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Robert Fuentes v. Greg Lewis

July 8, 2011

ROBERT FUENTES, PETITIONER,
v.
GREG LEWIS, ET AL., RESPONDENTS.



FINDINGS & RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 25, 2011, petitioner filed a motion for stay and abeyance. On June 15, 2011, respondent filed a motion to dismiss. Upon review of the motions, the documents in support, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

FACTUAL AND PROCEDURAL BACKGROUND

Following a bifurcated trial, petitioner was convicted of attempted premeditated murder, assault by an inmate and possession of a weapon by an inmate. Lodgment ("LD") 1. On December 21, 2007, petitioner was sentenced to life without eligibility for parole for eighteen years with a five-year enhancement for a prior felony conviction. See Pet. at 1; LD 3 at 2.

Petitioner appealed both his conviction and sentence to the California Court of Appeal, Third Appellate District. See Pet., Ex. 2. Petitioner challenged the jury instructions and trial counsel's failure to object to the use of the allegedly incorrect jury instructions. On May 29, 2009, the appellate court affirmed the judgment and sentence in an unpublished decision. Pet., Ex. 2. On August 12, 2009, the California Supreme Court denied review. LD 4.

On February 25, 2010, petitioner filed a state habeas petition in the Sacramento County Superior Court raising fifteen claims.*fn1 See Mot. to Stay at 1; Ex. 2. On April 9, 2010, the petition was denied. Id., Ex. 2. On October 18, 2010, petitioner filed a petition with the California Court of Appeals, Third Appellate District. See In re Fuentes, Case No. C066355. Review of the appellate court's docket in petitioner's case on habeas corpus reveals that this petition was summarily denied on October 21, 2010. On November 18, 2010, petitioner filed a state habeas petition in the California Supreme Court. LD 6. The California Supreme Court has not yet ruled on the petition.

On October 25, 2010 (prior to filing his petition with the California Supreme Court), petitioner filed the pending petition in this court. Here, petitioner presents sixteen claims for relief:

(1) the trial court abused its discretion by ordering the use of those restraints on petitioner during court proceedings, and trial counsel was ineffective regarding the use of restraints;

(2) the trial court abused its discretion by denying petitioner's motion to dismiss, trial counsel was ineffective for failing to object to the admission of the prosecution's evidence, and appellate counsel was ineffective for failing to raise this issue on appeal;

(3) the trial court abused its discretion by allowing certain evidence to be admitted despite the allegedly improper destruction of exculpatory evidence, trial counsel was ineffective for failing to object, and appellate counsel was ineffective for failing to raise this issue on appeal;

(4) trial counsel was ineffective for failing to provide the court with a pinpoint jury instruction, and appellate counsel was ineffective for failing to raise this issue on appeal;

(5) trial counsel was ineffective for failing to follow-through with a defense theory presented during counsel's opening statement, and appellate counsel was ineffective for failing to raise the issue on appeal;

(6) the trial court abused its discretion by admitting into evidence a copy of a videotape of the crime as it occurred, and appellate counsel was ineffective for failing to raise this issue on appeal;

(7) the trial court erred by requiring a defense witness to testify while shackled, trial counsel was ineffective for failing to object, and appellate counsel was ineffective for failing to raise this issue on appeal;

(8) the trial court abused its discretion by granting the prosecution's motion to quash testimony from all defense witnesses but one, trial counsel was ineffective for failing to secure witnesses in support of defense, and appellate counsel was ineffective for failing to raise this issue on appeal;

(9) the trial court erred by failing to limit questioning of defense witness's gang affiliation, trial counsel was ineffective for failing to object, and appellate counsel was ...


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