks had not changed and they were still supporting the Fresno Hell's Angels. Wendt questioned Goonan about his trip to San Diego. Members of the Hell's Angels instructed Goonan that they wanted to have a meeting with Exiled at their clubhouse on March 4th.

On March 4, 2001, Goonan, Randazzo, and two other Exiled members were present at the clubhouse. Eight members of the Fresno chapter of the Hell's Angels arrived in four or five trucks at noontime. Defendant was one of the eight individuals who arrived at the clubhouse.

Goonan went outside and met the group. Craver locked the gate of the fence surrounding the clubhouse. The eight individuals were all dressed in Hell's Angels attire. They entered the clubhouse. Defendant unplugged the telephones in the clubhouse and told all of the Exiled members to turn off any communication devices and pile them on the bar.

The Exiled members were told by the Hell's Angels that Exiled was no longer a club. The membership numbers were too low and they were not in a position to defend themselves. Exiled was told that their club was being dissolved for their own good and their own safety from the Mongols. The Exiled members were told to remove their patches from their clothing. Goonan was angry and told them they did not have the right to do this. They responded they did not care, they were shutting them down.

The Hell's Angels began removing items from the clubhouse and took them out to their trucks. The group took stereos, security equipment, compact discs, flashlights, a microphone, kitchen equipment, alcohol, memorabilia, and other items with a total value in excess of $2,000.

Goonan and Randazzo objected to the takings, but the Hell's Angels did not care about their objections. They did not try to stop the Hell's Angels from removing items because they did not want a conflict. Randazzo spoke up when they tried to remove the

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