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Frederick Jones, Sr v. Mike Mcdonald

April 25, 2012

FREDERICK JONES, SR.,
PETITIONER,
v.
MIKE MCDONALD,
RESPONDENT.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS FINDINGS AND RECOMMENDATION REGARDING PETITIONER'S MOTION FOR ORAL ARGUMENT [Doc. #50] [THIRTY DAY DEADLINE]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Kings, following his conviction by jury trial on August 31, 2004, of attempted murder, discharging a firearm at an occupied motor vehicle, robbery, assault with a deadly weapon, and residential burglary. (CT*fn1 1119, 1121; See Lodged Doc. No. 9.) The jury also found true various firearm allegations, a prior conviction allegation and a prior prison term allegation. (CT 1119, 1121; See Lodged Doc. No. 9.) On September 29, 2004, Petitioner was sentenced to a prison term of fifteen years to life plus a consecutive term of thirty-seven years. (CT 1119, 1121; See Lodged Doc. No. 9.)

Petitioner filed a timely notice of appeal. On November 14, 2006, the California Court of Appeal, Fifth Appellate District (hereinafter "Fifth DCA"), determined that the trial court had erred by allowing Petitioner to waive his right to counsel while the issue of competence was still pending. (See Lodged Doc. No. 4.) The matter was referred back to the trial court with instruction that the court determine whether a retrospective competency hearing could be held. (See Lodged Doc. No. 4.) On remand, a feasibility hearing was held and it was determined that a retrospective competency hearing was feasible. (See Lodged Doc. No. 9.) A jury heard evidence and determined that Petitioner had been competent to stand trial. (See Lodged Doc. No. 9.) The trial court issued an order affirming the prior judgment of conviction. (See Lodged Doc. No. 9.)

Petitioner then appealed a second time. On January 26, 2009, the Fifth DCA affirmed the judgment. (See Lodged Doc. No. 9.) Petitioner then filed a petition for review in the California Supreme Court. (See Lodged Doc. No. 12.) On April 22, 2009, the petition was summarily denied. (See Lodged Doc. No. 13.)

Petitioner also filed collateral challenges with respect to the judgment. On February 29, 2009, he filed a petition for writ of habeas corpus in the Fifth DCA. (See Lodged Doc. No. 10.) On April 7, 2009, the petition was summarily denied. (See Lodged Doc. No. 11.) Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court on April 24, 2009. (See Lodged Doc. No. 14.) On September 30, 2009, the petition was denied. (See Lodged Doc. No. 15.)

On January 13, 2010, Petitioner filed the instant federal habeas petition presenting several claims. Respondent moved to dismiss the petition as a mixed petition containing exhausted and unexhausted claims. On September 12, 2011, the District Court issued an order finding the petition to be a mixed petition containing both exhausted and unexhausted claims. The matter was referred back to the Magistrate Judge for consideration of Petitioner's motion for stay of proceedings. On November 10, 2011, the undersigned denied the motion for stay and granted Petitioner an opportunity to withdraw the unexhausted claims and proceed with the exhausted claims. Petitioner then moved to withdraw the unexhausted claims, and on December 8, 2011, the motion was granted. Respondent was directed to file an answer to the following remaining claims: 1) Petitioner's third claim that the appellate court erred in the initial appeal by not responding to Petitioner's issue concerning the trial court's ruling on his motion for ancillary funds; and 2) Petitioner's fourth claim that the appellate court remand to the trial court and the competency trial held on remand were improperly limited to Petitioner's competence to stand trial, and did not include adequate consideration of Petitioner's competence to assist counsel or waive counsel. On February 7, 2012, Respondent filed an answer. On April 10, 2012, Petitioner filed a traverse along with a motion for oral argument.

DISCUSSION

I. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of Kings County Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 2241(d).

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lockyer v. Andrade, 538 U.S. 63, 70 (2003); Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008 (1997), quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

II. Standard of Review

Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner can show that the ...


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