HAKEEM L. LOICE, Petitioner,
D.J. SOTO, Warden, Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE [DOCKET NO. 8]
JACQUELINE CHOOLJIAN, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Andrew J. Guilford, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On April 16, 2013, Hakeem L. Loice ("petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (the "Petition") with attached pages ("Petition Att."), challenging his 2011 conviction for attempted murder and assault by means likely to produce great bodily injury. Petitioner claims: (1) the trial court denied petitioner due process by refusing to sever the charges against petitioner as they concerned two separate crimes, involved different victims, and occurred on different days (claim 1); and (2) the prosecutor engaged in misconduct, denying petitioner his right to a fair trial by: (a) delaying turning over evidence to the defense (claim 2a); (b) eliciting false testimony from one of the victim witnesses that the victim was relocated after he cooperated with police because he feared retribution from petitioner (claim 2b); and (c) misstating the evidence during closing argument (claim 2c). (Petition at 5; Petition Att. 11-17).
On May 20, 2013, respondent filed a Motion to Dismiss the Petition ("Motion to Dismiss" or "MTD") arguing that claim 2c was not presented to the California Supreme Court and is unexhausted, rendering the Petition "mixed" and subject to dismissal. (MTD at 2). Respondent concurrently lodged multiple documents ("Lodged Doc.") including the petition for review submitted by petitioner to the California Supreme Court on direct appeal ("Petition for Review"). (Lodged Doc. 6).
On June 3, 2013, petitioner filed an opposition ("Opposition") to the Motion to Dismiss, asserting that claim 2c was presented in the Petition for Review. (Opposition at 2). Petitioner incorrectly avers that page 9 of the Petition for Review asserts "that the prosecutor engaged in prejudicial misconduct by... misstating the evidence... during closing argument." (Opposition at 2) (erroneously citing as page 9 of the Petition for Review, page 9 of Exhibit A to the Petition for Review (the Court of Appeal opinion)).
For the reasons explained below, this Court concludes that the Petition is "mixed" and that the Petition should be dismissed and judgment entered accordingly, unless petitioner amends the Petition to delete claim 2c by the deadline to file objections to this Report and Recommendation, or otherwise notifies the Court that he abandons/voluntarily dismisses such claim.
II. PROCEDURAL HISTORY
On June 20, 2011, a Los Angeles County Superior Court jury convicted petitioner of one count of attempted murder and one count of assault by means likely to produce great bodily injury. (Lodged Doc. 1). On August 3, 2011, the trial court sentenced petitioner to an aggregate term of fifty years to life in state prison. (Lodged Doc. 1; Lodged Doc. 5 at 6).
On July 6, 2012, the Court of Appeal affirmed the conviction in a reasoned decision. (Lodged Doc. 5).
Petitioner thereafter filed the Petition for Review in the California Supreme Court raising only claims 1, 2a and 2b. (Lodged Doc. 6). On September 12, 2012, the California Supreme Court denied review without comment. (Lodged Doc. 7).
Petitioner did not file any state habeas petitions. (Petition at 3).