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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 11 ) WILLIE LEE FOSTER, ) Case No. CV 17-7963-JEM 12 ) Petitioner, ) 13 ) MEMORANDUM OPINION AND ORDER v. ) DENYING PETITION FOR WRIT OF 14 ) HABEAS CORPUS AND DENYING

M. SEXTON, Warden, ) CERTIFICATE OF APPEALABILITY

15 ) Respondent. ) 16 ) 17

PROCEEDINGS

18 On October 31, 2017, Willie Lee Foster (“Petitioner”), a prisoner in state custody, 19 filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Section 2254. On 20 December 22, 2017, Petitioner filed a First Amended Petition (“FAP”). On February 14, 21 2018, Warden Sexton (“Respondent”) filed an Answer. On July 31, 2018, Petitioner filed a 22 Traverse. 23 Pursuant to 28 U.S.C. § 636(c), both parties have consented to proceed before this 24 Magistrate Judge. 25

PRIOR PROCEEDINGS

26 On November 2, 2015, a Los Angeles County Superior Court jury found Petitioner 27 guilty of three counts of attempted carjacking (Cal. Penal Code §§ 664, 215(a)) with 28 1 personal use of a deadly and dangerous weapon (Cal. Penal Code § 12022(b)(2)), and two 2 counts of assault with a deadly weapon (Cal. Penal Code § 245(a)(1)). (Lodged Document 3 (“LD”) 1, Clerk’s Transcript (“CT”) 132-36.) On January 8, 2016, Petitioner admitted two 4 prior convictions constituting “strikes” under California’s Three Strikes law and five prior 5 prison term allegations (Cal. Penal Code § 667.5(b)). (CT 153-154; see CT 34-35.) On 6 January 21, 2016, the trial court dismissed one “strike” conviction pursuant to People v. 7 Superior Court (Romero), 13 Cal.4th 497 (1996), and sentenced Petitioner to an aggregate 8 term of 17 years and four months in state prison. (CT 181-86, 188-91.) 9 Petitioner filed an appeal in the California Court of Appeal. (LD 3.) On February 22, 10 2017, the Court of Appeal affirmed the judgment in an unpublished opinion. (LD 4.) 11 Petitioner filed a petition for review in the California Supreme Court, which summarily 12 denied review on May 24, 2017. (LD 5, 6.) 13 SUMMARY OF EVIDENCE AT TRIAL 14 Based on its independent review of the record, the Court adopts the following factual 15 summary from the California Court of Appeal’s unpublished opinion as a fair and accurate 16 summary of the evidence presented at trial: 17 At about 1 a.m. on February 10, 2015, Sandra Jefferson's car stalled at 18 a traffic light on Wilmington Avenue, at the end of the off-ramp from the 105 19 Freeway. The area is near the Imperial Courts housing projects and is known for 20 gang and drug activity. Carolyn Moore and Willa Giles were passengers in 21 Jefferson's car. 22 Jefferson got out of the car, leaving her door open, and lifted the hood. 23 [Petitioner] approached from across Wilmington Avenue, and the women initially 24 thought he was going to help them. Instead, [Petitioner] got behind the wheel 25 and tried to start the car by turning the ignition key and fumbling with the knobs. 26 According to Giles, he was “rambling on” that the car was his and he wanted to 27 28 2 1 take it. Jefferson told him to get out because the car was not his, but [Petitioner] 2 insisted it was and would not leave. Jefferson realized [Petitioner] was under the 3 influence of phencyclidine (PCP), and she knew, from having herself used PCP 4 in the past, that it made a person exceptionally strong. Because she did not think 5 she and her passengers were “strong enough to handle him,” Jefferson tried to 6 send [Petitioner] away by telling him his car was across the street. 7 After Jefferson managed to pull [Petitioner] out of the car, he walked 8 where she directed him to go and tried to get into other cars. When he did not 9 succeed, he returned and got back behind the wheel of Jefferson's car. The 10 women were frightened. Moore, who also realized [Petitioner] was on PCP 11 because of her own experience using the drug, told him to get out, but [Petitioner] 12 continued to insist the car was his. When Moore tried to push [Petitioner] out of 13 the car, he pushed her back. She then got out of the passenger seat, went 14 around, and tried to pull him out. Again, he pushed her away and they struggled. 15 At some point, Jefferson got a metal car jack out of the trunk “[t]o defend 16 ourselves, to defend me, to defend the ladies” because she did not want 17 “anything to happen to them.” Moore saw [Petitioner] and Jefferson struggle 18 before she took the car jack out. Giles saw [Petitioner] lunge at Jefferson with 19 something in his hand before Jefferson swung the car jack and hit [Petitioner] in 20 the head, drawing blood. [Petitioner] stooped down, opened what appeared to 21 be a knife, and started swinging it and jabbing at Jefferson and Moore. 22 According to Jefferson, [Petitioner] opened the knife after she had hit him twice 23 with the car jack. After [Petitioner] swung the knife at her, Moore took an 24 umbrella out of the trunk and tried to knock the knife out of [Petitioner]'s hand, 25 while Jefferson swung the car jack at him. By then, Giles was out of the car as 26 well. The women circled around the car to get away from [Petitioner], who was 27 28 3 1 chasing them with the knife “like he was a madman.” He persisted in trying to get 2 in the car and at some point began scratching it with the knife. 3 Moore asked a passerby for help and to call police. Ricardo Ruiz, who 4 was exiting the 105 Freeway, saw the stalled car and the three women going 5 around it. He saw [Petitioner] going after them with some sort of a weapon, while 6 they were fending him off with the car jack and the umbrella. When Ruiz tried to 7 help the women, [Petitioner] came at him with the knife. Ruiz returned to his car, 8 drove farther away, and called 911. At 1:13 a.m., a female caller reported that 9 a man was trying to “jack” a woman's car on the 105 Freeway off-ramp; the caller 10 said he was “beating” them and “going at them with knives.” 11 When police arrived, [Petitioner] was seated in the driver's seat of 12 Jefferson's car with a knife in his hand. He began walking away, and initially did 13 not seem to understand the command to drop the knife, but eventually complied. 14 . . . 15 At the jury trial, [Petitioner] testified in his own defense. He stated that he 16 went to the projects from Gardena to buy PCP and blacked out after smoking it. 17 When he came to hours later, he felt “stranded” in an unfamiliar neighborhood. 18 Even though he had not driven there and did not own a car at the time, 19 [Petitioner] thought he “had a car parked in the vicinity, and if [he] found [his] car 20 everything would be all right.” He was “pretty sure” he got inside Jefferson's car 21 although he claimed not to remember doing so. He remembered Jefferson telling 22 him to “go that way,” and that he went in the direction she pointed. He could not 23 recall trying to get into other cars but remembered coming back to Jefferson's car 24 and trying to get inside. 25 [Petitioner] testified that at the time he did not know what the victims were 26 saying, but was “pretty sure” they said the car was theirs and he said it was his. 27 28 4 1 He claimed he went backwards when Jefferson and Moore started hitting him 2 with the car jack and umbrella and wondered why the women were trying to kill 3 him. He admitted pulling out his knife and waving it at them. He also admitted 4 trying to get back in the car while the women kept hitting him. 5 Dr. Jack Rothberg, a psychiatrist and forensic psychologist, testified 6 [Petitioner] had mental health problems and significant substance abuse history. 7 Dr. Rothberg explained that PCP is a potent drug that causes psychotic 8 hallucinations, distortion of reality, and paranoia. However, a blackout caused 9 by PCP does not prevent directed conscious action, even though the person may 10 have no memory of it. According to Dr. Rothberg, a person on PCP has 11 “superhuman strength, and police are well aware of the danger in trying to 12 subdue someone on PCP. They're hard to get down.” Such a person also is less 13 sensitive to pain, more aggressive, and a danger to those around him. 14 In response to hypotheticals based on the facts of this case, Dr. Rothberg 15 opined that someone on PCP who believes another person's car is his and tries 16 to drive it off with its hood up is “clearly deranged” and “not making sense out of 17 what [he is] observing.” The doctor agreed that it would be difficult for “two or 18 three untrained civilians middle aged to elderly” to subdue a person under the 19 influence of PCP. 20 (LD 4 at 2-5.) 21 PETITIONER’S CONTENTIONS 22 1. The evidence was insufficient to support Petitioner’s convictions for assault 23 with a deadly weapon. (Pet. at 5.) 24 2. The trial court erred in instructing the jury with CALCRIM No. 3472 because 25 the instruction was not applicable to the facts of the case. (Id.) 26 27 28 5 1 3. The evidence was insufficient to support Petitioner’s convictions for attempted 2 carjacking. (FAP at 5-6.)1 3 STANDARD OF REVIEW 4 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs the 5 Court's consideration of Petitioner’s cognizable federal claims. 28 U.S.C. § 2254(d), as 6 amended by AEDPA, states: 7 An application for a writ of habeas corpus on behalf of a person in custody 8 pursuant to the judgment of a State court shall not be granted with respect to any 9 claim that was adjudicated on the merits in State court proceedings unless the 10 adjudication of the claim - (1) resulted in a decision that was contrary to, or 11 involved an unreasonable application of, clearly established Federal law, as 12 determined by the Supreme Court of the United States; or (2) resulted in a 13 decision that was based on an unreasonable determination of the facts in light 14 of the evidence presented in the State court proceeding. 15 Under AEDPA, the “clearly established Federal law” that controls federal habeas 16 review of state court decisions consists of holdings (as opposed to dicta) of Supreme Court 17 decisions “as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 18 362, 412 (2000); see also Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (clearly 19 established federal law is “the governing legal principle or principles set forth by the 20 Supreme Court at the time the state court renders its decision”). “[I]f a habeas court must 21 extend a rationale before it can apply to the facts at hand, then by definition the rationale 22 was not clearly established at the time of the state-court decision.” White v. Woodall, 572 23 U.S. 415, 426 (2014) (internal quotation marks and citation omitted). If there is no Supreme 24 25 1 Petitioner’s original Petition contains Grounds One and Two. Petitioner then filed the FAP 26 containing Ground Three, and indicated that he intended the FAP to add Ground Three rather than replace Grounds One and Two. The Court ordered Respondent to address all three claims and 27 Respondent has done so. 28 6 1 Court precedent that controls a legal issue raised by a habeas petitioner in state court, the 2 state court's decision cannot be contrary to, or an unreasonable application of, clearly 3 established federal law. Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam); 4 see also Carey v. Musladin, 549 U.S. 70, 76-77 (2006). 5 A federal habeas court may grant relief under the “contrary to” clause if the state 6 court “applies a rule that contradicts the governing law set forth in [Supreme Court] cases,” 7 or if it decides a case differently than the Supreme Court has done on a set of materially 8 indistinguishable facts. Williams, 529 U.S. at 405-406. “The court may grant relief under 9 the ‘unreasonable application’ clause if the state court correctly identifies the governing 10 legal principle . . . but unreasonably applies it to the facts of a particular case.” Bell v. Cone, 11 535 U.S. 685, 694 (2002). An unreasonable application of Supreme Court holdings “must 12 be objectively unreasonable, not merely wrong.” White, 572 U.S. at 419 (citing Andrade, 13 538 U.S. at 75-76; internal quotation marks omitted). “A state court's determination that a 14 claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could 15 disagree’ on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 16 86, 101 (2011) (citation omitted). The state court’s decision must be “so lacking in 17 justification that there was an error well understood and comprehended in existing law 18 beyond any possibility for fairminded disagreement.” Id. at 102. “If this standard is difficult 19 to meet, that is because it was meant to be.” Id. 20 A state court need not cite Supreme Court precedent when resolving a habeas 21 corpus claim. See Early v. Packer, 537 U.S. 3, 8 (2002). “[S]o long as neither the 22 reasoning nor the result of the state-court decision contradicts [Supreme Court precedent,]” 23 the state court decision will not be “contrary to” clearly established federal law. Id. 24 A state court’s silent denial of federal claims constitutes a denial “on the merits” for 25 purposes of federal habeas review, and the AEDPA deferential standard of review applies. 26 Richter, 562 U.S. at 98-99. When no reasoned decision is available, the habeas petitioner 27 28 7 1 has the burden of “showing there was no reasonable basis for the state court to deny relief.” 2 Id. at 98. 3 The federal habeas court “looks through” a state court’s unexplained decision to the 4 last reasoned decision of a lower state court, and applies the AEDPA standard to that 5 decision. See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018) (federal habeas court should 6 “look through” unexplained state court decision to last state court decision “that does 7 provide a relevant rationale” and “should then presume that the unexplained decision 8 adopted the same reasoning,” although presumption may be rebutted); Ylst v. Nunnemaker, 9 501 U.S. 797, 803 (1991) (“Where there has been one reasoned state judgment rejecting a 10 federal claim, later unexplained orders upholding the judgment or rejecting the same claim 11 rest upon the same ground.”). 12 Petitioner presented his claims to the state courts on direct appeal. (LD 3, 5.) The 13 California Court of Appeal denied the claims in a reasoned decision and the California 14 Supreme Court summarily denied review. (LD 4, 6.) The Court looks through the California 15 Supreme Court's silent denial to the Court of Appeal’s reasoned decision and applies the 16 AEDPA standard to that decision. See Wilson, 138 S. Ct. at 1192; Ylst, 501 U.S. at 803. 17 DISCUSSION 18 I. Grounds One and Three Do Not Warrant Federal Habeas Relief 19 In Grounds One and Three, Petitioner contends that the evidence at trial was 20 insufficient to support his convictions for assault with a deadly weapon (Ground One) and 21 attempted carjacking (Ground Three). (Pet. at 5; FAP at 5-6.) 22 A. Applicable Federal Law 23 The Due Process Clause of the Fourteenth Amendment guarantees that a criminal 24 defendant may be convicted only “upon proof beyond a reasonable doubt of every fact 25 necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 26 364 (1970). The federal standard for assessing the constitutional sufficiency of the 27 28 8 1 evidence in support of a criminal conviction is set forth in Jackson v. Virginia, 443 U.S. 307 2 (1979). Under Jackson, “the relevant question is whether, after viewing the evidence in the 3 light most favorable to the prosecution, any rational trier of fact could have found the 4 essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319 5 (emphasis in original); see also Wright v. West, 505 U.S. 277, 296-97 (1992) (plurality 6 opinion). Put another way, the Jackson standard “looks to whether there is sufficient 7 evidence which, if credited, could support the conviction.” Schlup v. Delo, 513 U.S. 298, 8 330 (1995). 9 The Jackson standard preserves the jury’s responsibility to resolve conflicts in the 10 testimony, weigh the evidence, and draw inferences from basic facts. Jackson, 443 U.S. at 11 319; see also Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (reviewing court must 12 respect the exclusive province of the trier of fact to determine the credibility of witnesses, 13 resolve evidentiary conflicts, and draw reasonable inferences from proven facts). “[U]nder 14 Jackson, the assessment of the credibility of witnesses is generally beyond the scope of 15 review.” Schlup, 513 U.S. at 330. A federal habeas court faced with a record supporting 16 conflicting inferences “must presume – even if it does not affirmatively appear in the record 17 – that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer 18 to that resolution.” Jackson, 443 U.S. at 326; see also Wright, 505 U.S. at 296-97. 19 Circumstantial evidence and reasonable inferences drawn from it may be sufficient to 20 sustain a conviction. United States v. Jackson, 72 F.3d 1370, 1381 (9th Cir. 1995); 21 Walters, 45 F.3d at 1358. Ultimately, “it is the responsibility of the jury – not the court – to 22 decide what conclusions should be drawn from evidence admitted at trial.” Cavazos v. 23 Smith, 565 U.S. 1, 2 (2011) (per curiam). 24 Although sufficiency of the evidence review is grounded in the Fourteenth 25 Amendment, the federal court must refer to the substantive elements of the criminal offense 26 as defined by state law and must look to state law to determine what evidence is necessary 27 to convict on the crime charged. See Jackson, 443 U.S. at 324 n.16; Juan H. v. Allen, 408 28 9 1 F.3d 1262, 1275 (9th Cir. 2005). However, “the minimum amount of evidence that the Due 2 Process Clause requires to prove the offense is purely a matter of federal law.” Coleman v. 3 Johnson, 566 U.S. 650, 655 (2012). 4 Under AEDPA, the federal habeas court's inquiry is “even more limited”; the court 5 “ask[s] only whether the state court's decision was contrary to or reflected an unreasonable 6 application of Jackson to the facts of a particular case.” Emery v. Clark, 643 F.3d 1210, 7 1213-14 (9th Cir. 2011); see also Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011) 8 (where Jackson claim is “subject to the strictures of AEDPA, there is a double dose of 9 deference that can rarely be surmounted”); Juan H., 408 F.3d at 1274 (under AEDPA 10 federal courts must “apply the standards of Jackson with an additional layer of deference). 11 B. Ground One – Assault with a Deadly Weapon 12 Petitioner contends that the evidence at trial was insufficient to support his 13 convictions for assault with a deadly weapon on Jefferson and Moore because he acted in 14 self-defense. He argues that the testimony showed that he did not pose a danger to 15 Jefferson; she had no right to use deadly force against him to protect her vehicle; and he 16 had a right to protect himself after Jefferson struck him with a tire jack and Moore started 17 striking him with an umbrella. (Pet. at 5.) On direct appeal, the Court of Appeal rejected 18 these arguments and found that substantial evidence supported the prosecutor’s theory that 19 Petitioner’s aggressive conduct placed the victims in reasonable fear for their personal 20 safety and caused the escalation of violence. (LD 4 at 11.) 21 In order to prove the crime of assault with a deadly weapon in violation of Cal. Penal 22 Code § 245, the prosecution must prove that the defendant (1) did an act with a deadly 23 weapon that by its nature would directly and probably result in the application of force to a 24 person; (2) did that act wilfully; (3) was aware of facts that would lead a reasonable person 25 to realize that his act by its nature would directly and probably result in the application of 26 force to someone; and (4) had the present ability to apply force with the deadly weapon. 27 See CALCRIM No. 875. “Self-defense negates culpability for assaultive crimes.” People v. 28 10 1 Adrian, 135 Cal. App. 3d 335, 340 (1982). When the issue of self-defense is properly 2 raised, the prosecution has the burden of proving that the defendant did not act in self- 3 defense. Id. at 340-41; People v. Lee, 131 Cal. App. 4th 1413, 1429 (2005) (“the People 4 have the burden to prove beyond a reasonable doubt that the defendant did not act in 5 self-defense”). The defendant acted in self-defense if he reasonably believed that he was 6 in imminent danger of suffering bodily injury, reasonably believed that immediate use of 7 force was necessary, and used no more force than was reasonably necessary to defend 8 against the danger. CALCRIM No. 3470; People v. Randle, 35 Cal.4th 987, 994 (2005), 9 overruled on other grounds by People v. Chun, 45 Cal.4th 1172 (2009). A defendant may 10 not invoke self-defense if his wrongful conduct (e.g., the initiation of a physical attack or the 11 commission of a felony) has created circumstances under which his adversary’s attack is 12 legally justified. People v. Enraca, 53 Cal.4th 753, 761 (2012). 13 Viewing the evidence in the light most favorable to the prosecution, see Jackson, 443 14 U.S. at 319, Petitioner approached three women whose car had stalled at night in an area 15 known for gang activity and drugs. (LD 2, Reporter’s Transcript (“RT”) 616, 620, 672-73.) 16 Petitioner got into the car, told Jefferson that the car was his, and argued with her as she 17 pulled him out of the car. (RT 620-21, 650-52, 908-09.) Jefferson believed that Petitioner 18 was under the influence of PCP and knew from personal experience that PCP makes a 19 person unusually strong. (RT 622-25.) Although she was able to persuade Petitioner to 20 leave, he soon returned and got into the car a second time, pushing Moore when she told 21 him to get out. (RT 626-27, 653-54, 909-10.) Once outside the car, Petitioner struggled 22 with Jefferson as she tried to keep him away. (RT 911.) At some point Petitioner took a 23 knife from his pocket and Jefferson took a “bumper jack” from the trunk “to defend 24 ourselves, to defend me, to defend the ladies.”2 (RT 627, 630, 670, 911.) Petitioner lunged 25 26 27 2 Petitioner testified that he pulled out the knife after the women started hitting him and his face was bleeding. (RT 936-37.) Jefferson and Moore also testified that Jefferson got the car jack and hit 28 (continued...) 11 1 at Jefferson and she hit his head with the jack, causing him to bleed. (RT 627-28, 655, 2 922.) Petitioner approached Jefferson again and she hit him with the jack a second time. 3 (RT 627-28.) Petitioner unfolded his knife and swung it at Jefferson, jabbing at her from a 4 distance of eight to ten inches. (RT 628, 657-59.) Moore started hitting Petitioner with her 5 umbrella to protect Jefferson, and Petitioner jabbed his knife at Moore. (RT 628-30, 661.) 6 The women started running around the car to get away from Petitioner. (RT 630, 633, 914.) 7 Giles testified that Petitioner was acting like a “madman,” swinging the knife at them. (RT 8 659.) A bystander testified that he saw three women circling round a car, fending off a 9 pursuing man with a tire jack and an umbrella. (RT 606-07, 614.) When the bystander 10 tried to intervene, Petitioner came at him with a knife. (RT 608, 631, 665.) Another 11 bystander told the 911 operator that Petitioner was going after the women with a knife. (CT 12 83-85.) Based on this evidence, a rational jury could find that Petitioner was the aggressor 13 and did not act in self-defense. 14 Petitioner insists that the evidence shows that Jefferson unjustifiably used deadly 15 force to protect her car, and that he only used the knife to defend himself against 16 Jefferson’s jack and Moore’s umbrella. (Pet. at 5.) That was the gist of Petitioner’s defense 17 at trial (RT 1258-64), which the jury rejected when it returned a guilty verdict. On a 18 sufficiency of the evidence review, the Court must draw all reasonable inferences 19 supporting the verdict. See McDaniel v. Brown, 558 U.S. 120, 133 (2010) (evidence that 20 defendant washed his clothes immediately upon returning home supported inference that 21 he did so to remove bloodstains; even though defendant provided alternative reason for 22 washing clothes, reviewing court was obliged to draw inference supporting verdict). 23 Petitioner wants the Court to reweigh the evidence and draw inferences different from the 24 jury. That is impermissible. See Coleman, 566 U.S. at 655 (“Jackson leaves juries broad 25 26 2(...continued) 27 Petitioner with it before Petitioner pulled out a knife. (RT 627-28, 924-25.) Giles testified that Petitioner pulled out a knife before Jefferson hit him with the jack, but opened it after he was hit. (RT 655-57, 669- 28 70.) 12 1 discretion in deciding what inferences to draw from the evidence presented at trial, requiring 2 only that jurors 'draw reasonable inferences from basic facts to ultimate facts'" (citation 3 omitted)); Cavazos, 565 U.S. at 8 n.* ("reweighing of facts . . . is precluded by Jackson"). 4 Accordingly, the state court’s rejection of this claim was not contrary to, or an 5 unreasonable application of, clearly established federal law as set forth by the United States 6 Supreme Court. Ground One does not warrant federal habeas relief. 7 C. Ground Three – Attempted Carjacking 8 Petitioner contends that the evidence was insufficient to support his attempted 9 carjacking convictions. Specifically, he contends that the evidence showed that he did not 10 form the required specific intent because he “was not in [his] right mind,” he “was under the 11 influence,” he wrongly believed that the vehicle was his, and the vehicle had its hood up and 12 was clearly inoperable. (FAP at 5-6.) 13 Under California law, the elements of carjacking are: (1) the felonious taking of a 14 motor vehicle in the possession of another, (2) from his or her person or immediate 15 presence, (3) against his or her will, (4) with the intent to permanently or temporarily deprive 16 the person of possession of the vehicle, (5) accomplished through force or fear. Cal. Penal 17 Code § 215(a). A conviction for attempted carjacking requires proof of (1) a specific intent 18 to commit carjacking and (2) a direct but ineffectual act done towards accomplishing the 19 intended carjacking. See Cal. Penal Code §§ 21a; 215(a); see generally People v. 20 Marshall, 15 Cal.4th 1, 36 (1997) (“An attempt to commit a crime occurs when the 21 perpetrator, with the specific intent to commit the crime, performs a direct but ineffectual act 22 towards its commission”). 23 Evidence of voluntary intoxication may not be used to negate the capacity to form 24 specific intent, but it is relevant to whether the defendant actually formed the required 25 specific intent. Cal. Penal Code § 29.4; People v. Horton, 11 Cal.4th 1068, 1119 (1995). 26 Specific intent may be inferred from “all the facts and circumstances surrounding the crime.” 27 People v. Lewis, 25 Cal.4th 610, 643 (2001). 28 13 1 On direct appeal, the Court of Appeal found that the evidence showed that Petitioner 2 “intended to deprive the victims of possession of the vehicle.” (LD 4 at 8.) It stated: 3 [Petitioner] testified that when he regained consciousness after his PCP blackout, 4 he felt “stranded” in the projects, but believed “everything would be all right” if he 5 found his car. He proceeded to get behind the wheel of Jefferson's car and tried 6 to start it, actions consistent with an intent to drive off. His trial testimony 7 indicates he was aware of the women's immediate presence in and around the 8 car, and he was “pretty sure” they claimed it was theirs; nevertheless, he 9 persisted in trying to get in the car. It is reasonable to infer [Petitioner] intended 10 to take control of Jefferson's car and drive away, despite the victims' immediate 11 presence and their asserted right of control over the car. 12 (Id.) 13 The Court of Appeal explained: 14 [Petitioner]'s claimed delusion that the car was his does not negate his intent to 15 deprive the women of its possession since carjacking is crime against possession 16 rather than ownership, and it is undisputed that he attempted to gain control of 17 the car that was in the victims' immediate possession. [Petitioner]'s failure to 18 realize that the car was not operational or that its hood was up does not negate 19 this specific intent. It shows only that commission of the substantive crime of 20 carjacking was factually impossible, but does not prevent [Petitioner]'s conviction 21 of an attempt to commit that crime. 22 (Id. at 8-9) (citations omitted). 23 The Court of Appeal reasonably applied Jackson when it found the evidence 24 sufficient to support Petitioner’s convictions for attempted carjacking. Viewing the evidence 25 in the light most favorable to the prosecution, see Jackson, 443 U.S. at 319, Petitioner 26 walked towards Jefferson’s stalled car, got behind the wheel, asserted the car was his, and 27 tried to start the engine. (RT 620, 622, 650-51, 908.) Although at first Jefferson was able to 28 14 1 redirect him to other cars (6 RT 622, 652), he soon returned to Jefferson’s car and again 2 stated that it was his. (RT 626, 653, 909-10.) He resisted attempts by the victims to get 3 him out of the car and keep him out of it. (RT 627, 653-54, 909-11.) He grabbed, pushed, 4 and chased the victims and threatened them with a knife (RT 607, 627, 654, 662, 664, 909- 5 11, 916), all the while insisting that the car was his (RT 664). He did not say anything 6 during the incident that led Jefferson to believe that he was detached from reality. (RT 636- 7 37.) When the police arrived, he was sitting in the driver’s seat. (RT 677.) He got out of 8 the car as ordered, then backed away from the police in an attempt to flee, but ultimately 9 complied with orders to drop the knife and lie down. (RT 677-78.) A rational jury viewing 10 this evidence could infer that Petitioner was aware of his actions and intended to take 11 Jefferson’s car from her and the other women. See Lewis, 25 Cal.4th at 643; Horton, 11 12 Cal.4th at 1119. 13 Petitioner stresses that he could not have driven away with Jefferson’s car because it 14 was inoperable. (FAP at 6.) But Petitioner could be convicted of attempted carjacking even 15 if it was factually impossible to accomplish the completed crime. See People v. Meyer, 169 16 Cal. App. 3d 496, 504-05 (1985); see also People v. Lopez, 31 Cal.4th 1051, 1063 (2003) 17 (when defendant intends to commit carjacking but is unable to move vehicle, his “conduct is 18 punishable as attempted carjacking”). To the extent Petitioner argues that his failure to 19 realize that he could not drive off with the car while the hood was up showed that he was 20 “not in [his] right mind” (FAP at 6), Petitioner’s counsel made this argument and the jury 21 rejected it. (RT 1261). The Court cannot reweigh the evidence and draw different 22 inferences from the jury. See Cavazos, 565 U.S. at 8 n.*. 23 Accordingly, the state court’s rejection of this claim was not contrary to, or an 24 unreasonable application of, clearly established federal law as set forth by the United States 25 Supreme Court. Ground Three does not warrant federal habeas relief. 26 27 28 15 1 II. Ground Two Does Not Warrant Federal Habeas Relief 2 Petitioner contends that the trial court erroneously instructed the jury with CALCRIM 3 No. 3472 that “[a] person does not have the right to self-defense if he or she provokes a 4 fight or quarrel with the intent to create an excuse to use force.” (Pet. at 5; CT 125.) 5 A. California Court of Appeal’s Decision 6 Petitioner argued on direct appeal that “instructing the jury with CALCRIM No. 3472, 7 and the prosecutor's argument that he was the aggressor throughout the incident misled the 8 jury and prejudicially deprived him of a defense.” (LD 4 at 9.) The Court of Appeal rejected 9 his argument, stating: 10 Here, the jury received two instructions on lawful self-defense, CALCRIM 11 Nos. 3470 and 3474. The former states in relevant part that a defendant need 12 not retreat in the face of deadly force and may pursue an assailant until the 13 danger of death or bodily injury has passed; the latter states that the right to 14 self-defense ends when the assailant withdraws or is no longer capable of 15 inflicting injury. The jury also was instructed under CALCRIM No. 3472 that “[a] 16 person does not have the right to self-defense if he or she provokes a fight or 17 quarrel with the intent to create an excuse to use force.” 18 [Petitioner] relies on People v. Ramirez (2015) 233 Cal. App. 4th 940, 19 where a majority of the Court of Appeal reversed the defendants' convictions for 20 first degree murder after finding that CALCRIM No. 3472 and the prosecutor's 21 argument “erroneously required the jury to conclude that in contriving to use 22 force, even to provoke only a fistfight, defendants entirely forfeited any right to 23 self-defense.” (Ramirez, at p. 953.) Ramirez is distinguishable because the 24 prosecutor in that case argued to the jury that CALCRIM No. 3472 prevents 25 self-defense even against “the victim's unjustified use of deadly force” in 26 response to “nondeadly fisticuffs.” (Ramirez, at pp. 943, 948.) 27 28 16 1 Here, the defense argued that the victims used deadly force to protect 2 their property, and that they were able to “hold[ ] their own” against [Petitioner], 3 who was confused and pulled the knife in self-defense after he was hit with the 4 car jack. But the prosecutor did not concede that the victims used unreasonable 5 force to protect their property or that they unjustifiably escalated a nondeadly 6 conflict. Rather, she presented a competing version of events. 7 The prosecutor argued that Jefferson and Moore used reasonable 8 nondeadly force to pull or push [Petitioner] out of the car. Their efforts resulted 9 in repeated struggles with [Petitioner], who was relentless, which gave the 10 women the right to protect themselves if they believed they were in danger. The 11 incident escalated when [Petitioner] repeatedly came back at the victims, and 12 eventually pulled out a knife. The prosecutor relied on the victims' testimony that 13 they believed they were in danger and could not handle [Petitioner], as well as 14 on Dr. Rothberg's testimony that a person on PCP may not feel pain, may be 15 aggressive, and may have superhuman strength. The prosecutor also 16 highlighted the eyewitness reports of [Petitioner] beating the victims and chasing 17 them with a knife. 18 [Petitioner]’s assumption that Jefferson used the car jack to protect her 19 property is incorrect. . . Jefferson testified she used the car jack to protect herself 20 and her passengers from [Petitioner] only after both she and Moore engaged in 21 repeated “struggle[s]” with him, and Giles testified she saw [Petitioner] lunge at 22 Jefferson with something in his hand before Jefferson hit him with the car jack. 23 Jefferson knew from personal experience, and Dr. Rothberg confirmed, that a 24 person on PCP is exceptionally strong and difficult to restrain. The eyewitnesses 25 who saw the incident, or the latter portion of it, were in agreement that [Petitioner] 26 continued to be the aggressor and that the women were retreating and defending 27 themselves. 28 17 1 The prosecutor's argument that [Petitioner]'s unrelenting aggression 2 placed the victims in reasonable fear for their personal safety and caused the 3 escalation of violence is supported by substantial evidence. The record does not 4 indicate that the jury was misled into rejecting [Petitioner]'s self-defense theory. 5 (LD 4 at 10-11) (citations omitted). 6 B. Applicable Federal Law 7 Federal habeas corpus relief does not lie for errors of state law. Lewis v. Jeffers, 497 8 U.S. 764, 780 (1990). A claim of instructional error does not raise a cognizable federal 9 claim unless “the ailing instruction by itself so infected the entire trial that the resulting 10 conviction violates due process.” Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp 11 v. Naughten, 414 U.S. 141, 147 (1973)). “[N]ot every ambiguity, inconsistency, or 12 deficiency in a jury instruction rises to the level of a due process violation.” Middleton v. 13 McNeil, 541 U.S. 433, 437 (2004). Even if an instruction is ambiguous, inconsistent, or 14 otherwise deficient, it will violate due process only when a reasonable likelihood exists that 15 the jury applied it in a manner that relieved the prosecution of its burden of proving every 16 element beyond a reasonable doubt. Waddington v. Sarausad, 555 U.S. 179, 190-91 17 (2009); Estelle, 502 U.S. at 72. In determining whether a constitutional violation has 18 occurred, the instructional error must be viewed in the context of other instructions and the 19 trial record as a whole, not in artificial isolation. See Estelle, 502 U.S. at 72; Cupp, 414 U.S. 20 at 147. 21 C. Analysis 22 Petitioner contends that CALCRIM No. 3472 did not fit the circumstances of his case 23 because he had the right to defend himself after Jefferson used deadly force against him. 24 (Pet. at 5.) He argues that the instruction effectively deprived him of due process and the 25 right to present a defense. (Traverse at 10.) 26 “Due process requires that criminal prosecutions ‘comport with prevailing notions of 27 fundamental fairness” and that ‘criminal defendants be afforded a meaningful opportunity to 28 18 1 present a complete defense.’” Clark v. Brown, 442 F.3d 708, 714 (9th Cir. 2006) (quoting 2 California v. Trombetta, 467 U.S. 479, 485 (1984)). But “[g]iving an instruction which is not 3 supported by evidence is not a due process violation.” Steele v. Holland, No. 15-cv-01084- 4 BLF, 2017 WL 2021364, at *8 (N.D. Cal. May 12, 2017) (rejecting argument that instructing 5 jury with CALCRIM No. 3472 despite lack of factual support impaired petitioner’s right to 6 present complete defense); see also Boegeman v. Smith, No. 3:17-cv-00861-GPC-KSC, 7 2018 WL 3140469, at *10 (S.D. Cal. June 27, 2018) (factual invalidity of jury instruction did 8 not constitute cognizable federal claim). No clearly established federal law “constitutionally 9 prohibits a trial court from instructing a jury with a factually inapplicable but accurate 10 statement of state law.” Fernandez v. Montgomery, 182 F. Supp. 3d 991, 1011 (N.D. Cal. 11 2016); accord Acajabon v. Espinoza, No. 16-cv-00183-MJS (HC), 2017 WL 5608070, at *13 12 (E.D. Cal. Nov. 21, 2017); Prock v. Sherman, No. CV 15-1175-PA (SS), 2017 WL 4480738, 13 at *13 (C.D. Cal. Aug. 21, 2017), accepted by 2017 WL 4480083 (C.D. Cal. Oct. 5, 2017). 14 On the contrary, the Supreme Court has held that due process is not violated when jurors 15 are instructed on a legal theory that lacks evidentiary support because “jurors are well 16 equipped to analyze the evidence.” Griffin v. United States, 502 U.S. 46, 59-60 (1991). 17 Thus, Petitioner’s factual challenge to CALCRIM No. 3472 does not set forth a cognizable 18 federal claim and cannot be a basis for federal habeas relief. 19 Moreover, the Court of Appeal’s determination that the evidence warranted the 20 instruction is entitled to a presumption of correctness that Petitioner has not rebutted. See 21 28 U.S.C. § 2254(e); Steele, 2017 WL 2021364, at *8 (“Disagreement with the state court’s 22 interpretation of the facts made by reiterating the same contentions made previously does 23 not satisfy this burden.”). Petitioner’s actions in aggressively arguing with the victims, 24 pushing Moore, grabbing Jefferson and lunging at her, and swinging a knife at the victims 25 and pursuing them around the car provided sufficient evidence to warrant instructing the 26 jury with CALCRIM No. 3742. See People v. Eulian, 247 Cal. App. 4th 1324, 1334-35 27 (2016) (evidence that defendant confronted victim in her vehicle while his mother tried to 28 19 1 pull him away, victim kicked defendant and his mother, and defendant punched victim and 2 knocked her out constituted sufficient factual predicate for CALCRIM No. 3472). 3 Furthermore, CALCRIM No. 3742 must be viewed in the context of other instructions. 4 See Estelle, 502 U.S. at 72; Cupp, 414 U.S. at 147. The jury was instructed regarding self- 5 defense with CALCRIM No. 3470 [Right to Self-Defense or Defense of Another] and No. 6 3724 [Danger no Longer Exists or Attacker Disabled]. (CT 124, 126.) It was also instructed 7 that some instructions might not apply because their applicability depended on the jury’s 8 factual findings. (CT 97.) Whether or not CALCRIM No. 3742 applied depended on 9 whether the jury found that (as the prosecutor argued) Petitioner was the aggressor from 10 start to finish (RT 1253-55, 1267-68), or that (as trial counsel argued) Petitioner pulled out 11 his knife to defend himself against Jefferson’s unjustified escalation of the conflict and use 12 of deadly force (RT 1258, 1263). The Court of Appeal reasonably found that there was no 13 reasonable likelihood that the jury was misled. See Middleton, 541 U.S. at 438. 14 In his Traverse, Petitioner argues that CALCRIM No. 3472 relieved the prosecution 15 of its burden of proving guilt beyond a reasonable doubt. (Traverse at 11.) “Jury 16 instructions relieving States of this burden violate a defendant’s due process rights.” 17 Carella v. California, 491 U.S. 263, 265 (1989) (per curiam). But Petitioner does not explain 18 how CALCRIM No. 3472 reduced the prosecution’s burden of proof. Conclusory assertions 19 cannot be a basis for habeas relief. See Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 20 2011) (“cursory and vague” claim cannot support habeas relief); James v. Borg, 24 F.3d 20, 21 26 (9th Cir. 1994) (“Conclusory allegations which are not supported by a statement of 22 specific facts do not warrant habeas relief.”). The jury was clearly instructed that the 23 prosecution had the burden of proving beyond a reasonable doubt that Petitioner did not act 24 in self defense. (CT 124.) Nothing in CALCRIM No. 3472 lightened that burden. 25 Accordingly, the state court’s rejection of ths claim was not contrary to, or an 26 unreasonable application of, clearly established federal law as set forth by the United States 27 Supreme Court. Ground Two does not warrant federal habeas relief. 28 20 1 III. Petitioner Is Not Entitled to An Evidentiary Hearing 2 Petitioner has requested an evidentiary hearing. (Traverse at 2.) The United States 3 Supreme Court has held that federal habeas review under 28 U.S.C. § 2254(d)(1) “is limited 4 to the record that was before the state court that adjudicated the claim on the merits.” 5 Pinholster, 563 U.S. at 181. “[A]n evidentiary hearing is pointless once the district court has 6 determined that § 2254(d) precludes habeas relief.” Sully v. Ayers, 725 F.3d 1057, 1075 7 (9th Cir. 2013). Moreover, an evidentiary hearing is not warranted when "the record refutes 8 the applicant’s factual allegations or otherwise precludes habeas relief." Schriro v. 9 Landrigan, 550 U.S. 465, 474 (2007). Petitioner, therefore, is not entitled to an evidentiary 10 hearing. 11 IV. Petitioner’s Request for a Stay Is Denied 12 Petitioner has requested a stay of these proceedings to allow him to exhaust state 13 remedies as to the following five claims, which were articulated for the first time in the 14 Traverse:3 15 [1] Petitioner was intoxicated, under the influence of P.C.P.4 16 17 3 On April 28, 2018, the Court received a letter from Petitioner stating that he “bypassed state 18 remedies unknowingly” and “intended to file a state petition before federal.” He requested “a stay in order to exhaust state remedies” so that he could “amend further issues that [he would] argue in state 19 petition additionally to those argued on present petition.” Petitioner never identified the claims in the Petition that he believed were unexhausted nor did Respondent contend that any of the claims were 20 unexhausted. Moreover, Petitioner never identified any new claims that he planned to exhaust. On June 21, 2018, Petitioner sent another letter to the Court again asking about a stay. On July 3, 2018, 21 the Court issued an order indicating that a stay was not necessary as to the claims in the Petition because there was no allegation that the claims were unexhausted. The Court further stated that, [t]o 22 the extent that Petitioner is requesting some other relief from the Court, such request has not been clearly identified” and that further requests for relief “should be submitted in the form of a noticed 23 motion.” Again, Petitioner did not identify any new claims that he sought to exhaust. On July 31, 2018, Petitioner filed his Traverse, in which he clarified that, “Petitioner’s claims are exhausted, [e]ven though 24 Petitioner has requested this court for stay/abeyance to exhaust other unexhausted claims,” and 25 identified for the first time five new “claims to be exhausted.” 26 4 It does not appear that this claim is new. The Court has already considered and rejected Petitioner’s claim that the evidence was insufficient to support his attempted carjacking convictions 27 because, inter alia, he did not form the required specific intent due to the fact he was under the influence of P.C.P. (See supra pp. 13-15.) The Court cannot determine, and declines to speculate, 28 whether Petitioner intended to assert some other claim based on P.C.P. intoxication. 21 1 [2] Petitioner’s appointed counsel rendered ineffective assistance of counsel 2 and deficient performance.5 3 [3] Petitioner’s multiple convictions and sentence for multiple attempted 4 carjackings, on the same broke down car, during the same bad acts is illegal 5 and must be reversed. 6 [4] The trial judge violated his prophyl[a]ctic duty when he failed to explain to 7 Petitioner his Boykin Thal rights and the consequen[c]es therein. Rendering 8 Petitioner’s prior convictions unconstitutional. 9 [5] In July the 9th Circuit decided that according to Johnson v United States 10 (citation omitted) carjacking is no longer a crime of violence. [H]ow does this 11 [a]ffect the attempted version? 12 (Traverse at 5.) 13 A state prisoner must exhaust his or her state court remedies before a federal court 14 may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. 15 Boerckel, 526 U.S. 838, 842 (1999). To satisfy the exhaustion requirement, a habeas 16 petitioner must fairly present his or her federal claims in the state courts in order to give the 17 state the opportunity to pass upon and correct alleged violations of the petitioner's federal 18 constitutional rights. Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam). For a 19 petitioner in California state custody, this generally means that the petitioner must have 20 fairly presented the claims in a petition to the California Supreme Court. See O'Sullivan, 21 526 U.S. at 845 (interpreting 28 U.S.C. § 2254(c)); Gatlin v. Madding, 189 F.3d 882, 888 22 (9th Cir. 1999) (applying O'Sullivan to California). 23 To the extent that the “new claims” identified in the Traverse are unexhausted, the 24 Court finds that a stay is not warranted. 25 26 5 In a letter received by the Court on June 12, 2019, Petitioner purports to “amend” his ineffective assistance of counsel claim as follows: "At preliminary hearing my lawyer was given the opportunity to 27 argue affirmative defense and opted not to w[h]ich sabot[a]ged my defense." (Docket No. 32.) This letter was received nearly a year after Petitioner filed his Traverse in which he first identified an 28 ineffective assistance of counsel claim. 22 1 A. Petitioner Is Not Entitled to a Stay Under Rhines v. Weber 2 Pursuant to Rhines v. Weber, 544 U.S. 269 (2005), a district court has discretion to 3 stay a petition to allow a petitioner to exhaust his claims in state court if the following three 4 requirements are met: (1) the petitioner has good cause for his failure to exhaust his claims; 5 (2) the unexhausted claims are potentially meritorious; and (3) there is no indication that the 6 petitioner intentionally engaged in dilatory tactics. Id. at 278. Petitioner has failed to meet 7 these requirements. 8 Petitioner has failed to show good cause for his failure to exhaust. In April 2018, 9 approximately six months after the Petition was filed, Petitioner sent a letter to the Court 10 stating that he had “filed the petition that was given from my prior attorney which [he] 11 believed was a state petition,” was “aware” that he had bypassed state remedies, and 12 “intended to file a state petition before federal.” (Docket No. 23.) He gave no reason for 13 this failure other than confusion regarding where to file and good faith on his part. (Id.) 14 These vague and conclusory allegations are insufficient to justify Petitioner’s failure to 15 exhaust the five new claims after his direct appeal concluded. See Blake v. Baker, 745 16 F.3d 977, 982 (9th Cir. 2014) (“An assertion of good cause without evidentiary support will 17 not typically amount to a reasonable excuse justifying a petitioner’s failure to exhaust.”) 18 Moreover, Petitioner did not even identify those claims until another three months had 19 passed, when he filed his Traverse on July 31, 2018. Even now, his claims are set forth in 20 a vague and confusing manner, he has not sought leave to amend to add them to his 21 petition, and he has made no attempt to complete the exhaustion process (See 22 https://appellatecases.court.info.ca.gov). There is nothing before the Court to support a 23 finding of good cause. 24 Petitioner’s unexhausted claims are not potentially meritorious within the meaning of 25 Rhines because they are vague, conclusory, and unsupported by specific facts or evidence. 26 See, e.g., Lesopravsky v. Warden, No. CV 16-7110-JPR, 2018 WL 2085333, at *7 (C.D. 27 Cal. May 3, 2018) (“Claims composed of vague and conclusory allegations unsupported by 28 23 1 specific facts or evidence are not potentially meritorious within the meaning of Rhines.); 2 Ramirez v. Borders, No. SACV-16-00522-DSF (KES), 2017 WL 3841794, at *8 (C.D. Cal. 3 May 9, 2017) (finding claim “plainly meritless” under Rhines because “Petitioner failed to 4 allege sufficient facts to state a colorable claim for federal habeas relief”), accepted by 2017 5 WL 3841810 (C.D. Cal. Sep. 1, 2017); Taylor v. Paramo, No. EDCV 15-1496-JFW (KS), 6 2016 WL 3922055, at *7 (C.D. Cal. June 3, 2016) (finding petitioner’s vague assertion of 7 ineffective assistance of counsel plainly meritless), accepted by 2016 WL 3922047 (C.D. 8 Cal. July 20, 2016). The description of Petitioner’s unexhausted claims is so cursory that he 9 could not obtain relief on the merits. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) 10 (conclusory allegations, unsupported by a “statement of specific facts,” do not warrant 11 habeas relief). Accordingly, Petitioner has failed to show the potential merit of his claims. 12 Finally, even assuming Petitioner has shown good cause and that his claims are 13 potentially meritorious, he is not entitled to a Rhines stay because he has intentionally 14 engaged in dilatory tactics. Petitioner has made no attempt to exhaust his new claims since 15 his conviction became final on August 22, 2017.6 (See https://appellatecases.court.info. 16 ca.gov.) Thus, for almost two years Petitioner has failed to move those claims toward 17 resolution or litigate them in any manner. He failed to present them to the state courts, 18 failed to include him in his Petition, failed to identify them to the Court or Respondent until 19 he filed his Traverse, and even then failed to allege them in more than cursory terms. 20 Based on the foregoing, Petitioner is not entitled to a stay under Rhines. 21 22 23 24 6 The California Supreme Court denied Petitioner’s petition for review on May 24, 2017. (LD 6.) 25 Therefore, his conviction became final 90 days later on August 22, 2017. See Bowen v. Roe, 188 F.3d 1157, 1558-59 (9th Cir. 1999); see also Caspari v. Bohlen, 510 U.S. 383, 390 (1994) (“A state 26 conviction and sentence become final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has 27 elapsed or a timely filed petition has been finally denied.”) The applicable one-year statute of limitations in this case expired on August 22, 2018. See 28 U.S.C. § 2244(d)(1)(A); Patterson v. Stewart, 251 28 F.3d 1243, 1246 (9th Cir. 2001). 24 1 B. Petitioner Is Not Entitled to a Stay Under Kelly v. Small 2 Alternatively, a court may grant a stay under Kelly v. Small, 315 F.3d 1143 (9th Cir. 3 2003), which requires compliance with the following three-step procedure: (1) if the petition 4 contains both exhausted and unexhausted claims, the petitioner files an amended petition 5 deleting his unexhausted claims; (2) the district court “stays and holds in abeyance the 6 amended, fully exhausted petition, allowing petitioner the opportunity to proceed to state 7 court to exhaust the deleted claims”; and (3) the petitioner subsequently seeks to amend 8 the federal habeas petition to reattach “the newly-exhausted claims to the original petition.” 9 King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). Under Kelly, however, the petitioner is 10 only allowed to amend in order to add newly-exhausted claims back into his federal petition 11 if the claims are timely under the AEDPA or “relate back” to the exhausted claims in the 12 pending petition. Id. at 1140-41; see also Mayle v. Felix, 545 U.S. 644, 662-64 (2005). A 13 claim relates back if it shares a “common core of operative facts” with one or more of the 14 claims in the pending petition. Mayle, 545 U.S. at 664. A new claim “does not relate back 15 (and thereby escape AEDPA's one-year time limit) when it asserts a new ground for relief 16 supported by facts that differ in both time and type from those the original pleading set 17 forth.” Id. at 650. Here, Petitioner would not be entitled to a stay under Kelly because the 18 unexhausted claims, as articulated in the Traverse and Petitioner’s letters, do not relate 19 back to those set forth in the Petition7 and would be untimely. Petitioner’s conviction 20 became final on August 22, 2017, and the one-year statute of limitations expired on August 21 22, 2018.8 Thus, even if Petitioner were granted a stay under Kelly and exhausted his 22 claims in state court, the newly exhausted claims would be barred by the statute of 23 limitations. 24 Accordingly, Petitioner is not entitled to a stay under Kelly. 25 26 27 7 See supra n.4. 28 8 See supra n.6. 25 1 V. Petitioner’s Request for Discovery Is Denied 2 Although it is not entirely clear, Petitioner appears to seek discovery of investigation 3 reports and transcripts of 911 calls that he believes were made by an eyewitness, his wife, 4 and possibly other witnesses. (Docket No. 31.) Rule 6(a) of the Rules Governing Section 5 2254 Cases in the United States District Courts allows the parties to engage in discovery in 6 the discretion of the court and “for good cause shown.” Calderon v. U.S. Dist. Court for the 7 N. Dist. Of Cal. (Nicolaus), 98 F.3d 1102, 1104 (9th Cir. 1996). There is no general right to 8 discovery in habeas proceedings. Rich v. Calderon, 187 F.3d 1064, 1068 (9th Cir. 1999). 9 Discovery is only available to a habeas petitioner if he presents colorable claims for relief. 10 Id. at 1068. A petitioner must set forth specific allegations of facts to warrant discovery 11 under Rule 6; conclusory allegations are insufficient. Calderon v. U.S. Dist. Court, 98 F.3d 12 at 1106. Discovery is not available to a petitioner if he has not sought the discovery first 13 from the state’s highest court. Id. 14 A review of the state court docket demonstrates that Petitioner filed unsuccessful 15 motions for discovery in the superior court and court of appeal, but there is no indication 16 that he sought discovery from the state’s highest court. (See https://appellatecases.court. 17 info.ca.gov.) Thus, discovery is not available to him. Moreover, his requests are general 18 and conclusory, and he has failed to set forth specific allegations of fact demonstrating that 19 discovery is warranted. Finally, Petitioner has failed to present a colorable claim for relief 20 based on the documents he seeks. 21 Petitioner has failed to show good cause, and his request for discovery is denied. 22 VI. Petitioner’s Request for Expansion of the Record Is Denied 23 Petitioner also has requested an order permitting him to expand the record, 24 apparently to include the 911 call transcripts, investigation reports, and a page from a brief 25 filed with the trial court. (Docket Nos. 31 & 32.) A court entertaining a federal habeas 26 petition “may direct the parties to expand the record by submitting additional materials 27 relating to the petition.” Rule 7(a), Rules Governing Section 2254 Cases. A party seeking 28 to expand the record must demonstrate entitlement to an evidentiary hearing under the 26 1 federal habeas statute. Holland v. Jackson, 542 U.S. 649, 653 (2004); Cooper-Smith v. 2 Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005). The Court has concluded that an 3 evidentiary hearing is not warranted for the reasons set forth above. Moreover, there is no 4 showing that the documents at issue have any bearing on the claims that have been or 5 could be brought before the Court. Accordingly, Petitioner’s request to expand the record is 6 denied. 7 CERTIFICATE OF APPEALABILITY 8 Pursuant to Rule 11 of the Rules Governing Section 2254 cases, the Court “must 9 issue or deny a certificate of appealability when it enters a final order adverse to the 10 applicant.” For the reasons stated above, the Court concludes that Petitioner has not made 11 a substantial showing of the denial of a constitutional right, as is required to support the 12 issuance of a certificate of appealability. See 28 U.S.C. § 2253(c)(2). 13 ORDER 14 IT IS ORDERED that: (1) the Petition is denied; (2) Petitioner’s request for an 15 evidentiary hearing is denied; (3) Petitioner’s request for a stay is denied; (4) Petitioner’s 16 request for discovery is denied; (5) Petitioner’s request for expansion of the record is 17 denied; (6) a certificate of appealability is denied; and (7) Judgment shall be entered 18 dismissing this action with prejudice. 19 20 DATED: August 9, 2019 /s/ John E. McDermott

JOHN E. MCDERMOTT

21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 27