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Vu v. Kirkland

December 15, 2008

HUNG VIET VU, PETITIONER,
v.
RICHARD KIRKLAND, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Petitioner, pro se at the time of filing and now represented by counsel, seeks a Writ of Habeas Corpus from this Court pursuant to 28 U.S.C. § 2254. This matter was referred to a magistrate judge under 28 U.S.C. § 636(b)(1)(B).

BACKGROUND

Petitioner is currently serving a term of life without the possibility of parole for his 2004 murder conviction. On March 14, 2007, Petitioner filed his Original Petition for Writ of Habeas Corpus in this Court ("Original Petition").

In response to question 9(f), which inquired into the grounds of his direct appeal before the California Court of Appeal, Petitioner stated:

(1) Jury instructions failed to define imperfect self-defense in violation of 5th and 6th Amendments

(2) Due Process forbids firearm discharge enhancement in addition to special circumstance punishing same act with sentence of life without possibility of parole

(3) Gang enhancements are not supported by evidence in violation of Due Process

(4) Blakely/Booker challenge to denial of jury trial on aggravating sentencing factors

(5) Drive-by shooting special circumstance is overbroad in violation of 5th, 8th, & 14th Amendments Petitioner subsequently answered question 9(g)(6), which inquired into his appeal to the California Supreme Court, by incorporating by reference his answer to 9(f).

However, in response to the subsequent inquiry into the grounds of his Original Petition, Petitioner stated only:

See Attachments setting forth all factual and legal grounds on which relief is sought. State remedies were exhausted on all grounds on which relief is sought.

No further information was attached. A few weeks later, on April 9, 2007, counsel was appointed for Petitioner, and his current counsel was then substituted as his attorney on April 24.

On May 9, 2007, Petitioner requested until July 8, 2007, to provide "either (1) a statement stating that petitioner will stand on the existing petition and memorandum of points and authorities; (2) an amended petition that will proceed on exhausted claims; or (3) an amended petition that identifies both exhausted and unexhausted claims, demonstrates good cause for having failed to exhaust state court remedies as to any ...


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