United States District Court, C.D. California, Southern Division
Jesus Soto, Petitioner, Pro se, Imperial, CA.
For Greg Lewis, Warden, Respondent: Kamala D. Harris, LEAD ATTORNEY, Attn: Chief, Criminal Division, San Diego, CA; Kevin R Vienna, LEAD ATTORNEY, Angela M Borzachillo, CAAG - Office of Attorney General, California Department of Justice, San Diego, CA.
DOUGLAS F. McCORMICK, United States Magistrate Judge.
Final Report and Recommendation of United States Magistrate Judge
This Final Report and Recommendation is submitted to the Honorable Dean D. Pregerson, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On October 22, 2013, Petitioner Jesus Soto (" Petitioner") constructively filed the underlying Petition for Writ of Habeas Corpus by a Person in State Custody, alleging eight grounds for habeas relief. Dkt. 1 (" Petition"). On the same day, Petitioner filed a motion seeking a stay, under Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), in order to exhaust his unexhausted claims in state court.
The Petition presents the following eight claims for relief:
1. The evidence was insufficient to support Petitioner's convictions because he acted in self-defense (" Ground One"). Petition at 10.
2. The evidence was insufficient to support the attempted murder convictions because there was no evidence of Petitioner's intent to kill (" Ground Two").
3. Petitioner's attempted murder conviction should be reduced to attempted voluntary manslaughter because there was evidence that he was acting in the heat of passion or with the unreasonable belief in the need for selfdefense (" Ground Three").
4. Trial counsel provided ineffective assistance by failing to present evidence of Petitioner's mental state to support a theory of self-defense. Petitioner also claims that counsel was ineffective for failing to advise Petitioner of his constitutional right to testify (" Ground Four"). Id. at 11.
5. Trial counsel provided ineffective assistance by failing to object to improper and incomplete jury instructions (" Ground Five").
6. Petitioner was denied his Fifth, Sixth, and Fourteenth Amendment rights to a fair trial, due process, and the right to be present at all critical stages of trial when the trial court failed to play a tape of Petitioner's interview with a detective. In addition, trial counsel provided ineffective assistance by failing to object (" Ground Six").
7. Appellate counsel provided ineffective assistance of counsel (" Ground Seven"). Id. at 12.
8. Petitioner was denied his Fifth and Sixth Amendment rights to due process and a fair trial by the admission of prejudicial evidence of his prior conviction. In addition, appellate counsel was ineffective for failing to exhaust this issue in the California Supreme Court (" Ground Eight").
On February 24, 2014, the Court found that Petitioner was not entitled to a stay under Rhines because he failed to demonstrate good cause for his failure to first exhaust his claims in state court. Dkt. 14 at 1-2. Noting that Grounds Four, Five, Six, and Eight were found time-barred by the state courts, the Court granted Petitioner a stay pursuant to Kelly v. Small, 315 F.3d 1063, 1070 (9th Cir. 2003), with regard to Ground Seven. Id. at 3. The Court ordered Petitioner to withdraw all of his unexhausted claims and file a petition in the California Supreme Court presenting any unexhausted claims. Id. at 4.
On March 2, 2014, Petitioner presented Grounds Four through Eight to the California Supreme Court by filing a petition for writ of habeas. See Respondent's Notice of Lodging, Lodged Documents (" LD") 13. The California Supreme Court summarily denied Petitioner's state habeas petition on July 9, 2014. LD 14. On July 10, 2014, the Court vacated the stay and ordered Respondent to respond to the Petition. Dkt. 17.
On August 1, 2014, Petitioner filed a Motion to Amend the Petition to add the newly exhausted claims and lodged a proposed First Amended Complaint. Dkt. 18 (" Motion"). On September 12, 2014, Respondent filed a " Response" to Petitioner's motion to amend the Petition, arguing that Petitioner's newly-exhausted claims were time-barred and do not ...