The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner Gabriel Cano is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, Petitioner's request for appointment of counsel is denied, and it is recommended that: (1) Petitioner's August 16, 2006 stay-and-abeyance motion be denied; (2) Petitioner's September 16, 2008 request for what may be construed as either a stay-and-abeyance motion or a motion to amend be denied; and (3) habeas relief be denied.
The record reflects the following chronology of relevant proceedings:
1. In 2003, a Sacramento County jury convicted Petitioner of two counts: (1) attempted murder under Sections 664 and 187(a) of the California Penal Code; and (2) assault with a firearm under Section 245(a)(2) of the California Penal Code. Lodged Doc. 5, at 1; see Lodged Doc. 1. "With respect to count one, the jury made special findings that [Petitioner] personally and intentionally discharged a firearm." Lodged Doc. 5, at 1 (citation omitted); see Lodged Doc. 1. "On both counts one and two, the jury found that [Petitioner] personally used a firearm, and inflicted great bodily." Lodged Doc. 5, at 1 (citations omitted); see Lodged Doc. 1. Petitioner is currently serving a sentence of twenty-five years to life, plus a seven year enhancement for discharge of a firearm causing great bodily injury. Lodged Doc. 5, at 1; see Lodged Doc. 1.
2. On May 27, 2004, Petitioner directly appealed his conviction to the California Court of Appeal, Third Appellate District. See Lodged Doc. 2. Petitioner raised three claims: (1) the photographic lineup was unduly suggestive, and the trial court erred by failing to exclude the victim's photo identification and subsequent in-court identification of Petitioner; (2) the trial court erred by admitting gang evidence, over defense objection; and (3) cumulative error warrants reversal. Id. at ii.
3. On December 21, 2004, the Court of Appeal issued an unpublished opinion affirming the conviction and correcting a clerical error. Lodged Doc. 5, at 16-17 ("As the People point out, while the trial judge correctly imposed a consecutive 25-year-to-life term in accordance with subdivision (d), she inadvertently cited Penal Code section 12022.53, subdivision (b), an error which is reproduced in the abstract of judgment. . . . We shall order the abstract of judgment modified accordingly.").
4. Stamped as docketed for February 3, 2005, Petitioner's petition for review was filed in the California Supreme Court. See Lodged Doc. 6. Petitioner raised the same three claims as in his direct appeal to the Court of Appeal. See Lodged Doc. 6, at 1.
5. On March 16, 2005, the California Supreme Court summarily denied the petition. See Lodged Doc. 7.
6. On March 16, 2006, Petitioner filed the original federal petition for writ of habeas corpus. See Pet'r's Pet., ECF No. 1. Petitioner raised the same three claims as in his direct appeal to the Court of Appeal and California Supreme Court. See id. at 3-4.
7. On May 16, 2006, Petitioner filed his first amended federal habeas petition. See Pet'r's First Am. Pet., ECF No. 6. Petitioner raised the same three claims as in his direct appeal to the Court of Appeal and California Supreme Court. See id. at 2.
8. On June 20, 2006, Petitioner filed a motion in the Superior Court to modify the restitution fines. Resp't's Renewed Opp'n Ex. H, at 59, ECF No. 30.
9. On June 22, 2006, Petitioner filed his second amended federal habeas petition. See Pet'r's Second Am. Pet., ECF No. 9. Petitioner raised the same three claims as in his direct appeal to the Court of Appeal and California Supreme Court. See id. at 2.
10. On July 6, 2006, Petitioner filed a state habeas petition in Sacramento County Superior Court. Petitioner argued: (1) his due process rights were violated because his court appointed attorney was "not qualified," Resp't's Renewed Opp'n Ex. A, at 5; (2) his trial counsel rendered ineffective assistance for not investigating and cross examining witnesses properly regarding their identification of Petitioner, id. at 6; and (3) cumulative error of the prior two grounds warranted reversal. Id. at 7. 11. On August 3, 2006, the Superior Court denied Petitioner's request for modification of restitution. Resp't's Renewed Opp'n Ex. E, at 40.
12. On August 8, 2006, Petitioner filed a letter in federal court stating, in full: "I am writing this breif [sic] letter to infor[m] the court that last month I filed an additional writ in Sacramento Superior Court in regards to additional claims I would like to bring up in my [federal habeas petition]. To my understanding I have to start in superior court and work my way up through the lower courts? So I just wanted to let the court know because I'm not sure how this works!" Pet'r's Letter 1, Aug. 8, 2006, ECF No. 12.
13. On August 16, 2006, Petitioner filed a letter in federal court requesting "that [his] current appeal/writ be stayed until [he] can catch these new grounds up via the lower courts to [his] current writ." Pet'r's Req. 1, Aug. 16, 2006, ECF No. 13. According to Petitioner, "as of 6.6.06," he "filed an amemend [sic] complaint to [his] appeal in the Sacramento Superior Court[,] case number 06F06070." Id. But see Resp't's Renewed Opp'n Ex. A, at 3 (showing Petitioner filed Superior Court state habeas petition on July 6, 2006). The record does not show that Respondent filed a response to this letter.
14. On August 18, 2006, Petitioner filed his first of two notices of appeal in the Superior Court, appealing (1) the August 3, 2006 order denying Petitioner's request for restitution modification; and (2) "a writ of habeas corpus filed in the Sacramento [County] Superior Court . . . in which the writ was denied." Resp't's Renewed Opp'n Ex. E, at 41. But see Resp't's Renewed Opp'n Ex. B, at 23-24 (showing Superior Court did not deny habeas relief until August 29, 2006).*fn1
15. On August 29, 2006, the Superior Court denied habeas relief. Resp't's Renewed Opp'n Ex. B, at 23-24.
16. Also on August 29, 2006, the Court of Appeal received Petitioner's first notice of appeal. Resp't's Renewed Opp'n Ex. F, at 46.
17. On September 13, 2006, Petitioner filed his second notice of appeal of his state habeas denial with the Superior Court. Resp't's Renewed Opp'n Ex. C, at 27.
18. On September 14, 2006, the Superior Court mailed a copy of the second notice of appeal to the Court of Appeal. Id.
19. On September 18, 2006, the Court of Appeal received Petitioner's second notice of appeal. Id.
20. On October 4, 2006, Respondent filed an answer to the federal habeas petition. See Resp't's Answer, ECF No. 19.
21. On October 5, 2006, the Court of Appeal dismissed Petitioner's second notice of appeal, stating that "the order appealed from is non-appealable," with a citation to In re Crow, 4 Cal. 3d 613, 621 n.8, 94 Cal. Rptr. 254, 483 P.2d 1206 (1971).*fn2 See Resp't's Renewed Opp'n Ex. D, at 37.
22. On October 18, 2006, the Court of Appeal "appointed counsel to represent [Petitioner]" on his first notice of appeal. Resp't's Renewed Opp'n Ex. H, at 60; see Resp't's Renewed Opp'n Ex. F, at 46.
23. On November 9, 2006, Petitioner filed a traverse to Respondent's answer for the federal habeas petition. See Pet'r's Traverse, ECF No. 23.
24. On August 14, 2007, the Court of Appeal ruled on Petitioner's first notice of appeal, affirming the Superior Court's (1) August 3, 2006 order denying restitution modification; and (2) August 29, 2006 order denying habeas relief. Resp't's Renewed Opp'n Ex. H, at 61.
25. On October 24, 2007, Petitioner filed a habeas petition in the California Supreme Court. Petitioner raised two claims: (1) his due process and equal protection rights were violated because his court appointed attorney did not meet "Sacramento County's own established criteria;" and (2) his counsel was ineffective for failing to exclude certain evidence, and for failing to investigate or cross examine witnesses properly on their identification of Petitioner. Resp't's Renewed Opp'n Ex. I, at 66-67.
26. On November 4, 2007, the California Supreme Court received Petitioner's declaration explaining his habeas petition was "late" because he never received a decision from the Court of Appeal on his second notice of appeal. Resp't's Renewed Opp'n Ex. J, at 76.
27. On April 16, 2008, the California Supreme Court denied Petitioner's habeas petition without comment or citation. Resp't's Renewed Opp'n Ex. K, at 82.
28. On April 21, 2008, Petitioner filed a letter in federal court inquiring about "the status of his [federal habeas petition]," and about how "last year, [he] asked the court to stay" his petition "because [he] had a new ground that [he] was putting through the lower courts." Pet'r's Letter 1, Apr. 21, 2008, ECF No. 24. Petitioner "never received anything from the court." Id.
29. On April 24, 2008, the civil docket for the instant case was modified to reflect that the Honorable Edmund F. Brennan, the assigned magistrate judge at the time, issued a response stating, "The court has no record that petitioner filed a request for stay and abeyance." See Civil Docket for Case #: 2:06-cv-00558-LKK-TJB, ECF No. 24. But see Pet'r's Req. 1, Aug. 16, 2006 ("I am requesting that my current appeal/writ be stayed until I can catch these new grounds up via the lower courts to my current writ if this is possible.").
30. On September 16, 2008, Petitioner filed a request for: (1) what may be construed as either a stay-and-abeyance motion or a motion to amend; and (2) appointment of counsel. See Pet'r's Req. 1, Sept. 16, 2008, ECF No. 25.
31. On October 6, 2008, Respondent filed an opposition to Petitioner's September 16, 2008 request. See Resp't's Opp'n, ECF No. 26.
32. Petitioner did not file a reply to Respondent's opposition.
III. FACTUAL BACKGROUND*fn3
On October 17, 2002, the victim Martin Ramirez had a couple of beers after work with co-workers and brothers Adan, Adelgundo and Felipe Netzahaul. The four men then headed for the Netzahaul brothers' apartment in Rancho Cordova. On the way, they stopped off at a nearby Circle K store and gas station.
Ramirez (who was wearing blue shorts and a white T-shirt) and Adelgundo went into the store, while the other two men remained out front in a blue car. As Ramirez exited the store, [Petitioner] confronted him, making hand gestures and using the expressions "Northside" and "14." [Petitioner], a light-skinned Hispanic, was wearing a long-sleeved, hooded sweatshirt and black shorts. The sweatshirt was described as red in color, although Felipe testified it was black and burgundy. Ramirez, believing [Petitioner]'s behavior was gang-related, told him he had no connection with gangs. [Petitioner] told Ramirez that he "don't got nothing on me. But I'll come and get you. Watch." [Petitioner] then ran across the street.
A cashier at the Circle K testified that on that same evening [Petitioner] had opened the door, peered in and said to someone inside the store, "I'm going to bang on this motherfucker." Another store employee heard an agitated [Petitioner] say, "I'm going to [indistinguishable verb] on somebody tonight. You watch me."
Following his encounter with [Petitioner] at the Circle K, Ramirez went with the Netzahaul brothers to their apartment, where they continued to drink beer and cooked dinner. During this time, they looked through the window and saw [Petitioner] outside the apartment; he was screaming.
Around 7:00 p.m., just as it was starting to get dark, Adan and Adelgundo headed back to the store to buy more beer. Ramirez walked out to the street to make sure they were okay. [Petitioner] appeared on the street and again confronted Ramirez. [Petitioner] said he was in a gang, that the street was "his territory," and that Ramirez did not belong there. He told Ramirez to go back in the house "or I'll kill you." Ramirez argued that the "street is free. It's for everybody." [Petitioner] disagreed, and again told Ramirez to return to his house. [Petitioner] retreated a couple of steps, turned around and pulled out a revolver. He aimed it at Ramirez's chest and fired. As Ramirez collapsed, [Petitioner] fired two more shots, which hit his left side. [Petitioner] fired more shots in the direction of the Netzahauls' apartment building before fleeing.
Ramirez survived the shooting, but one of the bullets struck his spinal cord, paralyzing him from the waist down. He testified at trial that the bullet was still lodged in his "spinal cord."
Five days after the shooting, Sacramento County Sheriff's Department Detective Jeffrey Mack visited Ramirez in the hospital. After Ramirez gave a description of his assailant, Mack placed the photographs of four individuals in front of him. The photos were taken from the records of the Department of Motor Vehicles. Mack told Ramirez that the person responsible for the shooting may or may not be among those depicted in the photographs and that he was not obligated to pick anyone out. As soon as Mack set down photograph number 3, depicting [Petitioner], Ramirez positively identified him as the shooter. Ramirez repeated his identification of [Petitioner] at trial. Felipe, who was in the immediate vicinity of the shooting, also testified that [Petitioner] was the assailant, although his pretrial identification was less certain. [Petitioner] did not testify. Other witnesses who were in the area of the shooting gave varying accounts of the incident, some that corroborated and some that ...