United States District Court, S.D. California
ORDER ADOPTING AMENDED REPORT AND RECOMMENDATION AND DENYING PETITIONER'S FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS (ECF No. 9.)
GONZALO P. CURIEL, District Judge.
Petitioner Maurice Simeon King ("Petitioner"), proceeding pro se, filed a First Amended Petition for Writ of Habeas Corpus ("FAP") under 28 U.S.C. § 2254. (ECF No. 9.) Respondent, B.M. Cash ("Respondent"), filed an answer to the FAP, (ECF No. 19), and Petitioner filed his Traverse. (ECF No. 22.) On December 20, 2013, pursuant to 28 U.S.C. § 636(b)(1), the Honorable Nita L. Stormes, United States Magistrate Judge ("Magistrate Judge") submitted a report and recommendation that was later retracted ("Original R&R"). (ECF No. 23.) Petitioner filed a supplemental traverse and objections to the Original R&R. (ECF Nos. 25 and 26.) The Magistrate Judge then issued an amended report and recommendation ("Amended R&R"), recommending that this Court deny Petitioner's FAP and dismiss it with prejudice. (ECF No. 27.) After a thorough review of the issues and for the reasons set forth below, this Court ADOPTS the Magistrate Judge's Amended R&R and DENIES Petitioner's FAP.
A. Factual Background
This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); see also Parle v. Fraley , 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from these facts, are entitled to statutory presumption of correctness). The following facts are taken from the unpublished California Court of Appeal opinion, affirming Petitioner's conviction:
On April 22, 2012, Stephen Boyd was working as a security guard at the entrance to East Village Tavern on Market Street in San Diego. At approximately midnight, he observed two men. The first one (the victim) walked quickly past him. The second man (King) was following, twirling a metal walking cane. Boyd turned to check a couple of ID's of customers entering the bar when he heard a "smack." When he turned around he saw King beating the victim over the head with the cane. The victim was hunched over with the back of his head toward King. He had his hands up in what appeared to be a defensive position.
The victim pushed himself away from King and moved around to the front of a vehicle to make space between him and King. King then went into the middle of Market Street and walked eastbound. The victim came back to the front of the bar and sat down. Boyd saw the victim had two gashes on his head and was bleeding. Boyd called 911 and reported the incident.
Sergeant Benjerwin Manansala of the San Diego Police Department responded to a radio call just after midnight on the night of the incident. When he arrived, he encountered the victim and saw that he was bleeding from lacerations on the head. Officers on the scene obtained a description of King.
Sergeant Manansala drove around the area and encountered King approximately five or six blocks away. He was carrying a cane. He approached King and placed him in handcuffs. He saw that the cane was spattered with blood.
After detaining King, Sergeant Manansala patted him down for weapons. He asked King if he had any weapons on him and King responded that he had a knife in his pocket. Sergeant Manansala recovered a steak knife with a five-inch blade from King's left jacket pocket.
Boyd was brought from the bar to where King had been apprehended and he identified King as the assailant.  At trial, Boyd also identified King as the person who swung the cane.
The victim had refused to give his address and did not identify King as the assailant as he had been transported to the hospital. Later efforts to locate the victim were unsuccessful.
(Lodgment No. 4 at 2-3, People v. King, D062629, Slip. Op. at 2-3.)
B. Procedural History
Following a jury trial, Petitioner was convicted in San Diego County Superior Court Case number SCD240450 of assault with a deadly weapon and carrying a concealed dirk or dagger. (Lodgment No. 1 at 88, 90-91.) Petitioner was sentenced to a total prison term of three years. (Id. at 68; Lodgment No. 2 at 180.)
Petitioner appealed his conviction to the California Court of Appeal, Fourth Appellate District, Division One. (Lodgment No. 3.) The appellate court affirmed his conviction. (Lodgment No. 4.) Petitioner then filed a Petition for Review in the California Supreme Court, (Lodgment No. 5), and the California Supreme Court denied the petition. (Lodgment No. 6.)
On April 2, 2013, Petitioner filed a Petition for Writ of Habeas Corpus ("Petition") in the Central District of California. (ECF No. 1.) The Petition asserted five grounds that entitled him to relief: (1) a violation of his Sixth Amendment right of confrontation; (2) a violation of his due process rights under the Fourteenth Amendment to confront and cross-examine a witness; (3) a violation of his Sixth Amendment right to speedy trial; (4) a violation of his Sixth Amendment right to counsel; and (5) a violation of his right to effective assistance of counsel on appeal. (Id. at 6-7.)
On April 9, 2013, the case was transferred to the undersigned Judge pursuant to 28 U.S.C. §§ 1404(a) and 2241(d). (ECF No. 3.) On April 12, 2013, this Court dismissed the Petition without prejudice for failure to name a proper respondent and for failure to allege exhaustion of state court remedies. (ECF No. 6.)
On May 28, 2013, Petitioner filed a First Amended Petition ("FAP"), the currently operative petition. (ECF No. 9.) In his FAP, Petitioner alleges: (1) due process violations by the trial court's exclusion of a witness from Petitioner's trial, (ECF No. 9 at 7-9); (2) a Sixth Amendment confrontation clause violation in the trial court's failure to allow Petitioner to cross-examine the witness, (id. at 10-12); (3) a due process violation based on violation of Petitioner's right to speedy trial, (id. at 13); and (4) ineffective assistance of trial and appellate counsel. (Id. at 14-19.)
On October 31, 2013, Respondent filed an answer to the FAP. (ECF No. 19.) On December 10, 2013, Petitioner filed his Traverse. (ECF No. 22.) On December 20, 2013, the Magistrate Judge submitted the Original R&R which recommended that the Petition be denied. (ECF No. 23.) On January 6, 2014, Petitioner filed a Supplemental Traverse, (ECF No. 25), and on January 16, 2014, Petitioner filed objections to the Original R&R ("Objections"). (ECF No. 26.) On January 28, 2014, after fully considering the Supplemental Traverse and Objections, the Magistrate Judge issued the Amended R&R, again recommending this Court deny Petitioner's FAP and dismiss it with prejudice. (ECF No. 27.) The Magistrate Judge found that Petitioner's Objections, although filed in response to the Original R&R, are pertinent to the review of the Amended R&R before this Court because the Amended R&R arrived at the same findings and is based on largely the same analysis as the Original R&R. (Id. at 14.) In addition, the Magistrate Judge ...