Gonzalez v. Hamlet

Full title: ADAM GONZALEZ, Petitioner, v. JIM HAMLET, WARDEN, Respondent

Court: United States District Court, E.D. California

Date published: Nov 16, 2005

No. CV-F-03-5695 REC/DLB HC (E.D. Cal. Nov. 16, 2005)

Opinion

No. CV-F-03-5695 REC/DLB HC.

November 16, 2005

ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 AND DIRECTING RESPONDENT TO INFORM THE COURT WITHIN 90 DAYS WHETHER PETITIONER WILL BE RETRIED

ROBERT COYLE, District Judge

On July 26, 2005, the United States Magistrate Judge recommended that the court grant petitioner's petition for writ of habeas corpus with regard to petitioner's conviction of two counts of arson of an inhabited dwelling in violation of California Penal Code § 451(b) on the ground that the admission of the out of court statement of Jesse Parraz to Detective Sumpter that petitioner told Parraz that he would burn his house, that petitioner admitted to Parraz that petitioner had burned his house in retaliation, and that Parraz stated to petitioner that he was going to burn down petitioner's house was error pursuant to Crawford v. Washington, 541 U.S. 36 (2004), which decision is retroactively applicable pursuant to Bockting v. Bayer, 399 F.3d 1010, amended, 408 F.3d 1127, rehearing en banc denied, 418 F.3d 1055 (9^th Cir. 2005). The United States Magistrate Judge recommended that the petition for writ of habeas corpus be denied on all other grounds asserted for relief.

Respondent timely filed objections to the recommendation, to which objections petitioner filed a timely reply.

Respondent's objection to the recommendation is limited to the contention that this court is not bound by the decision inBockting because the Ninth Circuit has not yet issued the mandate in that case. Respondent argues that, therefore, this court is free to disregard Bockting and to independently decide whether Crawford is retroactively applicable to cases on collateral review.¹

1 The court notes that, on August 22, 2005, the Ninth Circuit stayed issuance of the mandate in Bockting pending the filing of a petition for writ of certiorari. A petition for writ of certiorari was filed with the Supreme Court on November 7, 2005, Case No. 05-595.

Respondent's assertion that this court has the authority to disregard the ruling made in Bockting is without merit. See Wedbush, Noble, Cooke, Inc. v. SEC, 714 F.2d 923 (9^th Cir. 1983); McClennan v. Young, 421 F.2d 690 (6^th Cir. 1970);see also Yong v. INS, 208 F.3d 1116 (9^th Cir. 2000).

ACCORDINGLY:

1. The petition for writ of habeas corpus is granted with regard to petitioner's conviction of two counts of arson of an inhabited dwelling in violation of California Penal Code § 451(b) because of the admission of an out of court statement in violation Crawford v. Washington, 541 U.S. 36 (2004) and is otherwise denied.

2. Respondent is ordered to inform the court within 90 days of the filing date of this Order whether the State will retry petitioner on the arson counts.

IT IS SO ORDERED.