The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Josephine Staton Tucker, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Petitioner, represented by counsel, filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on November 5, 2012, accompanied by a supporting Memorandum ("Pet. Mem."). The Petition contains two grounds for relief: a claim of instructional error and a claim of ineffective assistance of trial counsel. Also on November 5, 2012, Petitioner filed "Petitioner's Notice of Unexhausted Claims and Request to Hold Proceedings in Abeyance." In this document, Petitioner conceded that Ground Two of the Petition was unexhausted and sought a stay of the Petition. Petitioner attached a copy of Petitioner's then-pending California Supreme Court petition and exhibits thereto ("Pet. Ex.").*fn1
Respondent filed an "Opposition to Request to Hold Proceedings in Abeyance and Notice of Motion and Motion to Dismiss the Petition, etc." on December 17, 2012. Petitioner filed "Petitioner's Reply to Respondent's Opposition, etc." on December 28, 2012.
On January 4, 2013, the Magistrate Judge issued a Minute Order observing that the docket of the California Supreme Court disclosed that Petitioner's Supreme Court habeas petition had been denied on January 3, 2013. The Magistrate Judge deemed Petitioner's "Request to Hold Proceedings in Abeyance" denied as moot and ordered Respondent to file an Answer.
Respondent filed an Answer on January 31, 2013. Petitioner filed a Reply on February 6, 2013.
A jury found Petitioner guilty of the attempted murder of Shannon Piatt, and an assault with a firearm on Piatt (Reporter's Transcript ["R.T."] 639-41; Clerk's Transcript ["C.T."] 186-92; see People v. Gonzalez, 2011 WL 2120206, at *1 (Cal. App. May 31, 2011)). The jury found true the allegations that, with respect to the attempted murder, Petitioner personally discharged a firearm causing great bodily injury (R.T. 639-40; C.T. 187). The jury also found true the allegations that, with respect to the assault, Petitioner personally used a firearm and personally inflicted great bodily injury (R.T. 640-41; C.T. 192). The jury found Petitioner not guilty of attempted kidnapping (R.T. 640; C.T. 190). Petitioner received a sentence of life plus twenty-five years to life (R.T. 669-70; C.T. 236-37, 254-57).
The Court of Appeal affirmed the judgment (see People v. Gonzalez, 2011 WL 2120206, at *1 (Cal. App. May 31, 2011)). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgments 6-7).
As previously mentioned, Petitioner filed a habeas petition in the California Supreme Court, which that court denied on January 3, 2013 (Respondent's Lodgments 8, 9).
SUMMARY OF TRIAL EVIDENCE
The following summary is taken from the opinion of the California Court of Appeal in People v. Gonzalez, 2011 WL 2120206 (Cal. App. May 31, 2011). See Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012), pet. for cert. filed, 81 USLW 3429 (Nov. 15, 2012) (presuming correct a statement of facts drawn from the state court decision); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).
In March 2008, Shannon Piatt (Piatt) rented a house from defendant in Mira Loma, and lived there through November 17, 2008. Piatt testified at trial that, around August 2008, Piatt stopped paying the rent because there was no electricity. She called defendant multiple times, requesting defendant fix the electricity and plumbing problems, but did not hear from him. A plumber fixed the plumbing problems and said he would send the landlord his bill. By not paying the rent, Piatt was hoping defendant would contact her regarding the electrical problems.
A little after noon on November 17, 2008, Piatt came out of the bathroom to find defendant standing in the dining room. Defendant asked Piatt why she had not paid the rent and told her to leave the house immediately. Defendant put a gun to Piatt's head, while pulling her by the arm outside.
When Piatt got to the door, she broke free and started screaming, "He's trying to kill me." Piatt ran to a car parked in the driveway and took cover behind the car. Defendant chased her around the car several times. Piatt ran toward the street. Defendant chased after her.
When Piatt got to the street, she turned left and ran toward her neighbor's house, where she saw a lot of people, including Piatt's next-door neighbor, Veronica,*fn2 and Veronica's boyfriend, Victor Vasquez (Vasquez). As Piatt ran toward a large tree in Veronica's front yard, she heard behind her three gunshots. Piatt was shot in the back of her leg, causing her to fall. Piatt also felt something in her right elbow. Then everything was quiet. Vasquez and Veronica approached Piatt on the ground, and someone called 911. Piatt thought she was going to die. Piatt did not do anything to provoke defendant to shoot her.
Vasquez testified that, when he heard Piatt scream "Veronica," he went outside and saw Piatt and defendant leaving Piatt's house. They were walking. Vasquez approached Piatt and defendant. Piatt "loudly" said, "Help me. He's going to hurt me. Help me." Vasquez approached the side fence, which separated Veronica's property and the rental property, and said, "What's going on?" Neither Piatt nor defendant responded. Piatt looked scared. Then Piatt said, "Victor, help me." Vasquez walked towards defendant and Piatt as they headed toward the street. As Vasquez was about to pull himself over the fence, Piatt said, "Get him. He's going to hurt me."
Vasquez stopped at the top of the fence and got back down, because he heard Veronica say, "He has a gun." Vasquez said, "[C]alm down." There was no response. Piatt continued walking backwards with defendant. Piatt started running when she got to the street and screamed, "He's going to kill me." Vasquez saw defendant reach into his pants pocket.
Vasquez turned around and ran for cover because he did not know what defendant was going to take out of his pocket. He saw defendant pull out a gun and make a hand motion on top of it. Vasquez heard three shots and heard Piatt scream between the shots. Defendant walked away, jumped into a car, and drove off.
Alejandro Gajon (Gajon) testified he observed the shooting while collecting green waste in the area. Gajon noticed two or three people working in their yard nearby. They did not have shovels or anything else in their hands. One of them tried to jump over the fence.
As Gajon was driving his trash truck down the street, collecting trash, he saw Piatt leave her house yelling and waving her arms. Gajon saw defendant chase Piatt out to the street. A neighbor came to the fence to help her. It looked like the neighbor was trying to jump the fence but then went back to his house. As defendant was running after Piatt, defendant pointed a gun at Piatt, and shot her. He fired his gun at her three or four times. Defendant did not fire his gun up into the air. Piatt fell in the street about 50 feet from Gajon's trash truck.
Deputy Arguello testified he responded to the scene. Piatt told Deputy Arguello that defendant shot her when she and defendant, her landlord, got into an argument over Piatt not paying her rent because defendant had failed to make electrical repairs. Defendant entered Piatt's home, pulled out a gun and told her, "let's go to Jack in the Box."[*fn3 ]
Defendant escorted her outside and then Piatt started yelling for help and ran away from defendant. As she was running, defendant shot her in the leg.
Investigator Johnson arrived on the scene. He and Deputy Arguello found shell casings from defendant's gun at the scene. Four months after the shooting, defendant turned himself in, and his defense team provided the sheriff's department with defendant's gun.
Defendant's wife, Esther Gonzalez, testified that, when defendant left his home in Reno, Nevada, early on November 17, 2008, he took his gun because he was planning to stay at the house and clean up the house.
Defendant testified that, when he rented the house to Piatt in March 2008, Piatt was with her sister, who warned defendant to be careful around Piatt. Piatt had ...