The opinion of the court was delivered by: William Q. Hayes United States District Judge
The matter before the Court is the Report and Recommendation (1) Finding Petitioner's Second Claim Is Not Procedurally Barred; (2) Finding Claim Two Is Exhausted and (3) Granting in Part and Denying in Part Petitioner's Request for Discovery ("Report and Recommendation"), issued by Magistrate Judge Jan M. Adler. (Doc. # 107).
On May 10, 1996, Petitioner Duy Pham was convicted in San Diego County Superior Court of conspiracy to commit murder, attempted murder, and being a felon in possession of a firearm.
On October 25, 2001, Petitioner, then proceeding pro se, filed an amended petition for writ of habeas corpus in the California Supreme Court. (Lodgment # 5). Claim two of his state court habeas petition is captioned: "The prosecutor, Victor Nunez, committed prosecutorial misconduct when he failed in his Constitutional duty to disclose to the Court his chief witness committed perjury, in violation of the U.S. Constitution 5th, 14th Amendment."
(Id. at 6). In claim two, Petitioner stated:
In assessing this claim, Petitioner request[s] the court to take Judicial notice of the statement of the facts in claim one.
During the attempted cross-examination of the prosecution's chief witness (Chong Dong), petitioner's defense was deprived of bringing to light evidence that would have discredited the testimony of Chong Dong, including the witness associate[d] to and with him....
Chong Dong committed perjury throughout his testimony, but admitted it at the motion for new trial... although the jury had been discharged. ... [T]he prosecutor was aware of the perjury before the discharge of the jury. ... The prosecutor failed to disclose the unlawful act to the court, due to petitioner's conviction resting on the testimony of Chong Dong. (Id. at 6-7).*fn1
The California Supreme Court denied the petition. (Lodgment # 6).
On March 7, 2003, Petitioner initiated this action by filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. # 1).
On August 6, 2003, Petitioner, proceeding pro se, filed the First Amended Petition for Writ of Habeas Corpus. (Doc. # 21). The above-quoted language from Petitioner's state court habeas petition appears verbatim in his federal First Amended Petition. (Id. at 7-8).
On December 14, 2007, Respondent filed an Answer to the First Amended Petition. (Doc. # 76).
On August 27, 2009, Petitioner, now represented by counsel, filed a Traverse. (Doc. # 100). Regarding ...