Quijano v. Johnson

          Present: Karen L. Stevenson, United States Magistrate Judge

          PROCEEDINGS: (IN CHAMBERS) ORDER TO SHOW CAUSE RE: DISMISSAL

          The Honorable: Karen L. Stevenson, United States Magistrate Judge

         I. Background

         On February 7, 2014, Petitioner filed a Petition for Writ of Habeas Corpus by Person in State Custody pursuant to 28 U.S.C. § 2254. (Dkt. No. 3.) On June 9, 2015, Respondent filed a Motion to Dismiss the Petition for Writ of Habeas Corpus on the grounds that the Petition is "mixed" and subject to dismissal because: Grounds Five through Nine and part of Ground Ten were not properly exhausted; and Grounds Five through Seven are procedurally defaulted. (Dkt. No. 17.)

         On December 7, 2015, Petitioner requested leave to file a motion to amend the Petition before being required to file an opposition to the Motion to Dismiss. (See Dkt. No. 35.) On December 8, 2015, the Court granted Petitioner's request and, pursuant to Petitioner's request, ordered Petitioner to file a motion for stay-and-abeyance "within 14 days of [any] order granting the motion to amend." (Dkt. No. 36; see also Dkt. No. 46 ("If amendment is granted, Petitioner will seek a stay while she exhausts the newly asserted claims.").)

         On April 18, 2016, Petitioner filed both a motion to amend and her Opposition to the Motion to Dismiss. (Dkt. Nos. 45, 46.) On May 18, 2016, the Court granted Petitioner's motion to amend. (Dkt. No. 52.)

         II. The First Amended Petition

         The First Amended Petition presents the following twelve grounds for relief:

         Ground One: Petitioner argues that the trial court should have instructed the jury that it was not permitted to consider convicting Petitioner of aggravated assault, instead of first degree murder. (See Petition at 5; see also Lodg. No. 3.)

         Ground Two: In issuing CALCRIM 400, the trial court misstated the elements of aiding and abetting. (See Petition at 5-6; see also Lodg. No. 3.)

         Ground Three: The trial court violated due process by failing to issue CALCRIM 640 regarding the jury's consideration of second degree murder if it found Petitioner not guilty of first degree murder. (See Petition at 6; see also Lodg. No. 3.)

         Ground Four: The trial court erred in instructing the jury on financial gain murder because Petitioner did not have or provide a financial incentive for the murder. (Petition at 6; see also Lodg. No. 3.)

         Ground Five: The trial court exhibited judicial bias by allowing the prosecutor to introduce evidence of an accomplice's confession without providing Petitioner with an opportunity for cross-examination, admonishing the defense attorney in front of the jury, and allowing the admission of "multilayers of hearsay." (Petition at 6; see also Lodg. No. 8.)

         Ground Six: The prosecutor committed misconduct during closing arguments. ...