United States District Court, C.D. California
For Aaron Robert McIntosh, Petitioner: Anthony D Zinnanti, LEAD ATTORNEY, Law Offices of Anthony D Zinnanti, Valencia, CA.
For John N. Katavich, in his capacity as Warden of Wasco State Prison, Respondent: Scott A Taryle, CAAG - Office of Attorney General, Supervising Deputy Attorney General, Los Angeles, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
FREDERICK F. MUMM, United States Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Christina A. Snyder, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California. For the reasons discussed below, it is recommended that the petition be denied and the action be dismissed with prejudice.
Petitioner, Aaron Robert McIntosh (" Petitioner"), a state prisoner in the custody of the California Department of Corrections who is represented by counsel, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (" Petition") on June 20, 2014. Thereafter, on August 14, 2014, respondent filed an answer to the Petition. On September 22, 2014, Petitioner filed a reply. The matter, thus, stands submitted and ready for decision.
II. PROCEDURAL HISTORY
Petitioner was convicted by a Ventura Country Superior Court jury of street terrorism and unlawful driving or taking of a vehicle. (Cal. Penal Code § 186.22(a); Cal. Veh. Code § 10851(a)). (Lodged Doc. No 7.) The jury also found true the allegation that Petitioner committed the crime to benefit a criminal street gang. In a bifurcated trial, the trial court found that Petitioner committed the crime while on bail in another case and that he had served three prior prison terms (Cal. Penal Code § § 186.22(b), 12022.1, 667.5). (Id.) He was, thereafter, sentenced to twelve years in state prison. (Id.)
Petitioner then appealed his conviction. On June 6, 2013, the California Court of Appeal filed an unpublished opinion in which it affirmed Petitioner's conviction. Petitioner subsequently filed a petition for review in the California Supreme Court, which summarily denied the petition.
Petitioner then initiated this action.
III. FACTUAL BACKGROUND
The following facts were taken verbatim from the California Court of Appeal's opinion affirming Petitioner's conviction:
James David Ivans, Jr. became a " full-patch" member of the Ventura chapter of the Hells Angels motorcycle gang in 2006, after having served as a " hang around" and " prospect" for several years. [Petitioner] was also a " full-patch" and " filthy few" member of the Ventura chapter, i.e., he committed violent crimes on behalf of the gang.
Ivans rode a Harley-Davidson motorcycle that had belonged to his father. Ivans's father, a member of a motorcycle club associated with the Hells Angels, died in a motorcycle accident. Tron Elliott, a motorcycle repair shop owner, rebuilt the motorcycle for Ivans. Ivans described his relationship with Elliott as " best friends." Based upon an understanding with Elliott, Ivans transferred title to the motorcycle to him by a vehicle title document (" pink slip"). Ivans did this because he could not afford to pay Elliott for the repairs. He also intended to protect the motorcycle from ...