The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
Petitioner James Lima ("Petitioner"), a state prisoner proceeding in forma pauperis and with counsel, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) Subsequently, Petitioner filed a first amended petition ("FAP"). (Dkt. No. 4.) Pursuant to 28 U.S.C. § 636(b)(1), Magistrate Judge Bernard G. Skomal filed a report and recommendation ("Report") recommending that the first amended petition be denied in its entirety. (Dkt. No. 60.) Respondent filed objections to the report and recommendation on April 10, 2012. (Dkt. No. 61.) Petitioner filed objections and a reply to Respondent's objections to the report and recommendation on May 29, 2012. (Dkt. Nos. 66 & 67.) After a thorough review of the issues, the documents presented, and objections filed, the Court ADOPTS the Magistrate Judge's report and recommendation and DENIES the first amended petition for writ of habeas corpus. The Court also DENIES a certificate of appealability.
On November 15, 1999, Petitioner was found guilty, by jury, of one count of first degree murder in violation of California Penal Code ("Penal Code") section 187(a), one count of conspiracy to commit robbery in violation of Penal Code section 182(a)(1), two counts of first degree residential robbery while using a firearm in violation of Penal Code sections 211, 212.5(a) and 12022.53(b), two counts of false imprisonment by menace while personally using a firearm in violation of Penal Code sections 236, 237, 12022.5(a)(1), one count of evading a police officer causing injury/death in violation of Vehicle Code section 2800.3 and one count of sexual battery in violation of Penal Code section 243.4(d). (Resp't Lodgment 1 ("Lodgment") at 433-44.) On January 31, 2000, Petitioner was sentenced to twenty-five years to life in prison for murder, plus twenty years consecutive for the remaining convictions and firearm enhancements. (Id. at 454.)
On December 13, 2001, the California Court of Appeal, Fourth District, Division One reversed Petitioner's murder conviction and held that the felony-murder rule did not apply to the facts of Petitioner's case. (Dkt. No. 6-5 at 9, 19.) The California Court of Appeal rejected Petitioner's remaining contentions and affirmed Petitioner's convictions on all other counts. (Id. at 19.)
The government retried Petitioner on the murder charge, for which he was again convicted of first-degree murder. (Id. at 8.) On April 14, 2004, the California Court of Appeal affirmed the judgment in People v. Lima, 118 Cal. App. 4th 259 (April 14, 2004). (Dkt. No. 6-9.)
On May 20, 2004, Petitioner submitted a petition for review to the California Supreme Court, raising one claim for relief based on state law. (Dkt. No. 6-10.) The California Supreme Court denied the petition without comment on July 28, 2004. (Dkt. No. 6-11.)
On March 24, 2005, Petitioner filed a petition for writ of habeas corpus in the California Superior Court for the County of San Diego. (Dkt. No. 6-12.) On May 13, 2005, the Superior Court denied the petition holding all of Petitioner's claims either were, or could have been, raised on appeal, and the law does not allow a petitioner to re-litigate his case by way of a habeas corpus petition. (Dkt. No. 6-13.)
On November 29, 2005, Petitioner filed a habeas petition in the California Supreme Court.
(Dkt. No. 6-14.) The California Supreme Court summarily denied the habeas petition on August 23, 2006, citing In re Dixon, 41 Cal. 2d 756 (1953) and In re Waltreus, 62 Cal. 2d 218 (1965). (Dkt. No. 6-15.)
On October 27, 2006, Petitioner filed the instant petition for writ of habeas corpus in this Court alleging thirteen grounds for relief but without citation to any constitutional provisions or other federal law. (Dkt. No. 1.) The Court dismissed the petition without prejudice for failing to state a cognizable federal claim and instructed the Petitioner to file a first amended petition. (Dkt. No. 3.) On November 27, 2006, Petitioner filed the first amended petition, which is the operative pleading before the Court. (Dkt. No. 4.)
On January 25, 2007, Respondents moved to dismiss the amended petition. (Dkt. No. 6.) On May 22, 2007, Magistrate Judge Barbara L. Major issued a report and recommendation granting Respondents' motion to dismiss as to claims 1-9 and 11-13 based on procedural default and denied Respondents' motion to dismiss as to Claim 10. (Dkt. No. 11.) The district judge, at the time, adopted in part and rejected in part the report and recommendation, concluding AEDPA's one-year statute of limitations had run before Petitioner filed the First Amended Petition. (Dkt. No. 22.) As a result of this conclusion, the Court granted Respondents' motion to dismiss on statute of limitations and did not address the procedural grounds for dismissing twelve of Petitioner's thirteen claims. (Id. at 11.)
On September 28, 2007, Petitioner filed a notice of appeal to the United States Court of Appeals for the Ninth Circuit. (Dkt. No. 24 at 1.) On May 14, 2009, the Ninth Circuit reversed the district court's decision that Petitioner's first amended petition was untimely. (Dkt. No. 40 at 4.) The Ninth Circuit found that Petitioner was entitled to statutory tolling and the first amended petition was timely filed within the one-year statute of limitations. (Id.) The Ninth Circuit remanded the case to the district court to proceed with the merits of the first amended petition and whether any claims were procedurally defaulted under In re Dixon, 41 Cal. 2d 756 (1953). (Id.)
On October 30, 2009, Respondents filed an Answer. (Dkt. No. 44.) Petitioner filed a Traverse on January 6, 2010. (Dkt. No. 50.) Respondents filed a Supplemental Memorandum of Points and Authorities in Support of Answer ("Supplemental Memo") on March 11, 2010. (Dkt. No. 54.) Petitioner filed a Supplemental Traverse on April 30, 2010. (Dkt. No. 58.)
The case was transferred to the undersigned judge on April 29, 2010. (Dkt. No. 57.) On March 26, 2012, Magistrate Judge Skomal filed a report and recommendation denying the petition for writ of habeas corpus on the merits since the Court concluded that there was no procedural bar to Petitioner's claims. (Dkt. No. 60.) Respondent filed an objection on April 10, 2012. (Dkt. No. 61.) Petitioner filed an objection and a reply to Respondent's objections on May 29, 2012. (Dkt. Nos. 66, 67.)
The following factual background is taken from the Court of Appeal opinion in People v. Lima, 118 Cal. App. 4th 259 (April 14, 2004). (Dkt. No. 6-9.) The Court presumes these factual determinations are correct pursuant to 28 U.S.C. § 2254(e)(1). Petitioner may rebut the presumption of correctness, but onlyby clear and convincing evidence. Id.; see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness).
John Vo lived with his wife, My Ly Dang, his mother-in-law, Ho No, his two sons, aged seven and nine at the time, and his sister-in-law, Chi Ho. Vo formerly owned a computer business.
On February 19, 1999, Vo was out of the house, and No, Ho, and Vo's two sons were at home. Sometime after 2:00 p.m., No answered the door, and Lima was standing there, holding a pile of paper over a gun, which was pointed at her face. Lima forced his way into the house, twisting No's left arm behind her back. After entering the home, Lima put No on the ground near Vo's sons, who had been watching television, and bound her hands and feet with electrical wire. Le (a co-defendant) came into the room and asked No, "Where's the money?" No responded that she did not know. Lima told Vo's sons to remain seated and asked them about computer chips.
Le went upstairs and found Vo's sister-in-law, Ho, in an upstairs bedroom. He tied her hands together with a phone cord and left to ransack another bedroom. Ho was able to loosen the phone cord and used a cell phone to call 911.
Ho went downstairs, where she encountered Lima. Lima instructed Ho to sit down, began to touch her breasts, and attempted to take off her pants. Ho slid back and pleaded with Lima to stop, telling him she was only 17. Le came downstairs and said "Go" in Vietnamese. The men left through the front door, saying they would come back in a minute. Lima and Le took $200 to $500 in cash as well as jewelry from the house.
In the meantime, San Diego Police Officer Daniel Burow, responding to the 911 call, arrived at Vo's home and saw a Ford Bronco with no license plates parked in front. Officer Burow could not see through the tinted windows of the Bronco and cautiously took cover behind a nearby tree while he waited for other officers to arrive. Less than a minute later, Lima and Le ran out of the house. Lima looked at Officer Burow's patrol car and then climbed quickly into the driver's seat of the Bronco. Le, who was carrying a bag, climbed into the passenger seat of the car.
Lima drove away. Officer Burow jumped into his police cruiser, turned on the lights and siren and followed the Bronco. Lima drove across some traffic pylons and made an illegal U-turn; as he did so, Le reached out of the passenger side window and threw a nine-millimeter pistol into some bushes. At about this time, Officer Michael Moller joined in the chase, following Officer Burow.
The Bronco was heading south as it approached an intersection with a four-way stop. Anticipating the Bronco's arrival, Officer Dewayne Glazewski had parked his patrol car, with lights flashing, across the northbound traffic lanes. However, the Bronco sped through the stop sign without stopping or slowing. Lima passed a truck that was stopped at a stop sign by driving into the oncoming traffic lane and made a "blind" turn at the intersection without stopping.
Lima then returned to the four-way intersection. He moved into the oncoming traffic lane to pass a waiting car, turned right in front of that car and continued to drive, at speeds of 50 to 60 miles per hour, through several red lights.
With the police still in pursuit, the Bronco became stuck in traffic at an intersection. After Officer Burow pulled up behind the Bronco, Lima drove up onto the sidewalk, passing cars on the right. As he did so, the Bronco struck a truck, knocking a side rearview mirror from it. Lima narrowly missed the signal post and made a right turn into the intersection against the red light. There was significant cross traffic in the intersection, and cars had to swerve or abruptly apply their brakes to avoid hitting the Bronco.
Lima then drove through another red light without stopping or braking. A driver who had started to pull her car out into the street from a nearby driveway saw the Bronco run the red light and quickly put her car into reverse to avoid being hit. As Lima sped through the intersection, he almost collided with a small white pickup truck.
Following closely behind the Bronco, Officer Burow's patrol car broadsided another car that was crossing through the intersection. Officer Burow quickly got out of his car, pulled the driver, June Meng, from her car and performed CPR on her for several minutes. However, Meng died as a result of the crash. Officer Burow was transported to the hospital. He suffered a whiplash injury and a contusion on his right elbow.
Officer Glazewski continued to pursue the Bronco, which sped through another stop sign and drove into a residential area, where Lima parked it. Lima and Le got out of the Bronco, and Officer Glazewski attempted to chase Le, but lost sight of him. After a search involving a police dog, officers found Le hiding in a juniper bush. Officers recovered cash from Le and found a bag with jewelry and money in the Bronco.
Meanwhile, motorist Casey Stoute, who earlier had seen the Bronco being chased, pulled over to see what was happening. Lima came toward him from some bushes in which he had been hiding. Stoute called 911 and pretended to be talking to his girlfriend as Lima approached him. Lima entered Stoute's car, asking for a ride. Stoute insisted that Lima pat himself down and then agreed to give Lima a ride. Stoute drove around, continuing to talk to the 911 operator, while pretending that he was talking to his girlfriend. They stopped for gas at one point and Lima gave Soute $10 for ...