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Moore v. Muniz

United States District Court, C.D. California

May 11, 2017

DAVON WESTLEY MOORE, Petitioner,
v.
W.L. MUNIZ, Warden, Respondent.

          ORDER TO SHOW WHY HABEAS PETITION SHOULD NOT BE DISMISSED AS MIXED

          KAREN E. SCOTT UNITED STATES MAGISTRATE JUDGE

         On April 4, 2017, Petitioner Davon Westley Moore constructively filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. 1 [“Petition”] at 9.[1]) The Court has screened this Petition consistent with its authority under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, which provides that a petition “must” be summarily dismissed “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court[.]” For the reasons discussed below, the Court orders Petitioner to show cause why the Petition should not be dismissed as mixed.

         I. BACKGROUND

         A. State Court Proceedings.

         A jury in the Los Angeles Superior Court convicted Petitioner of first degree murder and found that the murder was committed during the course of a robbery and a burglary, and that Petitioner personally used a knife in the commission of the killing. Petitioner was sentenced to life in prison without the possibility of parole plus one year. (Petition at 3 ¶ 1, 67.)

         Petitioner appealed to the California Court of Appeal in case no. B260801. The California Court of Appeal affirmed his conviction in a written opinion. (Petition at 65-73.) See also People v. Moore, 2015 Cal.App. Unpub. LEXIS 8934 (Cal.Ct.App. Dec. 9, 2015). Petitioner then filed a petition for review in the California Supreme Court, case no. S231249. (Petition at 32-64.) The petition was denied on February 24, 2016. (Id. at 74.)

         Petitioner states that he did not file any habeas petitions in the California courts with respect to this conviction. (Id. at 4 ¶ 6.) The instant federal Petition was constructively filed on April 4, 2017. (Id. at 9.)

         B. Claims Raised in Federal Habeas Petition.

         When describing the grounds for relief in ¶ 8 of the Petition, Petitioner states “See Appendix.” (Dkt. 1 at 6-7 ¶ 8.) The Court interprets this as incorporating the grounds raised in the attached petition for review that Petitioner filed in the California Supreme Court. (Id. at 34.) Reading both in conjunction, the Court interprets Petitioner's federal Petition as raising the following three grounds for relief:

Ground One: The state trial court prejudicially erred when it failed to instruct the jury that Petitioner's co-defendant, Sabrina King, was an accomplice as a matter of law and that her testimony should be viewed with caution.
Ground Two: The jury instructions given by the state trial court allowed the jury to convict Petitioner under an erroneous theory of guilt (murder by lying in wait), and there is no basis upon which to say his conviction is based on a valid legal ground.
Ground Three: Petitioner's Confrontation Clause rights were violated when a testifying pathologist recounted the opinion of a non-testifying pathologist as to the cause of death.

(Dkt. 1 at 6-7, 34.)

         II.

         ANALYSIS

         A. Ground One Does Not Allege a Violation ...


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