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Miani v. Ollison

March 12, 2007

ANTHONY JOHN MIANI, PETITIONER,
v.
D.L. OLLISON, WARDEN RESPONDENT.



The opinion of the court was delivered by: Hon. Anthony J. Battaglia Magistrate Judge United States District Court

Report and Recommendation Denying Petitioner's Habeas Corpus Petition [Doc. No. 19]

Petitioner Anthony John Miani (hereinafter "Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his April 29, 2004 conviction in San Diego Superior Court Case No. SCN 160845. On September 7, 2006, Respondent filed an answer. [Doc. No. 9]. On October 16, 2006, Petitioner filed a traverse. [Doc. No. 17]. Based upon a review of the record and for the reasons set forth herein, it is recommended that the Petition for Writ of Habeas Corpus be DENIED.

Procedural History

Petitioner was charged in counts 1, 2 and 3 with committing attempted murder (Cal. Penal Code § 189). California Penal Code section 12022.53, subdivision (c) gun discharge enhancements were alleged as to each count. Section 12022.53, subdivision (c) provides for an additional and consecutive prison term of 20 years if a person discharges a gun during the commission or attempted commission of one of the enumerated felonies. One of the enumerated felonies is murder (Cal. Penal Code § 12022.53, subdivision (a)(1)). However, voluntary manslaughter is not included among the enumerated felonies. The court here instructed the jury on the lesser included offense of voluntary manslaughter and an enhancement of personally using a firearm during a felony as provided by Cal. Penal Code § 12022.5, subdivision (a). [Lodgment 7 at *2]. Petitioner was also charged with aggravated mayhem in count 4 (Cal. Penal Code § 205), shooting at an inhabited structure or vehicle in counts 5-6 (Cal. Penal Code § 246), mayhem in count 7 (Cal. Penal Code § 203), residential burglary in count 8 (Cal. Penal Code §§ 459/460), and felon in possession of a firearm in count 9 (Cal. Penal Code § 12021, subdivision (a)(1)). The information also alleged Petitioner personally used a firearm during the commission of the crimes charged in counts 1-6 and 8 within the meaning of California Penal Code sections 12022.53, subdivision (b), 1203.075, subdivision (a), 1203.6, subdivision (a)(1) or 1192.7, subdivision (c)(8). [Lodgment 1 at 1-7].

On April 29, 2004, a jury convicted Petitioner of three counts of attempted voluntary manslaughter (Cal. Penal Code §§ 664/192, subdivision (a)) in San Diego Superior Court Case No. SCN 160845. The jury also found the attendant great bodily injury enhancement allegations to be true, including the firearm enhancements under California Penal Code section 12022.5, subdivision (a). [Lodgment 1 at 19-21]. The jury also found Petitioner guilty of counts 5-8, and found all attendant allegations to be true. The jury found Petitioner guilty of simple mayhem for count 4 and found all attendant allegations to be true. [Lodgment 1 at 247-264].

On September 14, 2004, Petitioner received a total prison term of sixteen years, which included a term of five years and eight months for the section 12022.5, subdivision (a) enhancements. [Lodgment 7 at *2].

Petitioner appealed his conviction to the California Court of Appeal. [Lodgment 4]. Petitioner raised two claims (which correspond to the claims Petitioner has presented in the current federal Petition): 1) the trial court erred when it instructed the jury on firearm use during the commission of attempted voluntary manslaughter when the charges in the information alleged firearm use during the commission of attempted murder and, 2) the trial court violated California Penal Code section 654 when it imposed a separate term of punishment for mayhem. [Lodgment 4 at 20-34].

On October 5, 2005, the California Court of Appeal denied both of Petitioner's claims and affirmed the judgment in an unpublished opinion. [Lodgment 7].

Petitioner then filed a Petition for Rehearing in the California Court of Appeal. [Lodgment 8]. The court denied rehearing on October 19, 2005. [Lodgment 9].

On November 10, 2005, Petitioner sought a petitioner for review in the California Supreme Court. Petitioner raised the same two claims. [Lodgment 10]. On December 14, 2005, the California Supreme Court denied the petition without comment. [Lodgment 11].

Factual Background*fn1

Petitioner divorced Lisa Miani (Lisa) because he suspected Lisa was having an affair with David Preschern (Preschern). Petitioner and Lisa remained in contact and continued to have a sexual relationship. She repeatedly denied having an affair with Preschern until the night of the shooting.

After she admitted the affair and argued with Petitioner, Lisa went to Preschern's home. Petitioner then went to Preschern's house, waited until Lisa and Preschern were in bed and then fired a rifle several times through the window, wounding Preschern. Lisa ran from the room while Preschern struggled with Petitioner. Preschern and his mother Dorris Preschern (Dorris) ran out of the house toward a truck to go to the hospital. As they were getting into the truck, Petitioner fired, hitting Dorris. Preschern stood up at the passenger side of the truck and looked over the top of the truck at which point Petitioner from a distance of 10 yards shot Preschern in the face. When Petitioner ran out of ammunition, he went to the truck and beat Preschern in the head with the butt of his rifle, and struck Dorris three or four times with the butt of the rifle as she was trying to protect Preschern.

A blood test conducted about four hours after the shooting revealed Petitioner had a blood alcohol level of .05 and 75 nanograms of ...


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