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Montero v. Hartley

May 5, 2009

VINCENT JOSEPH MONTERO, PETITIONER,
v.
JAMES D. HARTLEY, ACTING WARDEN, AVENAL STATE PRISON, RESPONDENTS.



ORDER*fn1

Petitioner, a state prisoner proceeding with counsel, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2006 conviction on charges of possession of controlled substances for sale. Before the court are petitioner's motion to stay this action and respondents' motion to dismiss certain unexhausted claims.

Petitioner's amended petition contains the following claims: Ground 1: CALCRIM No. 2302 "omitted essential elements" of the offense. Ground 2: The trial court erred in its response to the jury's questions. Ground 3. "[T]he trial court abused its discretion when it refused to give pinpoint instructions on constructive possession."

Ground 4: The giving of CALCRIM No. 2302 and "the trial court's response to the jury's request for clarifying instructions on constructive possession" denied him a fair trial. (Amended Petition at 5-6.)

In petitioner's direct appeal to the California Court of Appeal, petitioner raised the following claims:

I. The jury instruction on the charged offense of possession of a controlled substance for sale, CALCRIM No. 2302, erroneously omitted the elements of "dominion and control" and the knowing exercise of control over the methamphetamine he was charged with possession for sale. (AOB 14-26.)

II. The trial court erred in failing to give a further explanation of the concept of control in response to questions by the jury during deliberations. (AOB 27-38.)

III. The trial court erred in failing to give the three pinpoint instructions he requested regarding possession. (AOB 39-53.)

IV. The errors claimed in arguments I, II, and III were cumulatively prejudicial. (AOB 54-55.)

V. There was insufficient evidence that he was in possession of methamphetamine or that he possessed it for sale. (AOB 56-66.)

VI. The records of Petitioner's prior burglary conviction did not sufficiently show that the burglary was in the first degree. (AOB 67-74.)

(Lodged Document No. 1, lodged December 4, 2008, Appellant's Opening Brief ("AOB"), filed October 20, 2006.)

Petitioner raised one claim before the California Supreme Court in his petition for review:

I. The petition for review should be granted to determine whether newly-adopted CALCRIM No. 2302 erroneously omits essential elements of possession for sale and fails to articulate well-established principles of possession.

(Lodged Document No. 4, lodged December 4, 2008, Petition for Review, filed November 7, 2007.) Petitioner argued that CALCRIM No. 2302 omitted the elements of "dominion and control," and "knowing exercise of control," and that 2302 was unsound and defective. (Id.) Petitioner also argued that CALCRIM No. 2302 undermined the reliability of the ...


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